Complainant

Respondent

Anonymised Parties

A Worker

The Employer

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-00029128-001

18/06/2019

In the 10 years I have worked for this company, I have never had any disciplinary problems or otherwise until Ms YB took over as manager. Problems started to arise in and around June to august of 2018. Ms YB was asking me to do trials changing my work practices to the other drivers. The continuous comments from Ms YB telling me she didn’t know what she was going to do with me lead me to believe my job was under threat. It ended up Ms YB had advertised me outside of my contracted hours without my permission, and then I was covering a 46 hour week approx. From early august 2018.I let it go on until early October 2018.

Around this time Ms YB circulated an email to a select group of drivers giving them time in lieu for hours covered above the contracted 39 hr week. I was left of that list even after confirming my hours with the office staff. Even a simple request to check my hours with Ms YB led to more problems, meanwhile other staff were getting their time owed on a weekly basis.

Ms YB assigned Mr YC to check what hours I was due back, but for some reason he went back to January 2018. I dropped in several times to check what was going on. A simple request to check my hours was an ordeal now and ongoing. So in mid-November I dropped into Mr YC to see what was going on and why was it taking so long. Mr YC told me he had all my hours sorted and would email them to me as soon as Ms YB saw his work and signed off on them. Two weeks later I was in the office talking to john. Mr YC was now asking me questions regarding my work times from up to 11 months ago. I explained to him why I thought there could be differences on the system to what was on the sheets. I told him my times were when I worked but it was unfair and unrealistic to ask about jobs from so far back. Our run sheets are dropped in every week and that is the time to sort any discrepancies out not, months and months later.

So on 4th of December Mr YC then sent me an email stating that he had worked out my hours for January to June, I never asked for this to be done. I felt like Ms YB was treating me different to the other driving staff now. I went into the office to try and sort it out. I approached Mr YC to talk to him again about my hours. To go into the office of and ask a simple request about my hours now was a problem and an ordeal. Ms YB felt the need on this occasion to intervene even after detailing Mr YC to do my hours which led to further problems.

On that day early in December both Ms YB and Mr YC had in front of the other office staff took my character. The discussion became heated when Ms YB intervened together with john. My manager Ms YB dismissed what I was telling her in about my hours and in front of everyone. Ms YB stated to me that the other drivers were on a different contract and terms than me. This was news to me, I had assumed all drivers from that time signed the same contract as me dating in and around the 14th December 2015. I felt intimidated and humiliated in front of the office staff.

I met with Mr YC on one after this and finally agreed my time in lieu. I had a one on one meeting with Mr YC and it only took around 35 mins to sort out my sheets. On the wed 13th of December Mr YC emailed my Runsheet through to me, more problems, I was rostered outside my normal rostered arrangements without consultation. I felt this was unprofessional and not acceptable. I have a disabled family member at home who I care for. I felt I was being goaded to having another altercation with the office staff. I did the work and said nothing. I printed the Runsheet for this hearing dated Thursday 13 December.

Then on 19th of December Mr YC sent me another email about my hours owed. More problems. This email was proofed by Ms YB before Mr YC sent it to me. In it my character is being taken again, it states about being fair and honest. I felt it was a personal attack on me, again trying to goad me into a confrontation. After I had finished my last job, I headed into the office on the way home. I pass the office on my way home. On his email, it states to contact the office if I had any questions, so I did.

I went into the office and asked why my character was being taking, I stood there beside Mr YC as I did on any other day, and again the discussion became heated when Ms YB intervened again joining Mr YC talking to me. In fact Ms YB got so animated that she left her workstation and advanced towards me, assaulting me in the process. Ms YB aggressively poked my arm while berating me. I kept my dignitary during this altercation. I was shocked that the manager of xxx laid her hand on me. Mr YC accused me of having an aggressive tone, for which I apologised immediately if he felt that way as that was not my intent. I was told by Ms YB I was not welcome into the office of xxx. Ms YB also stated that she could change my hours at 24 hours’ notice if she wanted too. No driver or staff member is treated this way in my time with xxx. I was humiliated by the manager. My Christmas was impacted by what transpired in my workplace. So I put a formal complaint together dating 1/1/2019 and handed it in to Mr YM of the respondent board.

In Jan (4th of Jan) Ms YB asked for a meeting with me, stating it was just a chat to try and sort things out she said one on one. I met with Ms YB that day, I didn’t have any heated disagreement with her and she laid a hand on me again in an aggressive way. I told her that she should never ever put a hand on me again, that it was assault and brought it to her attention she had assaulted me on the 19th of December also.

