ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00002468
| Worker | Employer |
Anonymised Parties | Cleaner | Employer |
Representatives | John O’Sullivan John O’Sullivan SIPTU | Yvonne Fountain, IR Business Partner Jean Darcy, IR Business Partner |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00002468 | 10/04/2024 |
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Date of Hearing: 24/10/2024
Procedure:
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission, the said Director General will then refer such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral testimony of the parties and their witnesses and will also take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
A Trade Dispute in this context will include any dispute between an employer and a worker which is connected with the employment or the non-employment, or with the terms and conditions relating to and/or affecting the employment of any person.
I have confirmed that the Complainant herein is a Worker within the meaning of the Acts, and I have conducted an investigation into the said trade dispute as described in Section 13. It is noted that Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties on foot of any investigation so conducted. In making such recommendations, I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. Any consideration on the merits of the dispute will include an examination of the efforts made by the parties to exhaust any and all internal procedures or structures which ought to have been utilised before bringing the dispute to the attention of the WRC.
In effect, Section 13 reads where a trade dispute exists or is understood to exist and involves a worker or workers then a party to the dispute may refer it to the WRC. The WRC will not deal with disputes connected with
- rates of pay of a body of workers,
- the hours or times of work of a body of workers
- or the annual holidays of a body of workers.
The Adjudicator must avoid making a recommendation which has a collective impact on a body of workers.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021). Whilst the hearing was conducted in recognition of the fact that the proceedings constitute an administration of Justice it was not open to members of the public as these hearings are held in Camera. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 10th of April 2024. The IR dispute raised reads as follows:- “Since moving from part time employment into full time employment with the named respondent and despite my new full time employment contract stating "Your current Terms & Conditions will remain unchanged" my employer has paid me a lesser payment for Public Holidays than when I was on a part time contract with them.”
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Summary of Workers Case:
The Complainant was fully represented. The Complainant was represented by a member of SIPTU. At the outset the Complainant agreed to make an Affirmation to tell the truth and this was appropriate for the Payment of Wages claim. I was provided with a comprehensive submission dated the 15th of August 2024. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant and was challenged as appropriate by the Respondent’s Representative. The Complainant is seeking a recommendation that his entitlement to a certain level of remuneration for Public Holidays should be preserved and in effect be “red-circled” . The case law presented in the submission reads: We refer to The Labour Court in Wicklow County Council v SIPTU (CD/18/81) which states in their recommendation, “Having considered the submissions made by both sides, the Court is of the view that those employees employed in Bray Town Council prior to its amalgamation in 2013 who were in receipt of double time payments for public holiday overtime hours worked should have this method of payment “red circled” i.e. they should on a personal basis retain the right to be paid double time for the hours worked if they so wish where they are required by Management to work on a public holiday. Other employees should continue to receive paid time off in lieu in addition to basic pay for hours worked and the paid day in respect of the statutory entitlement.” Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Employer’s Case:
The Respondent entity was represented by two HR/IR Managers. The Respondent provided me with a written submissions dated 22nd of October 2024. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case The Respondent rejects that there has been any unlawful deduction and rejects the entitlement of the Complainant to be red-circled moving forward. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Conclusions:
The complainant commenced his employment in 2016. He worked initially on a permanent part-time Contract of 27 hours over each weekend. He worked three nine-hour shifts as I understand it. I understand that at that time the Complainant was compensated for Public Holidays as follows: If the Plaintiff worked his normal shifts in a week when there was a public holiday, but where he did not work on the actual public holiday, the Complainant would get 20% of the hours he worked in either extra pay or time off in lieu. In effect this meant that the Complainant got an extras 5.5 hours over and above his regular pay.
If the Complainant happened to work on the day of a Bank Holiday, he would get 20% of his weekly hours at a double rate of pay. This meant that for every weekend that included a Bank Holiday the Complainant received 11 hours of extra pay or time in lieu.
The Complainant subsequently moved to a permanent full-time position. He now worked a 40-hour week and moved from T 1 to T 2. The Complainant was advised that his Terms and conditions of Employment would remain the same.
The Contract of Employment initially received in 2017 was updated by a letter of the 29th of September 2023 which was opened to me. The Letter confirms to the Complainant that: "Your current Terms & Conditions will remain unchanged"
It seems to me that it is appropriate that the parties should therefore consider themselves bound by the Contractual terms and conditions which pertained before the increase in hours/ full time position was offered. Whilst most of these terms and conditions are available in the printed Contract of Employment, some will be implied by reason of how things had operated heretofore. It was open to the Respondent at that time to clarify if there was going to be as significant change in how calculations were going to be performed.
In particular, it seems appropriate that the Complainant might assume that the operation of the Public Holiday payments which the Complainant had received up to the point when the Complainant moved to a 40-hour week Contract, would subsist.
As it happens the calculations around the Public Holiday pay differed somewhat from those enjoyed by the Complainant previously.
The Respondent has explained that when the Complainant was working under the 27 hour Contract he was working in an area which had the benefit of a local arrangement which they say did not move with him to the new position in the new area and under a 40 hour Contract. I understand that the move from T 1 to T 2 is noteworthy here.
It seems to be agreed that the Complainant was not made aware of the changes in the approach being taken for the purpose of calculating Public Holiday payments. I understand that the compensation for Bank Holidays not actually worked is not in issue. The difference appears to be the compensation now payable if the Complainant does work on a Bank Holiday. Ther Complainant has made the case that he was getting paid up to five hours less per worked Bank Holiday as he would have been getting paid under the old arrangement.
Aggrieved at the unilateral change in his terms and conditions and in the financial shortfall, the Complainant lodged a complaint on the 10th of April 2024. There are therefore six Bank Holidays under consideration given the six-month cognisable period. Of these three were worked.
In effect the Complainant says the Respondent has made an unlawful deduction. I agree that there has been a deduction, and my decision includes a direction to the Employer to pay compensation. I am aware that the parties may opt to operate a time in lieu option instead and that may be discussed as between them.
I am not however minded to make any recommendation in circumstances where I am not satisfied that the matter is capable of being “red-circled” and might in fact have a collective impact on a body of workers. The matters at hand are inextricably linked to the rates of pay applicable in the workplace. It is not clear to me that this matter has been exhausted internally.
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Recommendation:
Having already articulated my opinion on the merits of the within dispute, I am recommending that no change be made by an Adjudicating Officer at this time in circumstances where a decision under the Payment of Wages legislation needs to be considered.
Dated: 15th of January 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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