Worker

Employer

Anonymised Parties

Manufacturing Supervisor

Pharmaceutical Company

Representatives

Mr. Richie Brown, Unite the Union

Mr. John Farrell, 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-00043893-003

05/05/2021

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

CA-00043893-004

05/05/2021

The Worker is engaged as a manufacturing supervisor with the Employer. On 5th May 2021, the Worker referred the present disputes to the Commission. As the Employer elected to positively engage with the dispute, the matter proceeded to hearing.

A hearing in relation to these matters was convened for, and finalised on, 23rd March 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings. As both matter were presented in the form of a continuous narrative, I will issue my recommendation in relation to all matters under the complaint bearing reference CA-00043893-004.

In 2013, the Employer engaged in a review of the workload of the managing supervisors. As a result of this review, the Employer decided that a support role was required to allow the manufacturing supervisor to spend more time on the production floor. This role became known as the offline supervisor.

Some four years later, in 2017, the duties of this offline supervisor were significantly altered to include a number of compliance duties whilst removing all supervising duties. On foot of the same, the Worker raised a formal grievance. Herein, the Worker alleged that the day-to-day duties of the off-line supervisors were fundamentally altered without any negotiations or agreement with the workers affected. The affected workers received no training and the suitability for the individuals for the compliance role was not considered.

This grievance was “parked” on 2nd May 2019 as the Worker was approached, and began negotiating, a severance package with the Employer. Unfortunately, the Employer withdrew the offer during the negations and the Worker’s grievance was taken back up following a lengthy delay. In this regard, the Worker submitted that the employer engaged in a series of private, one-to-one, meetings on this matter, in the absence of the Worker’s representative. He also submitted that the withdrawal of the offer was unreasonable, given his length of service and record with the Employer.

The Employer’s failure to properly train the Worker led to a number of critical investigations being opened regarding the quality of his work. This proved extremely stressful for the Worker and resulted in a detrimental effect on his health.

The Worker further submitted that the Employer deviated from an agreed process regarding the allocation of shifts. In this regard, the Worker stated that the “day-shift” was generally awarded to the employee with the longest service in the event that a position became available. Notwithstanding the same, one of the Worker’s colleagues was placed on this day shift following a return from injury. This colleague was subsequently appointed to the day shift on a permanent basis a short period thereafter. Having regard to the same, the Worker stated that this appointment was in contravention of agreed procedure and was completed without any transparency or due process.

In summary, the Worker submitted that the Employer sought to change his substantive role without his consent. The Worker did not apply for this role, was not interviewed for the same, was not consulted in relation to the same, was not trained in respect of the changes and did not receive an updated job description in relation to the amendments.

By response, the Employer denied the allegations raised by the Worker, and submitted that they had treated him fairly at all times.

Regarding the amendment of the Worker’s duties, the Employer submitted that this feel within the Worker’s contractual terms. In particular, the Employer refereed to the Section 4 of the relevant collective agreement. This section states that,

“The union agrees that the company has the exclusive right and sole responsibility to plan, organise, schedule and otherwise manage its operations, to achieve and maintain maximum efficiency.”

The Employer also opened Section 8 of the same agreement. This section, entitled “Job Developments / Training Interchangeability”, states that,

“App parties agree that… interchangeability will take place and that all employees must be totality flexible and must become fully proficient in all aspects of work assigned to them”.

Following from the same, the Employer submitted that they did seek to amend some of the working methods during the Worker’s tenure. These amendments were affected in order to increase efficiency and to ensure that the ever-increasing compliance requirements of the industry are adhered to.

Following the raising of a formal grievance by the Worker in respect of these issues, the Employer undertook an extensive investigation of the role and the Worker’s contractual entitlements. Following the same, the Employer found that the Complainant’s contractual terms were not impacted and that the change in duties feel within the contractual provisions and were reasonable in the circumstances. The Employer further submitted that the process was not subject to any undue delays.

Regarding the discussions between the Worker and management, the Employer denied that any “severance agreement” ever existed between the Employer and the Worker. While the Employer did accept that some exploratory discussions took place, these were never formalised or committed to writing. The Employer accepted that it did meet with the Worker on a one-to-one basis in respect of these discussions, but submitted that these were not formal meetings that required the attendance of the Worker’s union representative. 

