Complainant

Respondent

Anonymised Parties

A Fork lift Driver

A Packaging Company

Representatives

Cian Cotter, BL instructed by CW Ashe & Co. Solicitors

Claire Bruton, BL instructed by Ronan Daly Jermyn

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028905-001

06/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00028905-002

06/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00028905-003

06/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 (Withdrawn at Hearing)

CA-00028905-004

06/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Part 3 Section 20 of (European Cooperate Society) (Employee Involvement) Regulations 2007(Withdrawn at Hearing)

CA-00028905-005

06/06/2019

This case addresses three live issues. One a complaint regarding terms of employment and two under the Industrial Relations Act. Another two complaints listed above were withdrawn on day of hearing.

Both parties attended and addressed the first complaint. At the end of that aspect of the case, the Respondent /Employer excused themselves from engagement on the Industrial Relations aspects of the case. The company had already objected to participation, but their response had over run the time allowed for a response to be received and the Dispute was cleared for hearing at Adjudication stage. As Industrial Relations is a voluntary process, I permitted the Respondent to vacate the room and pressed on with the Claimant and his legal team.

It is the Employers position that no valid trade dispute is in being.

Both parties prepared helpful written submissions to accompany oral arguments. The Complainant added some photographs to his IR submissions.

CA -00028905-001 (notification of change in terms off employment)

The Complainant is employed as a Forklift Driver, or which he was trained and has worked for the respondent business for 23 years. His full-time work, over 5 days comprised a 2.30 pm start and 10.30 finish. His life and recreational activities revolved around those hours. The respondent stacks wooden pallets up to a height of 25 feet, which the complainant contends is more than the optimal 15 feet.

The Complainant outlined a workplace incident in February 2019, where during driving his forklift, he collided with a stack of pallets which in turn fell. This was an accident and caused no harm.

The Respondent told him that the matter was to be reported to the Insurers and 5 days later the complainant was informed by his Personnel Manager that the Insurers had insisted that he was to be removed from his position as a fork lift driver. He was sent home to return at 8.30 am next day.

The next day, the Complainant challenged the decision and sought reasons for the change of position and start times. He sought to retain his position. Some weeks later he requested sight of the Insurer’s direction to him. Nothing followed.

The Complainant then met with the General Manager and sought reinstatement of hours and fork lift work. The Complainant submitted that he was informed that “if he was not happy with the situation, you are in the wrong location “

The Complainant remains dissatisfied with his working hours in a manual capacity of 8.30 am to 5.30 pm. He had been passed over to attend the Fork lift course refresher. He was the sole worker out of 9 workers to be excluded from this.

The Complainant has engaged on a voluntary capacity as a Stable Hand assistant in riding out horses and this takes place in the morning time, a fact known to the Respondent.

The Complainant presented at hearing as very fed up and disappointed at his exclusion from his position and his custom and practice roster. He believes that he had worked hard for the respondent and had been unfairly disregarded. He really missed having availability for his hobbies involving dogs and horses.

He submitted that he had not been informed in writing of material changes to his terms and conditions within a month of their having taken place. he also confirmed that he had not requested written confirmation of the changes

CA -00028905-002 Disciplinary Sanction

Counsel for the claimant submitted that the Employer had failed to object to the Dispute being investigated at Adjudication and were now precluded from raising an objection at hearing. The Employer had been notified of the progression to hearing in November 2019.

The Claimants representatives were shocked as the employer vacated the hearing and asked the Adjudicator to address this in whatever recommendation she made.

Counsel for the claimant submitted that the claimant   had been placed in a de facto Disciplinary sanction zone without application of company procedures and this constituted a Trade Dispute.

Counsel opened the company procedures at hearing and contended that these had been ignored when the claimant was unilaterally removed from his Fork Lift position and core shifts in March 2019.

In his earlier written submission, the claimant ha referred to an earlier on-site incident in December 2018 which resulted in an incident involving a Fork lift Driver and an Independent Contractor, which resulted in grave injuries. He made this point as he contended that the Fork lift Driver on that occasion had not been visibly sanctioned and this was an inconsistent practice to how he was treated.

