ADJ-00017486

Worker

Employer

Anonymised Parties

A Janitor

A Manufacturing Company

Representatives

SIPTU

IBEC

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-00022617-001

15/10/2018

The Worker claims that the Employer failed to contact her during an unauthorised extension of the normal shutdown period in week 32 in 2017 to provide essential janitorial services of 48 hours.

SIPTU on behalf of the Worker submits that she commenced her employment with the Employer as a Janitor in 1993.

SIPTU submits that the Employer shuts down for two weeks annual leave in summer every year. During this time there is a requirement to have two janitorial staff working. Janitorial services are required at all time during shutdown/holidays. SIPTU argues that this has been the position since 2004 agreement “The programme for change” (‘PFC’) negotiated by the Employer and SIPTU. Since its introduction the PFC has dictated how SIPTU and management interact.

However, SIPTU submits that in summer 2017 the Employer decided due to issues with production to extend the summer shutdown by an additional week to three weeks. The third week was week 32, from the 7th to the 13th August 2017.

SIPTU submits that Mr G, the Senior Manager of the Employer on site during week 32 confirmed that “boiler house, effluent and janitorial services” were designated “essential services” during this period of extended shut down, which requires constant cover.

SIPTU claims that it is normal procedure and custom and practice that the Shift Manager, Mr J, contacts the most senior operator in the group to ascertain his/her availability to work. If the most senior operator is not available, the next most senior operator is contacted. SIPTU argues that on this occasion the Shift Manager delegated the task to one of the Junior Operatives in the group. Therefore, the Worker was not contacted (as the most senior operative) and a junior operative was given the 36 hours work that should have been allocated to the Worker. The Worker was not contacted on this occasion as custom and practice dictates. The Worker is the most senior person in this position to have raised a grievance in relation to the matter.

SIPTU claims that the third week was subsequently re-named by the Employer from “summer shutdown” to “a week of non-production”.

SIPTU notes that the Employer’s position was that there was no requirement or request on Saturday or Sunday for janitorial services cover that week, so the claim can be for a maximum 36 hours. SIPTU refutes this as the PFC states that the janitorial services are required at all times during shutdown/holiday. This has been the case since 2004.

SIPTU claims that the Employer called week 32 an “extended summer shut down”, which it subsequently changed to a “week of non-production”. This has not arisen in the past, and, therefore, SIPTU is of the view that the week in question was an unauthorised extension of the normal shutdown period and a breach of the Company/Union agreement. In any case the premises were shut down and janitorial cover was required as per the terms of the PFC.

Accordingly, SIPTU argues that the Worker should have been called in for janitorial cover and would have been entitled to the 48 hours.

In conclusion SIPTU requests that the complaint is declared well-founded and that the Worker has 48 hours restored to her holiday bank.

On 10th April 2019 SIPTU offered additional submission by way of email confirming that the view of the Worker is that for the period in question, management qualified the Janitorial Department as an essential service and for the call-in, therefore, the Programme for Change/ Seniority rules apply. 

The Employer rejects the claim in its entirety.

The Employer submits that the Worker’s application to the WRC is unacceptably misleading:

1.       The period in question was not a company “shutdown” as prescribed in the Company/Union agreement. Rather the period was and has been previously accepted by the Union during a separate Labour Court hearing (awaiting recommendation) as a period of “enforced annual leave”. Therefore, there is no agreed or established practice covering the period or practice.

2.       Without prejudice to point 1 above, the Worker was not the most senior person in the group of affected employees. Rather she was the sixth most senior person out of a group of ten employees.

The Employer submits that there is an agreed Company/Union agreement in place and the Employer has a comprehensive grievance procedure in place.

The Employer submits that at the start of July 2017 the Factory Manager (FM) was advised by global business leadership that the stock levels are too high. The business was required to reduce stock levels necessitating an immediate adjustment to the site production schedule. On 3rd July 2017, the FM advised the site management of the stocking issues. It was determined that there was a need for 5-7 weeks of non-production in order to correct product supply. Employees were directed to take annual leave for the days which they would have been rostered during the period from the 7th to the 14th August 2017 (week 32).

