Complainant

Respondent

Anonymised Parties

An Associate

An IT Company

Representatives

Unite the Union

Internal Legal Counsel

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-00016276-001

12/12/2017

The worker outlines that she was subjected to adverse personal scrutiny in work following her raising a complaint about her 2016 annual leave. This led to her taking extended sick leave. The respondent refutes the claims.

The worker outlined that she commenced working for the respondent while a student. She initially worked part-time and later became full time. The role is phone-based and related to compliance. She had expressed interest in progressing with the respondent.

An issue arose at the end of 2016 regarding her annual leave. The worker was told that she had fewer annual leave days than she had. The worker said that she had nine remaining days and the respondent said she had three days remaining.

The worker outlined that the respondent did not like that she had voiced these issues. The attitude of the Contact Centre Manager changed as soon as she used the word “grievance”.

When the worker returned in the new year, the respondent scheduled her to work weekends for the first time. Previously, it had been agreed that the worker could leave early on Tuesdays, but now the respondent asked for proof of her reason why. Her lunch break also changed without notice. One day, she was told to go back to work, even though she had a print shot showing she was then on lunch break. In another incident, she had thought her shift was 9 to 5, but this was changed without notice to 10 to 6. Her manager told her to go away and come back at 10am and he was quite amused.

When the worker complained, she was told that these were system issues or operational changes. She said that it was people and not the computer who made these changes.

The worker submitted a formal grievance on the 24th April 2017 and then communicated with the respondent by email. In May 2017, the worker was out on stress-related leave. This was caused by the manager investigating her grievance approaching her without notice and he would not formally arrange an appointment. She appealed the grievance outcome and this took place in a meeting with a CEO. The respondent said that she was stressed by normal work events.

The worker outlined that the Chief Executive Officer had made the following finding “I spoke to [name], [name] and [name] who said they were sorry and there would be no further discrimination, we could use this as a case study and I would observe things and I would do my best to make sure it would not happen again.”

The worker said that she did not feel safe. After the meeting, the Personal Assistant said to her to “come on”. The worker said that her sleep was affected. She went to a doctor and attended counselling. The respondent said that her issues were system issues, but it was always a person behind the actions.

Last summer, the worker spoke with the Head of HR about going back but her mother became sick and she could not meet the worker. No one else in HR would meet her. She said that she did not know how she moved from a job she loved to one where she felt sick. She said that she wanted an environment that is safe.

The worker replied to the Head of HR to say that many of her points were incorrect. She contacted the CEO to say that her grievance had not been resolved. She had taken sick leave in May for a week. The worker was unhappy to be told by the Head of HR to moderate her language about how she felt, but this would not stop her talking about how she felt.

The worker seeks the restoration of the wages lost to her while on sick leave, that her medical and counselling expenses be reimbursed and that a process be put in place to ensure her smooth return to work.

In submissions, the respondent provides services in the payment card industry and maintains a contact centre, where the worker works. The contact centre staff deal with many queries and this requires flexibility in rosters. The respondent makes the preliminary submission that the issues raised in the complaint form are not of an industrial relations nature. It submits that the annual leave issue relates to days forfeited by the complainant in seeking to carry over excessive annual leave days to 2017. She was informed that she would not have to work weekends and did not have to provide evidence of her course. The respondent submits that the issue regarding returning to work during her lunch-break arose because of unusually high call volumes. The respondent submits that it formally replied to the worker’s grievance on the 23rd May 2017. This held that the worker had not been adversely treated and had been facilitated. She had been supplied with the written terms of her employment. It acknowledged that some of the comments made to her had been forceful and would be moderated in the future. The worker should continue to raise any issues with her line manager and the respondent would seek to minimise her exposure to normal, albeit frustrating operational issues.

In further submissions, the respondent outlined that following the worker’s appeal, it offered her to move to a different team. The CEO asked the worker for her thoughts regarding a possible satisfactory solution. There followed email correspondence with the Head of HR regarding the grievance outcome, where the respondent restates that the operational issues were regrettable but without malice.

The respondent submitted that there was no requirement for a contract to be signed and the second contract was also for 37.5 hours. They did not have a diagnosis of the complainant’s illness and there was a drop-down menu on the HR Notes and “psychiatric stress” was the closest entry. The respondent afforded every seriousness to the grievance. They refute that there was any hostility to the complainant.

This dispute started following an email exchange between the worker and her line manager about taking annual leave prior to the end of the 2016 leave year. The line manager said that the worker would forfeit days because the leave for Christmas and New Year had been allocated. She lost two days of annual leave. I note that the worker had the statutory entitlement to 20 days of annual leave. Section 19 and 20 of the Organisation of Working Time Act provides full-time employees with a minimum allocation of four weeks’ annual leave. It is for the employer to determine that an employee takes such annual leave, in accordance with its business needs and the employee’s need for rest and recreation. Section 37 provides that a provision which seeks to exclude or limit the Act is void. It follows that a forfeiture provision, such as that in the respondent documentation, cannot limit the worker’s entitlement to take full statutory leave.

The worker raises several occurrences regarding her working time, for example her start time, her working Saturdays and an incident regarding her lunch break. These incidents are odd, especially as the respondent operates an online time and attendance system. On the 4th February 2017, for example, the complainant was on her lunch break and found out during the break that the hours of her break had changed. It was not the case of the worker being asked to delay her break because of a busy period; her hours were changed on the system. It was also undesirable that the worker was asked to agrievance meeting without being able to arrange for a colleague or union representative to accompany her, as set out in the policy.

The worker has been on sick leave for some considerable time. While I recommend financial redress to be paid to the worker, this is not a personal injuries case where I determine negligence. Nor is it a Payment of Wages case where I determine that the wages are “properly payable”. I note the proactive response of the CEO to the worker’s grievance. While this was not sufficient for the worker, it demonstrated an open approach to address her concerns. Taking these factors into account, I recommend redress of €3,000.

The most important aspect of this case is that the worker should feel that she is able to return to work. I note that two members of senior management have since left. To this end, I recommend that the parties work together to agree a return-to-work protocol, addressing her duties on return and an early warning procedure for any future issues. As an aide to such an agreement, I suggest the parties consider documents such as Appendix IV of the Health Service Executive “Rehabilitation of employees back to work after illness or injury Policy and Procedure” (available online).

CA-00016276-001

I recommend that the respondent pay redress to the worker of €3,000 and that the parties work together to agree a return-to-work protocol, addressing her duties on return and an early warning procedure for any future issues.

Industrial Relations dispute

Annual leave / non-application of forfeiture provision to statutory leave

Return to work protocol