Worker

Employer

Anonymised Parties

A Network Technician

An Electricity Provider

Representatives

John Keenan JRK Business Support & Employee Advocacy Services

Kiwana Ennis B.L. instructed by Lisa Devanny Employment Law Solicitor

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001119

22/02/2023

The Worker was employed by the Employer as a Network Technician from May 1988 until his retirement in June 2023. The Worker referred his dispute to the Workplace Relation Commission (hereinafter referred to as “the WRC”) on the 22nd February 2023.

The Employer submitted that its internal grievance procedures should have been implemented and exhausted by the Worker before referring the dispute to the WRC.  The Worker accepted that he did not exhausted the internal grievance procedures at his workplace before the dispute was referred to the WRC but stated that he had not done so because of a manifest imbalance and unfairness in the procedures.

The Worker was employed by the Employer from May 1988 until his retirement in June 2023 as a Network Technician.

He was an accredited trade union representative in the Employer’s employment for approximately 30 years. During the course of his years as a trade union representative he had participated in collective bargaining and represented individual colleagues during grievance and disciplinary processes.

The Worker became a member of the Independent Workers’ Union (hereinafter referred to as “the IWU”) in 2018 and at the date of the referral of the dispute was the chairman of the Employer’s IWU Branch. The IWU is not a member of the Employer’s Group of Unions (hereinafter referred to as “the GoU”) with whom the Employer engages for the purpose of collective bargaining.

Since changing trade union membership, the Employer has refused the Worker paid release to represent colleagues during grievance and disciplinary processes. The Worker claimed that on multiple occasions he was chosen by fellow Network Technicians in membership of the IWU to represent them at grievance and disciplinary meetings/hearings and that the Employer consistently refused to facilitate the Worker’s paid release from duty to provide representation. There was no dispute in respect of the Worker’s release from duty to provide representation. The sole issue was the fact that the Worker was refused payment and instead was required to take leave without pay or use his paid annual leave entitlement to cover his attendance. It was the Worker’s case that the Employer refused payment because the Worker was a member of a trade union not currently recognised for the purpose of collective bargaining within the Employer’s employment.

The Worker stated that he had routinely raised the issue of paid release when making particular requests. He sought release alternately as a ‘trade union representative’, ‘a trade union representative and colleague’ and as a ‘colleague’. On no occasion was he granted paid release.

By way of example the Worker stated that on one occasion he attended a meeting in Mullingar where there were seven employees of the Employer and he was on the only person who was on annual leave. On another occasion he attended a meeting in Portlaoise where there were four employees of the Employer and the Worker was the only one not being paid to attend the meeting.

On the 21st February 2022 the Worker wrote to the Employer’s HR Director wherein he raised the issue of paid release and referred to six specific instances when he was refused paid release for hearings in Finglas, Inchicore and Mullingar. In this correspondence the Worker referred to the requirements of fair procedure as outlined in the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).

On the 23rd February 2022 an Employee Relations employee replied to the Worker stating that:

“You state that you have not been treated in the same way as other employee representatives in that those individuals have been given paid leave to attend meetings. This is correct.

Through the collective bargaining process, [the Employer] and the GoU, have over a long number of years, negotiated collective agreements with respect to issues such as paid release for the purpose of representing colleagues, and attending union related activities, [the Employer] has no such agreement with the IWU and in the absence of such an agreement, it is not obliged or prepared to extend the benefit of terms negotiated with recognised trade unions to the IWU.

It was submitted that the Employee Relations employee ignored the clear distinction between individual representation and collective bargaining. In fact, he defined paid release as a collective bargaining issue and ignored the imperative of fair procedure.

The Worker stated that the Employer “chided” him for not utilising the Employer’s grievance procedure. The Worker accepted that he had not exhausted the internal grievance procedures at his workplace before the dispute was referred to the WRC but stated that he had not done so because of a manifest imbalance and unfairness in the procedures. He stated that the issues raised by him were at the core of the application of the grievance procedure in terms of his own access to representation of choice. In addition, it was submitted that the Employer’s grievance procedure terminates at one stage earlier for IWU members than it did for any other employee, in that referral to the Employer’s Industrial Council as the last stage of the procedure was inaccessible to employees other than employees in membership of GoU trades unions.

The Worker sought a recommendation that:

- the refusal to release the Worker to provide representation of choice in grievance and disciplinary processes was in breach of fair procedure and natural justice;

- there was a breach of fair procedure and natural justice with particular reference to the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000);

- the Employer’s written procedure, which contains an implicit commitment to a universal freedom of choice of representation by a colleague/a representative of their trade union conflicts with the practice experienced by the Worker;

- the invitation to and practice of using annual leave as a substitute for paid release conflicts with the purpose and intent of annual rights; and,

- the Worker was entitled to compensated by retrospective payment for each identifiable occasion on which he has been compelled to use annual leave when acting as the chosen representative in grievance and disciplinary processes.

By way of a preliminary issue the Employer submitted that the Worker made no attempt to deal with his dispute through the Employer’s internal grievance procedure. He did not commence, let alone exhaust, the internal grievance procedures.

In relation to the substantive dispute the Respondent submitted as follows.

It was submitted that in his complaint form, the Worker sought to conflate the roles of providing union representation to a colleague at a meeting on the one hand with accompanying a colleague to a meeting as a witness on the other. In this respect, he referred to attending as a representative, a work colleague and as both a work colleague and trade union representative. However, according to the Employer there was a significance in respect of the particular role being performed by the Worker.

