ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003179

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

Date of Adjudication Hearing: 31/08/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act, 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 evidence relevant to the dispute.

Complainant’s Submission and Presentation:

The complainant commenced employment in 1993 working 37 hours per week. Since 2003 she has had a reduced working week arrangement in place due to her childcare and family circumstances. Following a career break she returned to work in February 2008 by agreement on 18 hours per week. In March 2010 the complainant took another career break until March 2011. On her return she was advised of the requirement to work 37 hours per week. However, she was opposed to this and the Board accepted her return on the previous 18 hour per week arrangement. She was told that from December 2012 she would be required to make a written request to the Board to retain her 18 hours per week arrangement. She continued to work 18 hours per week until November 2015 without any apparent difficulty. On 17^th November 2015 she overheard a conversation in her manager’s office during which her conditions of employment were being discussed and that a decision was being made to increase her working hours to 37 per week. Some days later a caretaker said to her that she was going on a five day week. She was shocked that her conditions of employment appeared now to be common knowledge without any member of management speaking to her about the proposed change.

When the complainant raised the matter with Ms AK, the Manager, she apologised to her and said no decision had been made on the issue of hours.

On 4^th December the respondent received a letter signed by Mr McL, Planning and Development Committee, and dated 3^rd December stating that;

…the operational model has grown significantly over the past year with the transfer of engagements together with the increased regulatory, risk and compliance requirements imposed by the central bank. Following the transfer of AC Union in 2016 we will be an organisation with €176 million in assets, operating 5 branch offices over a wide geographical area and serving approx. 30,000 members.

With this in mind we are conscious of our responsibility to ensure that appropriate operational resources are applied to the business as a whole given the revised nature scale and complexity of the operational model. The finance function is core to the operations of the credit union and supports both the strategic and risk and compliance policies of the board.

Therefore going forward we would see the position of Senior Clerical Officer being a full time position (37 hour/5 day week). We are however mindful of balancing your needs with those of the credit union and in that context we can offer you for 2016 a 4 day week being Monday, Tuesday, Wednesday, Thursday. The hours will be 9.00a.m. to 3.00.pm.

Please note this arrangement will apply for 2016 only as we would expect the position to move to full time hours in January 2017.

We trust that you will find the above reasonable in the circumstances, however should you have any queries please do not hesitate to contact AK directly.

The complainant became further stressed by the letter and attended her doctor who certified her sick for a week. However, she realised that her health would not improve until she addressed the root cause of her illness and she met with Ms AK on 15^th December to discuss the matter. Ms AK undertook to look at her concerns and said the letter issued was a proposal. On 16^th December Ms AK asked the complainant to respond to the letter of 3rd December.

The complainant went on sick leave and a number of meetings and exchange of correspondence took place regarding possible options, however, no agreement was reached. On 13^th May Siptu advised the respondent that the complainant would return to work on 16^th May and work 24 hours per week under protest until the matter could be adjudicated. The complainant was prevented from returning to work until she had been assessed by Occupational Health. An initial report indicated that the complainant was fit to resume. However, before allowing the complainant to return, the respondent raised further questions with the Occupational Health consultant, meaning that she could not return until 25^th May.

The claimant has established custom and practice over a period of 13 years where she has worked reduced hours and since 2012 she has worked the same three days per week. She is not aware of any additional work in her area which would necessitate the increase in hours. She believes that there was no attempt to explore alternative options and she believes that other staff working part time were not approached to see if they could increase their hours.

Respondent’s Submission and Presentation:

The complainant’s original contract was for 37 hours per week. The concessional arrangement had been in place for a number of years subject to an annual application for continuation from the employee. The reasons for the change to full time work were operational and outlined in the letter of 3^rd December 2015. The tasks assigned to the complainant are ‘end to end’ in nature and do not lend themselves to job sharing. An example of this is Bank Reconciliation which is hard to hand over to someone else. This claim is confined to the question of hours of work and the respondent had the absolute right to return the complainant to her original hours.

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 13 of the Industrial Relations Act 1969 requires me to make a recommendation in relation to the dispute.

Issues for Decision:

The original complaint referred to me for recommendation referred only to the question of hours of work. Problems regarding confidentiality and sick leave procedures were raised at the hearing. As these latter issues did not form part of the original complaint I will not recommend in relation to them.

Conclusions:

The respondent has in place a comprehensive procedural agreement, reached most recently with Siptu in 2012, which deals with a wide range of work related issues including a part-time working policy. While this policy is silent on the question of annual application for the continuation of part time work I note that, in practice, employees have made an annual application for the renewal of any such arrangement. The policy also states explicitly that the Credit Union’s policy on part time work adheres to the principles of the Labour Relations Commission’s Coe of Practice on Access to PRT-Time Working.

This Code of Practice states

The Code seeks to:

Encourage best practice and conformity with the provisions of the Employment Equality Acts 1998–2004 and the Protection of Employees (Part-Time Work) Act 2001;

Promote the development of policies and procedures to assist employers, employees and their representatives, as appropriate, to improve access to part-time work for those employees who wish to work on a part-time basis

The Code goes on to say;

Best practice recommends that employers assess within their own organisations the possibilities of either introducing part-time working or increasing the range/scope of existing part-time working arrangements. As best practice it is recommended that employers should explore, in consultation with their employees and representatives, as appropriate, the possibility of introducing part-time work opportunities and/or maximise the range of posts as suitable for part-time working at all levels in the organisation, including skilled and managerial positions. A range of objective criteria should be developed to determine the suitability or otherwise of positions for part-time working. Barriers to the introduction of part-time work, at all levels in the organisation, should be identified and considered when an application for part-time work is made or when a vacancy arises. In this regard possible measures on how best to overcome such barriers should be considered.

It is clear from the Code that, as best practice, an employer should actively seek a solution to requests for part-time work. There may of course be occasions on which part-time work may have to be suspended for a period and also there may be a small number of roles, particularly at a more senior level, where it may present particular challenges for the organisation. However, in this case, having regard to the level of the post in question and the job description, I do not believe that adequate consideration has been given to organising the tasks assigned to the role in such a way that they could be shared and/or distributed with another job sharer. I therefore conclude that there is no substantial reason why, either the 18 hour week which the complainant previously worked could not be restored or her amendment to ‘Scenario 2 Option 1’ be implemented.

Recommendation:

I recommend that either of the following be put in place by the respondent with no change in job title or remuneration;

From a current date the 18 hour week which the complainant previously worked should be restored or

The complainant’s amendment to ‘Scenario 2 Option 1’ be implemented with working hours as follows;

Monday               9.00.a.m to 3.30.p.m

Tuesday               9.00.a.m to 3.30.p.m

Thursday             9.00.a.m to 2.00.p.m

Dated:   3^rd November 2016