I met with the respondent board on the 11th of January 2019 to discuss my complaint letter dated 1/1/2019.The agreed process moving forward was that all parties would meet separately with the board and then together to resolve any outstanding issues. This didn’t happen. The letter I received from the board dated 8th of February didn’t deal with what had transpired over the proceeding months. I was so stressed at this point I went to see my doctor, who immediately took me out of work due to stress and I haven’t been back since.

Mr YC made a complaint against me on 14th of Jan 2019.The board later stated that Mr YC didn’t want to proceed any further with his complaint. In light of the fact Mr YC never sat down with me as per the board’s recommendation, I view going into the respondent’s office and dealing with Mr YC as a hostile environment for my part.

A further meeting on the 1/4/19 didn’t move or resolve things either. At this meeting I asked the board around 20 questions addressing my complaint. I gave them a copy of the questions at the time for their records. They admitted in front of my witness Mr NS that Ms YB assaulted me. Following on from this and still no resolution I asked to go to stage 4 of our grievance procedure which was mediation.

Only myself, Mr NS and Ms YB attended the mediation. No agreement could be reached and that’s we are here today.

The Respondent provides a transport service to disabled people at a reduced rate on market transport providers. It also provides note taking services for third level students who have special needs.

The Claimant is a driver with the transport service and was employed 31 August 2009. The Claimant’s terms and conditions of employment are reflected in a contract of employment dated 15 December 2015. Funding for the Claimant’s role comes from Pobal. The Respondent is unable to draw down the funding while the employee is ill. However, if the illness is long term, the Respondent is allowed to fill the vacancy and draw down the funding which is now aligned to the replacement person.

The Respondent operates transport services between 8.00am and 11pm, Monday-Friday, Saturday-Sunday 9:00am to 7pm. Traditionally, within the Respondent there were; seven drivers who work during the day from 8am to 6pm, known as the “day drivers”, one “evening driver” whose hours are from 3pm to 11:30pm and one “weekend driver” whose hours are from 9am to 7pm. The Applicant was the “evening driver” from 31 August 2009 until 25/11/2016.

It appears from the documentation provided that the Claimant is alleging a breach of section 13 of the Industrial Relations Acts centring around; the Claimant wanting confirmation that the hours he worked while on the temporary day roster during August 2018 to February 2019 are the only hours which he can ever be asked to work; the Claimant being unhappy with the manner in which the Board of the Respondent dealt with his grievance which covered the aforementioned hours of work and his complaint of bullying and assault by his manager Ms YB.

BACKGROUND

It is accepted that the Claimant has worked for the Respondent since August 2009. The Claimant was supplied with a mobile phone with number 087 xxxxxx by the Respondent for the purposes of carrying out his duties.

It is denied that the Claimant was treated differently to other drivers save as where he expressly requested to be treated differently. The Claimant was at all times (apart from the relief worker brought in to cover roster during sick leave) since August 2009 the evening driver for the Respondent. He covered the hours of 3pm to 11:30pm   Monday to Friday. During the period of time for which the Claimant was on sick leave a relief driver was employed on a fixed term contract to cover the sick leave. When the Claimant returned to work at this time, he was scheduled temporarily to day duties. The relief drivers fixed term contract concluded 28th July 2017. Due to a need and demand for the evening service for clients and service users, Ms YB, manager of the Respondent sent an email to all drivers to ascertain whether there were any drivers available to take on the evening roster. By email dated 6 July 2017, the Claimant indicated that he would be interested in going back to the evening shift. His email stated….. “I would like to put my name forward. Starting at 3pm is better for me and I’ve got something organised in place to help me deal with the problem I have on a Tuesday and am going to be available Mon to Friday from 3”.

During 2018 the demand for the evening service diminished. There were many evenings during which the Claimant had no transport runs to do. In June 2018 the manager of the Respondent met with the Claimant to discuss the lack of demand for the evening service. At this meeting they discussed the possible reasons for the low demand, what ideas they could come up with to increase demand and discussed what the service users and clients might actually want from the service. They also discussed some ideas from the Board of the Respondent on how to increase demand for the evening service. Following a discussion between Ms YB and the Claimant, it was agreed   between the Claimant and Mr YB that the Respondent would; write to all members (service users and clients) and indicate that on a trial basis for the month of July 2018 that the service hours would be extended until 11:30 pm and that the evening driver’s work phone number would be published in order that service users and clients could call for transport once the office of the Respondent was closed at 5pm and make arrangements directly with the driver. A copy of Mr YB’s contemporaneous note of this meeting is at Appendix 3.

