Worker

Employer

Anonymised Parties

Operator

Manufacturer

Representatives

Marie O'Connor SIPTU

Sinead Mullins IBEC

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-00046413

28/09/2021

There were two grievances for consideration in this case. Both centred on arrangements and disagreements which were in place to deal with the effects of Covid 19 in the workplace. The first was a grievance lodged by the worker concerning payment and responses to her absence for reasons related to Covid-19. Allied to this was the question of whether the worker was in fact readmitted to the employer’s sick pay scheme. The second dispute, also the subject of a grievance, relates to the reduced working hours put in place by the employer during Covid which led to a claim by the worker that she should have received overtime for time spent working between the end of the period of reduced working and the normal finishing time.

Both grievances were the subject of detailed internal procedures and ultimately considered at stage 3 by an external third party whose decision is the subject of this dispute by way of an appeal of the outcome. The worker rejected both sets of findings at stage 3 whereas the employer’s position is that they accepted both sets of findings.

Covid Related Pay-The worker was unwell on September 28th, 2020. She was advised to contact her GP who advised that as she did not have a temperature or a cough, she did not require a Covid test-but that she could not return to work until she was forty eight hours symptom free. There followed some exchanges with a manager regarding her payment for the absence arising from a query as to whether the worker was in fact returned to the sick pay scheme. She was later informed that she would need a medical certificate and again some toing and froing occurred re the requirement for a certificate for a short absence, but she was told she needed a cert because of the Covid connection. The cert she provided said Covid related and so the company then decided she could not return to work and should be in isolation for fourteen days and symptom free for seventy-two hours before she could return. The worker again queried her position re payment for the absence at which point she was told she would be paid. On Tuesday October 6th the worker was contacted to be told that she would be paid her Covid pay for the previous week, that she was to be considered as part of the normal sick pay arrangement thereafter and, as she had not been returned to the sick pay scheme she would not be paid after the first week. She was advised she could submit a grievance which she did, refusing to engage in further telephone conversations to ensure that everything was clear and on the record. On Saturday October 10th she received a text saying that payment would be made for the second week, and this was confirmed in an email on the following Monday. That email included some implied criticism of her failure to respond to calls on the previous Thursday. There followed more communications, this time involving HR initiated by the worker who was unhappy essentially at the way she was treated, and she remains dissatisfied in that regard.

This matter went through the various grievance stages. The HR finding was that the guidance at the time ‘was perhaps not clear at the time. That outcome was appealed to an external third party who issued his findings in May 2021 in which he effectively said that the matter of the payment for the Covid absence should be regarded as closed. The position of the worker remains that she received conflicting advice during that period, she was not treated fairly, she had not phoned in sick at any stage and it was the employer who queried the GP advice and then set out their own period for when she was to remain off work. The handling of the situation caused the worker unnecessary stress. It was stated that revised guidelines were being worked on around this time but no copy of those were provided at any stage.

Access to the Company Sick Pay Scheme. In the HR Grievance Decision in March 2021, it was recommended that the manager concerned should advise the worker if she was returned to the sick pay scheme. This did not happen. This was again recommended by the Stage 3 Hearer in May 2021 but again did not happen and has not happened since then.

Non - payment of Overtime January 2021

In February 2021 the worker contacted HR regarding this issue which could not be resolved at local level. This also became part of the grievance hearing and findings issued by HR. The workers normal hours of work were 8.00am to 4 30 pm Monday-Thursday and 8am to 3 30 Friday. The employer reduced the hours of attendance during Covid to a finishing times of 3 45 and 3 30 pm respectively across the five days. This continued for fourteen weeks. The worker’s department was asked to work overtime. However, whereas all others in the Department were paid for their overtime she was not paid for those days where her worked overtime amounted to forty-five minutes between the revised finishing time and the previous, late finishing time. Following clarification during the hearing, the shortfall amounted to ninety minutes in total. In addition, the worker contends that because she was refused payment for the time worked, she was denied the opportunity to work further overtime as she was told she would not be paid extra for the hours she did work. The Union rejected the employer position that others who worked extra time within the band of normal contracted hours were not paid overtime and specifically the shop steward on a night shift spoke about him, and others being paid overtime when they were asked to work extra hours within the band of their normal contracted hours but outside the reduced hours of work introduced for Covid related reasons.