The Claimant was clear that he had not been invited to any investigation into the February Fork lift incident and this was in contravention with company procedures. He submitted a demonstration of how pallets were stored by way of photographs.

This procedural vacuum was compounded by the lack of progress made by the claimant when he sought to question the reasons for this radical change. The claimant addressed the hearing that the events as stated had confused him as he had no wish to be excluded by a company with whom he had worked hard, and which had allowed him to balance his life with hobbies he loved. He was certain that he was receiving the “cold shoulder “and did not understand why?

Counsel contended that the lack of transparency surrounding the decision-making process ran to the heart of the case.

When asked how he saw the matter being resolved the claimant submitted that he saw the answer in taking a step back to allow him to revert to his role and roster. He made a strong pitch in that direction.

He submitted several possible permutations of how that could be accommodated at the company.

CA -00028905-003 Bullying and Harassment procedures

The Claimant had not raised a complaint of bullying in accordance with the company policies.

The Respondent disputed the claim under Terms of Employment legislation and conveyed their decision not to attend the scheduled hearing as it pertained to Industrial relations claims. The Respondent denied that a valid trade dispute was in existence. There were 80 employees across site in two counties.

CA -00028905-001 (notification of change in terms of employment)

The Respondent submitted that the complainant had been hired as a Plant operative on 4 January 1986. This was a duty rather than a title. A signed letter of employment was submitted.

The respondent paid the complainant €17.04 per hour and his gross weekly salary is €681.60.

He commenced Forklift driving at the plant some 19 years ago on a 2.30 pm to 10.30 pm arrangement.

In February 2019, the Respondent submitted that the complainant had engaged in an unsafe practice which resulted in the disturbance of pallets. This prompted the respondent to return the complainant to general operative duties and a revised work pattern to core working hours.

The Complainant did not request a written confirmation of the changes to his work arrangements. No change had occurred in his terms of employment and compensation was not warranted in the case.

The Respondent rejected the Premise that the complainant had not been notified in writing of a change to his terms of employment as per Section 5 of the Act. His hours were altered in February 2019 as per the employee handbook, which is in writing.

The complainant’s salary was not altered post the change and his fixed pattern shift was more favourable than others who had to frequently rotate at the plant.

In submitting an extract of the company handbook dated December 2009, the Respondent outlined that there were 6 variable shifts. “Working hours may necessitate change to meet the requirements of the business “

The Complainant had worked the third shift and now worked the first named shift. This was within the gift of the respondent and did not constitute a breach of the Act.

CA -00028905-002 Disciplinary Sanction

The Employer vacated the hearing room as this claim was about to be heard. The Employer stated position rested on the submission that the claim was not a valid trade dispute.

The Employer had lodged an objection to an investigation in both IR issues on 22 October 2019.

The WRC had responded on 4 November 2019.

Regarding your objection to an investigation of disputes CA-00028905-002 and CA-00028905-003 by and Adjudication Officer please note that Section 36 (1) of the Industrial Relations Act, 1990 (as amended by the Workplace Relations Act, 2015) specifies that an objection to Adjudication under the Industrial Relations Acts has no effect unless it is received within three weeks of the date the notification of the referral of the dispute was sent by post to that party.   Therefore, these complaints will proceed to Adjudication.

CA -00028905-003 Bullying and Harassment procedures

The Employer vacated the hearing room as this claim was about to be heard. The Employer stated position rested on the submission that the claim was not a valid trade dispute.

The Employer had lodged an objection to an investigation in both IR issues on 22 October 2019.

The WRC had responded on 4 November 2019.

Regarding your objection to an investigation of disputes CA-00028905-002 and CA-00028905-003 by and Adjudication Officer please note that Section 36 (1) of the Industrial Relations Act, 1990 (as amended by the Workplace Relations Act, 2015) specifies that an objection to Adjudication under the Industrial Relations Acts has no effect unless it is received within three weeks of the date the notification of the referral of the dispute was sent by post to that party.   Therefore, these complaints will proceed to Adjudication.

CA -00028905-001 (notification of change in terms of employment)

I have carefully considered both parties oral and written submissions.

