Complainant

Respondent

Parties

Lorcan  Kerry

Infosys BPM

Representatives

  Self- represented

Robin McKenna IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00042118-001

23/01/2021

The complainant was employed by the respondent as a part-time technical care agent.  He worked 16 hours per week on Saturday and Sunday.  He was paid per fortnight at the rate of €10.20 per hour.  The complainant claims he was treated less favourably than a comparable full-time employee in respect of his conditions of employment, specifically in relation to the allocation of annual leave.  He submitted a complaint to the Workplace Relations Commission on 23 January 2021.

The respondent provides business process management services for its clients across the globe.  The respondent refutes the complainant’s allegation in its entirety.

The complainant commenced employment as a full-time customer agent with Eishtec on 06 August 2019.  His employment transferred to the respondent in 2019 following a transfer of undertaking.  The complainant, by agreement with his employer, moved to part-time employment.  In 2021 he was working 16 hours per week on Saturday and Sunday.

The complainant stated on the complaint form that he had been denied all his holiday requests because they fell on a weekend, and he only worked weekends.  The complainant believed he was treated unfairly by the respondent in comparison to their full-time employees who get their weekends off. 

The complainant stated that he had not been given any holiday hours that her had requested in the last year.  Consequently, he had accrued up to 64 hours which had to be taken between January and March 2021.  If he did not take the accrued leave, he believed the leave would be lost after the end of March 2021.  The complainant stated that he had complained to management, but nothing had been done.

In his oral testimony the complainant stated that he used the internal system to request annual leave.  The requests were submitted on the Injixo system which the complainant had no problem with prior to 2020.  The respondent had introduced another system, QStory, in 2020 but the complainant contended that he did not have access to this system.  The complainant stated that information about the new system was not communicated to him.

The complainant stated that when he submitted his request for leave on the Injixo system the response came back as ‘fail’.  The complainant stated that he was assigned annual leave, but he did not get the leave for which he had applied.  He stated that he had raised the issue of access to the new system, but the matter had not been resolved and he was not given access.

On Saturday 23 January 2021 the complainant sent text messages to his supervisor requesting the following day off.  That request was refused.  At that point the complainant informed his supervisor that he would make a formal complaint to the WRC as he felt he had been mistreated and hard done by.  The complainant submitted his complaint to the WRC on 23 January 2021.

In his closing statement the complainant acknowledged he knew QStory existed, but he did not have access to the system.  He stated he had raised this with IT 10 or 15 times, but he never had access while other staff had access.  He believed he was not given time off because his requests were for weekends and that was the reason that he was not given access to QStory.  His leave was allocated to him but not on dates he had requested.  The complainant submitted he was treated less favourably than full-time people who were allocated leave at weekends.

The respondent provides business process management services for its clients across the globe.  The respondent company has consistently been ranked among the top employers of choice, based on its industry leading HR best practice.

The complainant commenced employment on 06 August 2019 as a customer agent with Eishtec.  Following a transfer of undertaking the complainant’s employment transferred to the respondent in 2019.  The complainant submitted a letter of resignation on 25 June 2021.  His resignation took effect on 09 July 2021.  At the time the complaint was submitted the complainant was working part-time, 16 hours per week on Saturday and Sunday, with an hourly rate of €10.20 per hour.

0n Saturday 23 January 2021 the complainant exchanged text messages with his Team Leader regarding annual leave.  The complainant requested leave for the following day.  The Team Leader informed the complainant that the Manager would not be able to facilitate such a late request as there was no capacity to allow this leave the next day.  The complainant replied in his final text message that he was going to make a complaint to the WRC.

At the time of this text message exchange the Team Leader contacted Resource Planning to check the complainant’s outstanding leave allowance and whether there was availability for him to take leave in February.  Separately the Manager asked Resource Planning to check what leave requests from the complainant had been declined.

The following day, Sunday 24 January 2021, the Manager spoke with the complainant.  It was established that the complainant was using the Injixo system to submit his leave requests when he should have used the QStory system.  The Manager asked the complainant what leave he was seeking, and he indicated he wanted the next few weekends off.

