Complainant

Respondent

Anonymised Parties

A Customer Services Representative

Holiday Reservations Booking Company

Representatives

Noel Murphy Independent Workers Union

Shane Crossan  O'Flynn Exhams LLP Solicitors

Act

Dispute Reference No.

Date of Receipt

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

09/09/2020

The Employee submitted grievances with her Employer regarding what she believed was a changed contract of employment. The Employee contends that grievances were not dealt with in a timely manner by the Employer and further that she was not allowed to engage her trade union at the grievance or disciplinary stage. The Employee is looking for compensation for the effects of trying to comply with what she feels is a dysfunctional grievance procedure as well as being denied the opportunity to engage with her trade union in submitting grievances.

 The Employer submits that the Employee’s complaint was progressed as expeditiously as possible having regard to the sudden and unprecedented introduction of the Government mandated lockdown announced on 17 March 2020. Furthermore, the Employer argues that its grievance and disciplinary procedures fully comply with S.I. 146 of 2000.

When the Employee needed to take a grievance with regard to changes to the disciplinary process and public holiday arrangements she was faced with a cumbersome grievance procedure. When she presented a grievance, it was processed through  three purported atages  with no discernible difference between the stages.  

The Employee submits that the Employer does not adhere to the terms of its own grievance procedure. Specifically, she received the notes from the end of Stage 3 on 8 July 2020. This was 12 days (rather than 5) after the meeting had taken place. The Employee submits that she received the “final” decision from this meeting on 1 September 2020. Yet, the grievance structure says that a decision will be issued five days after the issue has been heard. The Employee is seeking a recommendation that an updated, negotiated and agreed contract of employment is issued to her and that she can engage her trade union in this process. She is seeking that there be full compliance with The Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order (Statutory Instrument No 146 of 2000) (hereinafter S.I.  146 of 2000)  

The Employee is also seeking compensation for the stress that she has endured since the imposition of the new terms to her contract since a takeover which occurred on 1 June 2020.

The Employer refutes the Employee’s contention that her grievance was not handled properly on the basis that the Employer escalated the Employee’s complaint through each stage of the Grievance Procedure.  The Grievance Procedure provides as follows “The company will endeavour to ensure that, where possible, grievances are heard within five working days of being received and that decisions are communicated within five working days of being heard”.

 The Employer submits, that the Employee’s complaint was progressed as expeditiously as possible, having regard to the sudden and unprecedented introduction of the Government mandated lockdown announced on 17 March 2020. The Employer at that time employed 582 employees between two sites and was required to co-ordinate over 284 employees to work from home. This included ensuring employees received the technical equipment to facilitate working from home. Additionally, the Employer was also required to temporarily lay off over 298 employees, as their roles could not be performed remotely.

The Employer submits that this was an extraordinary and unprecedented time for a business (and HR department) to contend with. The Employee’s grievance was acknowledged the day after its receipt and progressed as quickly as possible in light of the fact that virtual meetings were required, which the Employer had not previously undertaken.

During the time frame when the Worker submitted her complaint, the Employer received over 45 grievances. Over half this number of complaints were successfully resolved after the first stage. However, the Employer was again faced with an unprecedented set of circumstances, where its resources were spread very thin.

The Employer faced additional challenges identifying, responding, and progressing grievances through the various stages where employees’ managers were laid off. Despite same, the Employer progressed each grievance through the Grievance Procedure.

The Employer accepts there was a longer delay than usual for progressing grievances through each stage. The Grievance Procedure provides estimated timelines as a guideline, which it endeavours to meet and resolve within that timeframe. The Employer used all available resources to ensure that the Employee’s complaint was fully addressed through each stage of the procedure. The Employer submits that the Employee was issued with meeting minutes, and outcome decision letters for each stage of the process she engaged with.

 The Employer refers to the Employee’s statement where she argues that the “Company operates a cumbersome grievance procedure”. The Employer refutes the Complainant’s assertions on the basis, the Grievance procedure was compliant with S.I. 146 of 2000. The Grievance Procedure of the Employer is an employer standard type of employment procedure operated by many types of employers. The Employer does not accept that this procedure is cumbersome.

The Employer also refutes the Employee’s assertion that “the industrial relations regime is designed to discourage a worker from taking a grievance outside the realm of the internal HR structure”.  The Employer submits that the Grievance Procedure quite clearly advises the employee that once the internal problem-solving procedure is exhausted, the employee has the right to pursue the complaint further to an external third party.

Following the Employee’s progression through each stage of the procedure, the Employer contends she was advised by the relevant individual of her right of appeal, including at the final stage where the Operations Manager in his outcome letter, advised the Employee of her external right of appeal.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties. The issue of contractual change formed part of my decision in the related employment right complaint by the Employee therefore I do not consider it appropriate to deal with the legitimacy, or otherwise, of the contractual issues as part of this industrial dispute.

I believe that the Employer gave a plausible presentation of the volume of grievances that were submitted by employees during a major change in the business. This was experienced at a time when the effects of the Covid-19 pandemic were being felt. The Employer accepted that there was a delay in processing the Employee’s grievance but that this was unfortunate and unavoidable due to the unforeseen circumstances encountered.  I can fully understand the frustration of the Employee, but I do not believe that such frustration should manifest itself in the receipt of a compensatory sum. The grievance was eventually dealt with by the Employer, albeit with an unsatisfactory outcome for the Employee regarding the contractual issues.

The Employer stated that it believed its Grievance and Disciplinary procedures fully complied with S.I. 146 of 2000. I do not accept that it does. The General Procedures section of the Code provide:

The Employer accepted that individual trade union representation for an employee is not accommodated within the grievance and disciplinary procedures of the company. This suggests that the procedures thus employed neither comply with the letter nor the spirit of the code.

Recommendation:

From the submissions made to me at the hearing, both verbal and written, it is clear that the grievance and disciplinary procedures of the Employer do not comply with the General Principles of S.I. No. 146/2000- Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 in that the Employee is not allowed individual trade union representation of her choice  when either processing a grievance or being subject to disciplinary procedures. I therefore recommend that the Employer amend the grievance and disciplinary procedures as applicable to the Employee so as to be compliant with the foregoing Code in the matter of trade union representation on an individual basis.

S.I. 146 of 2000, Trade Union representation.