Act

Dispute Reference No.

Date of Receipt

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

CA-00006445-001

12/08/2016

The Claimant   is a Polish National, who is seeking to be transferred permanently to a   Specialist cleaning manufacturing area at the appropriate pay scale with loss   of earnings.

The complainant commenced work as a cleaning operative in   October 2007. He was based at a Client site and earned €9.05 per hour .In 2012;   he was promoted to the position of Team Leader and was paid €12.26 per hour.

In 2014, the   complainant applied for a position at another Client site, in another part of   the country, to gain experience in specialist cleaning .He relocated, took a   demotion and agreed to reduce his hours from 39 -37.5 hrs .The complainant   submitted that the specialist cleaning rate is €2 extra per hour for a 37.5   hr working week in the specialist cleaning area. The complainant commenced   the specialist training, but this was not completed by the company and he   remained as standard cleaning operative covering offices and the warehouse.

The complainant raised the issue with his line manager on   a number of occasions. When a vacancy arose in the specialist area, it was   filled by a new employee.

In response to the first grievance completed in December,   2015, The respondent disputed that a specific offer of “specialist   manufacturing cleaning “had been made to the complainant. There were no   interview notes available. The respondent did not issue a letter of offer on   a job title or a rate of pay.

This was appealed on 30 December, 2015 to Mr OM (Operations   Manager) and concluded in an outcome, which upheld the company position on 1   July 2016.

I conclude that the process,   while not perfect in every respect, was overall sound, structured and   followed the spirit and guidance of the Policy controlling it. I uphold the   finding that was presented

The report went on to make recommendations on retraining   in recruitment in addition to provision of all outstanding training for the   complainant in the manufacturing area.

……and would be   considered for the next available position in the manufacturing area should a   position become available

Arguments :

1 Neither process took into consideration that the complainant   would not have transferred to take a demotion and reduce his working hours.

2 The claimant maintains that he was interviewed, offered   and agreed to work lesser hours of 37.5 hrs in order to access the specialist   manufacturing area. He expected a wage increase once his training was   completed.

3 The complainant’s hours increased to 39 hours in June   2016. He is currently paid €10.38 per hour and is deemed a flexible employee,   where he covers relief work only in the specialist manufacturing area of the   client site .Relief is paid at €11.50 per hour, whereas permanent assignment   attracts €12.38 per hour.

The claimant continues at a loss of the hourly rate and   the cumulative loss of any increases .The Union sought compensation for his   loss of earnings since commencement on the present client site. He completed   his training in 2016 and the Union   sought his automatic permanent   assignment to the specialist cleaning area in manufacturing.

The complainant told the hearing that he sought a permanent   position in specialist cleaning on a Monday to Friday basis. He confirmed   that he had now concluded the necessary training for the position .He   confirmed that he was paid the appropriate rate when he covered relief in the   area.

The respondent refuted the claim .The respondent runs a   large solutions service, which operates out of many sites across the country.   The company employs c.1800 employees.

The respondent employed the complainant on 29 October,   2007.He worked on a particular site for 6 years and he began working at the   current site in August 2014, following a successful interview for the role of   cleaner.

The complainant submitted a complaint to his line manager,   Ms LM on 4 June, 2015 that his training in the manufacturing area of the   present site had ceased after two weeks and his working hours had been   reduced .The company increased his working hours to 39 hrs from 13 July, 2015   and clarified that it was their understanding that the complainant had been hired   as a cleaner and not specifically for the manufacturing area. The complainant   currently earns €10.38 per hour.

The complainant lodged a grievance, which was heard by Ms   BM, (Business Unit Manager) on 26 November, 2015.The complainant set out his   claim that his interview for the current position involved a discussion that   he would be employed as a cleaner in manufacturing, his training for this   ceased a month into his work and others had been trained ahead of him.

The respondent submitted that the complainant confirmed   that the new position was advertised as a cleaner role a sought retrospection   in pay for the hourly differential rate paid in manufacturing.

On 23 December 2015, the grievance investigation concluded   and determine that

1 The complainant was not originally offered a 37.5 hr   week in the position of manufacturing cleaning area.

2 The complainant was not entitled to training in the   manufacturing area.

The respondent received notification of appeal from the   complainant and the appeal hearing followed on 30 May, 2016 .Mr OM presided   over the appeal and issued his findings on 1 July, 2016. It was important for   the respondent that the process was fair.