It is important to reflect that the complainant started employment in this case prior to the commencement of the Terms of Employment (Information) Act, 1994. I noted that the letter of employment was dated 15 February 2010 by which point both parties accepted that the complainant was a Forklift Driver albeit not specifically described as such on his letter of employment. He was introduced on that paper as being a “Plant operative “the grade he currently serves in.

The Complainant has contended that the respondent has breached Section 5 of the Act by their failure to issue a notification of a change in a term of his employment, namely job title and hours off work within one month of the change taking place.

The Respondent stressed that the complainant had not actually requested this document. The complainant concurred with this point. The Respondent has emphasised that the complainant has not been placed at material loss.

However, a careful reading of the corresponding Section 5 is not predicated on a complainant’s request. The course of action necessary to ensure compliance rests with the Respondent in the first instance.

5. Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute [other than a registered employment agreement or employment regulation order] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

Both parties accepted that the complainant had worked the stated hours of afternoon/evening shift for many years. I noted that both parties also had knowledge of his parallel interests outside the job. Nothing seems to have conflicted the employment relationship in those intervening years.

The moment of change arose in February 2019 and the question for me is whether Section 5 of the Act has been breached or not.

Counsel for the Complainant submitted that there was nothing in the staff handbook to suggest that the Respondent was entitled to unilaterally amend an employee’s hours of work which had consistently and habitually stood at 2.30 to 10.30 pm five days a week for an extended period of 23 years.

Counsel for the Respondent relied on the clause of “Working hours may necessitate change to meet the requirements of the business “It was their case that the complainant was liable to be rostered for any one of the 6 named shifts in the handbook and the respondent had not further obligation outside this blanket notification process. In short, he did not own a named shift over the 19-year period.

On considering both opposing views in this case, I was drawn to the case of Patrick Reilly and Drogheda Borough Council [2008} IEHC 357 where Justice Laffoy, in the High Court in considering whether a retained Fire Fighter was subject to a submitted retirement age, reviewed several supervening events which traversed the period of the complainant’s employment as a retained fire fighter/general operative. Justice Laffoy outlined an extremely complex industrial relations history in the grade of fire fighter which had been interspersed by collective agreements and Expert Group reports and an assumed variation in retirement ages. The complainant had submitted that he was to retire at 65.

“ …. I find as a fact, that when the plaintiff joined the retained fire service administered by the defendant in 1980, the retirement age of the category of retained firefighter which he joined was 65 years of age. Whether his recollection of the interview was accurate or not, the retirement age applicable to the post became a term of his service. The retirement age could only be varied by consensus and not unilaterally by the defendant …. “

Reilly went on to address the limitations of the effect of a collective agreement on an individual worker. Goulding Chemicals V Bolger [1977]IR 211

The Complainant in the instant case has not advanced the presence of a collective agreement in this case and there was no reference to Union representation. His case centred on the premise that he had not acquiesced to the change imposed on his hours of work and job title on March 7, 2019. I accept his submission that he had recorded a 23-year attendance on the stated hours of work.

I have found that the rostered shift of 2.30 pm to 10.30 pm was implied into the complainant’s letter of employment by “custom and practice” The complainant was clearly associated and known in this shift and his pattern was uninterrupted for an extensive period to be implied in his terms of employment. The practice was covered by agreement and the terms were consistently applied. Albion Automotive ltd V Walker [2002] EWCA Civ 946, At the English Court of Appeal applied.

I find, therefore that the Respondent was obliged to notify him in writing of the material change that occurred on March 7, 2019 and this omission constitutes a breach of Section 5 of the Act. This omission is not saved by the complainant’s omission to request the written notification.

I find the complaint to be well founded.

CA -00028905-002 Disciplinary Sanction

I have carefully considered the claim made in this case. I noted that the Employer had missed the earlier deadline in terms of registering an objection to an investigation under the 1969 Industrial Relations Act and that suggested that they would participate at hearing.

Given the duration of the employment relationship, the integrity of the employer mission statement and the live employment relationship in November 2019, I believe that the avoidance of engagement as Adjudication will just have the nett effect of continuation of what is really a very unhappy work situation.

