DWT2327

Appeal of Adjudication Officer Decision No's: ADJ-00035383 (CA-00046895-003)

BACKGROUND:

The Worker referred her case to the Labour Court on 1 December 2022, in accordance with Section 28(8) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 5 October 2023. The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

This is an appeal by Mr Alan McAndrew (‘the Complainant’) from a decision of an Adjudication Officer (ADJ- 00035383/ CA-00046895-003, dated 27 October 2022) under the Organisation of Working Time Act 1998 (‘the Act’).

The Complainant’s Notice of Appeal was received in the Court on 1 December 2022. The Court heard the appeal in Dublin on 5 October 2023, along with the following additional appeals referred by the Complainant, each of which is the subject of an individual and separate Determination: ADE/22/1O8 under the Employment Equality Act 1998; PW/22/216 under the Payment of Wages Act 1991; UD/22/146 under the Unfair Dismissals Act 1977 and RT/22/5 under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Road Transport Activities) Regulations 2012. The Court is also aware from the papers submitted to it that the Complainant has initiated an action for personal injuries against the Respondent.

The Adjudication Officer decided the Complainant’s complaint under the Act was not well-founded in circumstances where the Complainant did not make an appearance at the first-instance hearing. The Complainant submits that his non-appearance was due to a miscommunication arising from a change in legal representation.

Summary of the Complaint

The Complainant included the following particulars in respect of this complaint in the form he submitted to the Workplace Relations Commission on 29 October 2021: “The Complainant was not notified of his working hours at least 24 hours in advance of the start time.”

Summary of Relevant Factual Background

The Complainant commenced employment as an HGV driver with the Respondent in February 2007. He was based at the Respondent’s site in Donabate, County Dublin. The Complainant took on the role of Shop Steward for approximately the final three years of his employment. He worked a pattern of day and night shifts making deliveries to stores operated by a large retailer around the country. The Complainant was paid €22.71 gross per hour (i.e.

€1022.13 gross per week) up until 7 July 2022, at which point the Respondent ceased payment of night shift premium

to the Complainant. The Complainant’s earnings as of the date of his resignation on 8 October 2021 equated to

€42,520.00 per annum.

In April 2020, the Complainant was signed off sick by his GP for four weeks. He had complained to his GP that he was experiencing difficulties sleeping when working night shifts. He presented a series of medical certificates to his employer during this period that stated that he was unfit for work due to “Stress” (two medical certificates) and subsequently “Flu like Illness”. There was no reference to the Complainant’s issues with working night shifts in any of the medical certificates he submitted during the four-week period.

The Complainant was sent home from work on 15 July 2020 suffering from severely swollen lymph nodes. He was out sick for three days. When he came back to work he was required to undertake a return to work interview which was conducted by Mr Patryck Witczack and in the course of which the Complainant submits he informed Mr Witczack that his GP had advised him to take time off from performing night duties for health reasons. Thereafter, the Complainant was rostered on day shifts only. He worked from 10.00 am to 10.00 pm, four days per week, for a period of five consecutive weeks performing shunting duties at the Donabate depot.

On 17 September 2020, the Complainant – in his capacity as one of two Shop Stewards on site – attended a meeting at the Donabate depot. The purpose of the meeting was to introduce a new HR Business Partner for the site. It is common case that the Complainant and Mr Dave Morley, Transport Manager, had a heated exchange in the course of the meeting in relation to a matter that was not scheduled for discussion at that meeting.

In October 2020, the Complainant invoked a formal grievance in which he referred to the exchange with Mr Morley at the meeting of 17 September 2020 as one of a number of what he characterised as examples of the Respondent’s attempts to single him out in retaliation for his earlier request to be relieved of night duties. At the grievance hearing – chaired by Mr Eamonn Corrigan, Site Lead – on 11 November 2020, the Complainant added an additional ground of complaint in relation to the five-week period he had worked the 10.00 am to 10.00 pm arrangement from late July to August 2020. Mr Corrigan issued an outcome letter on 20 November 2020 to inform the Complainant that none of his grounds of complaint had been upheld. Mr Corrigan advised the Complainant that he had been placed on the

10.00 am to 10.00 pm shift pattern for five weeks in July-August 2020 in order to accommodate his request not to work nights for medical reasons and that such a working arrangement was within the terms of his contract.

The Complainant had a consultation with his GP on 10 November 2020 following which he presented a medical certificate to the Respondent in which the GP declared him “unfit for night shift work from 15/11/2020 until 15/01/2021 incl due to cardiac investigations”.

