ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000682
Parties:
| Worker | Employer |
Anonymised Parties | Community Swabber | Health Services Provider |
Representatives | Joanna Ozdarska SIPTU | Valerie Madigan |
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 - 00000682 | 15/09/2022 |
Workplace Relations Commission Adjudication Officer: Maria Kelly
Date of Hearing: 21/04/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The employee was employed as a community swabber in the Covid 19 test centre at Clonskeagh. He initially worked a 39-hour week. His contract commenced on 30 November 2020 and was extended to 30 June 2022. By mutual agreement the employee’s hours were reduced to 24 hours per week and subsequently, in April 2022, reduced again to 8 hours (one day) per week. On 26 May 2022 the employer requested expressions of interest from community swabbers wishing to continue to work beyond 30 June 2022. The employee sent an expression of interest on 31 May 2022, but it was not considered as it was received after the deadline for applications. The employee claims the decision not to consider his expression of interest was grossly unfair due to the short notice period for applications and the fact he was out of the country on annual leave when the notice was sent. He claims compensation for his loss of earnings. The employer rejects the allegation that the employee was treated unfairly. The employer asserts that all employees were treated equally and the deadline for expressions of interest applied to all employees. |
Summary of Workers Case:
The employee responded to a national recruitment campaign to recruit swabbers for the Covid 19 test centres. He was employed initially on a fixed-term contract from 30 November 2020 to 29 November 2021. The contract was later extended to 30 June 2022. The employee was initially contracted to work a 39-hour week, this was subsequently reduced to 24 hours and later to 8 hours (one day) per week. On Thursday 26 May 2022 at 2.31pm the employer sent a communication by email and WhatsApp to community swabbers in the CHO 6 locations requesting expressions of interest from those who wished to work beyond 30 June 2022. The communication stated that an expression of interest should be submitted before 12 noon on Monday 30 May 2022. The employee was out of the country on annul leave and was unaware of the closing date for submissions. The employee sent his expression of interest on 31 May 2022. The employee’s expression of interest was not considered as it was received after the closing date specified in the employer’s email. The employee exchanged emails on 02 and 03 June 2022 with the relevant HR personnel concerning the decision not to consider his expression of interest. However, there was no change in the employer’s position. The employee submitted a letter of complaint to the employer on 04 July 2022. He contended the employer had not considered all the circumstances when declining to consider his expression of interest. The employer was aware that he was annual leave. He had the right to disconnect when on annual leave. The notice had been sent to employees on a Thursday afternoon and expressions of interest were to be submitted before 12 noon the following Monday, which was a very short time for submissions. He was working one day per week and regularly missed out on staff communications. The employer responded to the complaint on 28 July 2022. The employer dealt with all the points raised in the letter of complaint and rejected each part of the complaint. The General Manager concluded that she did not deem it appropriate to uphold the grievance. The employee wished to continue in the role of community swabber beyond 30 June 2022. He submitted his expression of interest when he became aware of the request, and it was received by the employer on the day after the deadline. The employee asserts that he was unfairly treated when his expression of interest was not accepted. The swabbing centre closed on 21 November 2022. Had the employee’s expression of interest been considered he could have earned €143.08 per week for 19 weeks. The stated selection process was based on the length of service and if oversubscribed a skills match would be undertaken. Given his length of service, qualifications and experience the employee was confident his contract would have been extended if his expression of interest had been considered. The employee seeks compensation for loss of earnings of €2718.52 (being €143.08 per week for 19 weeks) and PRSI contributions to be paid to the Department of Social Protection for the 19-week period. |
Summary of Employer’s Case:
The employee responded to a national recruitment campaign to recruit swabbers for the various Covid 19 test centres. He was based at the centre in Clonskeagh and commenced employment on 30 November 2020 on a one year fixed-term contract. His contract was extended to 30 June 2022. On 25 May 2022 management and SIPTU reached agreement about the transition of community Covid testing. A document “HR Principles for Transition of Community Testing” was circulated. This provided for the transitioning of Covid 19 testing staff to community posts following the phased scaling down of testing services. Efforts were then underway to identify staff to remain in the Community Testing service until 31 August 2022 and to support community swabber staff with alternative employment opportunities within the organisation. The Clinical Lead for Community Testing met with each staff member in April 2022. The employee indicated that he wanted to reduce his hours and was thinking of leaving. By agreement his hours were reduced to 8 hours per week (one day). When asked about reassignment to another post he stated he was not really interested. On 26 May 2022 at 2.31pm a communication by email was issued to all community swabbers as follows: “Please see the attached document outlining the plan for testing for the summer months and roles available. The roles will be filled based on expression of interest, start date and your skill mix. Expression of interest can be emailed to (email address) or (email address) before 12 noon, Monday 30th May 2022.” The employee did not respond to the above email until Tuesday 31 May 2022. His expression of interest was rejected based on the late application. By letter dated 04 July 2022 the employee submitted a formal complaint under the employer’s Grievance Procedure 2004. He contended that the rejection of his expression of interest was unfair for the following reasons: · The timeframe for expression of interest was too short as it was less than four days, which was a local decision not a national decision. · He was a part-time employee working one day per week and was not in a position to know what was