ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00020843

Parties:

Complaint(s):

Date of Adjudication Hearing: 29/10/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 13 of the Industrial Relations Acts 1969] following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute(s).

Ca-00027451-001

Background

The Complainant has worked as a Business Manager for the Respondent since 2001, since 2007 her place of work was in Client premises. In May 2009 the Complainant was requested to provide an On-Call Service to the Client out of normal contracted hours. The Complainant received payment of 10 lieu days per annum in acknowledgement of the work involved. The Respondent in addressing concerns of the client, decided to withdraw this payment.

Complainants Position

The Complainant states that she was first informed that the On-Call Allowance was being taken away was by way of a phone call received from the Operations Manager on 10th April 2018. The Complainant was not in favour of her Terms and Conditions being reduced and so a Consultation Process was begun on 16th April 2018.

There were three meetings, 16th April 2nd May and 24th May 2018, the Complainant states that all proposals from the Respondent involved the removal of the 10 lieu days. At the initial meeting the Complainant offered up her own suggestions which were rejected by the Respondent. At the second meeting the Complainant states she withdrew her suggestions, the Respondent wrote to the Complainant and outlined their proposals. At the third meeting the Respondent re-iterated their offer. The Complainant states that she was on holidays when she received notification that she was being paid 12 lieu days in one lump sum as a once off payment and it would be processed through payroll on the week commencing 25th of June 2018. The Complainant emailed the Respondent informing them that she would be raising a grievance and not to put the money through until the matter was resolved, a Representative for the Complainant also emailed the Respondent regarding the payment of the lump sum and insisted that it should not be paid until the grievance process had been concluded, no reply was received.

The Complainant had her grievance heard 16th July 2018, the outcome of which was that the Respondents decision was upheld. The Complainant then appealed this decision, this was heard on the 11th October 2018, the outcome of which was delivered on the 6th Nov 2018 and it upheld the previous decision. The Complainant was confused by the wording in this letter and sought clarification.

The Complainants position is that the Respondent did not enter the Consultation Process with the intention of negotiating. She believes that they had their minds made up already. The Complainant also has issue with the Respondent continuing to say that she is no longer required to be On-Call but that she must be available to receive “Emergency calls”, in other words the only thing that has changed for her in terms of work is that the 10 lieu days have been removed.

Respondents Position

The Respondent states that they received a request from their client to cease an arrangement that existed with the Complainant, which resulted in her availing of 10 lieu days per annum, in exchange for making herself available for On-Call on behalf of their client. The Respondent states that this gave the Complainant 35 days of annual leave per annum and their client felt that this had a negative effect on the business and placed strain on Team Leads. The Respondent states that the provision of regular On-Call is out of synch with the way they provide services generally. The expectation would be that only emergency On-Call would be required.

As per the Complainants position, there were 3 consultation meetings, they deposited the monetary value of 12 lieu days as a once off payment to the Complainants account 28th June 2018. The Respondent states that the Complainant did lodge a grievance and a hearing was held and the Respondents decision was upheld citing “This decision was made as a last resort to ensure that the Respondents contractual relationship with the client was not put at risk by failing to act on the serious concern that the client had raised. The decision was made due to business requirements………After investigating the matter thoroughly, I recommend that this decision should be upheld on the grounds of business requirements.”

The Respondent also states that the Complainant did appeal this decision and again the Respondents position was upheld.

The Respondent states that all proper procedures were followed in this matter.

The respondent confirm that they require the complainant to provide “on call” or “to be available” every second week end.

Findings

Both parties gave written and verbal submissions that I have given great consideration.

I find that the Respondent did in fact enter the consultation process having already decided that the payment of 10 lieu days was being removed.

I find that the Respondent did put forward the following solutions;

• Removing the 10 lieu days and adding the monetary value of these lieu days to your monthly salary over a 12-month period.
• Removing the 10 lieu days and adding the monetary value of 12 lieu days to your monthly salary over a 12-month period.
• Removing the 10 days lieu and giving you a lump sum equal to the monetary value of 2 years lieu days

These options came with the added request to remove the on call and revert to emergency calls only.

I find that the Respondent after putting forward the above solutions instead opted to pay the Complainant 10 lieu days in one lump sum as a once off payment, I find that this solution was not one that had been discussed with the Complainant.

I find that the Respondent breached their own procedures in so far as the Complainant was entitled to 8 weeks’ notice of a change to her terms and conditions as per “Statement of terms and conditions of employment-Management-Admin.” i.e.; the letter from the Respondent notifying the Complainant of the decision to discontinue the arrangement of 10 lieu days per calendar year was dated 28th May 2018 and as such no payment should have been processed in June 2018.

I find that given the fact that the Complainant raised a grievance with regards to this decision no payment should have been processed until all available processes had been exhausted.

I find that the Respondent refers to “emergency on call” with regards to emergency on call guidance, emergency on call employee memo and emergency on call log

I find that the Complainant has already been working on an “emergency on call” basis since 2009 and that the Respondent expects her to continue doing this but without the benefit of the 10-day lieu payment.

I find that the respondent requires to the complainant to be available every second weekend

I find the “on call” was eliminated by means of the buy and the practice when this(buy-out) happens the service is no longer required.

I find that the respondent does require the claimant to be call and, on that basis, I am making the following

Recommendation

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

I am making the following;

1. That the complainant provides” on call” one (1) weekend per month which shall be agreed between the parties in advance.
2. The claimant receives 5 days lieu days for providing this service
3. The sum already paid by the respondent is compensation for the loss of additional lieu days the complainant had..
4. That the parties meet on a regular (12 month) basis to review its operation

Dated: 19-02-2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Key Words: