Complainant

Respondent

Anonymised Parties

A Steel Stores Employee

A Manufacturer

Representatives

Pat O'Donoghue SIPTU

Muireann McEnery IBEC

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-00025414-001

30/01/2019

The Complainant was seeking compensation for the loss of overtime due to a temporary employee being assigned to the area he worked and that he should have been assigned to train the temporary employee.

This dispute has been the subject of an internal grievance procedure where the Complainant was ultimately unsuccessful. The Complainant is seeking to have this matter investigated as he disputes the grievance outcome. The substance of the issue involves the provision of overtime in the workplace. The Complainant claims that he was not afforded a fair distribution of overtime during a busy period of production. He believes that this was unfair and that he missed out on an opportunity to make additional income over this period.    

The Complainant is employed in the ‘stores’ section of the Respondent’s operation. The Respondent is a manufacturing facility.

The Complainant has been part of an extended three-person team who were engaged in the stores section. Two employees were assigned to stores generally while the Complainant was engaged in ‘steel stores’ specifically. The Respondent categorises him as a stores/saws operator.

On the 22nd of January 2018 an additional person was assigned to the Complainant’s section on a temporary basis. This person was specifically assigned to work with the Complainant in the ‘steel stores’. This was explained as a necessary move given an increase in work at the time.

During the currency of the transfer of the then temporary employee, the Complainant claims that he was not in receipt of overtime that he would have normally expected. While the Complainant had informed the Respondent of the times he was not available to engage in overtime he was available for overtime for a 4-month period approximately. This was from mid-March to early July and prior to the 5th of February.

The Complainant was unhappy in respect of the allocation of overtime during this period and so he raised an internal grievance. He was unsuccessful in the internal grievance process. The Complainant alleged that while a temporary operator is employed in the steel stores the Complainant is guaranteed a maximum level of overtime. The Complainant understood that the other stores employees were receiving a higher level of overtime than the Complainant received and that the other operators in stores do not have to get their overtime approved.

The Complainant was not asked to train the temporary operator in steel stores on evening shift and felt as the senior person he should have conducted this training.

The Complainant progressed his grievance through to stage 2 of the internal process. It was to be noted that the Complainant corrects an error in the stage 1 outcome letter where a ‘reasonable level’ of overtime was being sought not ‘a maximum level of overtime’.

After the stage 3 hearing was conducted a letter of outcome was communicated on the 12th of April 2018. In relation to the issue of notification of overtime a proposal was suggested to increase the amount of notice provided to the Complainant in advance. In relation to the secondary issue of the Complainants seeking of a ‘reasonable level of overtime’, this is characterised as a minimum level of overtime and the letter stated, “The amount of that overtime is not guaranteed and will be dictated by the operational requirements”.

The matter was appealed to stage 4 and the Respondent’s position didn’t’ alter. However, at this stage the Respondent informed the Complainant that the temporary employee in question is now permanent and as such the matter is resolved. The union on behalf of the Complainant communicated to the Respondent, that there has been no addressing of the period prior to this permanent appointment. It was put to the Respondent that they were in breach of custom and practice in respect of the period where the Complainant was affected. Specifically; “that while a temp worker was in an area, that all permanent staff should be given access to the maximum amount of overtime before it is distributed to temporary workers”.

Prior to the period of February 2018, the Complainant stated that he would have an expectation of overtime to a maximum of 48 hours per week. This could be usually 6 to 9 hours in excess of his normal working hours.  

The Complainant submits that during the period in question which saw an increase in production, he believes he should have received up to 9 hours per week overtime. Instead he submits that he was offered considerably less. The Complainant submits that the Respondent should have given him the opportunity to earn more overtime in the circumstances.

The Respondent raised a preliminary issue that the Complainant's grievance centred around his perceived unfairness of the process following the engagement of a temporary worker into the Steel Stores section. Whilst the Respondent refutes any and all allegations of unfairness in the distribution of overtime, the temporary transfer of the permanent employee in question was made a permanent appointment on 3 rd September 2018. A letter from the Respondent dated 1" October stated;

"While we welcome the temporary employee been made permanent we feel this does not rectify the issue raised by (the Complainant) in his grievance. We stated throughout all stages of the grievance hearing that the custom and practice has been, that while a temp worker was in an area that all permanent staff be given access to the maximum amount of overtime before it is distributed to the temporary workers. At no point in your letter is this acknowledged of accepted by you. "

The Respondent argued that the issue was a collective matter and is outside the jurisdiction of this hearing and requested that this matter be withdrawn and if SIPTU wish to pursue it that it be done so as a collective issue in accordance with the appropriate process. Without prejudice to the preliminary argument it was the Respondent's case that the outcome to the grievance raised by the Complainant was fair and appropriate and that his claim has no basis.

The Complainant is employed with the Respondent as a Stores / Saws operator. The Complainant is also a Back Up operator to the maintenance department

On 22 nd January 2018 a permanent employee was transferred internally to the Stores department in a temporary capacity on a newly introduced evening shift to assist with increased work volumes. 11 operators in total were hired at this time to take over work previously carried out int the Respondent's facility in India.

During the internal grievance process the Complainant was asked to clarify the grievance. His union representative., his Shop Steward set out three issues as follows;

The while a Temporary Operator is employed in the steel stores the Complainant is guaranteed a maximum level of overtime

That the other stores employees were receiving a higher level of overtime than the Complainant received and that the operators in stores do not have to get their overtime approved.

