Complainant

Respondent

Anonymised Parties

A Worker

A Company

Representatives

Vivian Cullen SIPTU

Aisling McDevitt Ibec

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

02/09/2019

The Worker contends that he submitted a grievance and his hours of work were changed. He contends that he was penalised in contravention to the Employer’s Grievance policy.  He seeks restoration of his working hours.

The Complainant works as a Machine Component Washer.  He has been in the employment since January 2004.

A summary of the history of the claim was submitted.  The Complainant and his wife both work in the employment.  The Complainant’s wife submitted a grievance about not receiving a shift allowance while a male colleague working the same shift hours was in receipt of the allowance.  As a result of this, the Complainant’s wife was given the shift allowance and both the Complainant and his wife were told that the ‘temporary arrangement’ whereby the Complainant received the allowance while his wife was on maternity leave would now cease. The Complainant was then instructed to work day hours, from 8.30am – 5.00pm Monday to Thursday and 8.30am – 4.00pm Friday.   

On 26 March 2019, SIPTU submitted a grievance and a stage One grievance hearing was held on 24 April 2019.  On 25 April 2019 the Production Manager wrote to the Worker stating that in his view ‘your position does not warrant shift allowance as it can be performed within the normal working day i.e. 8:30 – 17:00 Monday to Thursday and 8:30 – 16:00 Friday with immediate effect’.

The Worker did not appeal the outcome of the Stage One hearing.  However, by letter of 1 May 2019, SIPTU on his behalf sought to have the instruction to him to change his hours withdrawn.  On 20 May 2019, the Worker lodged the following grievance:

I was instructed to change my working hours because I made a complaint under the grievance procedure.  I regard this as a breach of para 5.1.4 of that procedure and seek the restoration of my working hours.

For reasons not understood, the employer treated the grievance of 20 May 2019 as an appeal from the outcome of 30 April, (sic) which it was not.  A ‘Stage Two’ meeting was held on 5 June 2019.  On 17 June HR Director wrote to the Worker finding that the decision to change his working hours was made because of threats made by the Worker not to attend work and foe health and safety reasons.  Neither of these factors had been referred to in the Production Manager’s letter of 25 April 2019.  The HR Director cited meetings held subsequent to 5 June but did not provide any minutes of meetings or statements.  The Worker appealed from this finding and a ‘Stage Three’ meeting was held on 16 July 2019.  It was contended on behalf of the Worker that no investigation had ever been carried out in respect of the alleged threats (which he denies) and that this allegation was never put to him for his response.  It was noted that the ‘Stage One’ outcome letter had made no mention of threats.

On 26 July 2019 the Head of Injectable Operations wrote to the Worker stating that he was ‘satisfied that your hours were not changed soley as a result of you raising a grievance. The Manager cited meetings subsequent to 16 July but did not provide any minutes of meetings or statements.

Paragraph 5.1.4 of the employer’s Grievance Resolution Policy is clear:

An employee will not be penalised in any way for making a complaint in good faith regardless of whether or not the complaint/grievance is upheld.

It has never been suggested that the Worker’s complaint was not made in good faith and it is contended that the Worker’s hours of work were changed, against his wishes, by his employer, because he brought the grievance concerning shift allowance.  It is also contended that it is reasonable for the Worker to regard the decision to change his hours against his wishes communicated to him in the Stage One decision as being ‘to avoid further issues’ and at Stage Two and Stage Three being made on the grounds of his alleged misconduct (making threats not to come in to work) which was regarded as proven despite the lack of any investigation, as penalisation in breach of para 5.1.4.

The Worker seeks a recommendation that he be offered his previous hours of work.  

The Claimant commenced employment with the Respondent as a Temporary Production Operative in 2003. On 19th January 2004 his employment was made permanent.

The Claimant initially worked the morning shift I.e., from 8:30am to 5pm.

The Claimant’s wife later joined the Respondent company as an employee. She commenced employment as a cleaner on 6th March 2006. Her contractual hours as stated in her contract were 7am-2pm, 35 hours per week. This role would not normally attract a shift premium and indeed no such entitlement is outlined in her contract of employment.

The Respondent’s shift payments are outlined as follows;

•         08:30 – 17:00 = basic hours only 

•         07:00 – 15:30

•         11:00-19:30

•         14:00 – 22:30

•         17:00 - 01:30 = 20% Shift Allowance 

•         22:30 – 06:30 = 30% shift Allowance

The above applies to Production & Engineering employees only.

From time to time the Claimant and his wife requested to swap their roles and/or shift times to accommodate their home life. For example in December 2008, at the request of the Claimant and his wife, they swapped roles, with the Claimant taking on his wife’s role as Cleaner. This meant that his work no longer attracted any shift premium.

In 2012, the Complainant raised a grievance that he should be paid a shift allowance and he was advised by HR that the position he held did not carry a shift allowance and that his working nights was accommodated for his domestic needs.

In February 2017, the Claimant and his wife once more swapped roles. At this juncture, both the Claimant and his wife requested if amendments could be made to their working hours on a temporary basis to assist them in dealing with a family situation. Specifically, their request was that the Claimant’s wife would work early (this would not attract a shift premium), and that the Claimant would then receive a shift premium. 

However, as this arrangement was only ever intended to be a temporary one, the production supervisor notified both employees in June 2017 that it must come to an end. 

The result of this was that the Claimant’s wife would revert back to the afternoon shift and the Claimant would revert to the morning shift. The Claimant expressed his dissatisfaction that this would result in him losing his shift allowance, however it was made clear to him that the

previous arrangement was a temporary one and that and that he would have to go back to his normal shift. 

