ADJ-00029473

Complainant

Respondent

Parties

Barry  O'Neill

 An Post

Representatives

Anthony MacIntyre of Independent Workers Union

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00039983-001

22/09/2020

During the Covid-19 pandemic childcare issues arose for the complainant and he asked the respondent to move him onto an earlier shift. He says he was penalised because of his union membership when he was not given the earlier shift, apart from three weeks.

The complainant ran into childcare issues during Covid-19 pandemic when family members who had provided childcare for him changed their working times. Also, the creche they used was unable to extend care hours. He told HR of his issues and requested a move to the 5.00 am start shift from the 11am start shift. He was facilitated on short term basis of three weeks. He appealed to be left on the early shift but this was rejected.

The complainant submits the respondent knows he is a member of the Independent Workers Union and it is his contention that the refusal to allow him to stay on the early shift is an attempt at constructive dismissal because of his union affiliation.

The respondent says the complainant has been employed by them since December 2009 and works as a Postal Operative in the Dublin Parcel Hub (DPH). The DPH operates 24 hours but the majority of its business is carried out in the evening time and through the night. The respondent has very little requirement for staff to attend outside of these hours.

In July 2020 the complainant requested a change in shift from 11.00am – 7.00pm to a 5.00am start. This was facilitated for three weeks to allow him to make alternative childcare provisions. He was due to resume his normal shift pattern on 10 August but said he was not in a position to do so as he had failed to make alternative childcare arrangements. He was advised is would not be possible for him to work the 5.00am shift and he could avail of a period of annual leave or unpaid leave. On 11 August he came into work with a medical certificate dated 11 August which said he was unfit to work from 4th – 12th August. This despite having presented himself for work on 11 August with no declaration of illness. On 12 August the complainant contacted the respondent again asking to be facilitated on the 5.00am start shift, saying that as a senior person within the company he had an entitlement to this transfer, ahead of other staff members. He never requested to work any hours other than those that suited him; he could have availed of night working, twilight shifts, late shifts of weekend working.

The majority of the respondent’s operations are carried out from 3.00pm and 6.00am and that is when they need staff. Generally, there are very few people on early shifts. The respondent submits the refusal to allow the complainant to move shift on an ongoing basis was because there were no vacancies on that shift and had nothing to do with his union membership and does not amount to penalisation, as claimed.

Furthermore, the respondent submits Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006 is there for the protection of employee representatives in performing their role and to ensure they are not penalised for doing so. The complainant is not an employee’s representative and has not been the subject of any penalisation.

The complainant contends he was penalised under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006 when his request to be moved to the early shift was refused, after an initial three week period. Section 13 (1) states: “An employer shall not penalise the employees’ representative for performing his or her functions in accordance with this Act.” When asked in direct evidence at the hearing the complainant confirmed he was not an employees’ representative. As the complainant was not an employees’ representative at the relevant time I conclude his complaint is not covered by the provisions of the cited legislation.

The narrative in the original referral form also states: “I am therefore seeking adjudication under S.8 of the Industrial Relations (Miscellaneous Provisions) Act 2004 for victimisation on the basis of trade union affiliation.”. Both parties were given an opportunity to make written submissions after the hearing in relation to a claim under this legislation.

Section 8 states: “(1) This section applies where it is not the practice of the employer to engage in collective bargaining and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—

(a) a trade union takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or

(b) such procedures have been invoked by a trade union in relation to a trade dispute, or

(c) an employee intends to request the trade union F2 of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union intends to make such a request, or

(d) such a request by a trade union has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or

(e) the Court determines that those requirements have been met and either—

(i) that investigation is being or has been carried out, or

(ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

(2) Where this section applies, none of the following—

(a) the employer,

(b) an employee, or

(c) a trade union of which an employee is a member,

shall victimise an employee or (as the case may be) another employee in the employment concerned on account of—

(i) the employee’s being or not being a member of a trade union, or

(ii) the employee’s engaging or not engaging in any activities on behalf of a trade union.

(3) In this section “victimise”, in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well being and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.

(4) For the avoidance of doubt, “employee” in this section includes any person in the employment concerned the duties of whom consist of or include managing the business or activity to which the employment relates.

(5) In this section, ‘collective bargaining’has the meaning assigned to it by section 1A of the Act of 2001 and that section shall apply to this section in the same manner as it applies to that Act.”

As stated above the complainant was not a union representative and gave no evidence that he was involved in any activity set out in subsection 1 above. He has, therefore, given no evidence that the refusal of the respondent to grant his request to work on an early shift for a longer period than was granted could amount to ‘victimisation’ as set out in subsection (2).

The one set of circumstances was taken as a complaint under two pieces of legislation and for the reasons above I find that this complaint fails under both pieces of legislation and is not well founded.

Victimisation - Not an employee representative