As I have not received a response to this claim from the employer outside the absence of a Trade Dispute. It is best for me to start by drawing on Section 3 off the Industrial Relations Act, 1946

The term Trade Dispute means any dispute or difference between employer and worker or worker and worker connected with employment or non-employment of the terms of employment or with conditions of employment of any person

It is clear to me that the events as raised by the claimant most definitely constitute a Trade Dispute as he is in difficulty with the Employer at large and with his immediate management team in terms of how he perceived the aftermath of the Fork lift collision in February 2019 and how he observed the different treatment his colleague Fork lift Driver experienced in late 2018.

I have no way of validating the earlier reported event or the actions of the Insurance company who at first glance at least seem to have been the instigator of change but not the explainer of same.

I had a huge amount of empathy for the claimant in this case. He understands that he has suffered a wrong and life changing employment matters and he cannot be heard. This is in sharp contrast to the spirit of the company mission statement which places the worker in a respectful position. I doubt very much that the drafter of these expert policies could have envisaged the position that the claimant described without a ladder of resolution available.

I have reflected on the photographs the claimant submitted and I am conscious of the earlier decision made in this case. I have no wish to duplicate matters. However, the Code of Practice on Grievance and Disciplinary procedures SI 146/200 has not been honoured in this case and everyone is entitled to be listened to and heard at work, even if the eventual result is disagreement and difference. I would have concerns that if this matter remains unaddressed, the claimant may become ill.

Both parties have a responsibility to address their collective responsibilities to respect the mutual obligation of the employment relationship .( Berber V Dunnes Stores)

Open Communication is the sole area of my recommendation given the live employment relationship.

I have found that the claim before me has merit, the claimant is living in a post disciplinary world without an advanced procedural pathway. This is neither fair nor reasonable and needs urgent attention. I accept that most of the efforts of resolution have rested on the oral medium and neither party resorted to written action prior to this hearing.

Given that the claimant has connected the earlier Fork lift event which resulted in bodily harm to his own event with no commensurate harm. It is time for the parties to re-engage on the topic of the Claimants job title of Fork lift Driver.

I recommend that the parties convene a meeting which is independently chaired within 4 weeks of this hearing.

The sole item on the agenda should be identification of an agreed pathway for the claimant to return to his position as a Fork lift Driver within 3 months of the date of this decision.

Both parties should speak frankly and explain whatever obstacles have existed and how best to mutually resolve these differences. The outcome should be minuted for the record.

I hope the parties can take some account of this recommendation made in good faith.

CA -00028905-003 Bullying and Harassment procedures

I have not found merit in this Dispute as no detail was advanced that the claimant had submitted complaints under these procedures.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA -00028905-001 (Notification of change in terms of employment)

I have found the claim to be well founded.

I have considered all options open to me in remedy under Section 7 (2) of the Act. I find that Section 7(2) (c) provides the most equitable remedy in this regard. It is important to turn the clock back in this case to allow equilibrium to be restored in this long-term employment relationship.

I order the Respondent to give to the complainant an updated written statement containing the hours of work for the complainant to reflect his “custom and practice hours” of 2.30 pm to 10.30 pm within 4 weeks of the issuing of this decision.

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

CA -00028905-002

Disciplinary Sanction

Given that the claimant has connected the earlier Fork lift event which resulted in bodily harm to his own event with no commensurate harm. It is time for the parties to re-engage on the topic of the Claimants job title of Fork lift Driver.

I recommend that the parties convene a meeting which is independently chaired within 4 weeks of this hearing.

The sole item on the agenda should be identification of an agreed pathway for the claimant to return to his position as a Fork lift Driver within 3 months of the date of this decision.

Both parties should speak frankly and explain whatever obstacles have existed and how best to mutually resolve these differences. Both parties should be heard . The outcome should be minuted for the record.

I hope the parties can take some account of this recommendation made in good faith.

CA -00028905-003 Bullying and Harassment procedures

I have not found merit in this Dispute .

Notification of Change in Terms of Employment , Trade Dispute , Grievance and Disciplinary procedures