ADJ-00016490

Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Representatives

Gerry Mitchell INdependent Ir Consultant

Sharon Vella Hancock Solicitor, Mary Fay BL

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-00021388-001

28/08/2018

The Worker is employed in the role of Team Leader, Contact Centre Operations, at the Respondent’s premises in Citywest, Dublin, providing support to XXX Bank Contact Centres throughout Ireland and the UK.

The Worker joined XXX Bank in February 1996 on a temporary contract and was appointed permanent in 1998. The Worker was employed in the Network and Telecoms Support function of the Bank and was located in Co. Kildare.

On 31 March 2015, this function was outsourced to The Employer. At the time of transfer to The Employer, there were three people on the team led by The Worker. Since joining The Employer, this team has been reduced to one person, The Worker. One team member left in January 2016, the other in September 2017. It is believed that both parties left under the terms of The Employer’s voluntary incentivised exit scheme, despite staff being told that the specific area was not in scope for the scheme.

Arising from these departures, The Worker has been providing support, on his own, to the Banks Contact Centres for a period of almost 3 years. This has resulted in a very significant level of stress and strain on The Worker and has led to him suffering from ongoing workplace related stress and depression for which he continues to take prescribed medication.

The Worker had himself sought to avail of the voluntary exit scheme, having been initially advised by his FSU Representative that his area was in scope. However, his application was declined.

He appealed this decision by email dated 4 September 2017 to his line manager. This resulted in a telephone discussion with the HR Business Partner on 25 October 2017, which The Worker summarised by email to him on 27 October 2017.

In this note, The Worker highlighted his frustration and disappointment at being declined voluntary exit while others were granted it, despite indications from management that the area was not in scope. The Worker was left with a clear feeling that he had been discriminated against in being refused severance terms, while two other female staff were allowed to leave.

In addition, The Worker put the HR partner on notice of the pressure and strain he was under as a result of the added workload he now had to carry. In responses the HR partner indicated that an additional resource was being sourced for his area.

On 20 December 2017, The Worker was advised that an additional resource Mr. P, would be appointed to begin working with him from mid-January 2018.

The Worker acknowledged the note pointing out that he had been providing this service on his own for an extended period and seeking some form of monetary recognition for this.

However, the individual appointed, Mr P, was only available for three-days per week for the first month, during which time he had to be trained by The Worker. Mr P did become a five-day per week resource, but he resigned after three months, leaving in April 2018.

Due to the ongoing stress and pressure which he was experiencing, The Worker was placed on certified sick leave by his doctor from 14 January 2018 to 2 April 2018. During this time, he attended the CMO every two weeks as requested.

Prior to returning to work The Worker was given commitments that additional resources would be provided in his area, in addition to other return to work arrangements being agreed. While these additional arrangements were implemented, the key requirement of additional staff resources was never delivered on by management, resulting in continuing stress and pressure on The Worker.

On 25 May 2018, The Worker wrote to the CEO, setting out his concerns. He advised Ms Lennon that being the sole person in the contact centre systems support has placed ‘an inordinate amount of stress and strain’ on him which has affected his health and well-being. In addition, The Worker advised Ms Lennon that he is on medication for anxiety and depression, as a result of working in a ‘toxic work environment’. The Worker asked if an exception could be made and that his application for the voluntary exit scheme would be looked on favourably. Shereplied on 14 June declining The Worker’s request.

On 23 July 2018, The Worker wrote to his line manager, stating that it was now almost 12 months since he had raised issues initially and that no progress had been made on these issues; things had got worse, he stated.

The Worker also noted that his Line Manager had committed to sitting down with him and discussing compensation and remuneration for the additional workload he was carrying, but this had not happened.

The Line Manager met with The Worker at end July 2018, but no progress was made, with his Line Manager appearing to have forgotten earlier undertakings to discuss the compensation matters raised. These issues remain unresolved.

A further issue arose in relation to a reduced bonus payment, which The Worker raised with His Line Manager on 19 September 2018.

The Worker continues to suffer anxiety and depression as a result of the ongoing workload in his role. This issue has never been properly addressed and as a result The Worker believes he has no alternative but to raise this matter formally through the WRC process.

In the course of the last three years, not alone have two employees left and not been replaced, but workload volumes have increased and new systems introduced adding considerably to The Worker’s workload and stress.

He has engaged with the company CMO and EAP services which have not provided any enduring solution to the underlying issues caused by inadequate staffing levels.

Furthermore, The Worker is of the view that he was unfairly denied access to the company voluntary exit scheme. Despite being told that his area was in scope, and then not in scope, two other members of his team were allowed to avail of the scheme and to depart from the company while this was option was denied to The Worker. No clear guidelines or selection criteria were identified, resulting in unfair treatment of The Worker. On top of this The Worker continues to endure a stressful working environment despite giving multiple warnings to management about this.

