Complainant

Respondent

Anonymised Parties

A Worker

A Food Company

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

CA-48504-001

02/02/2022

The Worker commenced employment with the Employer in 2005. Although he was allocated to the late morning shift in 2013 following an operational change, he was designated as one of two flexi operators which meant that he covered the early morning shift when required. In 2019, the other flexi operator was transferred to the early morning shift on a permanent basis and, during the Covid period, another employee who had not been a flexi operator was allowed to cover the early morning shift instead of the Worker, which, he asserted, represented unfair treatment of him.

Due to a change in the Employer’s operations in 2013, the shift patterns changed which resulted in the Worker and another colleague being assigned to the late morning shift and also being designated as flexi operators which meant that they covered available work on the early morning shift.

In 2019, the other flexi operator was transferred to the early morning shift on a permanent basis and subsequently, during the Covid period, another employee who had not been a flexi operator was given preference over the Worker and was allowed to cover the early morning shift instead of him. The Worker asserted that this represented unfair treatment of him.

The Employer stated that the other flexi operator who was allocated a permanent role on the early morning shift had greater service than the Worker.

The Employer also highlighted that there were exceptional personal circumstances behind the reason to give another employee preference and allow him to work the early morning shift over the Covid period instead of the Worker. The Employer also stated that the Worker often finished early on the late shift and was paid for the full shift.

While I recognise the operational difficulties that the Employer faced during the Covid period, I find that the Worker was treated somewhat unfairly during this period when another operative was allowed to work on the early shift, although I appreciate that there were exceptional circumstances behind the reason to allow him to do so.

I also recognise that prior to the Covid period, the Worker in the instant case worked largely on the early shift because there was generally work available and that the other flexi operator was assigned to the early morning shift on a permanent basis, which reduced the number of hours available to the Worker on this shift.

In light of the foregoing, I recommend in favour of the Worker.

Specifically, I recommend that the Employer offer the Worker a permanent position on the early morning shift effective from 7 November 2022. I also recommend that the Employer pay the Worker €500 in compensation for the unfairness of the treatment afforded to him and the effects of this treatment on him. Given that this is not an award of wages, it is not subject to taxes or charges.

This recommendation is based on the unique circumstances of this dispute and should not be invoked or relied upon in any other forum.