Covid Related Payment October 2020 The Employer gave a chronological account of the events related to this aspect of the disputes which did not differ to any extent from that of SIPTU. Once the issue was raised by way of a grievance, it was addressed, and payment made.  The Employer pointed to that part of the External Hearers Report where he stated that the payment was made and that should have been the end of the matter. The worker seems to want answers to questions about the handling of the matter at the time and who made certain decisions and why. He was of the view that no useful purpose could be served by pursuing these matters -and this position was accepted by the employer and remains their position. There were delays in addressing this grievance at the time but there was also a lot of correspondence on the file containing communications around fixing a date for a hearing.

Access to the Company Sick Pay Scheme.

The employer’s position on this aspect was not entirely clear from their submission. Following consultation during the hearing, the employer could not provide any reason why the recommendations of the HR hearer or the External Hearer that the necessary information was to be provided to the worker did not actually happen in the period March 2021 when the first grievance decision was issued and November 2021 when the worker went out sick and was paid per the sick pay scheme. It was explained that as the worker was previously removed from the sick pay scheme for an unrelated scheme, she would have required notice that she was restored to the benefits of the scheme. 

Non payment of Overtime January 2021

Prior to Covid the worker worked her overtime before or after her shift-mainly before her normal starting time. She was paid overtime on the basis that the additional hours were outside and in addition to their contracted hours. Her team were asked to work an additional eight hours. However, the worker wanted to work some of these hours during her normal contracted hours i.e. within the time when hours of work were reduced but still within the normal paid hours. This would represent a double payment i.e., ordinary time and overtime for the same period. The payroll system could not operate in this fashion. Other members of the workers team worked their overtime during this period before their contracted starting time and were paid overtime accordingly. During the hearing and following consultation, the employer clarified the hours which were paid by way of overtime and those in dispute. Responding to the contribution by the shop steward on the swing shift, the employer agreed that overtime was paid to that person, but this occurred because his was a critical machine and the extra hours were required by the employer who then took what was described as double hit.

Covid Related Payment

This is a dispute which had no merit as a grievance once it was clarified that the worker would be paid. The third-party hearer was quite justified in his findings that, once it was agreed that  payment would be made, that should have been the end of the matter. There is no justification for any complaint regarding the hearing of this grievance-it was done and dusted within a week.

Access to the Company Sick Pay Scheme.

There is every justification in the workers grievance on this point. This issue also could have been resolved within a week of being raised, or a week of the HR Grievance Findings or a week of the Stage 3 Hearers Report. The employer cannot claim to have accepted the Stage 3 Hearer Report when they did not implement it. In any event this was not a ‘claim’-simply an answer to a question on which a decision was required.

Non payment of Overtime

The worker wanted to pick and choose her own hours of overtime working. The employer wanted to pick and choose to whom they would apply the term contracted hours and to whom they would pay overtime because it suited them to do so. On the one hand the fact that they were willing to reduce hours of work without loss of pay was generous and not commonplace. On the other hand, they acknowledged at the hearing that they issued no guidelines for how the changed hours would affect overtime working leading, as in this case at least, to a strong perception of selectivity in how the system was to work and all sorts of nuanced arguments as to why a decision was made one way in one part of the operation and another in the case of the worker in this dispute. I do not accept the contention on behalf of the worker that she was also at a loss of projected overtime working because although work was available, she could not work it as she would not be paid for the additional time. This notion is based on her view that she was entitled to select the hours when she would work overtime, and she was not. Nonetheless, someone allowed the worker to work for an additional ninety minutes in the week in question, from which only one party benefited-the employer as the worker could have sat on a bench somewhere and done nothing for the same period and received the same payment-i.e., normal time. This is not an outcome which a worker could be expected to accept, and the third-party hearer seems to have overlooked this fact.

In general terms I am concerned that this employment relationship, one of thousands in the same employment, was fractious at a heightened level during this period and there is at least one backdrop-the removal from the sick pay scheme. Generally, a very challenging tone to the workers communications around her grievances which suggest that the relationship is or was not healthy. I am making a recommendation aimed at bringing closure to all the matters referred for consideration by the WRC and I hope it will be considered and taken on board in a spirit of reconciliation by the parties.

Grievances -sick/Covid related pay and overtime.