ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001799

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 30/09/2016

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant referred to three main issues:

Issue 1:

The Complainants working hours should have been reduced by only 10 hours and not by 11 hours. The 26% overall reduction in hours per employee has negatively affected the Complainant. The initial calculation of the reduced working hours, the Complainant states, was incorrect at 11 hours. This, according to the Complainant, should have been 10 hours when the calculation is rounded up. The calculation of weekly working hours was based on the total hours worked by the Complainant in 2014.

On 12 December 2015 a staff meeting was held. The Complainant could not attend this meeting due to work requirements. The following day the Complainant was issued with a letter stating that the Company was making them aware of the current local services deficit and that there was a need to reduce costs while maintaining current service. On 6 February 2015 the Complainant received a letter from the Regional Manager [RM1] stating that her weekly hours were cut to a 29 hour working week from what the Respondent calculated the Complainants weekly hours as 39.8 per week. The Complainant states she was employed for a 40 hour week. When calculated 26% of 39.8 should work out at 10.348 which rounds to 10.35. In turn 10.35 rounds down to 10 hours. The Complainant states she should have been reduced to 30 hours a week not 29 hours a week. There was 27.5% cut from the Complainants hours when 11 hours were taken from her 40 hour week.

The Complainant made LM1 aware of this issue on 9 March 2015. When The Complainant made LM1 aware of the calculations of her working hours she was informed to contact HR3. The Complainant emailed HR3 about her case on 30 April 2015 but did not get any reply. The Complainant sent a second email to HR3 in regards to the same issue on 7 May 2015 and did not receive any reply. The Complainant sent a third email to HR3 in regards to the same issue on 11 May 2015. The Complainant received an email response from HR3 on 13 May 2015. The email stated how they had calculated the hour correctly and that The Complainant was wrong. The Complainant responded by email to HR3 on 13 May 2015. The Complainant expressed her concern about the matter and stated that they could not round figures where it suited them. The Complainant stated that if they wanted to round to a whole number, they must have a whole number to start with.

Issue 2:

Additional six hours that were redistributed to all staff members should have been done on a pro-rata basis and not redistributed 1 hour each staff member.

Employee 5 [EE5], an employee within the Respondent worked a 32.5 hour week and reduced her working hours to 22 hours on her own accord which meant she worked 3 days a week. Employee 6 [EE6] and Employee 7 [EE7] had been employed for just over 12 months before the cuts were announced and were employed under different contracts. EE7 was not given any hours and was placed on a relief contract where he would be contacted if needed to work. EE6 decided to take the voluntary redundancy. This left EE 6’s 11 working hours to be replaced after the cuts had taken place. EE7 was given 5 of EE6’s working hours. The remaining 6 hours left from EE6’s hours were to be divided equally between the remainder of the staff. Pro rata redistribution did not come into effect.

Issue 3:

Compared to the Complainant the other staff members were getting more additional hours to cover absence such as sick leave and annual leave and as a result the Complainant was discriminated against.

In May 2015 a staff member had left and the Respondent had hours which were to be given back. HR decided to give these hours back equally by giving each staff member an hour back. Pro rata did not come into effect. The Complainant stated that some members of staff who had only lost 2 or 3 hours were given back an hour, whereas the Complainant lost 11 hours and felt hours were given back unfairly.

In June 2015 EE4 went out on long term illness and the hours [20 hours a week] were replaced by giving staff overtime. Overtime was distributed mostly to people who had lost the least hours when the cuts took place. This resulted in certain staff members working more hours than they were every employed to work before the redundancy came into effect.

The Complainant sent a letter to RM2 [Acting Manager] on the 21 May 2015 stating that the Complainant felt discriminated against and victimised by the way HR had handled the situation. The Complainant attended the meeting with RM2 on 11 June 2015. The Complainant received a letter from RM2 7 on July 2015 stating that the Respondent was correct in their calculations. The Complainant attended an appeal meeting with HR4 on the 13 August 2015. On the 3 September 2015 the Complainant received the findings of the appeal stating that the reduction in her working hours had been correct. The letter stated that the Complainant had been put back up to a 38 hour working week as overtime should have been on a percentage basis rather than on a fairly basis.

After the appeal meeting with HR4, the rota changed in regards to the distribution of overtime hours.

In March 2016 RM1 returned back to work and LM1 spoke to her about the matter. RM1 approached the Complainant and the Complainant outlined her concerns about the issue from the very beginning.

On the 23 March 2016 the Complainant received a letter from RM1 stating that the calculations of her working hours had been wrong. The letter stated that the Complainant hours of work should have been calculated at 40 hours a week rather than 38.9 hours per week. The letter stated that 26% of 40 was 29.6 and it was decided to round to the nearest half hour this time. It stated that her new working week would consist of 38.5 hours, 9 of those hours would be from the distribution of overtime. Also stated in the letter was that the society would backpay the Complainant to 9 March 2015 for the half hour which was given back to her. On 5 April 2016 the Complainant received a letter from RM1 which stated that she would not be rounding the hours. It stated that the Complainant could work 38.6 hours, 38 hours and 36 minutes. RM1 again offered back pay for the 36 minutes she had lost from 9 March 2015.

On 7 July 2016 EE1 was getting half an hour more than she was ever contracted to work as she voluntarily reduced her working hours to 22 a week. On 26 August 2016 EE7 ended his employment. He had been employed for 5 hours by the Company. The Complainant questioned LM2 where EE1’s 2.5 hours and EE7’s 5 hours were going to be distributed. LM2 advised the Complainant that the Respondent was to keep the hours. The Complainant stated that a staff member was getting an hour out of the hours that were being handed back. When the Complainant looked back over her figures she realised that she had made a mistake that is was in fact a half an hour which was given to EE2. This half an hour was given to her from EE1’s 2.5 hours which were handed back.

The Complainant would like to be reinstated into her original working week of 40 hours.

Respondent’s Submission and Presentation:

The Respondent Company is a national no for Profit Company who provide specific services and supports in addition to advocating for the rights and needs of all people living with dementia.

The Respondent states that the Complainant commenced employment on October 1^st 2010 as a Carer.

As a result of budget deficits the Respondent engaged with the Complainant to agree a reduction of hours. The Respondent states that Complainant was unhappy as a result of her reduced hours and invoked the internal Grievance Procedure on the 21 May 2015. A Grievance meeting was held on 11 June 2015. According to the Respondent, the Complainant alleged she had been discriminated three times but no specifics were mentioned nor any complaint of discrimination made.

The Respondent stated that the Complainants Grievance was not upheld and no discrimination was found to have taken place. The Complainant appealed the outcome of the Grievance and an Appeal Meeting was held on the 19 August 2015. The delay is attributed to the certified sick leave of the Complainant. The Complainant was represented by SIPUT and no allegation of discrimination was made. The outcome of the Appeal Meeting was to redistribute relief hours subject to operational requirements. On the 9 September 2015 the Complainant wrote to the Respondent Company confirming she intended to appeal her grievance to the Rights Commissioner.

The Respondent received notification of a WRC case on the 10 February 2016 and further sought to engage with the Complainant internally. The Respondent states that the Workplace Relations complaint form was the first indication they received to note discrimination had occurred in relation to the reduction of the Complainants hours of work.

The Respondent stated that the Complainant has not specified which provision of which agreement is discriminatory within the meanings of the Act. In addition, the Respondent states that no comparator has been noted. The Respondent states that the Complainant has not provided sufficient information for us to rebut her claim.

The Respondent states that the Complainants case is misconceived and that she is attempting to deal with industrial relations issues under the equality legislation.

The Respondent states that it is prepared to continue to engage with the Complainant on the issue of hours but refutes any claim of discrimination in any way against the Complainant or any other employee.

The Respondent requests that the claim deemed without merit and in future the Complainant engage with the Respondent under the IR procedures.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

The Complainant is looking for reinstatement of her original hours of work that she was party to in advance of February 2015.

Legislation involved and requirements of legislation:

The Complainant has taken a case under Section 86 of the Employment Equality Acts, 1998. Section 86 is set out below.

6. If the Authority or a person who is affected by a collective agreement claims that a provision of that agreement is null and void by virtue of section 9, the Authority or that person may refer the question of that agreement to the Director; and in this section (and section 87) the Authority or the person making such a reference is referred to as “the complainant”.

(2) For the purposes of this section (and section 87)—

(a) The expression “collective agreement” shall be taken to include an order or agreement falling within paragraph (b) or (c) of section 9 (3),

(b) a person is affected by a collective agreement if that person is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement (or any part of it), and

(c) “The respondents” means the parties to the agreement, other than (where relevant) the complainant.

(3) Subject to subsection (4), where a collective agreement is referred to the Director under this section, the Director shall consider whether the question of the possible nullity of a provision of the agreement appears to be one which could be resolved by mediation and—

(a) if the Director considers that the question could be so resolved, the Director shall refer the agreement to an equality mediation officer for mediation in accordance with section 87 , and

(b) if the Director considers that the question could not be so resolved, the Director shall proceed in accordance with paragraph (b) or (c) of subsection (4).

(4) If the complainant or the respondents object to a reference under subsection (3)(a) (or if section 78 (7) applies in accordance with subsection (6)) the Director—

(a) shall not exercise the powers under subsection (3)(a),

(b) shall investigate the agreement and, for that purpose, hear all persons appearing to the Director to be interested and desiring to be heard, and

(c) shall issue a decision in accordance with section 87 ,

and subsections (3) and (4) of section 79 shall apply in relation to an investigation by the Director under this subsection as they apply in relation to an investigation by the Director under that section.

(5) Mediation under subsection (3) or an investigation under subsection (4) shall be conducted in private.

(6) Where a collective agreement is referred for mediation under subsection (3), subsections (5) to (7) of section 78 shall apply as they apply where a case which has been referred to an equality mediation officer under section 78 (1) but, for the purpose of that application—

(a) References in those subsections to the complainant and the respondent shall be construed as references to the complainant and the respondents, within the meaning of this section, and

(b) Section 78 (7) shall have effect as if, for the words following paragraph (c) thereof, there were substituted “the Director shall investigate the matter of the agreement under section 86 (4)”.

Decision:

The legislation, Section 86 of the Employment Equality Acts, 1998 as set out above refers to a collective agreement. I am of the belief that the legislation Section 86 as set out above refers solely to a collective agreement and refers to Section 9 to confirm what a collective agreement refers to:

(3) This section applies to the following agreements and orders, whether made before or after the coming into operation of this section:

(a) Collective agreements;

(b) Employment regulation orders, within the meaning of Part IV of the Industrial Relations Act, 1946; and

(c) Registered employment agreements, within the meaning of Part III of that Act.

For a claim to succeed under Section 86 the Complainant must show that in accordance with Section 9 (2) highlighted above that discrimination occurred as a result of the implementation of the collective agreement.

In this claim the complainant has not adduced any evidence that would give rise to an inference of discrimination and she has therefore failed to establish a prima facie case.

I conclude this investigation and issue the following decision that the Complainant has not established a prima facie case on the ground of discrimination therefore because the Complainant in this case has not reached the necessary burden of proof to confirm her claim is well founded.

Dated:   16^th December 2016