Following this, the Production Manager spoke to the Claimant’s wife. She appealed to him to leave the shift allowance with the Claimant and not with her. While such a request would not normally be granted, on an exceptional, temporary basis, the Respondent agreed to facilitate same. The Claimant thus received a shift premium and his wife did not. This arrangement was ultimately more financially favourable to the Claimant’s family due to the fact that his wife was absent on sick leave for ten weeks between June-December 2017 and was further absent on maternity leave between January 2018 and August 2018. As maternity leave is not paid by the Respondent this arrangement benefitted them. The Respondent’s sick leave and maternity leave policies do not provide for shift premium payments to me made during these absences therefore “moving” the shift premium to the Claimant in this manner enabled them to continue to receive a shift premium between them, notwithstanding that the Claimant was not technically entitled to same. 

When the Claimant’s wife returned to work following her maternity leave, she requested to work 5pm to 1:30am to suit her domestic arrangements. This request was facilitated. The Claimant continued to receive his wife’s shift allowance at this time, an arrangement that ought not to have continued once his wife returned to work.

Following a grievance raised on 7th November 2018, that she was not paid a shift allowance while a male colleague was, the Respondent acknowledged to the Claimant’s wife that the arrangement that had been in place whereby the Claimant received his wife’s shift allowance ought to have come to an end upon her return to work. The Claimant was notified of same, and informed that the arrangement would be reversed from 11th March 2019.

On 26th March 2019, Siptu wrote to the company indicating that both the Claimant and his wife wished to raise a grievance, and further indicating that no such temporary arrangement existed.  The outcome was;

“As discussed during our meeting, to accommodate your domestic circumstances I have allowed you to alter your working hours over the years. However as the change in hours were driven by your needs and not the business no shift allowance would apply. This was communicated to you in writing on the 23rd October 2012 following a previous grievance you submitted...in relation to the non-payment of shift allowance”

Clearly the Claimant was aware that no shift allowance is payable within the company other than when the unsociable hours which attract the premium payment are worked at the request of the company. 

The grievance outcome further outlined that while the Claimant’s shift premium would not be reinstated due to it being “reverted” to his wife, the company would not seek to claw back the amount paid to him in error between 20th November 2017 and 10th March 2019. 

In the period of time between the lodgement of the grievance and the outcome of same, the Claimant had indicated to his supervisors that he would refuse to attend work at 6am into the future if he did not receive a premium payment for same, and would only attend work from 8:30am onwards.  

Concurrently an EHS issue had arisen resulting in an operational need to change the time during which certain chemicals (Spor-Klenz) were used. This, combined with Claimant’s clear confusion and lack of clarity over his working arrangement led the company to believe that it would be in the interest of all parties to revert the Claimant to his usual day shift hours. It is important to note that the issue regarding the change in schedule for the use of certain cleaning agents was implemented across the site, and did not only impact the Claimant’s work area. 

On 1st May 2019, Siptu wrote to the company requesting that the instruction for the Claimant to revert to his usual working hours ought to be withdrawn.  

The outcome of this grievance was communicated to the Claimant on 17th June 2019 and stated the following;

“I am satisfied that the decision to change your working hours was made because of the following:

(Production Supervisor) confirmed that on at least three occasions (during March 2019) you had threatened if you did not receive a shift allowance you would not continue to come in at 6am. You mentioned on each occasion that it would not affect you in any way by coming in at 8:30-17:00. The impression was that you were saying this in a threatening manner hinting that you thought your actions would affect the business in a negative way.    (Production Manager) also confirmed that a similar threat was made to him. As we are an Aseptic/ Sterile facility, contamination control is crucial to our business, your threats not to complete the task highlighted a vulnerability to the business that needed to be addressed.  

In addition, discussions between EHS and Production were already underway in relation to the Spor-Klenz sterilisation activity that you conducted. Due to the product leaving a residue and to avoid slips/trips/falls, EHS recommended that the task should be conducted late at night or very early in the morning.   Given your threats not to continue to come in at 6:00am and taking into consideration the EHS recommendation for this task to be conducted earlier, the decision was made to assign this task to be conducted during the night shift. Taking the above into consideration I am satisfied that your hours were not changes solely as a result of you raising a grievance. This task was initially assigned to you as you were on-site before 8:30am for personal reasons. The fact that this task, for business reasons, is now required to be conducted earlier, and in light of your threats, the decision to change your working hours to 8:30-17:30 Monday-Thursday and 8:30-16:00 Friday was made.

The Claimant was afforded the opportunity to appeal this outcome under stage three of the grievance procedure and did so on 26th June 2019.

It did not feature, as one of the Claimant’s appeal grounds, that he had intended to separate the process into two separate grievances. In fact, in a letter written to the company by Mr. Hardy on 16th July summarising the Claimant’s position regarding his grievance, he refers to the stage 2 grievance meeting only to state that no allegations were previously made of the Claimant that he had threatened not to come into work. For the record, the Respondent did not intend to discipline the Claimant for same, only to address the issue.

Stage three of the grievance of heard by Head of Site who upheld the outcome issued under stage 2.

It is contended that the Respondent is within its rights to require staff to work within their contracted hours. The Respondent went beyond what would be expected of a reasonable employer in allowing the Claimant and his wife to switch roles at times to suit their domestic life. The Respondent further went beyond what would be expected of a reasonable employer in allowing the Claimant to amend his start and finish times on occasion, to hours which were not aligned to any of the Respondent’s shift patterns.

Working hours.  Worker seeks restoration of working hours, earlier start.