Complainant

Employer

Anonymised Parties

Crew Leader

Civil Engineer

Representatives

Mr. Peter Glynn, SIPTU

Ms. Sinead Finnerty, Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00042524-001

16/02/2021

The Worker commenced employment with the Employer on 2nd February 2019. On 16th February 2021 the Worker referred a “trade dispute” within the meaning of the Industrial Relations Acts 1969 with the Commission. At the outset of the hearing the Employer confirmed they wished for the present claim to commence under the present legislation. The Worker’s dispute in this regard was comprised of two distinct elements, firstly he alleged that the Employer had incorrectly classified his employment as being not subject to the rates of pay established in the construction industry SEO. Secondly, he alleged that the grievance procedure adopted by the Employer in coming to this decision was fundamentally flawed. By response, the Employer stated that both the process adopted respected the Worker’s rights and the decision reached was correct in light of the circumstances.

The employer actively elected to engage in the dispute on 12th April 2021. A hearing was convened and finalised on 3rd June 2021. This This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Both parties issued extensive submissions in advance and expanded upon the same at the hearing.  On the request of the adjudicator further documentation and submissions in relation to the same were requested and subsequently exchanged between the parties.

The Worker commenced employment with the Employer on 2nd February 2019. Approximately one year later the Worker was promoted to the position of Team Management Team Leader. This role involved the signing, guarding and lighting duties. The role involved him being fully compliant with Section 8 of the Health and Safety Act 2005. On the Employer ’s request, the Worker was sent to a state-funded training body to complete further accreditation regarding health and safety.

On 3rd November 2020, the Worker raised a grievance with the Employer. Herein, he alleged that he did not receive the correct rate of pay in line with the construction industry SEO. A meeting was convened in relation to this matter on 10th and 20th November 2020. During these meetings, the Complainant’s representative submitted that the Complainant’s job description fell within the “definition of sector” section of the SEO. In particular, it was submitted that the Worker was involved in the,

“…construction, reconstruction, repair and maintenance on such sites of boundary walls, railings and fences for the use, protection or ornamentation of buildings, the making of roads and paths within the boundaries of such sites”

By outcome letter dated 25th November, the Employer stated that the Worker did not fall within the remit of the SEO, as in their opinion, the Worker’s role did not fit within the definitions contained therein. In the course of this correspondence, the Employer confirmed that they held an investigation meeting with the Worker’s line manager in respect of these matters. The correspondence allowed a right of appeal within 5 days in relation to the outcome.

On 1st December 2020, the Worker’s representative again corresponded with the Employer. Herein, she stated that the Worker had clearly outlined why he believed that he his duties fell within the remit of the SEO and that the Employer was in error in finding against him. This correspondence also stated that the Worker did not have sight of the statement provided by his line manager in during the process. Finally, the Worker’s representative stated that the person listed to hear the appeal was not suitable as they had prior involvement in the process.

Despite the content of the foregoing correspondence, no further correspondence was received from the Employer in relation to this matter.

In summary, the Worker submitted that clearly fell within the definitions of the SEO and that he should receive the benefits associated with the same. He further submitted that the process adopted by the Employer in investigating his grievance was deficient in that he did not have sight of a relevant witness statement and no appeal was allowed to the outcome.

In answering the claim the Employer submitted that they respected the Complainant’s natural and contractual rights throughout the grievance procedure. They further submitted that the outcome was reasonable in all the circumstances.

They submitted that the Complainant’s job title is that of “Traffic Management Team Leader”. On receipt of the Complainant’s grievance they engaged with the contractually agreed procedure as set out in the employee handbook. The Employer submitted that in the course of this process, all of the Worker’s rights were respected and they were fully compliant with the procedural requirement and all codes of practice in this regard.

In the course of the meeting, the Worker’s representative submitted that he was engaged in the “…construction, reconstruction, repair and maintenance on such sites of boundary walls, railings and fences for the use, protection or ornamentation of buildings, the making of roads and paths within the boundaries of such sites” and as such the relevant sections of the SEO should apply to him. In order to fully investigate the claim, the Employer met with the Worker’s line manager. In the course of this meeting the Worker’s line manager outlined the Worker’s daily duties. The Worker’s line manager was also asked a series of questions to determine whether the Worker would fall under the terms of the SEO.

A further meeting was called with the Worker on 20th November 2020. During this meeting a series of questions were put the to the Worker regarding his daily duties and the application of the same to the SEO. At the conclusion of the meeting the chair of the same indicated that he would speak with the Board of Directors prior to issuing a decision. On 25th November, the Employer issued their outcome to the grievance. Here, it was held that the Complainant’s role did not fall within the terms of the SEO and as such his grievance was not upheld.

While correspondence was received from the Worker’s representative on 1st December disputing the outcome of the grievance, no appeal was received in relation to the same.

In summary the Employer submitted that the Worker’s grievance was investigated thoroughly and fairly. It was further submitted that having regard to all the information collected, the outcome of the grievance was reasonable and fair.

In the present dispute the Worker has alleged that the outcome of the Employer’s grievance procedure was incorrect and that were entitled to the various terms and conditions of the construction industry SEO. As part of this submission, the Worker submitted that the procedure adopted was defective in a number of areas.

Firstly, I note the Employer interviewed the Worker’s team leader as part of the process. It is apparent that the information gathered during this interview formed an integral part of the decision-making process. I further note that neither the Worker nor his representative had sight of the minutes of this meeting and consequently, could not dispute any of the contents therein. In circumstances whereby a witness statement is taken as part of a grievance procedure, the Worker should have an opportunity to review the same and dispute the content of the same, should he wish to.

A further dispute arose regarding the appeal of this process. The outcome correspondence allowed for the right of the appeal within five days of the date of the correspondence. Within that timeframe, the Worker’s representative issued correspondence clearly disputing the outcome and raising issue with the class of persons designated to hear the appeal. The position adopted by the Employer was that as the correspondence did not expressly state that the Worker wished to appeal, no appeal was arranged. Notwithstanding the same, I find that this correspondence clearly communicated the Worker’s discontent with the outcome and the means utilised to achieve the same. While I further note the correspondence does not expressly state that they wish to appeal, this may be inferred from a reading of the correspondence as a whole. Notwithstanding the same, if any doubt existed in relation to the status of the appeal, the Employer should have sought to clarify the same in correspondence.

Finally, the Worker raised issue with the class of persons designated to hear the appeal. The correspondence states that such an appeal would be heard by a director of the Employer company. It is the position of the Worker that the Board of Directors had prior involvement in this process and would not be appropriate persons to hear the appeal. In this regard, I note that the chair of the grievance meeting stated that he would seek input from the board prior to issuing this decision. This statement clearly indicated that the Board had at least some involvement in the process and should not have been designated to hear the appeal.

I find in favour of the Worker regarding the procedural aspect of the dispute. I find that the failure to disclose the witness statement used a part of the decision-making process to the Worker as part of the procedure constitutes a procedural flaw. I further find that Employer ’s failure to convene an appeal to the outcome, or at least clarify the position regarding the same, constitutes a further procedural flaw.

Regarding an outcome to the dispute, I recommend that the Employer corresponds with the Worker within seven days of the date below to arrange an appeal to be chair by an independent third party agreed by both sides. I further recommend that the Employer pay the Worker the sum of €1,500 in compensation. For the avoidance of doubt, this recommendation is made without prejudice to remedies available under other legislation.

I recommend that the Employer corresponds with the Worker within seven days of the date below to arrange an appeal to be chair by an independent third party agreed by both sides. I further recommend that the Employer pay the Worker the sum of €1,500 in settlement of the dispute.

SEO, Grievance, Witness Statement