During the aforementioned meeting with Mr YB in June 2018, the Claimant indicated that he was concerned about being made redundant in circumstances where there was low demand for the evening service. Mr YB assured the Claimant that the Respondent was not thinking about redundancies and instead wanted to; build up the service exactly as they had done previously with the weekend service when it suffered from low demand and focus on building up the evening service. Ms. YB informed the Claimant that the Respondent could consider putting him in for some day time hours if the evening shift continued to be slow. This would give the Respondent engaging work to do while the evening service was being built up and would assist the management of the Respondent in facilitating increased demand during the day and in facilitating the taking of time in lieu by day drivers who had built up a lot of time to take.

The trial as referred to above at paragraph 9 commenced in July 2018. A copy of the notice sent to service users and clients is at Appendix 4. After the first week of the trial, Ms YB had a phone call with the Claimant to get his feedback. The Claimant confirmed that there had been no additional bookings or enquiries following the mail shot and promotion, that there had only been two calls to his work mobile phone and these were both with queries for the accounts department of the Respondent and that a similar service running in South County Dublin had three vehicles working nights up to 10pm. A copy of the note of this discussion is attached.

While the considerations were on-going regarding how to increase the interest in the evening shifts, Mr YB approached the Claimant about assisting during the day shift on a temporary basis in order to cover; annual leave and the taking of time in lieu by day drivers who had built up a lot of time. This had previously been agreed to between Mr YB and the Claimant in their meeting in June 2018. A copy of an email dated 20 July 2018 setting up this arrangement is at Appendix 6.

The Claimant worked the following hours on a temporary basis to facilitate the Respondent and while waiting for the demand for the evening service to increase; Monday 12:00-18:00, Tuesday, Wednesday, Thursday; 8:30-18:00 with a 30 minute break, and Friday 15:00-20:00, with a break for two hours and then 21:30 – 22:30 from 6th November 2018 until he ceased working due to being on sick leave in February 2019.

In/around October 2018 Mr YB started convening group meetings of the transport team in order that she could communicate work related information to the group of drivers as a whole. At one such meeting the issue of addressing time in lieu for the drivers arose. Mr YB sought a mandate to communicate on issues such as time in lieu to the drivers as a group. Following one such meeting, the Claimant indicated that he did not wish to be part of the group and wished for all matters to be communicated to him individually.

In October 2018 the Claimant took issue with the fact that an email was sent to the group of drivers (not all drivers) seeking that they submit their time sheets for the purposes of dealing with all claims for time in lieu and was not sent to him. The email was not sent to the Claimant as there were some drivers who had little or no time in lieu built up as at June 2018 (of which the Claimant was one) and furthermore as all time in lieu was scheduled to be taken on Fridays and the Claimant worked on Fridays from 15:00-23:00 these particular arrangements were not relevant to him, nor were they relevant to the weekend driver or the part time drivers who were also not included on the email.

As the Claimant started to build up time in lieu he started emailing the manager and the transport manager, Mr. YC more frequently with queries. His queries were regarding his working hours, his break times and his time in lieu built up. There was much discussion regarding the Claimant’s time in lieu built up and how it had been calculated. There was an incident on 5 December 2018 where the Claimant took exception to the fact that Mr YC sent an email dealing with working hours on 4 December referring to an attachment but omitted to include the attachment. During this meeting all concerns regarding time in lieu built up were discussed and there was some heated discussion between Mr YC and the Claimant which was loud and which was disturbing the other members of staff working in the open plan area. The interactions between Mr YC and the Claimant were so disruptive that the manager, Mr YB, interrupted the discussion and asked the Claimant to refrain from speaking in such tones in the open plan and to book a meeting room in advance in future to have any such meetings. The issues regarding time in lieu built up were agreed between Mr YC and the Claimant at a subsequent meeting on 11 December 2011 which took place in a meeting room and away from the open plan area. This meeting was cordial and productive. It was agreed that the Claimant was entitled to 34 hours in terms of time in lieu built up.