Adjudicator, you are respectfully requested to recommend that The Worker is treated fairly and is granted severance terms similar to other departed employees.

The Complainant is employed as a Telecoms Specialist and works on the telecoms (Bank) as part of the Respondent’s business services.  The Complainant commenced employment with the Respondent on the 31 March 2015 pursuant to a transfer of undertaking, the Complainant having been previously employed with Banks Network and Telecoms Support since 2004.

It would appear from the complaint form submitted on the 28 August 2018 that the Complainant’s complaint relates to: 

a)       An allegation that since joining the Bank team in March 2015 the team of 3 was reduced to 1 (the Complainant); one team member having been “allowed to leave” in January 2016 and the other in September 2017, and that he was been working without support during this time.  This, it is alleged, has caused the Complainant stress and anxiety.  The Complainant says that he raised these issues with the Respondent but he was ignored and/or nothing was actioned; 

b)      A separate complaint / allegation regarding taking annual leave in April 2018, which he got to take but “not without a fight”; 

c)       A separate complaint that the he wants to “get the same treatment as the other two people on my team whether that is redundancy or a severance package on similar terms” or “if that isn’t possible I would like suitable compensation for operating the team on my own since March 2015”. 

In the written submissions prepared on the Complainant’s behalf, the Complainant’s remedy appears to be confined to being “granted severance terms similar to other departed employees”.  

(a) Two employees were allowed to leave resulting in the Complainant working without support; his requests for support were ignored and/or not actioned by the Respondent 

 The Bank Team did comprise of three persons, including the Complainant, but the two other employees mentioned by the Complainant were not FTEs and both worked on a reduced hour basis.  The First employee, AC, left in June 2016 (after a period of leave dating back to January 2016).  As identified by the Complainant the second employee, SD, who was also on reduced hours, had been absent from the team during the relevant period as and from June 2015 as she was on an extended period of carer’s leave and ultimately exited the Company in and around 31 August 2017 .

It is incorrect for the Complainant to say that he has “been supporting all of the contact centre areas within the Bank on my own for over 3 and a half years”. Ms. L joined the Team in September 2015 and remained there until she left the business on 20 January 2017.  The Complainant was Ms. L’s line manager during this period and provided feedback for Ms. L’s performance reviews. 

 The Respondent set about sourcing a replacement for Ms. L impending departure in December 2016 and the role was advertised with agencies as a full-time position on 16 December 2016. The Complainant was involved in the candidate selection/ review process with CVs reviewed in January 2017 and interviews conducted over the following weeks. HF was interviewed on 10 March 2017 and was ultimately offered the role and accepted same on the 29 March 2017.  Unfortunately, there were issues with a passport renewal and work permit request in respect of which HF kept the Respondent updated and initially expected to be resolved within 8 weeks.   Ultimately additional delays were reported by HF in July 2017 which pushed back an initial start date to September 2017. The Respondent did explore alternative options and conducted additional interviews at this point in July 2017 but HF confirmed in August 2017 that he had received his passport and now just required his P30 and the Respondent determined to wait for HF.  This start date was later pushed back by HF to October but ultimately after this deadline passed HF ceased communicating with the Respondent. This was extremely unfortunate given the time and effort already spent facilitating HF’s recruitment but was not of the Respondent’s making.   The Respondent also responded immediately by setting about considering afresh both internal and external resource options.   This ultimately resulted in an internal resource BP, commencing in the role in January 2018.

It is clear that the issue of resourcing and replacing Ms. L was not being ignored. Further, the issues raised by the Complainant in his email of 4 September 2017 were not ignored as alleged. The Complainant’s email dated 4 September 2017 the matter was escalated by JC to MM, and onwards again to RP at Director Level, that day the 4 September 2017. RP spoke with the Complainant on 27 October 2017 and reaffirmed the position regarding the incentivized exit scheme and the efforts made to recruit resources. JC the Complainant’s line manager, had a meeting with the Complainant on the 24 November 2017.

The Complainant was advised by email dated the 13 December 2017 by MM that the Respondent was working on providing internal resources to support the Complainant and MM email dated the 20 December 2017 that BP would be commencing with the team in mid-January 2018. In addition, the Complainant was advised in MM email of the 20 December 2017 that the Respondent would make available additional resources to put together a training plan to assist with upskilling BP and this followed on from consultation with VF of the Respondent; copy of MM emails of the 13 and 20 December 2018 and email between VF and MM dated the 15 December 2017.