On 24 November 2020, the Complainant attended a health review meeting at the Respondent’s request to discuss his ongoing and various health issues and to consider what reasonable accommodations might be necessary and appropriate in his case. The Respondent also reminded the Complainant of its policy and the procedures for the submission of medical certificates. Mr Liam Pepper wrote to the Complainant on 2 December 2020 inviting him to attend a consultation with the Respondent’s occupational health advisors, Medmark, on 8 December 2020. The Complainant attended that consultation and the report that issued afterwards informed the Respondent for the first time that the Complainant had been suffering from “high blood pressure for 2 months” but “No medication has been necessary to date”. The examining Occupational Health Physician stated in his report that, in his opinion, “Mr McAndrew remains fit for work, in a full-time capacity, but he is unfit for night work until the end of the process [being conducted by his GP] (end of January 2021)”.

On 19 February 2021, the Respondent wrote to the Complainant regarding the expiry of his earlier medical certificate that had declared him unfit for night duty up until 15 January 2021. He was also requested to provide the Respondent with an update on his fitness to resume full contractual duties by 25 February 2021. The Complainant then provided a further medical certificate from his GP dated 5 March 2021 in which the GP stated her opinion that the Complainant would be unfit for work from 7 March 2021 until 21 March 2021 “due to Hypertension”. The Complainant reported for work on 24 March 2021 but presented a further medical certificate on 12 April 2021 advising that he was unfit for night work until 2 July 2021 due to “Poorly Controlled HTN”.

On 19 April 2021, the Complainant submitted another medical certificate and remained on sick leave for a period of two weeks. The Complainant was informed by letter dated 27 May 2021 that the Respondent had arranged a follow- up consultation for him with Medmark, to take place on 2 June 2021. The Complainant failed to attend this consultation. It appears that the consultation was to be conducted by telephone. The Complainant contacted Medmark in advance of the scheduled consultation to advise that he required a copy of any report that would issue from the consultation before any such report would be furnished to the Respondent. Medmark refused to agree to the Complainant’s request in this regard.

Thereafter, local management sought to engage with the Complainant with regard to a proposal to remove his night shift premium with effect from 30 June 2021. However, it appears that the Complainant failed to attend a number of meetings arranged to discuss this proposal and expressed a preference (not acceded to by Management) to conduct all communications in writing only. Mr Pepper, Operations Manager, confirmed in a letter dated 28 June 2021 that the Respondent intended to proceed with removing the Complainant’s night shift premium as proposed. The fact that the reduction had been effected was confirmed by the Respondent in a letter dated 7 July 2021.

The Complainant attended his GP again on 23 August 2021 following which he submitted a medical certificate which

stated he was “unfit for night work from 23/8/21 until 23/11/21 due to HTN/Stress”.

On 29 September 2021, the Complainant made a written request to the Respondent for a two-year career break. On 7 October 2021, the Transport Manager replied in writing to the Complainant declining his application for a career break due to the shortage of HGV drivers. The Complainant resigned, with immediate effect, from his employment with the Respondent on 8 October 2021.

The Complainant’s Evidence

The Complainant gave detailed evidence in relation to his various absences from work between April 2020 and October 2021 and the medical reasons for those absences. He told the Court that he decided to resign on 8 October 2021, following Mr Morley’s refusal to grant him a career break, because he had been “made to feel a burden on the company” and because he needed to look after his physical and mental well-being. His evidence was that he secured alternative employment as an HGV driver within a very short time following his resignation. That job, according to the Complainant, is slightly less well paid than his employment with the Respondent had been (prior to the removal of the night shift premium at the end of June 2021) but involves day work only, Monday to Friday. He told the Court that his annual salary in his current job is €42,000.00 per annum gross.

The Complainant emphasised that he had not consented to the removal of the night shift premium from his pay and regarded it as a unilateral reduction in his pay. He said he had written to the Respondent to notify them of this but did not receive a reply. He told the Court that he was aware that another driver had also had the night shift premium

removed from his pay at the same time but that that colleague had been off night-time working for a longer period of time than he had.

The Complainant referred to an encounter he says took place in the Respondent’s yard with a named colleague sometime in March or April 2021. According to the Complainant the colleague referred to him on that occasion as “the lying Scotsman”, called him “a f***ing joke” and said he had “head problems”. It was the Complainant’s evidence also that the colleague appeared to know about the outcome of the Complainant’s grievance complaint and about his perforated ear drum. The Complainant recounted a subsequent incident he said took place in May 2021 and involved the same colleague in which the latter held up a water bottle while “giving him the finger” when passing him in the yard. A third incident also took place with the same employee, the Complainant said, in September 2021 when the colleague drove down the yard and gave him “a deep stare” and laughed at him.

