Complainant

Respondent

Anonymised Parties

A Cleaning Operative

A Cleaning company

Representatives

Siptu

 MSS

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-00043421-001

06/04/2021

The employee alleges that, during a three-year period, she was treated unfairly in the allocation of overtime due to complaints she had made against her supervisor.  This was the subject of a grievance hearing within the company.  In addition, the question of distribution of overtime was referred to the Conciliation Services.  It is the view of the union representing the employee that the issue of outstanding overtime, arising from the allege inequitable distribution in the three-year period and the consequent loss, was to be addressed locally.  This did not happen.

The complainant commenced employment as a Cleaning Operative in December 2005, and she was a TUPE transfer to the respondent in 2016.  In 2016 the complainant informed the Site Manager of the difficulties she was having with the behaviour of her Supervisor, in relation to her manner and approach to her and other issues. Since the complainant made the complaint, she believes that she has been maliciously ignored in the allocation of overtime by the Supervisor.  Prior to 2016 the complainant was offered and worked overtime. 

 In February 2018 a number of employees made a joint complaint to the HR Manager, regarding the supervisor.  The Hr Manager advised the employees that they would need to make individual grievances.  The complainant submitted her grievance by email on the 15th February 2018 alleging bullying and harassment. A grievance hearing was held on the 15th March 2018, and, although the grievance was not upheld the HR Manager recommended her work hours would in future be approved by a different manager.

The issue of the overtime being unfairly distributed from 2016 to early 2019 was referred to WRC Conciliation Service and a conciliation conference was held on the 7th May 2019.  The meeting was adjourned, and a second conference was held on the 15th January 2020.  The conference agreed that;

1.      The company will speak with local management with regard to the overtime issues while the union commits to providing information on any specific issues raised at conciliation

2.      Following the above, the company agrees to write to the union with proposals on how to deal with the allocation of overtime into the future.

3.      The services of the Commission shall remain available to the parties should they be so required.

 The Union emailed the HR Manager on the 29th May 2020 in relation to the outstanding issue of the loss of earnings suffered by the complainant due to the unfair allocation of overtime from 2016 to early 2019.  The respondent replied by email dated the 11th June 2020.  The Union responded on the 20th July 2020 and confirmed that the allocation of overtime over the 3 year period was still an outstanding issue for the complainant and again requested details of overtime earnings for the period 2014 to 2018. Subsequently the matter was referred to the Adjudication Services.

Prior to 2016 the complainant was offered and worked overtime.  However, after she made a complaint regarding the behaviour of her supervisor she ceased to be offered overtime.            Despite the hourly rate for contract cleaning increasing from €9.75 in October 2015 to €10.80 in December 2018, the complainant’s yearly earnings were lower in the period 2016 to 2018.  The only explanation the complainant has for her reduced earnings is that she was not offered overtime during this period.

 In the grievance outcome letter dated the 18th April 2018, the respondent stated that “As a result overtime is offered to part time employees who do not have full time hours”.  However, the complainant is aware of other full-time employees who were offered overtime. 

The complainant completely rejects the statement in the grievance outcome letter that she communicated in 2016 that she did not wish to work overtime hours on Saturday anymore and that she only asked the Site Manager, in March 2018 for overtime hours.

 It is clear that there was an issue in relation to the fair distribution of overtime hours for the period 2016 to 2018 as the HR Manager stated in the letter dated the 18th April 2018 that going forward all overtime would now be approved by and signed off by the Site Manager.

 The issue of the allocation of overtime was raised again at two conciliation conferences and it was agreed by both parties on the 15th January 2020 that;

“Following the above the company agrees to write to the union with proposals on how to deal with the allocation of overtime into the future.”  

This issue has now been addressed as set out in email from the HR Manager on the 11th June 2020 regarding the system for the allocation of overtime.  However, the specific issue of the loss of earnings due to the unfair allocation of overtime for the complainant has not been resolved locally.

The complainant is seeking compensation for the loss of earnings she suffered directly as a result of the unfair allocation of overtime for the period 2016 to February 2019.

The claimant is employed by the respondent, since March 2016 as Cleaning Operative. In 2018 the respondent entered into talks with the union representative for 4 named employees of which the claimant was one.  There were a number of issues discussed, between the respondent and the claimant her union official and colleagues in 2018, including the current matter of unfair allocation of overtime. 

The issues, including the current issue, was referred to the WRC conciliation service. Two conciliation meetings were held and the matters were resolved.  In addition, in February 2018 the claimant raised a grievance of bullying and harassment against her supervisor. As part of this grievance, the claimant alleged there was an unfair allocation of overtime. The matter was properly investigated, and the outcome of the grievance was issued to the claimant on the 18th April 2018. 

 In the outcome of that grievance, it was explained to the claimant that overtime was offered to part employees first in order to reduce costs; however, as a result of the grievance it was recommended that going forward all overtime would be approved by and signed off by the Manager. 

 The claimant has outlined that “The issue of the overtime being unfairly distributed from 2016 to early 2019 was referred to the WRC Conciliation Service and Conciliation conference was held on the 8th August 2019……and a second conference was held on 15th January 2020.”

 It is the Employer’s position that, in the event of a dispute not being resolved at Conciliation the matter may be referred, by agreement of all parties, to a full hearing of the Labour Court for determination.        Further, the outcome of the conciliation issued on the 17th January 2020  was that the matter of overtime allocation was resolved, and the outcome letter clearly states that “The services of the Commission shall remain available to the parties should they be so required.” It is clear that the correct course of action for the claimant if she was in fact unsatisfied with the resolution agreed at conciliation, was to either refer the matter to the Labour Court in line with the WRC procedure, or refer the matter back to conciliation.  It is the Employer’s position that the claimant’s complaint is not properly before the adjudicator as the correct avenue for this complaint is either with the Labour Court or Conciliation. 

 In addition, it is the position of the respondent that the claimant, was allocated overtime during the period for which she is claiming, and is seeking to be compensated for hours not worked.  The claimants’ terms and conditions of employment are very clear and unequivocal, and state the following: 

You may from time to time be required, at the discretion of management to work additional hours.

 What is clear from the wording of the contract the claimant has no right to overtime, or in fact to an equal distribution of overtime. The claimant is putting forward the notion of a loss of earnings, whereby she did not lose.  The wages paid to the claimant on each and every pay cycle were in accordance the terms of her employment, the payment of wages act and the ERO. 

 It is the position of the respondent that, there is no claim here, for wages, or loss of wages. The claimant’s overtime earnings in the period complained of totals €4248.71, which in fact mean that her compliant is not that she didn’t get overtime, but rather she didn’t get enough. However, in relation to those on site the claimants overtime hours are above the median average. 

There is no requirement to provide overtime, and the method to how it is distributed, is not a term of employment. 

 The claim is not well founded as the claimant has not exhausted the internal procedures and has not followed through with the conciliation. The claimant is seeking payment for wages for which she never worked, was never rostered to work, or at any time was entitled to. The claimant has every right, to raise a grievance in relation to how overtime is allocated and the claimant took the correct course of action to have the system of allocation of overtime changed. But what the claimant cannot do is give any valid reason as to why she is properly owed this money. 

The issue of how overtime should be distributed was the subject of a conciliation conference in 2020.   It is not clear from the outcome of the conference what, if anything, was agreed in relation to the alleged inequitable distribution of overtime between 2016 and 2019.   The agreement did specifically provide that;  The services of the Commission shall remain available to the parties should they be so required.

If the employee believed that what was agreed at conciliation had not been honoured then the appropriate course of action was to return to conciliation and, potentially, refer the matter further to the Labour Court.

In March 2018 the employee had submitted a formal grievance to the employer which included, inter alia, the alleged inequitable distribution of overtime by her supervisor.

The grievances lodged by the employee in 2018 were investigated by the HR Manager.  The outcome of the grievance includes a paragraph on the distribution of overtime and the conclusion of the HR Manager on this issue was;

During my investigation I have been informed that you communicated on site in 2016 that you did not wish to work overtime hours on Saturday anymore and these hours were no longer offered to you following that request.  I am aware that it was only recently (March 2018) that you asked Site Manager (Named) for overtime hours.

The same paragraph also stated that ‘Going forward all overtime will now be approved by, and signed off by Site Manager (Named)’

It is the position of the employee that this commitment going forward is evidence that there was a problem with the distribution of overtime.  I don’t agree with this conclusion and think it more likely that the employer was being prudent and providing additional transparency, in circumstances where the employee did not trust the local supervisor, as evidenced by her complaint covering a variety of issues in their relationship.

The HR Manager, in her decision on the grievance, gave her reason for arriving at her conclusion on the distribution of overtime.  This was that the employee had asked not to be considered for overtime on Saturdays. It was the evidence of the employee that she cannot remember having the conversation in which she is alleged to have said that she was not available to work on Saturdays.  This issue is very relevant insofar as, if the employee was unavailable to be considered for overtime, then the fact that she was not given overtime could not be unfair.  I note that the employee did not appeal the outcome of the grievance findings but rather sent a letter titled ‘Position of Dissent in Lieu of Appeal’. In that letter she addressed many issues and sought additional information.  However, she did not refer at all to the finding in relation to the distribution of overtime and did not challenge the statement underpinning the decision i.e. that she had, in 2016, communicated that she did not wish to work hours on Saturdays anymore.  In these circumstances, I conclude that the employer was entitled to believe that the decision by the Hr Manager, in relation to the grievance regarding the distribution of overtime, had been accepted.  Accordingly, I do not see any merit in the claim before me.

The complaint is not well-founded.

Industrial relations. Conciliation.  Distribution of overtime