In relation to the allegation regarding the assignation of the day shift, the Employer submitted that such shifts are offered on the basis of seniority. Notwithstanding the same, the employer submitted that no day shifts were available at present. The Employer did acknowledge that there may have been circumstances in the “recent past” whereby supervisors were put working days in the vent that they are recovering from illness or injury, or to facilitate training. Notwithstanding the same, the Employer submitted that in the even that such a day shift opens up, they will adhere to the custom and practice in this regard.

In summary, the Employer denied that they had treated the Worker unfairly at any stage of his employment. They certainly denied that engaged in any form of “campaign” against the Worker but stated that they sought to accommodate him at all times.

The present dispute involves a number of instances occurring over a period of years, which the Worker alleges constitutes a “campaign” against him. He alleges that this campaign had a detrimental effect on his health and has caused him significant distress in his employment. In the alternative, the Employer submits that they treated the Worker fairly at all times, and absolutely denied any form a campaign or coercion against the Worker.

The first point raised by the Worker relates to the amendment of his duties. The broad outline of the same is that his duties as a manufacturing supervisor had been eroded over the years, with his role comprising of an ever-greater amount of compliance style duties.  In this regard, I note that pharmaceutical manufacturing is subject to an intense degree of regulation. The nature of such regulation is that the same increases over time, and as a consequence, the Employer must allocate more resources to ensuring compliance with such regulations. This, coupled with the automation of many manufacturing techniques, has resulted in a situation whereby many of the Employer’s managerial duties relates to these compliance needs. In light of the same, the dispute regarding the amendment of his work duties could be characterised as an evolution of his duties, one that is in keeping with the wider industrial developments.

Regarding the Worker’s employment is particular, I note that the collective agreement, to which he is bound, expressly enumerates a requirement for adaption and change in his role. In this regard, the amendment to the Worker’s duties were within the terms of his contract. In a broader sense, it seems reasonable that manufacturing roles are in a constant state of adaption to new technologies, and that working patterns will have to be amended of foot of the same.

Regarding the discussion in relation to the potential severance package for the Worker, it is common case that the exploratory meeting in relation to the same were held on a one-to-one basis, without an express right of representation. In this regard, I note that such talks were informal and purely exploratory in nature. As these discussions may lead to the termination of the Worker’s employment, the initial conversations should be conducted in a delicate and somewhat informal manner. Notwithstanding the same I note that the Worker could have sought advice and potential representation from his trade union representative had the matter proceeded. Indeed, in the normal course, the Worker would be required to confirm they sought independent advice prior to formalising any such agreement. In the present case, the matter did not proceed that far and, as a consequence, I find no evidence of unreasonable behaviour on the part of the Employer in this regard.

Notwithstanding the same, I note the Worker’s grievance was “parked” for a period of months while these negotiations were ongoing. The Worker submitted that he was in a period of “limbo” whilst the negotiations regarding severance were stalled, and his grievance was not being progressed. In this regard, I note that the Employer has submitted that these severance negations were exploratory and informal in nature. This being the case, it does not stand to reason that the grievance investigation would be effectivity stalled whist the same are ongoing. If the same were indeed exploratory and informal, there is no reason why the Worker’s grievance could not be investigated whilst such negotiations were ongoing.

The Worker has also alleged that the Employer failed to abide by a collective agreement regarding the placing of him of the “day shift”. In this regard, I note that the Employer has maintained that they intend to abide by the agreement. They have submitted that a colleague did get placed on the day shift to allow recovery from an illness. In this regard, I note the Employee’s submission accepts that this manager was placed on day shift following an operation, a fact that is reflected the Employer’s version of events. In this regard, the Employer is bound to seek to make reasonable accommodation for employees that are suffering from a disability. While the medical details of the Worker’s colleague were not opened, it is reasonable to assume that part of the same could well involve that particular employee working a set pattern to aid recovery. This unfortunately, lead to a detriment to the Worker who, it appears, was next in line to be awarded this more favourable shift pattern. Notwithstanding the same, this detriment arose from the Employer seeking to protect the rights of a colleague and cannot be said to be unreasonable in the circumstances.

Having regard to the totality of the foregoing points, I recommend in the Workers favour regarding the “stalling” of the grievance procedure.

CA-00043893-003

The recommendation in relation to this dispute is discussed under reference CA-00043893-004.

CA-00043893-004

I find the favour the Worker in relation to one of the disputes, namely the dispute regarding the stalling of the grievance investigation. As the investigation itself has finalised, I recommend that the Employer pay the Worker the sum of €2,500 in settlement of this dispute.

Amendment to contract, manufacturing, severance.