The transport manager, Mr YC, sent the Claimant two emails on 19 December 2018 (these emails confirmed the details discussed and agreed at the meeting on 11 December 2018, one in relation to working hours and one in relation to annual leave. Copies of these emails are contained at Appendix 7. Following the sending of these emails, the Claimant arrived into the open plan office space of the Respondent seeking to urgently speak with Mr YC. The Claimant was frantic, worked up and presented as angry. The Claimant was shouting, was speaking over Mr YC and was not allowing him to answer the allegations made against him. After a number of minutes, Mr YB stepped in and asked the Claimant to stop shouting and pointed out that the shouting was inappropriate behaviour in an open plan office space. Mr YB pointed out to the Claimant that his behaviour was inappropriate not just because he was shouting but also because he was towering over MR YC who is a wheelchair user. Mr YB was of the opinion that Mr YC needed protection from the Claimant during this interaction. A copy contemporaneous note which Mr YB took following the incident is at Appendix 8. Mr YB telephoned a member of the Board, Mr YM to inform him of the incident. During this interaction the Claimant alleges that Mr YB assaulted him. This allegation is denied. Mr YB has no recollection of putting her hands on the claimant during this exchange. Her recollection is that she was not standing close enough to the Claimant to put her hands on him. Mr YC does not have any recollection of Mr YB touching the Claimant in any way during this interaction.

The above interaction between the Claimant, Mr YC and Mr YB was sufficiently serious to form part of the within complaint by the Claimant. Mr YC raised a grievance on 9 January 2019 arising out of this incident and indicated that he did not feel safe at work with the prospect of the Claimant reacting like that in the future and asked the Board to deal with the issue. A copy of Mr YC’s grievance is attached

Mr YB met with the Claimant on 4 January 2019 to discuss the following; the incident on 19 December, the fact that the Claimant was an evening driver but that by agreement he was rostered on for the day shifts temporarily until such time as the evening work picks up, the pair agreed his time in lieu built up, that adequate notice would be given in advance of any changes to the roster, his working week, etc. This meeting was cordial, the pair shook hands afterwards. An email summary of what was agreed at the meeting was sent by Mr YB to the Board on 11 January 2019. A copy of this email is at Appendix 10.

The Complainant lodged a formal grievance with the Board by letter dated 1 January 2019 which was handed into the offices on Friday 11 January 2019. A copy of this letter is at Appendix 11. The Board dealt with the grievance in accordance with its grievance policy. A copy of this is at Appendix 12. The Board convened a subcommittee of members to deal with the grievance. The subcommittee comprised of Mr NB (Chairperson of the Board), Mr HW (Company Secretary) and Mr. YM (Vice Chair of the Board). The subcommittee met with the Claimant, Mr YB and Mr YC in order to investigate the grievance. No notes were taken of these investigation meetings. The Board issued a letter to the Claimant dated 8 February 2019 which set out its findings from the investigation.

The Claimant was not satisfied with the response of the Board and wrote a further letter dated 22 February 2019 and asked for the matter to be escalated under the grievance procedure. A copy of this letter is at Appendix 14.   The Claimant went out on sick leave from 15/2/2019.

A further meeting was held between the subcommittee of the Board and the Claimant to further clarify issues raised in his letter of 22 February. This meeting took place on 1 April 2019.

In accordance with the express wishes of the Claimant and the Respondent’s grievance policy, the complaint was referred to the WRC by the subcommittee of the Board by letter dated 1 May 2019. A copy of this letter is attached.

The matter did not resolve at Mediation and the within complaint was received by the Respondent.

Having carefully listened to the both the respondent’s and the complainant’s submission I am making the following recommendations:

1.       The complainant should make an appointment with his GP in order to discuss the options available to him to help him find a long -term stress management solution.

2.       The complainant should submit a ‘fit to work’ certificate prior to return to work.

3.       The respondent set out in writing the complainant’s working hours.

4.       The complainant should agree that from time to time flexibility in relation to his working hours might be required.

5.       The both parties should agree that the issues raised at the hearing today are in the past and agree to move forward starting afresh.

I am making the following recommendations:

1.            The complainant should make an appointment with his GP in order to discuss the options available to him to help him find a long-term stress management solution.

2.            The complainant should submit a ‘fit to work’ certificate prior to return to work.

3.            The respondent set out in writing the complainant’s working hours.

4.            The complainant should agree that from time to time flexibility in relation to his working hours might be required.

5.            The both parties should agree that the issues raised at the hearing today are in the past and agree to move forward starting afresh.