It is the well-established practice of the Employer to engage in collective bargaining with a number of licensed trade unions referred to as the GoU. The GoU is made up of Connect, Unite, SIPTU and ESU and these unions represent the majority of the Network Technicians in the Employer. The IWU is not a member of the GoU.

The Employer has various agreements with the GoU one of which specifically includes release with pay for certain union activities including representation at grievance and disciplinary meetings. This agreement does not extend to representation by IWU representatives. If an IWU member is accompanying an employee to a grievance or disciplinary meeting as a colleague however, that IWU member will be granted paid release. This is the significance of the role being performed by the employee in question and which the Worker is seeking to disregard. However, this is provided that the relevant meeting is local (to reduce the time and travel involved) and provided that the IWU member is not acting as a representative. This does not prevent the employee seeking IWU representation through representation by a full-time officer of the IWU which regularly occurs.

The Employer’s refusal to extend the terms of its agreement with the GoU permitting paid release for members to provide representation at grievance and disciplinary meetings has been an ongoing issue between the Employer and the IWU and the subject of correspondence between the Worker and the Employer. The IWU has also sought to raise the issue with the Labour Court under section 20(2) of the Industrial Relations Act 1969 Act but the matter does not appear to have been accepted by the Labour Court or to have been pursued by the IWU.

The Employer referred to the Worker’s submissions where he stated: “The IWU is not a member of the [the Employer] Group of Unions with whom the Employer engages for the purpose of collective bargaining. On this pretext, since changing trade union membership, the Employer refused the Worker paid release to represent colleagues during grievance and disciplinary processes.” It was also claimed in the written submissions that the decision of the Employer to make such an arrangement with the GoU discriminates against the IWU and creates procedural unfairness.

These arguments were rejected by the Employer.

According to the Employer the reference in the Worker’s submissions to the implementation of its arrangement with the GoU being a “pretext” is incorrect. For sound industrial relations reasons, the Employer respects the arrangement with the GoU. If this were to be disregarded in the manner proposed by the Worker, there would be serious industrial relations repercussions for the Employer in respect of its ongoing and valued relationship with the GoU. Extending the benefits of the negotiated collective agreement with the GoU to members outside the GoU would undermine completely this relationship and render the arrangement with the GoU meaningless.

The Respondent referred to the case of Kenny v. Minister for Justice, Equality and Law Reform C-427/11 and submitted that the importance of preserving good industrial relations has been recognised by the Court of Justice of the European Union to be a matter that could be taken into consideration amongst others in a national court’s assessment of whether a difference in pay could be objectively justified. It was submitted that reliance on seeking to preserve good industrial relations was therefore a legitimate factor to which employers can have regard in order to justify particular practices in the workplace and, as can be seen from Kenny, this can even include justifying otherwise discriminatory treatment based on one of the protected grounds.

The Employer referred to the fact that in his submissions the Worker sought a recommendation that he be compensated for occasions on which he chose to use annual leave to act as a representative for an employee in a grievance or disciplinary process. It was noted that no specific occasions were identified in his complaint form and that no claim has in fact been made under the Organisation of Working Time Act 1997. It was submitted on behalf of the Employer that there was no basis to make such a recommendation and further, that doing so would damage the current industrial relations arrangement between the Employer and the GoU and create disharmony in the workplace. It was submitted that based on Kenny the justification of preserving good industrial relations can clearly be relied upon in this case in order to justify the difference in treatment between union representatives from the GoU on the one hand and the IWU on the other.

In conclusion the Employer submitted that the Worker’s complaint was incorrectly premised. Employees seeking IWU representation are not denied such representation nor is leave denied to employees seeking to act as IWU representatives. However, the arrangement whereby paid release is granted to union representatives is limited to members of unions within the GoU. Extending this practice in the manner sought would damage and undermine the existing good industrial relations with the GoU comprised of unions that represent the majority of Network Technicians within the Employer. The Employer submitted that the Worker’s dispute should be dismissed.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties and set out my conclusions hereunder.

The Employer submitted that its internal grievance procedures should have been implemented and exhausted by the Worker before referring the within dispute to the WRC. According to the Employer the Worker could have availed of the procedures contained within the Employer’s grievance procedure, including having his grievance dealt with informally or having it dealt with formally by his manger or an alternative manager appointed and then he could have appealed the outcome of the formal grievance to the HR Manager who appoints an independent appeals person from outside of the region where the Worker worked or outside the Employer’s business if necessary to ensure independence. The Worker did not implement or exhaust any part of the internal grievance procedure.

The Worker accepted that he did not exhaust the internal grievance procedures at his workplace before the dispute was referred to the WRC but stated that he had not done so because of a manifest imbalance and unfairness in the procedures. He stated that the grievance procedure was not favourable to employees, including himself, who were members of the IWU trade union and that members of the IWU did not have a right of appeal to the Industrial Council whereas members of the GoU did.

It was common case that access to the Industrial Council is dependent on being a member of and represented by a trade union within the Employer’s GoU and that any appeal to the Industrial Council is referred by the member’s trade union and not by the employee. It was also common case that this was the only appeal not available to the Worker as a member of IWU.

It is well established that before referring a grievance about any matter to the WRC an employee must exhaust the internal procedures at their workplace. In Gregory Geoghegan trading as TAPS v. A Worker INT1014 the Labour Court held:

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

Taking into consideration the submissions of the parties I conclude that there was not a manifest imbalance or unfairness in the internal grievance procedures such that would absolve the Worker of the requirement to implement and exhaust the said procedures. The internal procedures have been bypassed by the Worker therefore I cannot insert myself into the procedural process. In the circumstances, I conclude that the Worker’s dispute is not well founded.