Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Joanna Ozdarska SIPTU

Niamh Daly  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 - 00001405

24/05/2023

This matter came before the WRC dated 24/05/2023 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969.

The specific complaint falls under Industrial Relations Issues Type and the Worker has a trade dispute he would like investigated. 

The Worker was employed by the Employer from 01/11/2015 until he resigned his employment on 24/04/2023, with such resignation taking effect one week later.  

The Worker is general operative.    The Employer is a hot dip galvaniser.  The Worker was paid €620 gross weekly and he worked a 39-hour week. 

Both parties filed helpful written submissions including supporting documentation prior to the date of hearing. 

The Worker submits he has been unfairly and improperly categorised by his employer despite completing required trainings.  The Worker submits that he was the only employee performing mixed duties of General Operative and some administrative duties of a supervisory nature.  The Worker is seeking compensation of €6,495.93 for the reasons set out above.

The Worker submits he was mainly performing his duties as forklift driver after having successfully completed the courses offered by the Employer.  On 2nd February 2022 the Worker submits he lodged a grievance with the Employer’s Customer Service and Production Manager in relation to pay rates.   A grievance meeting took place on 16th June 2022.  The Worker received a letter from the Group Operations Director on 30th June 2022 with the grievance outcome stating that the Company had always treated the Worker fairly, however brought written warnings to light even though they had expired and should not have been taken into consideration in this occasion.

The Worker submits that while the Employer did conduct the investigation, it failed to address his concerns adequately leading him to appeal the outcome.  The Worker tendered his resignation on 24th March 2023 as he submits the work has affected his health and family life due to 2.5 years on night shift without the opportunity to move to day shift. 

The Worker’s representative contacted the Respondent on 20th April 2023 and received confirmation that the matter was closed on local level.  This was followed by this referral to the WRC. 

The Worker submits he was unfairly categorised by the Employer with completed trainings while performing duties of a higher skill level.  The Worker submits he was the only employee with General Operative and Supervisor grade administrative duties.  The Worker submits administration work (signing in sheets labelling etc.) and helping on the floor, including operating forklifts, cutting the steel down and helping other to prepare the steel for the customers were all part of his everyday work.  This is the reason the Worker believes he should have been on a higher – Skill Level 2 rather than Skill Level 1. 

The Worker submits he is entitled to receive compensation of €6,495.93 as is owed 5% of his wages over a 4-year period totalling up to that amount and he submits that as being a committed employee he deserved to be valued in his role as well as being recognised as a skilled worker as per Skill2 category.  The Worker is seeking a recommendation that he was unfairly treated by his employer and that he be compensated by the above amount to resolve this case. 

Preliminary Issue on Jurisdiction:  

The Worker states on the claim form that he has a trade dispute that he would like investigated.  The Employer refutes this claim in its entirety and submits the following preliminary argument regarding the Adjudication Officer’s jurisdiction to hear this case.

This dispute is in relation to the Worker’s pay grade in the role of General Operative and the pay grade applies across the board to other General Operative employees in the Employer company.  Therefore, the dispute is connected with the rates of pay of a body of workers and is a collective issue rather than an individual one.

Therefore, the Adjudication Officer is precluded by the terms of Section 13 (2) of the Industrial Relations Act 1969 from hearing the case.  The requirements as regards the rule were discussed in Shannon Airport Authority v A Worker[2013] AD1389 in the following terms:

“Section 13 (2) of the Act provides: -

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 or involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

“Claims which by their very nature and character have broader implications are inappropriate for the Rights Commissioner Service and are dealt with by the Labour Court. The 1969 Act provided a stipulation that issues concerning pay, hours or times of work or annual holidays are issues which can have broader implications and are consequently not issues appropriate to the Rights Commissioner Service. In all circumstances of this case the Court is satisfied the appeal before the Court concerns issues related to rates of pay and concerns a body of workers acting in concert. It is a claim which if conceded could potentially have broader implications for others. On that basis the Court is of the view that it is precluded by the terms of Section 13 (2) of the Industrial Relations Act 1969 from hearing the case.”

It is the position of the Employer that there is no separating this dispute from the overall IR context for the company and the potential impact, and cost, of consequential claims from other general operatives of the same grade.

Background to the Claim:

The Worker commenced employment with the Respondent on 29 February 2016 in the role of General Operative.  His standard hours of work were 39 per week across day, evening or night shifts and his gross pay for 2022 was € €39,641.06.   Hourly rate of pay at the time of termination of employment was €20.15.

On 2 February 2022 the Worker raised a formal grievance in relation to his rate of pay for Forklift truck driving for 9 months from September 2017.   On 11 February 2022, the Employer’s Customer Service and Production Manager sent the Complainant the following documents: 

 • Employer Skill Level table

 • Breakdown of pay rates from the Complainant’s commencement date

 • Copes of training record, employment contract, disciplinary letters etc.

