Worker

Employer

Anonymised Parties

General Operative

Bakery

Representatives

Self

Hugh Hegarty, Management Support Services (Ireland) Ltd

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-00046707-001

14/10/2021

The Worker commenced his employment with the Employer on 10th August 2019.

He referred his dispute to the Director General of the WRC on 14th October 2021. On 22nd October 2021, the Employer was notified of the dispute and a copy of the complaint form was forwarded to the Employer. The Employer was informed in writing that should it wish to object to an investigation by an Adjudication Officer it can do so by completing a form that was enclosed, and returning it to the WRC within 21 days of the date of the letter. The Employer was further informed that failure to reply to this enquiry form within the period specified will be regarded as consent to an investigation by an Adjudication Officer under Section 13 of the Industrial Relations Act 1969, and the dispute will proceed for a hearing on the earliest date.

On 28th October 2021 the Employer’s representative came on record.

On 30th May 2022, the WRC received the form dated 20th May 2022 informing that the Employer objects to an investigation of the dispute by an Adjudication Officer.

The arrangements for the adjudication hearing were notified to the parties by letter dated 7th June 2022.

The Employer’s representative joined the adjudication hearing on 12th July 2022 via remote platform. He informed the hearing that the Employer will not take part in the investigation, and he exited the hearing. 

The Worker submits as follows.

The Worker contends that within a week from the appointment of an interim Manager, there were issues with his pay, hours missing, days not paid, deductions that had never been made before. When the Worker complained about the issues, he was told that these would be sorted out.

The Worker submits that on a Friday the interim Manager told him that his hours of work would be changed from the next Monday. The Worker submits that he had worked the same hours since the start of his employment and these were agreed with the General Manager. The Worker said that he informed the interim Manager that he could not change his hours to which she replied, “so you are refusing”. Approximately a week later the interim Manager said that the Worker’s hours are cut, that he was having a day cut from his working week along with the overtime.

The Worker submits that he notified the Employer that he thought that it was in breach of his contract of employment and an agreement between him and the General Manager. The Worker provided the Manager with a written notification of his intent to file a complaint with the WRC. He claims that as a result he was verbally abused in front of another person.

The Worker submits that when he returned to work after holidays, he pointed out what he considered to be a breach of health and safety to the Manager who then waited until the owner came in and the Worker was attacked with raised voices asking what was his problem. He said that the owner abused him on the factory floor, in front of several people. The Worker submits that he asked the owner to stop yelling at him, he said that he was simply pointing out what he considered to be an issue. After that he was followed everywhere he went, every time he looked over his shoulder, there was someone watching what he was doing, checking his work, and eventually getting other staff members to finish his work.

He said that when he came back from his holidays on 30th September 2021, he got a letter that his work hours would change and that all overtime was cancelled. He said that he normally worked from 4am to 2pm-3pm and this was agreed with the General Manager. His new hours were from 6am to 2.30pm-3pm, all overtime was cancelled, and unpaid breaks were introduced. He said that while the policy was that breaks are unpaid, the policy has never been implemented and breaks have never been deducted.

The Worker submits that he was then stopped one morning by the owner who complained about where the Worker parked his car. The Worker submits that he had parked his car in the same place without any issue since he started his employment.

The Worker submits that he raised his grievance in relation to the hours of work and the abuse by the Manager in writing  with the owner Ms T on 3rd October 2021. He received a reply saying that Ms T would look into it. He then got an undated letter saying that on the balance of probabilities it was his word against the Manager’s and the matter was closed. The Worker said that he named a witness, informed the Employer that there is CCTV footage, but never heard anything about it. He understands that the Worker’s Employer rang the employer of the witness to the incident. As the witness’ employer was in a business relationship with the Worker’s Employer, no further action was taken. The Worker submits that he was told that this was the end of the matter. He was not given an opportunity to appeal this decision. He checked the handbook and there was nothing about an appeal in it. While he was interviewed, he did not get any minutes, notes of the meeting.

The Worker submits that he felt so intimidated by the way he was singled out that he felt he had no option but to hand in his notice. He gave his notice on Friday 8th October 2021. On Monday 11th October 2021 the Employer asked him to sign a letter confirming that he had handed in his notice and the Employer’s acceptance of it. The following day a meeting was held at which redundancies were announced. However, as the Worker had already handed his notice he was not entitled to any possible redundancy. The Worker feels that he was targeted particularly for this reason.

The Worker submits that he also made a complaint to the Employer because he had worked 6 days a week since his employment commenced and that he should be entitled to 24 days holidays and not 20.

The Worker submits that he feels that he was targeted to hand in his notice.

The Worker submits that the interim Manager was brought in specifically to reduce the workforce.

The was no appearance by the Employer at the adjudication hearing. At the outset of the hearing, the Employer’s representative informed the hearing that the Employer would not participate in the hearing.

The Worker referred the within dispute to the Director General of the WRC on 14th October 2021. On 22nd October 2021, the WRC notified the Employer of the dispute.