The Complainant in his submissions complains that he had to train in BP but in fact BP only started in mid-January 2018 in and around the same time that the Complainant commenced a period of sick leave in January 2018 and the Complainant remained on sick leave until April 2018. BP left the Respondent in May 2018 (the Complainant says April 2018) and therefore it is unclear how the Complainant could have provided any training to BP as alleged.

It is denied that the Respondent has ignored the Complainant’s issues as alleged. In the intervening period and to date some of Ms. L duties have been assumed by the Voice Team, including CCS Daily checks, request centre call recording – new setup; agent setup, CUIC reporting and set up to replay calls. Since the Complainant’s return to work in April 2018 CCS H group and adhoc calls are being answered by the Voice Team. In addition, JON is managing the incident queue for the majority of the time; is taking all Lync queries for CCS and is involved in managing the Problem queue. The Complainant indicated that he did not wish to return to the on-call rota on his return to work in April 2018 and has not been asked to do so since his return.   JC monitors workload closely and delegates to others so that the Complainant is not overstretched. The Respondent relies on the email from JC, copied to the Complainant, dated the 19 April 2018 following his return to work interview in April 2018 and the following up email on 11 May 2018.

The Complainant acknowledges at page 3 of his submissions that these additional arrangements were implemented by the Respondent. The issue of additional replacement staff has been addressed and a new staff member is due to commence with the team on 4 February next.   The Complainant was advised of the Respondent’s EAP programme and encouraged to avail of same.

Within a few weeks of returning to work on 19 April 2018, initially part-time, and with the additional arrangements set out in the email of the 19 April 2018 the Complaint requested again to be considered for the incentivised exit scheme (email to Ms. LN dated 25 May 2018 citing, inter alia, the issue of his annual leave request and possible disciplinary proceedings. Ms. LN replied after his return from annual leave on 14 June 2018 that “the Bank team are not in scope for the current VL scheme… because of the critical roles you and the team fulfil and the many obligations which the contract places on us”. This position has not changed.

   (b) He was granted annual leave in 2018 but “not without a fight” 

On his return to work in April 2018 following a 3 month period of sick leave commencing in January the Complainant requested annual leave of 2 weeks at the start of June 2018. This was request was made by the Complainant at his return to work meeting on 19 April 2018 although it is clear from the Complainant’s email to Ms. LN dated the 25 May 2018 that he had in fact booked the trip many months earlier, in January 2018. As noted in JC’s email to the Complainant following the return to work meeting dated the 19 April 2018 JC advised that in relation to the annual leave request he would need to review across the three Contact Centre Teams to ensure “we have relevant cover”. The Complainant states in his claim form that “I heard no more until a week before I was due to go”. This is not correct, as noted in JC’s email of the 11 May 2018 the Complainant was advised that the leave could not be approved for those dates in June 2018 as “C and K have already booked that time off. I am not in a position to approve ….. leave request, as there would be no cover for Contact Centre during that time”.

The lack of cover arose from other employees having already booked time off. The Complainant refused to accept this and as noted in his claim form “I informed them my intention was to take the leave anyway”. It was in this context that possible disciplinary action was mentioned but never actually taken against the Complainant. Instead the wider team rallied and made arrangements to provide cover so that the Complainant could go.  

(c) The Complainant has been treated unfairly and denied access to an incentivised exit under “Project Green” when other members of his team were granted such access 

The Complainant submits a “belief” that the two employees referenced by him as exiting the Company did so under the terms of the Respondent’s voluntary incentivised scheme.  The first employee exited from books in June 2016 before the existence of Project Green. This exit was processed on a compassionate basis under the Pi scheme. The exit of the second employee, SD, under Project Green was approved on compassionate grounds due to the fact that she was employed on a reduced hours basis and in fact had been on an extended period of carer’s leave (over 2 years). Both of these applications were determined on an individual basis on compassionate grounds. These employees were not replacedhowever Ms.L who was a full-time employee assigned to the team in September 2015 covering SD’s carer’s leave was replaced when she left.

It is submitted that it would act as a disincentive to employers from making such individual exceptions and facilitating an exit on compassionate grounds if every employee could seek to rely on these exceptions as evidence of unfair or arbitrary treatment against them. It is denied that the Complainant was subjected to any unfair treatment as alleged. The Complainant was treated the same as any other employee in a part of the business that was deemed outside the scope of Project Green and in a role that was deemed essential and for which there was no excess capacity.