On Monday 25 January 2021, Resource Planning confirmed that the complainant had accrued leave of 65.28 hours.  Resource Planning confirmed that no request for annual leave had been made by the complainant on QStory since June 2020, when the system was introduced.  It was also confirmed that leave was available on weekends from 06/07 February to the end of March 2021.  The Manager in reply asked Resource Planning to update the QStory system to show that the complainant would be on leave for the weekends 30/31 January 6/7, 13/14, 20/21 February 2021.

Respondent’s Position

Prior to the summer of 2020 all annual leave for employees of the respondent was requested through the Injixo system.  On 16 July 2020 all staff were informed, by email, that a new vacation management tool was about to be launched.  On 29 July 2020 all staff were sent further instructions and a link to further information was contained in the email.  A further reminder email was sent to all staff on 07 January 2022 setting out the leave entitlements and requiring staff to use the QStory system to request leave.  The complainant was advised of the changes, but he did not make any leave requests on the QStory system.  Had the complainant used the correct system this issue would not have arisen.

The complainant was not treated less favourably than comparable full-time employees.  Other employees did not experience issues accessing the QStory system.  When the complainant’s Manager was made award of the issue on 23 January 2020 the problem was quickly identified and resolved by 25 January 2020.  The problem was resolved to the complainant’s satisfaction, and he was provided with leave each weekend from 30/31 January to 20/21 February 2021.

It is the respondent’s position that the complainant was not treated less favourably than any other employee, full-time or part-time, regarding the allocation of leave.  He simply failed to use the correct system for requesting his leave.  When his manager was made aware of the issue action was taken to resolve the matter within two days.  Regrettably, the complainant did not give management the opportunity to resolve the issue before submitting a complaint to the WRC.

Ms Greaves in her oral testimony stated that she is a Senior HR Business Partner with the respondent.  Injixo is a software package used for scheduling and shift times.  Until summer 2020 Injixo was also used for annual leave.  The system was managed by the Scheduling Teams.  She described the new QStory system and stated that all staff were required to use that system for annual leave requests.  Staff were informed of the new system by email and through team briefings.  While she was not able to provide a copy of the email sent to the complainant, she stated that the email notice went to all employees and no other employee reported difficulty in using the new system.

The respondent asserts that the issues with allocating leave to the complainant was resolved as soon as it was brought to the attention of management.  The complainant raised the issue with his Team Leader on 23 January 2021.  His Manager spoke with him the following day, Sunday 24 January 2021.  By Monday 25 January 2021 the complainant had been allocated weekend leave for the following four weekends.  The complainant was allocated his annual leave before the end of March 2021.  When the complainant resigned in July 2021 he was paid for all outstanding leave at that date.  The respondent employs 180 part-time staff, many who work only on weekends, and no other part-time employee had an issue with requesting leave on the QStory system.

The respondent submits that the complainant was not treated less favourably than a comparable full-time employee or part-time employee, and therefore this complaint should fail.

CA-00042118-001

Complaint submitted under section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

The complainant is a part-time employee of the respondent.  He claims that in respect of his conditions of employment he has been treated less favourably than his full-time colleagues.  His complainant relates to the allocation of annual leave or failure to allocate him leave that he had requested.

Legislation

9.— (1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

The complainant stated in his oral testimony that compared to full-time people doing the same work as him he had been treated less favourably. 

The complainant worked weekends, Saturday and Sunday.  He had not been allocated any of the leave he had requested.  Full-time colleagues, he stated, were allocated weekends off. 

Under cross examination the complainant acknowledged that he had a conversation with his Manager on Sunday 24 January 2021, in which she explained to him how the request system worked and that he had used the wrong system to submit his request for leave.  The complainant stated that when he tried to use the new QStory instead of Injixo he could not get into the system.  The complainant confirmed that when he used the Injixo system to request leave he got an error response.  He acknowledged that a full-time employee making a request on Injixo would receive the same error response.

The complainant, under cross examination. stated that until he threatened to make a complainant to the WRC, he did not get leave allocated.  However, his Team Leader and Manager, when notified just wanted him to use his holidays before the end of March 2021, these were not the dates he requested or wanted.  At that time, he wanted to be paid for his outstanding annual leave.  He stated he was aware that the policy was to use leave by the end of March or lose the leave.

The HR Business Partner in her oral testimony stated the annual leave year runs from 01 April to 31 March the following year.  The respondent’s policy on unused leave was to allow for 5 days to be carried forward.  A warning system was in place to inform employees of leave balances when approaching the end of the year.  The Team Leaders would monitor outstanding balances. 

I have carefully considered the written submissions and oral evidence in reaching my conclusions.  I am satisfied that the complainant was a part-time employee and was engaged in the same type of work as full-time colleagues.  I accept the complainant’s evidence that he made some requests for annual leave and received a ‘fail’ response.  The reason for the ‘fail’ response was that he was using the incorrect system to submit his requests.  The complainant acknowledged that a full-time colleague using the incorrect system would also receive a ‘fail’ response.

The complainant acknowledged that he knew of the QStory system but claimed he did not have access.  He stated he had reported this to IT but he did not provide any evidence of such reports.  He did not provide any evidence that, before 23 January 2021, he had brought the issue of lack of access to QStory to anyone in authority in order to have the matter resolved.

The complainant first raised the issue of his difficulty with getting annual leave allocated to him on Saturday 23 January 2021.  I note from the email dated 24 January 2021 from his Manager (appendix 6 of the respondent’s submission) that the complainant had been invited to an official meeting that day concerning another matter and that was when he brought up the leave issue.  Within 48 hours of raising the issue of the allocation of leave the complainant had been allocated leave for the following four weekends.  Before allowing the respondent time to resolve the issue the complainant had submitted his complaint to the WRC.  I accept that there was some technical issue that prevented the complainant from accessing the QStory system.  I am satisfied that the complainant did not make his Team Leader aware of the technical issue until 23 January 2021.  The technical issue and the allocation of leave were resolved by the complainant’s Manager within 48 hours. 

I accept the complainant was not allocated leave on the dates he had requested.  He had submitted his request on the previous Injixo system rather than the QStory system.  The respondent did not action the request as it was unaware of the request.  The complainant has not established that he was treated less favourably than comparable full-time employees.  He acknowledged that a full-time employee submitting a request on Injixo rather than QStory would have received the same error response.

I note the complainant’s statement under cross examination that when he did not receive the leave on the dates that suited him, he wanted instead to be paid for his accrued annual leave.  Directive 2003/88/EU Concerning Certain Aspects of the Organisation of Working Time lays down minimum safety and health requirements for the organisation of working time.  Article 7 of the Directive provides:

The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

The intention is that employees will have a period of rest away from work for health and safety reasons.  In the instant case, when the system issue was resolved, the employee was granted his accrued annual leave within the statutory leave year.  He was not entitled to receive payment in lieu of the leave he had accrued.  When the complainant resigned in July 2021, he was paid for outstanding leave accrued between April and July 2021, which he was then entitled to receive.

I find the respondent did not treat the complainant less favourably than comparable full-time employees.  I am satisfied that the respondent acted quickly to allocate leave to the complainant when it was made aware of the issue that the complainant had with access to the leave request system.

CA-00042118-001

Complaint submitted under section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

I have carefully considered the complaint, written submission and oral evidence presented in this case.

I accept the complainant was not allocated leave on the dates he had requested.  He had submitted his request on the previous Injixo system rather than the QStory system.  The respondent did not action the request as it was unaware of the request.  The complainant has not established that he was treated less favourably than comparable full-time employees.  He acknowledged that a full-time employee submitting a request on Injixo rather than QStory would have received the same error response.

I find the respondent did not treat the complainant less favourably than comparable full-time employees.  I am satisfied that the respondent acted quickly to allocate leave to the complainant when it was made aware of the issue that the complainant had with access to the leave request system.

In the context of the finding set out above I declare the complaint is not well founded.

Part-Time Employee

Less favourably treatment

Annual Leave