happening in work as he missed the daily morning announcement and briefings. · He was abroad on annual leave when the email was sent, and he did not think it was necessary to check work related emails while on leave. · He had the right to disconnect from work while on annual leave. · The email footer stated “My working day may not match your working day. Please do not feel obliged to reply to this email outside of your normal working hours.” On 28 July the General Manager replied and did not uphold his grievance. · It has been custom and practice at national and local level to shorten the turnaround time for responses to EOIs due to continuous and rapidly evolving service needs. · The employer is fully aware of its obligations to treat full-time and part-time staff equally. When the employee’s hours were reduced, he was asked for his preferred means of communication. It was confirmed that communications through personal email and WhatsApp were acceptable. The employee had responded to communications outside his working hours and there was no reason to doubt that he would not read this correspondence. · It is custom and practice to alert staff who are absent on any type of leave when employment opportunities arise. As staff on leave do not have access to employer’s email they are contacted on private accounts (if that is the agreed method of communication). It is not policy to extend out closing dates for job applications or EOIs based on an employee’s claim they were on leave. · The primary purpose of the Right to Disconnect Policy is the right of an employee to not routinely perform work outside normal working hours. The communication sent was on a private account and was not a request to perform work. · You expressly agreed to be contacted on your personal email and or WhatsApp therefore there was no reason to believe you would not engage with this means of communication. On 30 June 2022, the employee was offered a full-time post for three months in an administrative role. This was not accepted by the employee. The employer requests the claim is not upheld. |
Conclusions:
In conducting my investigation, I have considered all relevant submissions presented to me by the parties.
The employee is a person of wide experience in the emergency services. He responded to a national recruitment campaign to recruit swabbers for Covid 19 test centres. This was challenging work in the circumstances of a global pandemic. He was appointed on a full-time fixed term contract in November 2020. The contract was extended to 30 June 2022. Approaching June 2022, the requirement for community swabbers was reducing. A plan to wind down the centres was developed. The centre closed on 21 November 2022. Agreement was reached with SIPTU on 25 May 2022 about arrangements for the transition of Community Testing. Following that agreement expressions of interest were requested from community swabbers who were interested in working beyond 30 June 2022. The employee’s expression of interest was not considered because it was received after the deadline of 12 noon on Monday 30th May 2022. I note that the request for expressions of interest was sent at 2.31pm on Thursday, 26th May 2022. The deadline for receipt of expressions of interest was 12 noon on Monday 30th May 2022. I accept that the employer may have “rapidly evolving service needs” but the time allowed for submission of expressions of interest seems extremely short, given that it included Saturday and Sunday. I accept that in the interests of fairness and transparency it is not the employer’s policy to extend deadlines or accept applications after the deadline contained in job advertisements or requests for expressions of interest. However, several issues need consideration. · Context – the employer was planning the transition of Community Testing against the background of a pandemic. The community swabbers had performed valuable work in a crises situation and the employer was only seeking to extend the contracts of existing employees for some months. This was not an advertisement to fill a permanent post. · Employee’s circumstances – the employee was working one day per week. The employer must have been aware that the employee was on annual leave. The employee was out of the country when the request for expressions of interest was sent. · Internal complaints procedure – the employee in his email accompanying his expression of interest acknowledged that it was outside the deadline and asked that it be considered. When that request was rejected, the employee submitted a formal letter of complaint. His complaint was not upheld. The employee exhausted the internal process. It is my opinion that the employer did not consider all the relevant circumstances before deciding not to accept the employee’s expression of interest. The fact that the period to submit an expression of interest was very short, including a weekend, together with the employee being on annual leave were grounds for some flexibility in the application of the normal rule in circumstances where this was for a short extension of existing contracts. The selection process for employees to remain beyond 30 June 2022 was to be based on longest service and if oversubscribed then a skills match would be undertaken. Given the employee’s length of service and his experience it is likely that had his expression of interest been considered his contract would have been extended beyond 30 June 2022. There was of course no guarantee that the contract would be extended. If the employer had considered all the relevant circumstances, they could have exercised some flexibility without undermining the normal practice of strict deadlines on applications. My recommendation is made in the context of the specific circumstances applicable to the employee in this dispute. It is not a precedent for flexibility of deadlines in future advertisements or requests for expressions of interest. It is my opinion that the employer did not consider all the relevant circumstances before deciding not to accept the employee’s expression of interest and therefore I recommend the employee is paid compensation in the amount of €1,500. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
My recommendation is made in the context of the specific circumstances applicable to the employee in this dispute. It is not a precedent for flexibility of deadlines in future advertisements or requests for expressions of interest. It is my opinion that the employer did not consider all the relevant circumstances before deciding not to accept the employee’s expression of interest and therefore I recommend the employee is paid compensation in the amount of €1,500.
Dated: 14th March 2024
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Expression of Interest Deadline |