Worker

Employer

Anonymised Parties

Operator

Newspaper

Act

Dispute Reference No.

Date of Receipt

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

Adj-00036053

19/11/2021

The employer seeks cover for the 25th and 31st of December which attract a very significant premium. The employee believes that he was penalised for supporting a colleague with his grievance. The company state that the allocation of shifts at Christmas were made based on objective criterion and are allocated on an impersonal basis

The investigation of the complaint was prejudiced and failed to adhere to the standards and practices as set down in S.I. 146 concerning grievance procedures. There was no adequate internal investigation. The company had made it’s decision without hearing the worker’s complaint and reasons why he believed he was penalised.

The company applied an impersonal rules-based system to determine who would be allocated the premium shifts. There was an over supply of requests to work those shifts and in order to be considered it was required to be available on two other days. The worker was not available on those two other days. There was no penalisation, and the complaint was reviewed and addressed adequately, independently and fairly.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The substance of this case relates to an allegation that the complainant was denied lucrative shift work during the Christmas Period.

He states that he was penalised arising from being involved in a grievance; when he gave evidence as a witness to an incident supporting a work colleague concerning accusations he made against his supervisor.

On the facts there is no evidence of penalisation. While this is an IR complaint the test that penalisation occurred must show that but for acting as a witness on the balance of probabilities the worker would have been assigned those lucrative shifts.

However, at best the complainant only had a 50% chance of working on those shifts having regard to the pool available to work those shifts.

That probability is reduced if a criterion argued by the company was also availability to work the following shift patter: 25th and 26th of December and 31st and 1st of January. The 26th and the 1st of January do not attract a premium.

The facts clearly show that no penalisation occurred based on the test to be applied. The worker was not chosen for the lucrative shifts as he only at best had a 50% chance to be selected if the availability criterion was excluded. If that criterion is included, he had no chance as he was not available to work the other shifts.

There was no link between the worker acting as a witness for a work colleague regarding a complaint made against his supervisor and the shift allocation during the Christmas period.

The worker also states that the company failed to properly investigate the complaint of penalisation having regard to S.I. 146 and the right of an appeal and to be heard. The evidence does not support that proposition. This matter was independently reviewed and, in a letter, dated 30th of June 2021 a comprehensive reply was provided by the General Manager for the company.

The worker maintains that this was not satisfactory as there was no independent fact find, formal investigation and the right to appeal.

I note that SI 146 states:

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•    That employee grievances are fairly examined and processed;

•    That details of any allegations or complaints are put to the employee concerned;

•    That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•   That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

•   That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

The allegations made by this worker were made against a senior manager responsible for the roster. I note SI 146 also states:

1.         The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.

Any procedure must be rational and apply common sense. This matter was examined at a very senior level in the organisation. No facts support the allegation of penalisation. Having regard to the circumstances of this case and the failure to provide for an appeal, I am satisfied that breach was technical in nature only as there was no merit to the allegation that penalisation had occurred.

I cannot recommend in favour of the worker based on the facts of this case as no penalisation arises.

Penalisation