The Complainant’s evidence next moved to a grievance meeting he attended in July 2021. That meeting was chaired by a Mr Beater. The Complainant says he arrived early for that meeting and noticed Mr Liam Pepper leaving the location of the meeting which he considered strange as some aspects of his engagement with Mr Pepper formed part of the grievance he had submitted. In any event, the Complainant told the Court, Mr Beater informed him that he was not proceeding to investigate the grievance as the Complainant had not produced any supporting evidence. The Complainant explained to the Court that he had consulted a solicitor prior to this about his work situation and the solicitor had all the relevant documents on file and it was not possible for the Complainant to retrieve them in advance of the grievance meeting. The Complainant said that Mr Beater had followed up with him a number of weeks later with a view to carrying out an investigation into the Complainant’s grievance then. It appears that the Complainant sought clarity in writing from Mr Beater about why the investigation was going to proceed then when it hadn’t when originally scheduled to take place. He says he received no reply to his query from Mr Beater but did receive an outcome letter advising that his grievance hadn't been upheld. The Complainant told the Court that he did not appeal Mr Beater’s findings as had lost faith in the grievance process by that time.

Under cross-examination, the Complainant was asked about his interactions with the colleague who allegedly had made reference to his “head problems”. The Complainant said he suffered from depression and that he had reported this both to his GP and to the Respondent’s Occupational Health Specialist. The Complainant queried whether this information perhaps had been leaked by Management. The Respondent’s Representative put it to him that he had never submitted a medical certificate to the Respondent indicating that he suffered from depression and that likewise there was no reference to that issue in the Medmark report.

The Complainant was then asked if he had found Mr Beater’s treatment of his most recent grievance strange. He replied that he had and that he had raised the matter with the Human Resources department but received no reply to his query. He re-iterated that he believed he had not been afforded a reasonable opportunity to produce his documents to Mr Beater.

The Respondent’s Representative next asked the Complainant to explain what his issue was with the 10.00 am to

10.00 pm shifts he was placed on after he had submitted his medical certificate advising he was unfit to work nights. He replied that the anti-social aspect of the working hours he was scheduled for affected his family life. He also said that the Respondent had not advised him that that working arrangement was for the purpose of accommodating his health issues.

The Complainant told the Court that he had been occasionally rostered for a night shift during the period that he was certified unfit to work night shifts. When this happened, he said, he had to telephone the Respondent’s office – often on his day off – in order to have the roster rectified.

The Complainant was asked about the circumstances in which he had resigned his employment with the Respondent. He replied that he had received the Respondent’s decision to refuse his application for a career break early on 8 October 2021 and that he handed in his resignation at 10.00 am that same day. He confirmed that he had not engaged in any discussions with the Respondent prior to resigning as he felt that the company was not taking him seriously.

Finally, the Company asked the Complainant about the circumstances surrounding the Respondent’s removal of his night duty premium. He replied that he had been notified about the Company’s proposal in this regard on 8 June 2021 and confirmed that he had been invited by Mr Pepper to engage with the company about the proposal at a meeting scheduled for that purpose. He also confirmed that he had refused to attend the meeting as he wished only to communicate with Management in writing at that stage.

Evidence of Mr Dave Morley

The witness told the Court that he is the Transport Manager and Site Lead at the Respondent’s depot in Donabate. He said he had started working directly for the Respondent’s large retail client when it managed its own logistics before that side of the business was transferred to Stobart and subsequently to the Respondent. The witness was not the Complainant’s line manager and his only regular contact with the Complainant was in the latter’s capacity as a Shop Steward.

The witness explained that the Complainant was contracted to work fully flexible hours, four days over seven. The witness’s evidence was that he first became aware of the Complainant’s inability to work nights when he was told of the contents of the medical certificate submitted by the Complainant in July 2020. The witness told the Court that the Complainant did not work a night shift between that date and the date of his resignation. Asked about his knowledge of the Complainant’s mental health issues, the witness said he was never made aware by the Complainant or anyone else that the Complainant suffered from mental health issues.

The witness told the Court that he had declined the Complainant’s request for a two-year career break because of the company’s operational needs at the time. He said it is common knowledge that that there was then – and continues to be – a severe shortage of available HGV drivers in the industry and it is very difficult to recruit additional drivers. He also said that the Respondent is constantly working to capacity to ensure timely deliveries to its large retail client and, therefore, could not afford to lose drivers. The witness accepted that one driver had been granted a career break in 2020 but said that the situation had been very different then.

The witness’s evidence then turned to the Complainant’s resignation. He said that when he received the Complainant’s letter of resignation, he forwarded it to Human Resources and the Complainant’s line manager. He said that he had also drafted a letter to the Complainant inviting him to return to the Respondent’s employment and to re-engage with the company.

