ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00004409

Dispute for Resolution:

Date of Adjudication Hearing: 20th October 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act2015 and Section 13 of the Industrial Relations Act 1969, 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.

Background:

UNITE were in dispute with the Respondent in relation to the Complainant allegedly been denied overtime.

Summary of Trade Union Case:

UNITE said that the Complainant is employed as a Production Operative by the Respondent since January 1996.  

In June 2014, the Complainant was eligible and next in line to be asked to work overtime.   Although the Respondent had a requirement for overtime, she was not offered or asked to work the overtime available as was her expectation and entitlement.   When she raised the issue she was informed that the Respondent fully accepted that she was next in line for overtime and that she should have been asked, but that a genuine mistake and oversight had occurred, which was neither deliberate nor intentional.   The Complainant accepted the Respondents response and explanation in good faith.

UNITE said that again in July 2015, a requirement for overtime arose for which the Complainant was in line for and was entitled to be offered, but again she was not offered the overtime work.   The Complainant raised the matter by way of a formal grievance, but she was not satisfied with the outcome or the Respondent’s or explanation why the situation had occurred for a second time.

UNITE said the Respondent had offered other employees to work the available overtime, which those employees did, but the Respondent failed to offer the overtime to the Complainant although she was eligible and next in line for it.

UNITE said there is no dispute in respect of the Complainant’s eligibility to be offered the overtime in question.   The Complainant accepted in good faith that the first instance could be explained by way of an oversight or a mistake but for it to have happened a second time is completely unacceptable and has excluded her from overtime to the point where she has now been treated unfavourably and has suffered a loss.

UNITE said the Complainant has suffered a quantifiable loss due to the fact that the Respondent have failed to offer her overtime that was available and to which she was entitled to work.

Based on the foregoing and all the facts and circumstances of the case UNITE and the Complainant sought that their claim be upheld and a recommendation to pay the Complainant an amount equal to the value of the overtime not made available to her as compensation for her loss.

UNITE sought a favourable recommendation.

Summary of Respondent’s Position:

The Respondent said that originally the Complainant made a claim of victimisation by them, following two occasions when she was not offered overtime by them on 14^th June 2014 and 17^th August 2015.   The Respondent said they now understand that she seeks the benefit of the overtime not offered on Monday 17^th August 2015.   The Respondent said that the benefit of working the overtime on Monday 17^th August is one day’s holiday in lieu.

The Respondent said that on 14^th June 2014, the Complainant was not offered overtime work in what was an error and at that time the parties accepted that was the case.

Tuesday 4^th to Monday 17^th August 2015 inclusive, were the Respondent’s Annual ‘Shutdown’ and as such were not ‘Normal’ production days.   In one of the manufacturing blocks 3 operatives were required to work from 4^th to Monday 17^th August 2015.   On 30^th July 2015, two days before the Shutdown another named operative along with a different Trade Union Representative approached the Respondent stating that she had the same service as one of the 3 employees assigned the overtime and that Union Representative insisted that she was eligible to work the overtime, the Respondent conceded this and thus brought in an additional person to the planned numbers.   The Respondent said that that employee was not available to work the full Shutdown and as such had no eligibility to work on Monday 17^th August.   The Respondent said that the Complainant’s claim is based on the fact that she had more service than that employee.   The Respondent said that the Complainant was not available to work the full Shutdown and as such she had no eligibility to work on Monday 17^th August.

The Respondent said that in accordance with the dispute mechanism procedures the grievance was heard locally in August 2015, and subsequently at an Appeal Hearing on 1^st December 2015 in the presence of the full-time UNITE Official.   UNITE was written to by the Respondent and that correspondence stated:

“In reviewing the case in 205, the facts agreed by both sides are:

• It has been agreed with the Union that the correct 3 people were originally called in to do the overtime.

• It is now agreed that (the other named employee) should not have been given the overtime.   The error, which was made by both the (other) union and the Company, was that the overall seniority implications were not reviewed before that decision was made.   If they had been reviewed, then this issue would not have arisen.

   

• As (the Complainant’s) name was not raised by either side, clearly no conscious decision wasmade to deprive her of overtime.   Therefore her claim that she was victimised has no substance in fact.

   

• While (the other employee) clearly benefitted from the overtime it does not follow that (the Complainant) suffered any loss, as she was also not entitled to come in for overtime on that date.

   

• Therefore the Company concludes that the case does not stand up and the appeal is rejected”

The Respondent sought that the Adjudicator uphold the above Appeals Decision on the basis that:

1. There was no evidence of victimisation - the Complainant was not eligible to be considered to work on Monday 17^th August 2015.

    

2. The Company only required 3 people for overtime and it is accepted by the Union that the original 3 people offered the overtime were the correct ones.

    

3. The 4^th additional person, surplus to requirements, brought in as a result of the other Union’s representations was an error by both the other Union and the Company.

    

4. The Complainant suffered no loss as she was never entitled to be offered the overtime in the first place and she is now seeking to be advantaged by the error.

Based on the foregoing the Respondent sought that their position be upheld and that the claim be rejected.

Findings and Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Act 1969, requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that there is no suggestion that what occurred in respect of overtime working in July 2015 was an act of deliberate victimisation of the Complainant.   What occurred on that occasion in relation to the offering of overtime to an additional 4^th employee, was an error and mistake on the part of the Respondent and the other Trade Union in the employment, who made vigorous representations to have that employee included in that overtime.   While I accept that the Respondent should have checked out the matter more fully before offering/affording overtime to the other employee, I cannot accept that this in turn means that the benefit of that mistake should now be extended to another employee, namely the Complainant.   I assume that it is not necessary for me to suggest or recommend that the Respondent be more careful in handing such matters in the future.

I cannot accept that because an employee benefitted from a mistake or error made by an employer, that another employee is also entitled to benefit, to suggest such is not logical, not reasonable and is unfair to an employer - and I have no doubt that if the position were reversed and an employee suffered a loss due to a mistake or error by the Respondent, no one would suggest that another employee should suffer the same loss.

I do not accept that the Complainant was materially disadvantaged or suffered a loss due to what occurred as both she, and indeed the other employee, were not entitled to the overtime work in July 2015 and accordingly I cannot see any basis for the payment of ‘compensation’ as there was no loss to be compensated for.   In that respect I do not see merit in the claim and it is rejected by me.

Notwithstanding the forgoing, I can understand why, in circumstances where on an earlier occasion, 14^th July 2014, that Complainant was in error not offered overtime to which she was entitled to, she would feel aggrieved by what occurred in July 2015.   Because of this history, and as a full and final settlement of this matter, and as a gesture of goodwill to the Complainant I recommend that the Respondent pay the sum of €100.00c to the Complainant, within 6 weeks of the date of this recommendation.

Dated:   19^th January 2017