ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  ADJ-00045978

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:  15/09/2023

Procedure:

This dispute was referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 13 of the Industrial Relations Act 1969 on 26th May 2023.  There was no objection by the Employer to an Adjudication Officer investigating this dispute.  Following delegation to me by the Director, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a face-to-face hearing at Lansdowne House on 15th September 2023. The Worker was represented by her Union.  The Employer was represented by Author Cox and a HR Manager and In-house Solicitor were also in attendance.  Comprehensive written submissions and supporting documentation was received from both Parties.  Section 13(9)(c) of the Act provides that hearings shall be held in private and accordingly, I direct that any information that might identify the Parties within this recommendation should not be published.

Background:

The Worker had been employed as a Personal Banker for almost 30 years until her employment was transferred to a new Bank under a transfer of undertakings (TUPE) during a restructuring process.  The Worker brought this dispute against her former Employer within the requisite six month period, contending that she had been unfairly treated in an Employee Swaps Process such that she was denied a generous redundancy package, and sought compensation in respect of same.  The Employer raised two objections to the WRC’s jurisdiction and without prejudice, maintained that as it had conducted itself properly both in respect of the TUPE and the Employee Swaps Process, there was no basis for any award of compensation.

Preliminary Objections:

Having indicated no objection to the WRC investigating this dispute under Section 13(3)(b)(ii) of the Industrial Relations Act 1969, as outlined in written and oral submissions, two objections to the jurisdiction of the WRC to hear this dispute were raised on behalf of the Employer at the hearing as follows:

Firstly, it was contended that the subject-matter of this dispute fell within the restriction provided by Section 13(2) of the Industrial Relations Act 1969 as follows: “Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”  It was submitted that as the Worker had initially sought compensation equivalent to the redundancy package subject to a Collective Agreement, this equated to a dispute concerning the rate of pay payable to employees on redundancy.  Reliance was placed upon a number of recommendations of the WRC declining jurisdiction where the dispute related to the rates of pay affecting a body of workers including ADJ-00032695, ADJ-00036707 & ADJ-00028629.  Having scoped this dispute with the Parties, I satisfied myself that the subject-matter was particular to this Worker and her perceived unfairness as to the manner in which she had been treated under an Employee Swaps Process unrelated to the Collective Agreement and thus within jurisdiction.

Secondly, objection was taken to the WRC hearing this matter in circumstances where the Worker had not availed of a step-by-step internal grievance process before referral of this dispute to the WRC.  Reliance was placed upon instances where jurisdiction has been declined by the Labour Court in such circumstances including INT10/14.  The Worker confirmed that she had not availed of the former Employer’s grievance process as their employment relationship was coming to an end when she had learned of the issue giving rise to this dispute.  Having considered the caselaw in light of the fact that the Worker’s employment was effectively at an end when the subject-matter giving rise to this dispute arose, it would not have been feasible to engage in an internal grievance process and again, I do not decline jurisdiction on this basis.

Summary of Worker’s Case:

The Worker was employed as a Personal Banker in a branch in a town with her former Employer, a Bank between 1st January 1994 and 6th January 2023.  As a consequence of company restructuring in 2021, all of the Employer’s staff would either be made redundant, moved to the Parent Company or transferred to a different Bank under TUPE.  A generous redundancy package was agreed under a Collective Agreement with the Union.  The Worker’s branch transferred to a new Bank and save for changes in work practices, she remained in her workplace under the same terms and conditions including retention of her service. 

Separately, the former Employer operated an internal Employee Swaps Process agreed with the Union.  This allowed employees whose positions were at risk of redundancy but wished to remain in employment to swap with employees who wanted to take redundancy.  This entailed either of the two employees providing the Employer with details of the proposed swap via a Union Representative.  The proposed swap would then have to be approved in a formal process outlined in guidance documents submitted herein.  The criteria required the swapping employees to be at the same grade and have the same skillset as well as agreeing on location.  During the restructuring process, this system was utilised to enable the former Employer’s employees being made redundant but who wished to retain their employment to swap into the roles held by employees who were being retained and/or transferring to a new entity who would take the redundancy package instead.  The closing date for submission of proposed swaps was 27th November 2022.