The respondent submitted that there was no supporting   evidence suggesting that the claimant was promised 37.5 hr week cleaning in   manufacturing .It was recommended the complainant receive all outstanding   training in the manufacturing area and would be considered for the next   available position in manufacturing, should a position become available.

Arguments :

1The respondent submitted a copy of the “ new position   “.described as “ Cleaner , unbanded “

2 The Manager who interviewed the complainant had informed   the grievance investigation that he had not informed the complainant of a   manufacturing base .They worked together for a month after the complainant   started and it did not feature in their discussions.

3 When the complainant transferred to the new position, he   retained his €10.18 rate paid in the   previous job which was higher than the job applied for.

4 The complainant has received all training as recommended   at Appeal stage .The complainant has not applied for any of the three   positions which have since arisen in the manufacturing area. The complainant’s   line manager even sent a copy of one of the vacancies directly to the clients   email address.

5 The respondent refuted the complainants stated linkage   to both the area of work sought and the rate of pay claimed and asked the   Adjudicator to reject the claim. The respondent required the complainant to   apply for a position in manufacturing rather than assume the position. The   respondent gave the complainant feedback on the scope of the three positions   filled in the specialist area, some of which were “weekends only “.

I have considered both parties oral and written   submissions in this case. I have investigated the dispute presented to me.

I have found a set of extraordinary circumstances of   administrative lag followed by an extensive retrospective analysis, somewhat   complicated by the unexplained non participation of a key Manager.

The complainant confirmed at hearing that he had not   resigned his original contract as a Team leader on transfer to his present   position .He did not receive relocation expenses to underpin the move .I   found that the complainant transferred   to his new position, in retention of his rate of pay without any official   paperwork governing his conditions of   employment .

This has not   assisted the resolution of the issues at the heart of the dispute. I have   found that there was no official ending to his first position followed by a   vacuum in paperwork associated with his current position. The only constant   was the retention of the complainant’s rate of pay of €10.18 per hour from the first to the second base. This rate   was not comparable to his peers in the   cleaning position he currently occupies and must be classified as hybrid rate   .

The complainant has approached his current position with   an expectation, not borne out in supporting documentation. I found the   respondent made extensive efforts to complete the jig saw and the complainant   now stands fully trained and identified as ready to take on a role in the   manufacturing specialist cleaning area. I note that he has been paid this   rate of €11.50 when he has provided   relief cover.

The complainant   requires a Monday to Friday position and has not participated in any of the   interviews for fixed term or weekend work over the last two years due to this   requirement. Therefore, I cannot find that he has been overtaken by his   colleagues in this regard, who have chosen to pursue those contracts. He confirmed at the hearing   that he has now prepared his CV for interview.

For a loss of earnings claim to succeed , I would need to   be satisfied that a contractual loss had occurred . Based on the submissions   advanced ,I cannot establish a contractual entitlement to the higher rate of   pay from August 2014 . What I have found is a complete deficit in paper work   governing a relocation of a permanent employee; I find that there was fault and   omissions on both sides in this regard.

I note the recorded   plan dated 27 June 2014 in the   respondent submission. It provided a very detailed account of the standards   reached by the complainant and the holidays he had booked for 2014. This   confirmed that he was a permanent employee but was silent on any expansion of   the intention of the parties at this time.

In conclusion , I have found that the eight month period   allocated to the activation and conclusion of the formal grievance procedure by the respondent   to be excessive .I appreciate that the company had to reach out to past   employees ,which takes time . However, I also appreciate that the complainant   is keen to establish his future in the manufacturing section.

To that I end, I wish to base my recommendation for the   resolution of the dispute on a “going forward “approach.

I recommend that the complainant’s personnel file with the   company accurately reflects his present role and function.

I recommend that the respondent gives active consideration   to implementing a transfer policy to manage future instances of mobility   within the company.

I recommend that the next available Monday to Friday vacant   position as Cleaning Operative in the manufacturing section is made known to   the complainant. Having regard for the serious upheaval for the complainant   since his arrival to the current position, I recommend that he be permitted to   automatically transfer into this position on a permanent basis, given his   completion of the necessary training and his extensive experience within the   company. This would be on a once off , not to be repeated basis and it is put   forward in support of resolution of the protracted dispute between the parties as a fair and   reasonable remedy .

I find that there is no merit to the claim for loss of   earnings from 2014.

Grievance Following Relocation