A grievance meeting was held with the Worker attended by the Employer’s Group Operations Manager and the Customer Service and Productions Manager in April 2022.  The Worker opened the meeting with a view he has been underpaid by the Employer from the time he got his FLT Licence (July 2016) to October 2019.  The Employer explained to the Worker that just because you get a FLT licence in July 2016 does not mean you get the rate straight away.  It was explained there is a training in period where you learn the ropes and are eventually appointed by management as an FLT driver once this period is complete which makes you eligible for the rate.  This could be up to 6 months.  Furthermore, there was a number of health and safety related FLT incidents which brought his time on the FLT to an end beginning with turning the FLT over on 16th March 2017, colliding with another FLT in November 2017, and crashing into a customer’s vehicle causing damage in January 2018.

The outcome of the meeting was that the Employer was satisfied that the Complainant was on the correct rate of pay and always had been.  The meeting finished with the Worker claiming he was underpaid between periods Sept 2017 (when Plant 2 opened) to October 2019 which amounts to a skill rate differential of 5%.

The Complainant appealed the decision to the Group Operations Director on 29 April 2022. 

A formal grievance appeal meeting took place on 16 June 2022.  In attendance were the Worker, the SIPTU Shop Steward, the Group Operations Director and the Group Operations Manager.  The outcome of the meeting was issued by letter dated 30 June 2022.  The letter contained a detailed chronology of the Worker’s career since he joined the company and concludes as follows: 

“At no stage were you ever appointed a Permanent Fork truck that would have given you a higher pay rate.  You were always under trial as a relief driver and had to be taken off Fork lift driving duties on 2 occasions.  On the time in question from September 2017 you were doing Fork lift duties in combination with listing and other General Operator duties under supervision of your Foreman.”

On 24 March 2023, the Complainant resigned from his role due to his own personal circumstances and he was paid in lieu of his notice period.  Employment termination date was 24 March 2023. On 20 April 2023 the Customer Service & Production Manager received an email from the Worker’s representative Ms Joanna Ozdarska, SIPTU, sent on behalf of the Worker, regarding their position that the Complainant had been unfairly categorised in relation to his skills levels in his roles.

The email provided as follows “The Worker believes that he should have been on the Skill2 category on the pay grade scale as he had successfully graduated trainings and that he fulfilled all necessary criteria for this particular category.”

The Employer responded to Ms Ozdarska on 21 April 2023 to advise the following:

“This issue was dealt with and was clearly explained in detail to the Worker on many occasions.  The Worker’s query was escalated to our then Group Operations Director and I attach a letter given to the Worker in June 2022, concerning this issue.  The Worker has since left the company to take up employment elsewhere and we consider the matter closed.”

The Employer Arguments:

The Worker believes that he should have been on the Skill2 category on the pay grade scale as he had successfully graduated trainings and that he fulfilled all necessary criteria for this particular category.  The Worker was always paid in accordance with his role and job title.  There is a difference in skill rates between plant 1 and plant 2.  The Skills Table used by the Employer shows a breakdown of skill levels applicable in the company.  It is noted on the Skills Table that “in order to progress through the skills (min 6 months), the employee must be appointed and prove they can thoroughly do all aspects of the role with minimum supervision”.

In this case, the Complainant failed to demonstrate that he was a competent forklift driver and was permanently relieved of these duties as a result. 

The Complainant was trained to drive by Jungheinrich, the Employer’s Forklift training providers, to drive a forklift on 1st July 2016.  This is basic training involving moving a pallet from A to B, it does not qualify an employee to move pieces of steel around the yard or load customers.   This training only means that an employee can enter a forklift once trained with Jungheirich, it does not deem that the employee is competent or eligible for any forklift rate.  This is commonly known in the Employer company.  There is a lead in time of approx. 6 months to demonstrate competence as noted on the skills table. 

Subsequently, the Worker went on to have several serious driving incidences while driving a forklift.  As a result, the Complainant was removed permanently from forklift driving duties for health and safety reasons and reverted to listing duties only and was never appointed as a permanent driver which attracts a higher pay rate.

The Worker was given several opportunities to progress in the company but failed to attain the level required due to his concerning safety record.  The Worker remained under trial as a relief driver and had to be taken off forklift driving duties on two occasions.

On the time in question from September 2017, the Worker was doing Forklift duties in combination with listing and other General Operator duties under supervision of his Foreman. There were many other employees who were on the same shift as the Complainant who were full time forklift forks drivers, one of them being a foreman. 

In September 2017, the Worker was transferred to Plant 2 dayshift and was given a second chance on forklift duties. However, due to several serious incidents from October 2017 to 17 January 2018, he was removed permanently from forklift driving duties and therefore, was not appointed as a permanent driver (skill rate 2).

The role of the Adjudication Officer in an IR referral is to “investigate any trade dispute referred to him.. and shall, unless before doing so the dispute is settled, make a recommendation to the parties to the dispute setting forth his opinion on the merits of the of the dispute” (Section 13).  This does not allow the Adjudication Officer to make specific findings as to what they consider the outcome of an internal investigation should be; rather their role within an Industrial Relations hearing is to assess whether the process conformed to the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures (SI146 of 2000).  Respectfully, it is not the function of the Adjudication Officer to re-investigate or to form an opinion as to whether the Respondent was objectively correct in their conclusions; rather the role is to establish if the Employer acted fairly in its dealings with the Worker.  

It is the Employer’s position that a full and fair consultation and grievance process took place In line with fair procedures.

The Employer has outlined its position to the Complainant on several occasions regarding his rate of pay.  In August 2021, the Complainant emailed the Group Managing Director with various queries regarding his employment.  One such query was in relation to his rate of pay – “I requested a layout of what jobs gain extra percentages in the company on the 30th of November as this seems to unclear threw out the union and staff I feel in recent events of finding out that there is a 5% rise for listening I've been left short 5% of my wages while doing other jobs over the years I’m still waiting for the layout”.

The Worker responded to the Worker in September 2021 with the following response to this query and also recommended to the Worker that he should raise any such matters with the Customer Service and Production Manager directly in the future.  “I understand that it was clearly explained to you that you are being paid correctly for the job you are doing i.e., listing/admin work. This is classed as skill 1 on our operators’ skills chart. I understand you were led to believe by a colleague in Plant 1, that because at times you were a relief acid person in plant 2, that you should have been receiving 5% extra as well. It was explained to you that the skill level in plant 1 & 2 differs. It is a long-established arrangement, that the skill levels in Plant 2 are slightly different.  During the past 5 years or so, skills and rates you attained were lost due to two very serious incidents, overturning a forklift, and dropping a jig from a height.”

When the claim was referred to the WRC, the Worker was no longer an employee of the Employer.   After extensive engagements and consultations with the Worker spanning various years prior to his resignation, the Employer always acted reasonably and fair in their dealings with the Worker and outlined the reasons why he was on the applicable rate of pay.

The Employer wishes to refer the Adjudicator to the recent IR case (ADJ-00030334 A Personal Assistant v A Trade Union) where the adjudicator stated the following in his recommendation:

“The jurisdiction of an Adjudication Officer under this legislation is somewhat constrained. It is essentially an oversight role to ensure that a worker’s rights have not been breached and to seek to apply equitable (in the colloquial sense) remedies where that will be of assistance to the parties. The Adjudicator has no role in substituting their decision for that made at the level of the workplace in the absence of some serious error in the processes. There is no evidence that the respondent failed to follow fair and proper procedures in the course of processing the grievance, only that the procedures applied failed to produce an outcome acceptable to the complainant.”

On this basis, the complaint failed, and the Adjudicator recommend that the complainant accept that the matter had been fully and fairly processed to a conclusion.  Similarly in this instant case, at no stage was there any deficit in the procedures followed, and the Employer believes that it has been fair and reasonable in its dealings with the Worker. 

Without prejudice to the preliminary argument that the Adjudication Officer does not have jurisdiction to hear this case as it relates to a rate of pay connected to a body of workers, in the event that the Adjudication Officer views that this claim relates to an individual dispute, it is the Employer’s position that the Adjudication Officer should apply reasonable time limits to any claim presented under the Industrial Relations Acts.   While the Employer fully acknowledges that there are no specific time limits under the Industrial Relations Acts, we contend that the Adjudication Officer should apply the similar time limits that are applicable under the majority of employment legislation.

That is of course a six-month timeframe, extendable to 12 months, from the date of the alleged breach.  In this instant case, the claim was submitted to the Workplace Relations Commission on 24 May 2023 and relates to the Complainant’s pay from 2017 to 2023.   As such the Employer respectfully submits that a common-sense approach be taken by the Adjudication Officer, and accordingly dismiss the claim on this ground.

Conclusion:

The Employer respectfully requests that the Adjudication Officer finds that the Worker’s claim under the Industrial Relations Act fails for the reasons outlined above.

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

Preliminary Issue on Jurisdiction:

Section 13 of the Industrial Relations Act, 1969 provides as follows:

13. –

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay, 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 V1 of the Principal Act, a party to the dispute may refer it to a rights commissioner. 

The Worker makes a claim in relation to pay rates and he contends that he has been paid unfairly for the work he is doing.  The Worker also claims he is the only person in the plant doing such duties.  The Employer claims there are 80 employees in the mix of skill levels that pertain to the Worker.  Having carefully considered the submissions of the parties and based on the facts as presented I am satisfied the claim in the within case has wider applicability across a body of workers in this particular employment in the Employer company and the potential for ensuing collective ramifications. 

It is apparent that the subject matter of this dispute may have a consequent effect for a body of workers and as such it would be inappropriate for same to be the subject of an individual recommendation.  In the interest of completeness, even if I were to find merit in this dispute and if I were to make an individual recommendation this would have the potential to undermine the very comprehensive Skills Levels and associated pay grades utilised by the Employer across all levels with repercussive effects.  The Skills Levels and associated pay grades has been in operation for decades the operation of which is an accepted custom and practice in the workplace of the Employer.  However, this point is purely academic as I do not have jurisdiction in any event. 

Accordingly, I find I am precluded from making a recommendation for the reasons set out above.   

Body of workers; consequent effect;