 The Bank business team, as part of the respondent’s business services, was never in scope for Project Green.  The Complainant, at Appendix 1 of his submissions, exhibits an email from his FSU representative dated the 11 July 2017 to over 20 respondent employees, including the Complainant, indicating that they were “collectively in scope once the helpline acknowledges our Staff number as being so”.   The email also highlighted the voluntary nature of the scheme and that Ms. R in IR had reiterated to the FSU representative that “the scheme is voluntary on both sides so the Senior Management team may choose to not apply it in any given dept / section / individual on the basis that the vacancy created by an incentivised VS would have to be backfilled.  Anyone accepting their offer of a package will not be replaced, as is standard in all early exit schemes”. 

 The Complainant also exhibits an email just 1 week later, dated the 18 July 2017, from ND to numerous Respondent employees including the Complainant, clarifying the position “in relation to eligibility under Project Green, the Company’s voluntary Incentivised Exit scheme.

It has been brought to my attention that a number of team members have been told they are in scope for the scheme and that it has been indicated that the entire Outsourced managed Service team is in scope.  This is not the case and I regret that such incorrect information was communicated.  

As indicated by Bill at the outset, the scheme is of limited applicability within the Respondents Business and will be applied only where there is an excess capacity arising in the main from the implementation of service transformation initiatives.  Where there is no such excess capacity the scheme does not apply…”. 

 The Complainant applied for the scheme and was refused on the grounds he was ineligible.  It is submitted that there is nothing unfair or arbitrary about that decision.   The Complainant acknowledges in his email to JC dated the 4 September 2017that he “understood the reason given” for his ineligibility to avail of the exit scheme but goes on to state that it “was before I heard that another member of my team was allowed to leave”. This is a reference to SD, who was not an FTE, who had been absent from work on carer’s leave for the previous two years and during which time Ms. L, FTE, had been assigned to the Team since September 2015. When Ms. L left in January 2017 (not on an exit scheme) she was replaced.

It is submitted that it is clear from the Complainant’s own claim form and written submissions that he deems himself performing an essential role for the Respondent and in fact submits that he requires additional resources to do so.  It therefore does not appear to be in dispute that at the time of the incentivised exit scheme and up to date that there is no “excess capacity” as required by the scheme.  If the Complainant were to exit the company his role would have to be filled by another, as his role would remain. 

Conclusion 

The Complainant has not been running the Team on his own following the departure of two team members as alleged. The other two members of the team were not FTE and one of them was absent on a 2-year period of carer’s leave during which time a FTE was assigned to the team and remained in situ until she left in January 2017. She was replaced by BP and when her replacement BP left the Respondent set about recruiting replacement staff, which staff member is due to commence at the start of February 2019. While there have been some delays in sourcing replacements the Respondent has been endeavouring to do so as quickly as possible and has since the Complainant’s return to work in April 2018 taken measures to reduce his workload, and allocating some duties to others to ensure he is supported in his role.

The Complainant booked a 2-week holiday in January 2018 for the first two weeks in June 2018 without advising his employer and only sought the time in mid April 2019. Employee are required to give notice of annual leave and but even where notice is given approval cannot be guaranteed. The Complainant was advised in May that the same period had been booked by two other employees and it could not be approved as no cover was available. It is not disputed that the Complainant told the Respondent he would take the leave regardless. It was in this context that a possible disciplinary process was mentioned but ultimately never actioned as the team organised to cover the leave to facilitate the Complainant’s holiday. It is denied that the Complainant was treated any differently than any other employee whose leave had not been approved and indicated they would go regardless. If there was any difference in treatment it was in fact more favourable to the Complainant not less.

It is submitted that facilitating the exit of another employee, SD, who has been on an extended period of carer’s leave in exceptional circumstances in a compassionate manner does not mean that applying the standard eligibility requirements of Project Green to the Complainant is treating him unfairly. It was at all times made clear that the Respondent had discretion on the applicability of the scheme to any department, section or individual employee. The Respondent exercised its discretion on compassionate grounds for one employee who had not been attending work for some 2 years previously and there is nothing unreasonable or arbitrary in exercising its discretion in such a fashion. Further, there is nothing unreasonable, unfair or arbitrary in applying the standard eligibility criteria to the Complainant in common with employees of both genders who fell within, and were actually performing, crucial roles within the company. Further, the exit of SD did not impact the Team workload in the manner suggested by the Complainant as the employee in question had not been attending work for over 2 years at time of exit and another FTE, Ms.L had been assigned to support from September 2015.   SD’s role was not replaced but Ms. L FTE role was filled after her departure, which departure was not under any incentivised scheme.

Having carefully considered the evidence and submission from both the worker and the Employer I make the following two recommendations:

1.       The recruitment process to replace BP is to be finalised by the end of March, 2019.

2.       That the respondent’s annual leave policy should be amended to state that “requests for annual leave will be dealt with on a first come basis. No employee should make arrangements without the respondent having granted leave for the period requested”.