Section 36(1) of the Industrial Relations Act, 1990 stipulates that:-

“36.—(1) An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969, by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party”

The Employer was informed that that pursuant to Section 36(1) of the Industrial Relations Act 1990, any party has the right to object to an investigation of this dispute by an Adjudication Officer. The Employer was requested to indicate whether it wished to object to an investigation by an Adjudication Officer by completing the relevant form and returning it to the WRC within 21 days of the date of the letter. The Employer was further informed that failure to reply to this enquiry form within the period specified would be regarded as consent to an investigation by an Adjudication Officer under Section 13 of the Industrial Relations Act 1969, and the dispute would proceed for a hearing on the earliest date.

On 28th October 2021, the WRC received a letter informing of the details of the Employer’s representative in the within case.

There has been no communication received from the Employer in response to the WRC request of 22nd October 2021 within the period specified. In the circumstances, the Employer was deemed to have consented to an investigation by an Adjudicator under Section 13 of the Industrial Relations Act, 1969.

On 19th November 2021, the WRC wrote to the Worker to advise him that no communication had been received from the Employer within the period specified.

On 30th May 2022, the WRC received the form that had been sent to the Employer on 22nd October 2021 indicating that the Employer objected to the investigation of the dispute by an Adjudication Officer.

As the Employer had not notified the WRC of any such objection within the statutory 21-day period I was, therefore, obliged to proceed with my investigation of this dispute. 

The Worker raised a number of grievances at the adjudication hearing including the matters of annual leave, unpaid breaks, change in working hours and the matter of the treatment he received from the Manager and the owner of the business. The Worker submitted that he formally raised a grievance in respect of the hours of works and breaks, and the treatment by his Manager.

The Worker furnished copies of correspondence he received from the Employer dated 27th September, 30th September, 8th October, and 9th October 2021.

In relation to the matter of hours of work, I find that the Employer explained to the Worker in the letter of 30th September 2021 that his hours of work would change from 1st November 2021 and that as of 20th September 2021 any overtime must be pre-approved. The letter suggests that the changes were discussed with the Worker on two occasions previously. While it appears that the Worker was unhappy with the changes, it is the Employer’s prerogative to run the business efficiently and, in the within case, the Employer explained to the Worker that the changes are implemented “for the good of the staff and the company” and will “result in better working conditions”. There is nothing to suggest that the Worker was in any way singled out or targeted in relation to the changes.

In relation to the matter of breaks, the Worker received a response to his grievance on 27th September 2021. The Worker confirmed that the policy in place was that breaks were unpaid, albeit it appears that this policy had never been properly implemented. The correspondence exhibited by the Worker shows that, as per the Worker’s Terms and Conditions of Employment and Employee Handbook any breaks were unpaid. However, as the Worker failed to clock out for breaks, these were paid to him. The Employer informed that Worker that he was to clock out for his breaks and failure to do so will result in disciplinary action. While the Worker might not have been happy with the Employer tightening the process, it is clear that he was aware of the policy in place.  The letter of 8th October 2021 reiterates the Employer’s view on the matter of breaks. Again, there is nothing to suggest that the Worker was targeted or singled out in that regard.

The mater of the Worker’s complaint against the Manager was addressed in the letters of 27th September and 8th October 2021. I note that the Employer essentially took the view that “it is one word against another” and that “this matter is closed”.

S.I. 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order, 2000 provides that

“Good practice entails a number of stages in discipline and grievance handling. These include raising the issue with the immediate manager in the first instance. If not resolved, matters are then progressed through a number of steps involving more senior management, HR/IR staff, employee representation, as appropriate, and referral to a third party, either internal or external, in accordance with any locally agreed arrangements.”

Regrettably, the Employer did not attend the hearing and I did not have the benefit of its submission. It was not possible to establish what the Employer’s grievance procedure was, if any. However, it appears that the process employed was flawed from a fair procedures point of view. The Employer considered the matter open and shut without, it seems,  adhering to any procedure. The Employer’s letter refers to two statements, from the Worker and from the Manager. However, I note that the Worker did not have sight of the minutes of either meeting and/or the Manager’s statement, and consequently, could not dispute any of the contents therein. In circumstances whereby a witness statement is taken as part of a grievance procedure, the Worker should have an opportunity to review it and dispute the content of it, should he wish to. I find that the failure to disclose the Manager’s statement used a part of the decision-making process to the Worker as part of the grievance procedure constitutes a procedural flaw.

It appears that no alternatives such as mediation were considered by the Employer. While mediation is a voluntary process requiring both parties to agree to participate, in the circumstances of the within dispute this option could have been at least explored as it could potentially resolve any conflict if such existed between the parties.

I find that the Employer’s handling of the Worker’s grievance was  procedurally deficient. In the absence of any information as to the grievance procedure, it is impossible to establish whether or not the Worker exhausted internal remedies available to him before he decided to resign and refer his dispute to the WRC.

I recommend that the Employer pays the Worker compensation of €3,000.

Industrial relations act- grievance-flawed procedure