Worker

Employer

Anonymised Parties

A Line Manager

Automotive Components Manufacturer

Representatives

Duncan Inverarity of A&L Goodbody LLP

Act

Dispute Reference No.

Date of Receipt

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

CA-00045111-01

08/07/2021

The worker says he is out of work on long term sick leave because he can no longer work night shifts and the employer would not accommodate him. The employer says they have taken all reasonable steps to help the worker and if he was not satisfied he should have raised a grievance through internal procedures.

The worker says he was working a three-shift system and this resulted in him not being able to sleep properly. When he asked for an alternative job that would not require him working nights he was told there was a vacancy as a General Operative, which was a two-step demotion, or as a Laboratory Technician, which was a one-step demotion. Both options would involve a dramatic decrease in pay. He says the company doctor confirmed he should not work night shifts because of his health. He has been on long term sick leave because the company would not allow him to change to only working the early shift in his current role (6am to 2pm).

He went to HR with his request but did not use the grievance procedure. He says he was not treated well. At this stage he would like to be made redundant.

The employer says the complainant started a period of sick leave on 11 September 2019. They referred him for an independent medical assessment on 14 November 2019 and the doctor confirmed the worker was unfit to return to work. A subsequent medical assessment on 7 January 2020 confirmed the worker would be fit to return to work from 13 January 2020. In a meeting with HR on 4 March 2020 the worker requested a move to the morning shift going forward and he explained this was due to his wellbeing.

The worker went on extended sick leave 12 February 2021. A medical assessment on 19 April 2021 noted that daytime shifts may be necessary to help the worker’s condition of sleepiness and poor concentration. On 22 April 2021 HR confirmed it would not be possible for the worker to move to a day shift only basis in his current role; as his role remained on a 3-cycle shift pattern. HR mentioned the possibility of moving to another role and a list of vacancies was attached to the letter but noted that the pay conditions would be in line with the roles.

In subsequent correspondence with HR the worker said he was entitled to redundancy due to his mental health condition and cautioned he had no alternative but to apply for constructive dismissal.

On 11 May 2021 HR wrote again and said there were alternative roles; a General Operative role and a Lab Technician Assistant role. The Lab Technician role was at a salary of €29,600, compared to his salary of €31,800. The letter also confirmed the employer could not legally deem the worker’s role to be redundant. HR also attached a copy of the employer’s grievance procedures. The worker failed to make any referral under the grievance procedures.

The worker remains on sick leave.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. It is clear that the worker has had health issues which have made it difficult for him to work at nights. He wanted to carry on in his current role but only working the morning shift. The employer stated this could not be accommodated as his role was to work on a 3-shift cycle, including a night shift. In May 2021 he was made aware of two positions, one of these would have involved a substantial cut in wages, the other as detailed above would have resulted in a decrease in annual salary of €2,200. From his evidence at the hearing it seems the worker did not give this alternative due consideration. This may have been because of his mental health at the time.

It seems that he wanted to be made redundant but the employer gave evidence they have had no occasion to implement redundancies and legally they were not in a position to make the worker redundant. I accept the employer’s evidence that redundancy is not an option that can be offered to the worker.

The worker raised a request to move to a role where he would not have to work night shifts because of his health. However, he did not invoke the grievance procedure when he was not happy with the alternatives he was shown that were available in May 2021.

Disputes under section 13 of the Industrial Relations Act 1969 should generally only be referred to the WRC when internal efforts to resolve the dispute have been exhausted and the worker did not do this in this dispute.

Industrial Relations Act – internal procedures not exhausted