The Employer submits that during period of “shutdown”, of which there are 3 weeks annually, two in summer and one at Christmas, janitorial services are continued, rostered based on seniority as per the Company/Union agreement. Week 30 and week 31 were “shutdown” periods and appropriate cover was in place.

The Employer argues that week 32 was not a prescribed “shutdown” period but rather enforced annual leave and therefore janitorial arrangements were not in place.

The Employer submits that on the 8th August 2017, Mr S, shop steward, rang the Shift Manager, Mr J, and queried whether there were any janitors on duty. Mr J advised there weren’t but that he would speak to the HR Site Lead as he believed the site would benefit from having a janitor for a period. During discussions, Mr S stated that as it was not a “shutdown” period the normal rostered arrangements should be followed i.e. whoever should have worked that day should be called to attend site. Mr J spoke to the HR Site Lead who agreed that a member of the janitorial service should be called upon for a period of 36 hours, 12 hours of Wednesday, Thursday and Friday.

In actioning that issue, Mr J sought the number of the janitorial service team. He did not have a number for each of the individual team members. The numbers he did have, he rang but was only able to speak to one member of the team, Ms G. He explained the situation and requested the numbers to the other team members. Ms G advised that she would contact the other team members herself and make the appropriate arrangements. Subsequently, Ms G phoned Mr J advised that she and Mr N would cover the 36 hours. Mr N would cover the Wednesday and the Friday shifts and Ms G would cover the Thursday shift. Ms G and Mr N would have been working those shifts had the Employer not issued a direction for all staff to take annual leave. This arrangement aligned with the initial request from Mr S, Shop Steward, that it would be those persons that would have been rostered should be called to provide the necessary cover.

The Employer outlined the details of five stage grievance process raised by the Worker. The grievance was not upheld at any of these stages.

The Employer outlined during the process that “As previously stated, the Company is committed to sitting down with the Union to discuss a process which can be agreed with both parties, should a similar situation arise again.”

As a gesture of goodwill, the Employer offered the Worker the opportunity to work the 36 hours over the Christmas shut down period. The Worker did not take the Employer up on its offer.

The Employer argues that the period in dispute was not a “shutdown” period and consequently not governed by an agreement or custom and practice. The agreement is explicit in that it only applies to “shutdown cover”.

The claim for loss of 48 hours annual leave has no merit. The total hours in dispute are 36.

The Worker has suffered no financial loss.

The Worker has failed to identify what procedure or practice has been breached.

The Employer was fair and reasonable in its approach in dealing with the matter of cover. The persons called upon to fill the hours were those persons who would have normally been rostered to work those hours.

Without prejudice to the foregoing, should the principle of seniority be conceded the Worker is not the most senior member of the team, rather she was the 6th most senior person.

As a gesture of goodwill, the Worker was provided with the opportunity to work additional 36 hours over Christmas shutdown period but declined same.

The claim before me relates to an additional week of closure of the Employer from the 7th to the 14th August 2017. SIPTU argues that this week was an extension of the annual two weeks summer “shutdown”. SIPTU claims that, as per The Programme for Change (‘PFC’) which contains the arrangements in terms of the cover during the summer shutdown, the Employer was obliged to contact the janitorial staff in order of seniority to establish their availability to work. In that case, SIPTU argues, the Worker was the most senior operator and is entitled to a compensation for not being called to work.

The Employer argues that the week in question (week 32 of 2017) was not a part of the annual shutdown. Rather it was a period of enforced annual leave. As it was unprecedented, therefore, the PFC and custom and practice don’t apply.

I find that the matter of the additional closure during the week from the 7th to the 14th of August 2017 was a subject of a Labour Court hearing when SIPTU adopted a position that the Employer made a decision to enforce an additional week’s mandatory annual leave on the workforce and sought full-reimbursement in that regard. I find that this employment is a subject to a collective agreement. This particular issue has been dealt with through the WRC Conciliation service and the Labour Court, and because of its collective implications it is not appropriate for adjudication by an Adjudication Officer outside of the collective process.

Having considered the submissions of both parties and for the reasons stated, I do not recommend in favour of the Worker.

Annual shutdown- enforced annual leave- seniority