That the Complainant was not asked to train the temporary operator in steel stores on evening shift.

The Respondent replied in the grievance process that product bookings are reviewed on a weekly basis and over time is allocated on a business needs basis. The procedure in relation to overtime was set out in Article 36 of the Company- Union Agreement which states that “while overtime is not obligatory, nevertheless, it is agreed that employees covered by this Agreement shall on request work all reasonable Overtime required by the Company, and the Company shall whenever possible qive reasonable notice of Overtime working. All Overtime must be authorized by the Company and no particular levels of Overtime are guaranteed."

The Respondent stated that over-time is allocated on an equal basis to the employees in stores where possible, taking business requirements and availability into consideration.

The Complainant was not asked to complete the training as he had completed the previous training and also the training was required on evening shift, so the evening shift operator was requested to complete the training. There was some difference in interpretations about what level of overtime the Complainant was seeking. The complaints were clarified more in the grievance process and ultimately denied by the company as appropriate claims.

In relation to the notice of overtime, in general, where overtime is required, supervisors advise employees of a fixed overtime availability per week and notification of changes to that allocation can range from 1 to 5 days.

In the Complainant's department, requirements for overtime are determined by bookings and demand levels which are presented in the weekly sales / ops meetings on Tuesdays which is why notification of overtime is generally given on Tuesdays. As a solution it was proposed that the Complainant's supervisor would issue notification to the Complainant's department on Tuesdays following the sales/ ops meeting of the overtime availability from that Tuesday afternoon to the following Monday afternoon (1 week in advance) specified by day.

It was again pointed out to the Complainant that there was no guaranteed overtime allocation and the Respondent did not and does not accept that there should be any guaranteed levels of overtime irrespective of the presence of temporary workers or not.

An analysis of the Complainant's overtime rates at that time indicated that his overtime rates were not unfairly comparable to those of his colleagues.

The Complainant had an accident at work and was out of the work place from 4th July until

3 rd September 2018. The outcome to stage 4 was not issued until after his return on 12th September and as the temporary transfer of the employee became a permanent appointment to that department on 3 rd September it was held by the company that this resolved the matter. In response however the Union responded by letter dated 1 st October 2018 stating that this did not resolve the Complainants grievance as the letter of outcome did not state that "while a temp worker was in an area that all permanent staff should be given access to the maximum amount of overtime before it is distributed to the temporary workers" which as stated above is a collective issue and not the original grievance as first raised by the Complainant.

Clause 36 of the procedural agreement governs the allocation of over time in the Respondent company and is very clear in its terms stating that employees shall on request work all "reasonable overtime" and that the company will give 'treasonable notice" of overtime and that "no particular overtime levels are guaranteed". There is no mention of maximum levels of overtime and there is no mention of favouring permanent employees over temporary employees in the allocation of overtime.

There is no custom and practice within the Respondent company of guaranteeing maximum levels of overtime to permanent workers whilst temporary employees are engaged and to do so would in fact be in contravention of the Protection of Employees (Fixed Terms Work) Act 2003 which prohibits less favourable treatment of Fixed-term employees.

The permanent employee was temporarily transferred to the Complainant's section

on 22 nd January 2018.

On 5th February 2018 the Complainant advised he was not available for overtime until 18th March 2018 after which date he was available for overtime. The Complainant then sustained an accident at work on 4th July 2018 and was absent until 3 rd September 2018. The Respondent carried out an analysis of overtime worked by all employees in the relevant department in 2018 on the dates the Complainant was available to work overtime and this was supplied to the Hearing. The Complainant worked substantially more overtime that all other individuals when he made himself available to do so.

On the preliminary issue I find that while the issue concerns the application of a general agreement the claim is sufficiently specific to the Complainant and is not prohibited by Section 13 (2) of the 1969 Act which prohibits an Adjudicator investigating “a dispute connected with rates of pay of, hours or times of work of, or annual holidays of a body of workers”. As this claim does not fall into any of these categories, I deem that I have jurisdiction to issue a Recommendation in the issue.

At the Hearing the following information was presented regarding the staff who worked in the Stores for the relevant period. The temporary worker (at the time) worked 8.5 hours overtime. The two other stores staff worked 93 and 132 hours. The Complainant worked 156 hours. The Respondent had the right to assign an additional member of staff to the Stores to meet the increased business demand. This was not really contested at the Hearing. The Complainant received the largest amount of overtime and the temporary worked did a totally insignificant amount. Therefore, the conclusion must be that the temporary worker did not deny the Complainant any real amount of overtime. It is agreed in the Company/Union agreement that overtime is on a business needs basis. The Complainant received his fair share of the overtime allocated and the appointment of a temporary new person is not a reason to justify additional overtime to the Complainant to what the business required. The Complainant also made himself unavailable for overtime during a part of the period in question in this claim, thus denying himself, possibly, extra overtime. There was no evidence presented to justify the claim that the Complainant was entitled to a maximum level of overtime. i.e. 9 hours per week. The evidence did not support the claim that the two other permanent stores staff got more overtime than the Complainant and there was no agreement in place that the most senior person would train new staff.

Having considered all the relevant parts to this claim I have concluded that neither the agreements in place or the facts regarding the overtime worked by the various Stores staff supported the Complainants claims. The Complainant had no “right” to train the new member of staff. I find the claim to be not well founded.

Overtime