In cross-examination, Counsel for the Complainant asked the witness about the 10.00 am to 10.00 pm shifts the Complainant was assigned following his removal from night shift duties. The witness replied that the Complainant was rostered at all times within the parameters of his contract. Counsel also questioned the witness about what engagement he had had with the Complainant following the latter’s return to work following periods of sick leave in May 2020 and in September 2020. The witness said that he had engaged with the Complainant on the first occasion to enquire if he was fit to be at work and denied any engagement with him on the second occasion. When asked about the meeting that took place to introduce the new site Human Resources Business Partner to the Shop Stewards in September 2020, the witness said that his perception was that the Complainant’s approach to the meeting had been negative and he appeared disengaged. The witness also said that the Complainant had effectively ignored the new Human Resources Business Partner and was more interested in raising work-related issues such as shunting duties.

In answer to questions from the Court, the witness said that the Complainant’s contractual rate of pay was a composite rate that reflected the nature of his employment i.e. fully flexible, four days over seven, including weekends. His contractual duties included driving to make deliveries and shunting of trailers in the depot yard. According to the witness, the basis for apportioning 20% of the composite rate to night shift premium had its genesis in the arrangements that had been historically applied by the Respondent’s retail client from whom the Complainant’s employment (and the witness’s also) had transferred through a succession of transfers of undertaking.

The witness told the Court that he had had no direct involvement in the decision to remove the night shift premium element of the Complainant’s pay but did confirm that the Complainant had not worked night shifts between May 2020 and the ending of his employment with the Respondent although he remained in receipt of the full composite rate of pay until July 2021. According to the witness, the trigger for the removal of the night shift premium at that point in time was the then open-ended nature of the Complainant’s certification that he was unfit for night duties; up to this point, he had been certified unfit for definite periods. Finally, in relation to this issue, the witness confirmed that the Complainant’s full composite rate would have been restored if, and when, he had returned to full duties.

Evidence of Mr Liam Pepper

This witness is the Respondent’s Operations Manager at the Donabate site and has direct management responsibility for the fleet and the drivers based there. The witness said that he had commenced working for the Respondent’s large retail client in 2003 and had also transferred from that employment to the Respondent’s employment via a series of transfers of undertaking.

The witness told the Court that he had been made aware from April 2020 that the Complainant had an issue with regard to night work. He also said that he - with the assistance of the Human Resources department - had organised the health review meeting with the Complainant in November 2020 following which Human Resources referred the Complainant to Medmark. The witness was certain that the Complainant had never said anything to him that indicated he had been suffering from depression.

The witness told the Court that he had been marginally involved in the discussions that led to the decision to remove the night shift premium from the Complainant’s pay. He confirmed that he had invited the Complainant to a meeting to discuss the matter before the deduction took effect but that the Complainant hadn’t attended because he wanted all communication to be in writing. The witness confirmed what the previous witness had also said in relation to the restoration of the night shift premium in the event that the Complainant returned to full duties.

Evidence of Mr Peter Spencer

The witness works in the Respondent’s Human Resources department as a member of the Human Resources Transformation Team. The Human Resources Business Partner for the Donabate site reports directly to the witness. The witness told the Court that he had oversight of the process that culminated in the decision to remove the night shift premium from the Complainant’s pay. He said the decision was largely informed by the outcome of Medmark’s assessment of the Complainant’s health situation and, in particular, the Occupational Health Advisor’s assessment that it was not possible to state a date by which the the Complainant would be fit to resume full duties. In those circumstances, it appeared to the witness that the Complainant was being paid for work that he was not performing.

The witness gave evidence as to how the 20% figure for night shift premium was determined. He accepted that the composite rate of pay in the Complainant’s contract is not broken down. However, the witness said that he had had regard to the arrangements that had been applied by the Respondent’s large retail client when the Complainant was employed by it. He said he also had had regard to the industry standard. According to the witness, it was the Respondent’s intention to engage with the Complainant about the proposed removal of the night shift premium but the Complainant had refused to engage on the matter on a face-to-face basis and had insisted on having written communications only with management.

Discussion and Decision

At its height, the complaint being advanced by the Complainant under the Act is that, on a small number of occasions, he was mistakenly listed on the Respondent’s roster to work a night duty shift during the period that he was certified unfit to work nights. On any occasion that this happened, the matter was rectified by means of a phone call from the Complainant to the office. It follows from the Complainant’s own evidence that the Respondent utilised a written roster system to notify drivers in advance of their working arrangements for the period covered by a particular roster. Occasionally, there were errors in a roster. This happens. It cannot be inferred from the evidence before the Court, therefore, that drivers in general - and the Complainant, in particular – were not notified in advance of their working hours, even – as is accepted by the Respondent – when an occasional error crept into a particular roster.

Having carefully considered the Complainant’s evidence, the Court finds that the evidence adduced from him at the hearing of the within appeal does not support his claim under the Act. This appeal, therefore, fails and the Decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
SOC	______________________
14/11/2023	Deputy Chairman