Worker

Employer

Anonymised Parties

An Operator

An Employer

Representatives

Unite the Union

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 - 00000259

10/05/2022

The worker commenced employment on 29 October 2012.

The worker volunteered for overtime two weeks before Christmas 2021.

The worker arrived on 28th December 2021 to commence overtime and was told he was not needed and would not be paid.

The worker completed a grievance form on 18th January 2022 which was not upheld.

The worker utilised Stage 2 of the grievance procedure which was held on 14th February 2022 and his grievance was not upheld.

The worker utilised stage 3 of the grievance procedure held on 30th April 2022 and the employer made an offer to the worker following this grievance stage.

The worker referred the dispute to the WRC on 10 May 2022.

The worker submitted that there is a very structured approach to industrial relations with an elected union committee (the union) in place that engages consistently with management (the company). There is a union Convenor and union Secretary, who operate on a full-time basis between them. It was confirmed that the worker has utilised the employer’s grievance. 

Two weeks before Christmas 2021 the employer sought volunteers for overtime and the worker advised of his availability for 28th December 2021 to his Line Manager Mr. A.  The worker organised his Christmas leave to facilitate this overtime and attended work on 28th December 2021. He arrived at work at 7.30am and was advised that the overtime had been cancelled. He asked if there was a basis for him to do alternative work to ensure he could work for the rest of that day. He was advised that this was not available. As a consequence, he lost out on that day’s pay at the appropriate overtime rate.  

A grievance was submitted which was rejected by his Line Manager. This decision was then appealed and rejected on appeal on the 21st February 2022.  The matter was then advanced to Stage 3 of the internal Grievance Process. At this stage the employer recommended that he should be paid 2 hours for the time that he attended work on the 28th December 2021.

On the 26th of April 2022 the worker went on sick leave arising from the stress attached to this episode and has been on sick leave since. On 15th of July 2022 the worker’s paid sick leave ran out. He has been in receipt of social welfare since this date and as a consequence has lost out on €6,2701. This figure deducts social welfare payments received in the period in question - € 532 weekly wages per week x 19 weeks = €10,108 less €202 social welfare weekly payments x 19 = €3,838 (€10,108 - €3,838 = €6,270) 

The worker has suffered significant loss in earnings as a result of his illness owing to the behaviour of the employer who did not deal with the issue correctly at the time. The worker is looking for pay at the appropriate rate for 28th December 2021, issued with an apology and compensated accordingly for the unnecessary stress and anxiety caused by the ensuing process.

The dispute relates to a grievance regarding the allocation of work over the Christmas period in December 2021. The employer respectfully submits that it has acted fairly and reasonably in all the circumstances. The employer has a closed shop agreement with UNITE the Union and operates a robust grievance procedure.

The worker had become aware of work available between Monday 27th December-Friday 31st December. The employer would normally shut down during this period, however, the company sought expressions of interest from staff to ascertain if certain product lines could be run between 27th -31st December.  The worker communicated his interest to Mr A his manager, and Mr A told him that the work was not guaranteed.  Owing to the needs of the organisation, the worker was not chosen to work.  The worker received no confirmation that he was to work but yet attended on 28th December and as no work was available, he was sent home.

The worker utilised all stages of the grievance procedure and the worker looked for compensation for the day, which was a public holiday, which would constitute double pay plus a day’s annual leave, added to his annual leave record on a without prejudice basis.  No other workers who had volunteered attended work unless it was confirmed to them that they were required.  While the worker did not clock out on the date in question, it was confirmed that he did, attend site for 45 minutes – 1 hour. Based on this, the employer proposed compensation to the worker for 1 hour that he stated he attended for work on the 28th December, despite not having a clock out time for and that this would be at double time and also provide 1 hour back as vacation time on his annual leave record, in line with the provisions of the Organisation of Working Time legislation.

The employer submitted that they operate a robust grievance procedure that is in line with the principles of natural justice outlined in SI146/2000. The worker was afforded the right to raise a grievance with respect to the issue at hand and the matter was considered fairly and in line with principles of natural justice. The worker was afforded the opportunity to put forward his grievance in line with company procedure and was provided with the opportunity to state his case in relation to same. The matter was considered thoroughly before a decision was raised. The worker was afforded the opportunity to appeal of his grievance at Stage 2 and Stage 3 of the process. Each stage was heard by a senior manager not previously involved and the worker was afforded a fair hearing. The assessment of the facts and decisions made at each stage took into account the representations made by and on behalf of the worker and the decisions were impartial. The worker was afforded the opportunity to be appropriately represented during the process and availed of this opportunity.

The employer submitted that no work was offered to the worker with respect to the 28th December 2021. The notice on the noticeboard does not make any promise that those who expressed their interest in work during the week in question would be guaranteed. Quite the opposite, the wording of the notice was clear that no “plan” had yet been established and that the company would not finalise any arrangements until the 22nd December. No work was confirmed with the worker on that date, and it was thus not reasonable for him to view that same was guaranteed or that he had been scheduled for same. No other employee made the same error. The employer has been reasonable in its dealings with the worker and went beyond what would be expected of a reasonable employer in making an offer to the worker.

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

I note there seemed to be conflict between the parties regarding whether the onus is on the employer to tell workers if they are not needed or if the onus is on the worker to confirm that they are required for overtime.  It is further noted this matter has caused much distress to the worker and I note also that although it took till stage 3 of the grievance procedure, the employer made efforts to resolve the matter by making what I would regard as a fair and reasonable offer to the worker.  I note that no other workers who had volunteered and were not required, attended work on the day.

I recommend, therefore, as follows:

I recommend that the worker accepts the employer’s offer to resolve the matter in their letter which is dated 7th April 2022.

I further recommend that as there appears to be ambiguity regarding how volunteering for such overtime should be dealt with; in future if a worker volunteer their availability, then the worker should find out in advance if they are indeed required to attend such overtime.

I recommend, therefore, as follows:

I recommend that the worker accepts the employer’s offer to resolve the matter in their letter which is dated 7th April 2022.

I further recommend that as there appears to be ambiguity regarding how volunteering for such overtime should be dealt with; in future if a worker volunteer their availability, then the worker should find out in advance if they are indeed required to attend such overtime.

Industrial relations, overtime