ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00001026

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:              05/07/2023

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the disputes to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

Summary of Workers Case:

The Worker has over thirty years service. From 2012 until December 2020 he had been on the acting working leader panel, this was a role he had performed quite frequently over the course of those eight years.

In 2019 he and two of his colleagues applied for an acting Manager position. He and one of his colleagues Mr Q were the successful applicants.

In June 2020 the Worker had his first taste of the Acting role when he covered the annual leave of his Manager Ms S, and in line with acting agreements he expected to rotate the acting with Mr Q.

The Worker was concerned when his colleague was picked the next few periods of leave for the role, he raised his concerns with the Manager she informed him that she decided who acted in her office. In late 2020 a competition was held to fill two Working leader vacancies.  The Worker applied and was successful in his application however for personal reasons he opted not to take up the position. In January 2021 he was informed by his Manager that he would no longer be allowed to act in any role in the location and that this decision had been made by the Regional HR Manager and the Regional Operations Manager

The Worker then took up the issue through his Union Official who pursued the matter at Regional level.  It was agreed  to restore him to the acting Working Leader list.

He went back onto the acting Working Leader panel and was in fact the only actor in the area for well over a year.

In October 2022 the Company advertised a Temporary (12 Months) Working Leader position in the area.   The Worker, (who had been unsuccessful in his most recent application for the role) did not apply for the position.   Concerned again that he was not been given the opportunity to act up, he again went to his Manager in December 2022 and she confirmed to him the new Operations Manager had blocked him from acting in any position.

Once again the Worker sought the assistance of his Union Rep who contacted the new Regional Manager who accepted that he should not have been blocked and restored him to the acting list.

Claim:

The Union contend that the Worker has been unfairly treated on two fronts.

1.Acting Working Leader:

There was absolutely no reason why he should have been blocked from this panel. There was a total of 8 months in which this block was in place.  For much of the period of this blocking the Company were covering Working Leader absence on Over Time performed by Working Leaders. Acting Working Leader is worth €75 a week.

2.Acting Manager:

The Union contend that the Worker was unfairly treated by the Company in comparison to his colleague Mr Q.     Mr Q was constantly given preference over the Worker when it came to acting even being recalled for other offices to cover the role.  The extra payment for covering the role is approx. €60 a day.

The Union are seeking to have the Worker restored to the DSM acting list and are also seeking that he be compensated for his loss of earnings from both panels.

Additional information submitted in relation to comparison with colleague was received post hearing. 

Summary of Employer’s Case:

There are agreements agreed with the Union with regards to acting up to the roles of Manager and Working Leader.

The Worker was an acting Working Leader (WL) for a number of years.  He resigned in writing in March 2017, this appeared to follow a disagreement with his Manager.    He has since returned to acting WL list and has and continues to act into the position of WL, when required, but more importantly, when he deems himself available to do so.  This is one of the difficulties with his complaint in that for his own reasons he does not always make himself available to do so.

The Worker is currently on the acting WLs panel and continues to act on a rotational basis.

Details of acting since 2019 are as follows:

• 2019 – 10 occasions
• 2020 – 29 occasions
• 2021 – 13 occasions
• 2022 – 10 occasions
• 2023 – to date 9 occasions

In 2022, he refused to act on at least 6 occasions.

The history of the matter was outlined and is summarised as follows:

The Worker is currently an acting WL in line with the agreements with the Union.  He acted as a Manager on two occasions in June 2019 and February 2020 in line with agreed procedures.  In October 2020 the company advertised to fill WL roles.  The Worker would have been successful but chose to withdraw his name from the process.  The Employer then offered the role to the next successful candidate and in line with agreements the opportunity to act was confined to that cohort of employees who made up the quota of WLs.  To do otherwise would have put the Employer in breach of the agreements between the Company and the Unions and possibly lead to those employees taking a grievance against the Company.

It is noted that the Worker submitted his claim to WRC prior to a meeting held with him on 24th January 2023.  As his issues were dealt with at this meeting it is submitted that they are no longer relevant.  It is submitted that the Worker had the opportunity to take on a permanent role as a WL but chose not to therefore ruling himself out of contention to act as a Manager.  His colleagues who have taken on the role of WL with the rotating shifts and are covered by the agreement with the Union have entitlement under that agreement to be considered in the first instance to act into the role of Manager.  To do otherwise would be unjust and would trample on their rights.   

Additional information clarification

In relation to the claim that the Worker’s colleague Mr Q was given preferential treatment the following additional information refers to dates in 2019-2021 and the amount of times his colleague Mr Q acted as the DSM.

• In 2019 the Worker acted for two weeks and Mr Q acted for three this may have been simply down to availability at that time. It should be noted the next available opportunity to act as the DSM February 2020 the Worker did in fact act into that role.
• The Worker acted as DSM in February 2020 for 6 days.
• June 2020 he acted as the working leader at the same time as Mr Q acted as the DSM and raised no issues at time with regards to acting as DSM
• September 2020 he acted as the working leader at the same time as Mr Q acted as the DSM and again raised no issues at time with regards to acting as the DSM
• November 2020 this was one single days acting and the reason he did not act into the DSM position was due to the difficulty in covering his duty which is a rural route and the fact that we were also at the height of Covid 19 at that time.

The other dates in December 2020 and those in 2021 referred to in the additional information are dates post the Worker’s withdrawal of his application from the competition for a permanent appointment as a work leader. Following this duty competition, we then had a full complement of working leaders in place and they, including Mr Q had the entitlement to act as the DSM in the first instance in line with our agreements with the Union.

Conclusions:

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend that as a gesture to close this dispute, on a once off without precedent basis, the Employer offer the Worker a payment of €1,000 in full and final settlement of his dispute.

Dated:  31-08-2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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