As confirmed in an email of 30th May 2022 from the Union to the Worker submitted herein, the Union had canvassed its members to identify those interested in swapping.  Having given 30 years of loyal service to the former Employer and being close to retirement on a salary of €38,000, the Worker did not wish to transfer to a new employer with the stress entailed in learning a new system of working.  Instead, she wished to avail of the redundancy package which would been a significant sum owing to her long service.  This email had acknowledged her interest in swapping with a member not within the scope of the TUPE and at risk of redundancy.  A list of members at risk of redundancy who were interested in swapping was attached.  The email also stated: “Unfortunately, there are more members who wish to transfer out of scope than transfer in and so we are making this available to all who completed our survey at the same time to be transparent and fair.  It is now up to you to identify a potential swap based on the same grade and skillset and propose this to your line manager.  Our Sector Committee members are available to support you through this process.”  There had been four ‘at risk’ employees on the list who qualified for a swap with the Worker but as they were based in other parts of the country, they were not in a position to swap with her. 

From when the Worker had first learned that her branch and role was subject to TUPE, she tried everything in her power to arrange a swap so she could avail of the redundancy package instead.  She had asked her line manager whether she could transfer to a branch that was not subject to the TUPE and was informed that this was not possible.  She had unsuccessfully applied for positions with the former Employer that were outside the scope of TUPE.  She had also enquired about the possibility of swapping with an employee in one of the Employer’s departments but had been led to understand that this was not possible as branch and department staff had different skillsets.  This position was confirmed to her during a virtual town hall information meeting with Senior Management in mid-November 2022.  Having failed to secure a swap, she had explained her difficulty to the CEO during a visit to her branch on 30th November 2022.  The CEO had asked the Manager overseeing the Swaps Process, also present, whether anything could be done to facilitate her given her great service to the Bank but he had informed them that the process was closed.

In late December 2022 and just as the Worker’s employment was coming to an end with the Employer, she became aware of a swap that had been sanctioned to an employee based in a branch in another town with an employee in a department who would otherwise have been made redundant.  Additionally, the employee in question had been transferred temporarily to another branch which was closing down instead of taking the departmental role until her redundancy was finalised which the Worker believed was also irregular.  She questioned whether the swapping employees in question had the same skillsets.  It was confirmed that a different representative from the same Union had proposed this particular swap.  She also acknowledged that there were other employees in her branch who had not been able to secure a swap.

Having had her employment transferred to another Bank under TUPE, the Worker has resigned herself to the fact that she cannot now avail of the redundancy package but perceives that there was an unfairness in the Employee Swaps Process such as to entitle her to a sum of compensation.  She submits that the same criteria was not applied to all employees equally.  Although the employee who had secured an inter branch/departmental swap was represented by the same Union, she contended that she had been acting under inaccurate information provided by her former Employer.  She submitted that had she known that such swaps were possible, she would also have pursued such a swap before the deadline for proposals.

Summary of Employer’s Case:

The former Employer contends that the Worker’s employment was transferred to another Bank without objection in accordance with the Transfer of Undertakings Regulations under the restructuring process.  There was no impropriety on its part and it is not responsible for any perceived unfairness caused by the fact that the Worker was unable to avail of a swap under the Employee Swaps Process.  An Employee Guide, Line Manager Guide and General Guide setting out detailed procedures were furnished.  This initiative was voluntarily agreed between the Employer and Union and was fully employee-led.  It enabled an employee who had been advised that they were at risk of redundancy and did not wish to leave the Employer to identify a potential swap with another employee who wished to avail of redundancy.  This process was adopted within the restructuring process.  In order to facilitate same, the Union provided transferring employees who wished to avail of redundancy with the names of employees at risk of redundancy who wished to retain their employment as confirmed above.  As such, the process was entirely employee-led and the Union and not the Employer held the database of employees interested in swapping.

The Employee Swaps Process involved the following steps for the employee at risk of redundancy:

(i)  Identify the potential swap candidate and discussion;

(ii)  Formal application via an Online Swap Consideration Form;

(iii)  A decision-making process whereby the Line Manager would assess the suitability of the ‘at risk’ employee to carry out the job in their business area would then take place, the key considerations being:

(a)  Skill-set;

(b)  Performance rating;

(c)  Jurisdiction and location;

(d)  Business requirements/withdrawal activity; and

(e)  Critical people capabilities behaviour.

In the instant case, the Worker was never at risk of redundancy as her branch was being transferred to another Employer under TUPE.  No ‘at risk’ employee had identified her for a potential swap under the Swaps Process.  The Union had provided the Worker with the names of ‘at risk’ employees who wanted to swap.  It was the Worker’s responsibility as an employee not at risk of redundancy to identify an ‘at risk’ employee who was at the same grade and had a similar skillset.  In this respect, she had Union assistance and knowledge as to the potential swaps available.  The closing date of 27th November 2022 for swap proposals was fixed to allow for the requisite due diligence and transfer completion process to take place which required the Employer to fulfil its obligations to transferring employees under the Regulations.  Notwithstanding any conversations the Worker may have had with management, at no stage did either she or the Union propose the name of any other employees for the Swaps Process before this deadline.  Had they done so within the requisite time, this would have been given due consideration by the Employer.

The HR Manager who administered the Employee Swaps Process outlined the operation of same within the Employer restructuring process.  There had been approximately nine successful swaps.  In relation to the Worker’s example of differential treatment cited above, it was the Employer’s position that the employee in the department at risk of redundancy had the requisite qualification to work in a branch and thus the requisite skillset for the swap to be approved.  The employee availing of redundancy in her place had been temporarily moved to a branch that was closing down so that she did not have to undergo further training in the departmental role when her employment was due to terminate.  The end result was the same, being that only one role was made redundant.  Whilst the Employee Swaps Process was beneficial, occasionally proposed swaps did not work out and when they did not align, could give rise to perceived unfairness.

In conclusion, it was submitted that the Worker is effectively raising this dispute because her role was not made redundant and she could not find an employee who was ‘at risk’ and willing to swap with her.  The Worker was provided with precisely the same information about the Employee Swaps Process as all the other employees via the Intranet and also had the benefit of Union assistance as evidenced by the email.  Under the scheme, the employees (or Union of their behalf) were responsible for the identification of potentially suitable swaps and as such was outside the Employer’s control.  The Employer had given the Worker a fair opportunity to identify a suitable swap before the deadline.  As she had not identified a swap or objected to her transfer (noting that this would have constituted a resignation as confirmed by the Labour Court in Rapier Contract Services Limited -v-Adina Predut UDD185), the Employer had no option but to adhere to the TUPE.  The Employer’s ethos was to protect as many jobs as possible.  It has fulfilled its statutory obligations and the Worker is now an employee of another Bank, having retained her terms and conditions.  In all of the circumstances, the Employer does not consider it liable to pay the Worker any compensation for her loss of a redundancy package and/or perceived unfairness in the Swaps Process.

Findings and Conclusions:

I have carefully listened to and considered all of the evidence and submissions on behalf of both Parties to this dispute.  The Worker contended that she had been unfairly treated in an internal Employee Swaps Process such that she was unable to avail of a generous redundancy package during a restructuring process.  After 30 years of service and being close to retirement, her preference had been to take redundancy rather than have her employment transferred to a new Bank with all that entailed.  She sought compensation in respect of same.  The Worker’s former Employer maintained that as the Swaps Process was employee-led and no proposed swap had been made by her or on her behalf, it could not be held responsible for same.

It is not in issue that the Employee Swaps Process is an entirely employee-led voluntary process and only the Union was privy to its members at risk who wished to swap with those who were interested in taking redundancy in their place.  Unfortunately, the Worker’s location did not suit the potentially suitable ‘at risk’ employees identified as being interested in a swap.  Additionally, more transferring employees had sought a swap than those at risk of redundancy with the consequence that not all who sought a swap were able to avail of same.  The Worker’s dispute is essentially that she acted upon inaccurate information provided by the Employer which led her to believe that inter-branch/department swaps were not possible owing to their differing skillsets.  After the closing date for swap proposals, she had discovered that such a swap had been approved.  It was confirmed that the Worker’s Union had proposed the inter branch/department swap in question.  I am therefore satisfied that the Worker had access to the same information and assistance through the same Union as the employee who had her inter-branch/department swap approved.  The former Employer cannot therefore be held liable for the fact that a similar swap was not identified on her behalf.  It is also noted that nowhere within the Employer guidance documents is there any stipulation that inter branch/department swaps were not permitted.  Furthermore, the Complainant did not have any legal entitlement to the redundancy package and the Employer has adhered to all its statutory obligations under the Transfer of Undertakings Regulations.  Whilst I have some sympathy for the Worker’s position, I have concluded that the Employer cannot be held responsible and liable in all of the circumstances. 

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  For the aforesaid reasons, I recommend no further action or concession in relation to this dispute.

Dated:   9th October 2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard