Worker

Employer

Anonymised Parties

A General Operative

A Builders’ Supplies Company

Representatives

SIPTU

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

IR - SC - 00000267

12/05/2022

The complainant says that his employer has unilaterally altered his agreed working time arrangements (start and finish times), contrary to both the internal procedures in the employment and fairness and, acted in breach of section 5 of the Terms of Employment (Information) Act.

The complaint to be considered here is made under the Industrial Relations Acts.

The respondent is a building materials supplier, and the complainant began his employment in May 2006. He is employed on a Contract of Indefinite duration as a general operative.

Between five and six years prior to the incidents giving rise to the current complaints, the respondent’s then Branch Manager proposed that the complainant change his start time to 8.00 am. He agreed and this has been his start time ever since.

On July 2nd, 2021, the complainant was called into the office of the branch manager.

Though there is dispute as to exactly what was said between the two men at that meeting it is not in dispute that the manager drew attention to what he described subsequently as ‘concerns in relation to the complainant’s performance.

This included an incident where it was alleged he had been speaking for too long to a customer on that date, and that, beginning from the following Monday (5th of July), The complainant would no longer be starting at 8am, but rather he would start work from 8.30am.

The complainant emailed his manager on July 4th and 11th seeking clarification and asked for confirmation of his working hours.

Though initially inclined to put the entire matter behind him, because his manager refused to put in writing what he had determined at the previous meeting, the complainant sought clarification. His manager invited him to his office for a ‘chat’ to clarify matters. The meeting took place on July 21st, 2021.

In fact, on arrival for the meeting the complainant learned that his manager had arranged for a witness to attend when he arrived for the ‘chat.’ This meeting ended without any satisfactory resolution.

The complainant submitted a formal grievance in relation to these matters under the agreed Grievance procedure on August 11th, filing a subsequent statement on August 23rd, 2021.

In the ‘Grievance Findings Report’ dated 22 October 2021, the investigator held.

a.       That the complainant had agreed the hours with his Branch Manager and, as it had not been a ‘formal’ meeting, his complaint in that regard was not upheld

b.       That, “the complainant did request his hours in writing on two occasions: 04 and 11 July. These hours were not confirmed in writing…”

The complainant appealed the decision at Stage 1 on November 1st,  2021 and the matter was heard by the Respondent’s HR Manager.

At the appeal hearing on November 19th 2021 both the complainant and his representative explained how the process got to that point and how the respondent had failed to afford him fair procedures  or to follow its own procedures.

It also failed to share witness statements so that the complainant might respond on a fully informed basis.

It had also determined that in the engagements between the complainant his manager (and therefore the decision to withdraw the hours of work arrangement), the manager had not expressly referred to ‘allegations’ and on that basis could not be deemed to have constituted a formal action.

In the ‘Appeal Outcome,’ the decision maker held that, The change in hours was not a formal sanction and there was no formal process opened against you.,” though she accepted, “…that you were not happy with the change on your hours, and this can be evidenced by you raising a formal grievance in relation to the issue.” She also held that the complainant’s hours would revert to the previous ‘early start’ with effect from 24 January 2022.

This January 11th outcome was overturned by the manager by January 17th 2022, advising (for the first time), that the reason for a new ‘rotation’ of the early start arrangement among four members of staff was for operational reasons.

The complainant says that the respondent raised complaints and performance ‘concerns’ as its own justification for the decision taken to change the previous working hours arrangements, this on 2 July 2021, and that this was done summarily, without any adequate procedure through which the complainant could address or rebut any allegations, complaints or concerns being raised.

This happened in the context of the Branch Manager having positively attested to the complainant’s satisfactory performance as recently as the previous March’s performance appraisal.

We submit that the respondent’s repeated assertion that application of their own procedures – or, indeed, any procedure, or standard of reasonable conduct in actions taken affecting employees – as being wholly conditional on their first having expressly invoked a ‘formal’ process, is neither credible nor rational.

The Respondent’s own disciplinary policy acknowledges the ‘informal pre-disciplinary’ process, but to be used to resolve issues as they arise – not to assign summary guilt and determine a punitive action.

The action of the branch manager in immediately acting to overturn the decision to restore the complainant’s working hours, and to re=apply previous early start arrangement be ‘shared out’ among colleagues, proves true motivation behind the decision taken in July 2021 and has nothing whatever to do with any operational need or general ‘fair play.’

The respondent did not feel it operationally necessary to do so between July 2021 and January 11th 2022, nor was their sense of ‘fairness’ offended by the complainant not having been included in any such rotation in those months. He confirms that even since January 2022 there have been occasions where, when a colleague on rotation is absent (due to illness or otherwise), he has been habitually excluded from the rotation of their early start hours.

On the basis of the above we submit that the action of the respondent in this matter has been contrary to all standards of fairness and reasonableness, and that the complainant has been disadvantaged without any effective means to defend his position or protect his interests.

Were the respondent’s action to stand then the logical extension of that rationale would be that every Branch Manager enjoys unfettered authority to vary fundamental terms of the contract of employment of an employee, based on asserted complaints, by persons unknown, as long as they do so without having expressly invoked any procedure which respects procedural fairness in employment matters.

 On this basis we respectfully request that the complainant be awarded such compensation as the Adjudicator considers just and equitable for the respondent’s flaunting of all standards of fairness in industrial relations in this case,

The Complainant has alleged bullying, and victimisation under the Industrial Relations Act 1969 and failure on the part of the respondent to adhere to Section 7 of the Terms of Employment (Information) Act, 1994

The complainant commenced employment with the respondent on May 29th, 2006 as a General Operative. He is in receipt of a monthly gross pay of €2,604.07 and he has alleged that the respondent ‘sought to alter fundamental terms and conditions’ of his employment by discontinuing the ‘early start’ which he states had been in effect for a considerable time.

It is further alleged that the change was implemented without consultation and no agreement from the Complainant. He states that an original grievance was upheld ‘under agreed local procedures’ and his previous start time was re-established. He states that within a few days his local manager decided to ignore the grievance outcome and new start times were re- introduced.

The ‘Early Start’ referred to in the complainant’s claim refers to a work commencement time of 8a.m. instead of the normal 8.30a.m. start. The ‘Early Start’ is preferred by the complainant and the other three General Operatives who work in the yard as it ends thirty minutes earlier in the evening allowing the worker to avoid the evening time heavy traffic.

In his grievance correspondence the complainant alleged that his manager informed him that his hours were being changed to an 8.30a.m. start and that when he enquired why, it was suggested to him that his work ethic was being called into question. It was further alleged that the manager spoke to him in an aggressive tone.

The complainant’s grievance was initially investigated, and he was provided with a copy of the respondent’s Grievance Policy (and was afforded all rights and entitlements in accordance with Statutory Instrument 146 of 2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

The complaints were not upheld initially and on November 1st, 2021, he availed of his right to appeal citing the following grounds for his appeal,

(i)                  That his manager breached the Respondent’s procedures and did not afford the Complainant natural justice and fair procedure as per SI 146/2000 (when Mr. Bell changed his hours in July)

(ii)                That the grievance investigation did not take into account all the facts submitted by witness in the case.

(iii)              Thecomplainantrefutedthefindingthathehadagreedtochanginghis

The respondent HR Manager was then tasked with dealing with the appeal. When she concluded her enquiries, she found that the interactions between the complainant and his manager were informal meetings and that there was no need for adhering to SI 146/2000, that the changing of the complainant’s hours was not a formal sanction and that the meetings with the manager were performance related.

The complainant’s grievance was partially upheld with a recommendation that his ‘hours be reverted with affect from 24 January 2022’.

AsbusinessneedsandoperationalrequirementshadmovedonsinceJuly2021itwas decided that the early start time would be shared equally amongst the four General Operatives working in the yard, including the complainant.

On January 17th, 2022, the complainant’s manager met with him and informed him that the early start would be rotated equally amongst the complainant and his three colleagues. He was further advised that the system would come into effect in two weeks’ time.

