ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00032443
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A Transport Company |
Representatives | Vivian Cullen SIPTU | N/A |
Complaint(s):
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-00042963-001 | 09/03/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00042963-002 | 09/03/2021 |
Date of Adjudication Hearing: 02/06/2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the disputes to me by the Director General, I inquired into the disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the disputes.
Background:
The Worker joined the company in 1998 and was appointed to his current grade in 2011. Following the subsequent decision of the Employer to outsource the operations on which he was engaged, he was red-circled on his pay grade and was then redeployed into a new role. He alleged that the zoning allowance he was in receipt of was taken away from him in 2019 and that he also no longer received overtime or his travel passes.
He subsequently went on sick leave in October 2019 and was not paid average earnings in the period that he was off. When he returned after his period of sick leave in March 2020, he was left without any work for a number of weeks before being transferred into a role that he believes is entirely unsuitable for him. |
Summary of Worker’s Case:
CA-00042963-001:
The Worker was absent from work on paid sick leave for a period of approximately 6 months from October 2019 to March 2020 having had an operation on his shoulder. He is claiming that the requirement for an operation resulted from two workplace incidents that occurred in June 2017 and November 2018 when damage was caused to his shoulder.
He says that he only received the Employer’s normal sick payments for the period he was off but asserts that he should have been paid average earnings because his injuries were work related. The payment of average earnings means an employee receives the average of their previous 12 weeks’ pay, which includes an averaging of their overall pay including allowances and premium payments and is in excess of the company’s normal sick pay entitlements.
The Worker attributes his non-payment of average earnings for the period he was sick to the failure of the Chief Medical Officer to attend a monthly meeting to explain that his injuries were work related
CA-00042963-002:
The Worker’s complaint in this respect centred around the erosion of his terms and conditions and the allocation of a new role to him which he believes is unsuitable. Erosion of terms and conditions The Worker’s difficulties in his role began in 2019 when a new manager was appointed and he no longer received any overtime thereafter. In addition, his Zoning Allowance was withdrawn by this new manager despite him having received this allowance for a number of years when he was fulfilling the same role. Finally, his travel passes were removed from him when he returned from sick leave in March 2020. He is seeking the reinstatement of the allowances and benefits that were removed from him without his consent. Unsuitable New Role The Worker asserted that he was removed from the department he had worked in for over 4 years because the new manager had stated that he was unsuitable for the role because of his skill set and competencies. He disputes this and believes that he has the required skill set to fulfil the role. He is seeking to be re-deployed back into the previous department where he previously worked because he is very unhappy in his current role and believes that it is beneath a Worker with his skills and experience. |
Summary of Employer’s Case:
CA-00042963-001:
The Employer highlighted firstly that the Worker was on paid sick leave for a period of 26 weeks and noted that he was paid for this period in line with the Company’s Welfare scheme which is set out in his terms and conditions of employment.
The Employer stated that the payment of average earnings while on sick leave is only approved by the Director Human Resources following consideration of advice from the CIÉ Chief Medical Officer(CMO). It was also highlighted that the Employer only pays average earnings in cases where the CMO, an occupational health expert, confirms in writing that an injury is consistent with the details provided in a workplace accident report.
In the Worker’s case, the payment of average earnings was not approved for the period he was out sick in 2019 because the CMO concluded that the injury could not be attributed to a specific accident in the workplace. It was also highlighted that there was no requirement for the CMO to attend the monthly meeting to discuss the Worker’s medical condition as the decision to pay average earnings is made by the Human Resources Director, based solely on the CMO’s written report.
CA-00042963-002:
Erosion of terms and conditions The Worker joined the company in 1998 and was appointed to his current grade in 2011. Following the subsequent decision of the Employer to outsource the operations in which he was engaged, he was red-circled on his pay grade and was then redeployed into a new role in Department A. The Employer agreed that the tax-free zoning allowance the Worker was in receipt of was taken away from him in 2019 and that he no longer received overtime or his travel passes.
The Employer stated that they were no longer permitted to pay the Worker a tax free zoning allowance because of the role he had been redeployed to and that it should have been ceased long before this. Specifically, he was paid this allowance in error due to his line manager, who has since departed, not ceasing it. It was also highlighted that there was no overtime requirement in the new role and that as the Worker had a company vehicle he is no longer entitled to receive travel passes.
Unsuitable New Role Following the departure of his line manager in 2019 there was significant restructuring in the Department and the Worker was given a new role on a trial basis. During performance reviews subsequently carried out by his new line manager, there were serious safety issues identified that ultimately resulted in the Worker being stood down from his role.
Due to these safety concerns and the increasing technical and legislative compliance requirements for roles in the department, there was now no suitable role left in the department for the Worker and a request was therefore made to Human Resources to explore alternative options for him. Due to the timing of this request in April 2020, at the start of Covid pandemic, the Worker was required to remain at home on full pay for a period as it was not deemed essential for him to attend his work location.
A suitable new role was subsequently found in Department B on the basis of his work experience and competencies and the Worker, in consultation with his trade union representative, agreed to accept the role.
The Company asserts that is not unprecedented for an employee to be stood down from duty for safety reasons and in this case the Worker has been redeployed to a more appropriate role in a manner consistent with the company’s redeployment practices. The Employer also asserted that the Worker has been treated fairly and within process by the Company and that he has been communicated with clearly at all times either directly or through his Trade Union. |
Findings and Conclusions:
CA-00042963-001: I note firstly that the payment by the Company of average earnings while a Worker is on sick leave is entirely discretionary, is only paid if the injury is work related and is made on the basis of information provided by the Employer’s Chief Medical Officer (CMO). I further note that the findings of the CMO, which were produced at the hearing, stated that the Worker’s injuries were not work related. I also note that the Worker did not commence his period of sick leave until October 2019 despite the work instances that allegedly caused these injuries having occurred in 2017 and 2018. CA-00042963-002: Erosion of terms and conditions I note that the role the Worker was redeployed to in Department A did not attract a tax free Zoning allowance as this is linked to particular roles and that the Worker no longer fulfilled one of these roles. Moreover, I do not consider it reasonable that he should have expected to continue receiving this allowance after the Employer became aware that he had been paid it in error. I also note that no evidence was presented to me to suggest that the Worker did any overtime hours that he was not paid for and find that there was no entitlement to paid overtime. In addition, I note that the worker has the benefit of a company vehicle but is seeking the restoration of his travel passes and find that this is unreasonable. Unsuitable New Role I note that the Worker did not have the skillset required to fulfil a role in Department A and that he was re-deployed to a role in Department B, which he deems to be unsuitable. I find however that the Employer is entitled to restructure its operations as it sees fit and consider that the reasons for the restructuring were entirely legitimate. I also note that that Worker chose to accept the new role and that this decision was made following consultation with his trade union representative. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00042963-001: I cannot make a recommendation that is favourable to the Worker in respect of this dispute for the reasons set out above. CA-00042963-002: Erosion of terms and conditions I cannot make a recommendation that is favourable to the Worker in respect of the alleged dimunition in his terms and conditions for the reasons set out above. Unsuitable New Role While I note that the Worker accepted the new role in Department B to which he was redeployed, I recommend that he re-engage with his Employer, with the support of his trade union representative, to explore additional training and development opportunities which will allow him to upskill and seek a more suitable role with the Employer in the future. |
Dated: 26th July 2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
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