ADJ-00006033

Complainant

Respondent

Anonymised Parties

An Employee

Health Care Sector Organisation

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00008324-001

23/11/2016

The Complainant has worked as a Health Care Assistant with the Respondent, a not-for-profit organisation in the healthcare sector, since September 2007.

The Complainant has worked two Sundays in every month since 2007, with her roster rotating between Wednesday/Thursday/Friday and Friday/Saturday/Sunday. The Complainant applied for annual leave to commence on the week of 29 August 2016. The Complainant was informed by management that her roster the following month was changed.

The Complainant presumed that she would continue with the roster which was two Sundays in every month. This would place the Complainant on a roster commencing Friday/Saturday/Sunday (9/10/11 September 2016). However, the Complainant was informed that she was rostered to work Wednesday/Thursday/Friday (7/8/9 September 2016)

The Complainant explained to management that she would be out of the country on the Wednesday night and it would be late on Thursday by the time she was returning. The Complainant was then informed that he was to lose her Sunday due to taking annual leave. When a subsequent roster was posted on which the Complainant was only roster for one Sunday, she contacted her Trade Union.

The Complainant's Trade Union representative wrote to the Respondent's General Manager on 2 September 2016, stating that the changes had been implemented without any discussion or agreement and were having an adverse impact on the Complainant's earnings. A subsequent meeting was held with management, at which it was claimed that the reason why the Complainant was losing her Sunday was to facilitate new staff member. However, as the new staff member was on a lesser rate paid at the Complainant, who was on a premium rate, the matter was referred to the WRC on the Complainant's behalf by her Trade Union.

A series of correspondence passed between the Respondent and the Complainant's Trade Union representative, before a meeting took place on 4 October 2016. In addition in relation to the matter of the Complainant having lost 2 Sundays from the roster, an issue pertaining to her loss of annual leave days as a result of attending the WRC in her capacity as a Trade Union Shop Steward, was also raised.

As a follow-on to this meeting, management wrote to the Complainant on 2 December 2016 stating that the loss of the 2 Sundays resulted from the Complainant's late application for annual leave, which they accommodated. This correspondence also indicated that management were unaware of the issue in relation to attendance at the WRC.

In response to the Complainant's claim in relation to the Sunday Roster, it was submitted on behalf of the Respondent that Sunday work attracts a double-time premium. It was submitted that the Complainant works two Sundays per month every month. Rosters are completed on a monthly basis in advance. In this case it was submitted that the roster for the period 29 August 2016 to 25 September 2016 was completed and circulated on 17 August 2016.

The Respondent submitted that, on 18 August 2016, the Complainant submitted an annual leave request for the period 29 August 2016 to 8 September 2016. It is submitted that the Respondent's Annual Leave Policy states that all annual leave requests must be made one month in advance of the leave date(s). The Respondent stated that, on this occasion, as the Complainant explained that it was an emergency situation, her request was facilitated. However, it was submitted by the Respondent that, in order to facilitate this request, amendments were made to the roster for that period. It was further submitted that, due to the last minute amendments to the roster at the Complainant's request, the complainant worked one Sunday in this period.

It was submitted on behalf of the Respondent that they were only made aware of the Complainant's grievance in relation to the roster when they received a letter directly from her Trade Union. At a meeting on 4 October 2016, which was arranged to discuss the matter, the Respondent explained that the roster in question was a one-off situation arising from the Complainant's request for a change to a roster which was already completed and circulated. It is submitted that the Respondent also indicated that, going forward, they would try to facilitate the Complaints normal roster.

It was further submitted on behalf of the Respondent that they wrote to the Complainant following the meeting of 4 October 2016 outlining their position but received no further communication from the Complainant or her Trade Union representative in relation to the matter.

In conclusion on this aspect of the complaint, the Respondent objected to the statement contained in the Complainant's complaint form to the WRC, which stated that: "without any consultation my employer took these Sundays off me". The Respondent stated that this statement was untrue as the Complainant did not work a Sunday as a result of her own request to have the roster amended to facilitate a late request for annual leave.

With regard to the issue of last annual leave, the Respondent submitted that they were unaware of any period of Annual Leave that the Complainant had lost due to attendance at the WRC. The Respondent stated that the Complainant is the Shop Steward in the hospital. It was further submitted that the Complainant records any time spent on union duties on her weekly timesheet and is paid accordingly.

The Respondent submitted that, despite having a comprehensive grievance policy in place, the Complainant never raised any issue or grievance she may have had with regard to time being allocated to her for union duties. The Respondent stated that the alleged issue of lost annual leave was not raised at the meeting on 4 October 2016, which the Complainant attended with her Trade Union representative.

The Respondent further submitted that, in their letter of 2 December 2016 to the Complainant, she was advised to raise a grievance in relation to this matter, in order that could be properly investigated. However, the Respondent submits that no further details were received from the Complainant and in effect, they (the Respondent) were not given the opportunity to investigate or rectify this matter as their internal procedures had not been exhausted.

Having carefully considered the evidence presented in relation to the Sunday roster issue, I am satisfied that this was a once off situation, which resulted from a late application for annual leave from the Complainant, the accommodation of which had a short-term knock on impact on rosters which had already been completed and circulated prior to receipt of the request.

I am satisfied from the representations made by the Respondent at the Hearing that normal rostering arrangements have been restored and that, going forward, they would endeavour to continue to maintain that position, subject to normal circumstances prevailing.

With regard to the issue of the lost annual leave, I am satisfied that the Respondent was totally unaware of the existence of the Complainant's issues in this regard, as she chose not to bring the matter to the attention of management in line with normal grievance procedures.

Likewise, in relation to this element of the complaint, I am satisfied from the representations made at the Hearing by the Respondent that they will appropriately address the matter once they are formally advised of the number of days and dates involved.

Having carefully considered all of the evidence adduced and based on the considerations as detailed above, I recommend as follows:

(1) that the Complainant's normal monthly roster, containing two Sundays each month, be facilitated by the Respondent into the future and that any changes that may be anticipated due to unforeseen and/or or changed circumstances will be discussed by the parties in advance.

(2) that, on receipt of details from the Complainant in relation to the number/dates for which she attended Trade Union meetings, the Respondent will ensure that her annual leave complement is adjusted accordingly to take account of this time. In addition, I would recommend that the Complainant ensures that all leave related to her role as Shop Steward is properly recorded and advised to the Respondent.

In conclusion, I am of the view that, in order to maintain an ongoing productive, professional and respectful relationship between management and an in-house Trade Union representative, it is essential that all parties engage in open, timely and respectful communications. Consequently, I would recommend that all parties endeavour to implement such an approach, including the appropriate use of internal procedures.

Rosters

Leave to Attend Trade Union Meetings