At present each of the four general operatives work one week of early starts followed by three weeks of the late start. In effect this means that the complainant and his three colleagues each have a turn at working 8a.m. to 4.30p.m. Monday to Friday for one week followed by three weeks of working 8.30p.m. to 5p.m. It is respectfully submitted that the distribution of the ‘Early Start’ hours amongst the four general operatives is fair and equitable and that to amend it in favour of the complainant would be unfair to his three colleagues.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties.

It is important to draw attention at the outset to the fact that the main complaint here is being made under the Industrial Relations Acts.

There is a good deal of technical argument in the submissions about the precise character of various interactions which overlook the fact that the central requirement falling on parties ought to be the efficient regulation of workplace relations in a sensible way.

The first meeting between the parties arising from the main complaint took place on July 2nd, 2022. The complainant’s manager expressed his dissatisfaction with aspects of the complainant’s performance and as a direct result of this altered his working hours, specifically his start time to his disadvantage.

The precise characterisation of this features in the dispute and there are arguments about whether this was a formal sanction, or whether the meeting was a formal meeting.

The fact remains it resulted in an adverse outcome for the complainant and was a direct consequence of the expression of dissatisfaction about his performance. It cannot not be seen as anything other than an act of penalisation, and therefore a sanction for the alleged issue raised by the manager.

However, it gets worse.

This was follows by an internal grievance process at the end of which following an appeal the complainant’s original hours were reinstated.

The appeal hearer also found that as the change in hours did not constitute a formal sanction then the requirements of a fair process did not apply.

An Adjudication Officer will always show a level of deference to a decision maker at the level of the workplace, but I find this conclusion insufficiently erroneous to require me to depart from that convention.

As I have already noted, in practical terms any act of penalisation must be regarded, in the ordinary meaning of the word, as a sanction. Normally these are understood to involve warnings, but a sanction can take a number of forms and is not limited to the normal cascade of warnings if a case can be made out that a particular action represents a penalty. In this case it was the change in the complainant’s hours to something he did not wish to do.

As to the description of a meeting at which this takes place being formal or otherwise, this will be defined by the outcome of the meeting.

If it results in a penalty, then it will be regarded as having been a formal meeting, however it may have been convened.

The change in the complainant’s hours was such an act of penalisation, admittedly at a very low level of gravity, linked as it was to some alleged dissatisfaction about his conduct or performance. It cannot be seen as anything else and so the Appeal Hearer erred in concluding that it was not a sanction, and therefore also in the rights it ought to have triggered for the complainant.

However, if this were all that was between the parties it may well have rested there.

Because, within a matter of days his manager, who had altered the hours in the first place, did so again, thereby if not totally setting aside a decision of an appeal hearer at the end of the company’s internal processes, undermining it and diminishing the value to the complainant that the Appeal Hearer had intended by introducing a sharing arrangement.

To that extent it looks very suspiciously like retaliation for the complainant’s challenge to the original decision.

Again, this was dressed up and explained away by reference to the need for certain business changes, but this is to fly in the face of common sense and it is not credible.

The respondent described it as being down to ‘business needs and operational requirements [having] moved on since July 2021’ and says that ‘it was decided that the early start time would be shared equally amongst the four General Operatives working in the yard, including the complainant.’

The respondent has argued that it would be unfair to his co-workers to return the complainant to the status quo ante.

It would also be quite wrong to deny the complainant his right to an equitable outcome by relying on consequences for which the responsibility lies entirely with the respondent.

This is hollow and unconvincing and has the ring of ‘spin’ about it to justify a decision which ought not to have been made.

 All of the indications from the above narrative suggest that unhappy with the outcome of the process the branch manager took matters into his own hands again.  This is quite unacceptable, and it renders the point of having such internal processes meaningless; a point which should be of as much concern to the respondent as to its employees.

Overall, these defects, in principle, represented a degree of breach of the complainant‘s rights at a serious level of gravity and to the extent that he is entitled to a remedy and my recommendation on that follows.

There has been a serious breach of the complainant’s rights, initially with the decision to penalise him by altering his hours and also with the process by which this was done. He was entitled to have any allegations against him processed as a disciplinary matter.

The action in partially setting aside the work of an internal grievance and appeal process is a serious matter, which as I have already noted, should be of concern to the respondent.

Grievance procedures