ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00009979

Parties:

Complaint(s):

Date of Adjudication Hearing: 24/11/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 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:

REDUCTION OF HOURS

The Complainant is a manager of a Seafood Restaurant and states her hours were cut by the Respondent from 40 to 60 hours a week to 25 to 30 hours per week when she asked for a pay rise. The Complainant states that no other employees had their hours of work reduced.

FAILING TO INVESTIGATE COMPLAINTS

In addition, the Complainant states that the Respondent failed to investigate her complaints of bullying and harassment from a fellow employee.

Summary of Complainant’s Case:

The Complainant is still currently employed and has been employed with the company from March 2017. The Complainant previously raised complaints and sent the Respondent written correspondence by registered post and got no reply on the 26 May 2017. In this letter she outlined how she was been undermined in her role by the Respondent. In the letter the Complainant also outlined that her role and hours had been changed without discussion. The Complainant stated that she received a formal warning following this in the absence of any procedures or right of appeal. Following this the Complainant was required to work in a different location for two weeks. When the Complainant returned to her usual location, her hours had been cut. She raised this reduction with the Respondent but did not get a satisfactory response. The Complainant requested that the hours could be provided over the three days to allow her access Employment Benefit but this request was also refused. The Complainant subsequently became ill and was on leave from the 3 July 2017 until the 3 September 2017. When the Complainant was fit to return she was told by the Respondent that she would have to wait until the week after. The Complainants Union Representative contacted the Respondent which resulted in the Complainant returning to work on the 3 September 2017. On the Complainants return she was invited to partake in two meetings on the 6 and 9 September 2017 which she felt were hostile and unconstructive. In addition, the Complainant was requested to attend work on the 1 October 2017 for a deep clean. It was not customary for management to be requested to attend these in any event but when the Complainant arrived she found she was the only member of staff present.

Summary of Respondent’s Case:

REDUCTION OF HOURS

The Respondent presented a spreadsheet detailing hours of work showing that all staff hours have been reduced. The Respondent stated that the hours will go back up after January 2018 when the temporary obstruction of roadworks at the client premises currently in progress are completed. This was the reason for reducing all staff hours.

FAILING TO INVESTIGATE COMPLAINTS

The Respondent stated that he got in touch with the Complainant and had a meeting with her regarding the issues in September 2017.

Findings and Conclusions:

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

It is clear and obvious that the matters fall fully within the above and that the Complainant is fully entitled to have her claims under the Industrial Relations Acts heard and recommendations issued.  

FAILING TO INVESTIGATE COMPLAINTS

The Complainant raised the allegations initially by way of handwritten registered letter in May 2017. This should have been sufficient to formally invite the Complainant to invoke the grievance procedure which did not occur. The Complainant and Respondent have an obligation to exhaust the internal process before taking any concern/grievance to an external source. The Labour Court in its recommendation INT 2014 stated “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”. The Adjudicator does not have the right to insert oneself in this matter as it has not been formally raised and exhausted at local level. It is evident from the evidence presented that the Complainant and Respondent relationship has deteriorated due to the lack of communication and engagement which needs to proactively improve to facilitate the resolution of these issues.

REDUCTION OF HOURS

As the Complainants hours were unilaterally changed without her agreement I recommend that the Respondent restore her hours, with immediate effect, as per the original hours of 40 per week. As the Respondent has committed to restoring the original hours at the hearing from January 2018 in the oral evidence provided.

BONUS

The Complainant stated that her bonus was revoked. This is not included in her terms and conditions of employment. This issue has not been raised locally and the internal procedures regarding the same have not been fully exhausted.

WARNING

The letter referred to does not constitute a formal warning under the legislation.

Decision:

Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.

FAILING TO INVESTIGATE COMPLAINTS

In accordance with Section 13 of the Act I declare this complaint is well founded. I recommend that the grievances raised should be formally put in writing by the Complainant, as assisted by her union representative, to the Respondent for investigation in line with the Company Procedure and investigated within 2 weeks of being submitted to the Respondent.

REDUCTION OF HOURS

In accordance with Section 13 of the Act I declare this complaint is well founded. Due to the fact that the Complainants hours were reduced unilaterally I recommend a €1,000 as compensation.

BONUS

I recommend that the Complainant and her Representatives should engage with the Respondent in relation seeking clarification on the same.

WARNING

As the letter does not constitute a formal warning I can confirm that there is no warning on the Complainants employee file as of the hearing date.

Dated:   23rd March 2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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