ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: IR - SC - 00001568

Parties:

	Worker	Employer
Anonymised Parties	A Worker	An Employer

Representatives

Self-Represented

Employee Relations Manger

Dispute:

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 - 00001568	21/07/2023

Workplace Relations Commission Adjudication Officer: Eileen Campbell

Date of Hearing: 19/01/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. The hearing was conducted in person in Lansdowne House.

As this is a trade dispute under section 13 of the Industrial Relations Act, 1969 the hearing took place in private and the parties are not named. They are referred to as “the Worker” and “the Employer.” Section 13(9)(c) of the Act provides that hearings shall be heard in private and accordingly, I direct that any information that might identify the parties within this recommendation should not be published.

The Worker attended the hearing and she represented herself. The Employer was represented by an Employee Relations Manager. The interim Area Director of Nursing was in attendance on behalf of the Employer.

I explained to both parties at the outset the way the hearing would proceed, and I clarified for the parties the role of an Adjudication Officer in an Industrial Relations dispute referred under section 13 of the Industrial Relations Act, 1969. I clarified that it is a voluntary process and that no formal evidence is taken and no witness evidence. In that context there are no findings of fact made. I clarified there were no complaints under any employment rights statute or any matter of law before me in this referral. I explained to the parties that I would be seeking information during the hearing in order to gain an understanding of the full extent of this dispute.

I have confirmed that the Worker herein is a Worker within the meaning of the Acts and I have conducted an investigation into the dispute as set out in section 13. It is noted section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties on foot of any investigation so conducted. In making such recommendation/s I am obliged to set out my opinion on the merits of the dispute and the position of the parties thereto. Any consideration on the merits of the dispute will include an examination of the efforts made by the parties to exhaust any or all internal structures or procedures which ought to have been utilised prior to referring a dispute to the WRC. The role of the AO is to review the procedures followed by the employer and, having considered all the information, to make a recommendation that is fair and reasonable and that will assist the parties in moving forward with the employment relationship.

It is not confirmed internal procedures had been exhausted prior to this referral. The versions given by the parties as to why this did not occur are at odds. In the exercise of orderly industrial relations it is expected that the parties should effectively utilise their agreed grievance procedure in the first instance before referring a matter to the WRC. I am not satisfied there has been meaningful local engagement in relation to this dispute the failure of which I attribute equally to both sides. Internal procedures had not been exhausted prior to this referral and this would normally preclude an employee from obtaining an IR Recommendation from the WRC. However, in the particular circumstances of this specific case I am affording a degree of latitude.

No issues were raised as to my jurisdiction to hear this dispute as referred.

I can confirm I have fulfilled my obligation to make all relevant inquiries into this dispute.

Background:

This matter came before the WRC dated 21/07/2023 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969. The aforesaid complaint was referred to me for investigation. A hearing for that purpose was scheduled to take place on 19/01/2024.

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

The Worker commenced employment with the Employer on 23/12/1988.

The Worker claims she was removed from her rostered shift outside of the applicable LIFO (last in first out) rules. The Worker claims breach of contract; no prior notice of a change to her roster; and loss of earnings.

The Employer submits the service underwent a reconfiguration during which ongoing lengthy negotiations with the relevant trade union culminated in an agreement for all staff in that service. The Employer submits the Worker may have suffered a loss of earnings along with her colleagues and she will be fully compensated in line with the buy-out formula agreed between the Employer and the relevant trade union.

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

Summary of Worker’s Case:

The Worker submits that under LIFO rules she should have been allowed to remain on the sleepover roster and when she raised this on a continuous basis she began to feel harassed by her colleagues and her trade union representatives. The Worker claims there was nepotism and favouritism at play in the manner in which the agreement was reached between management and the relevant trade union.

The Worker submits that seniority under LIFO in her understanding means seniority as per date of service within the grade and she is adamant that her understanding of LIFO is that which should be applied regardless of any agreement between the Employer and the relevant trade union and she indicated to her employer at the end of September 2021 that she would not be surrendering her post.

The Worker submits on or around the end of September 2021 she notified the Employer she is only interested in a role that will not only utilise her skills but one which also recognises her academic achievements.

The Worker submits her union representative outlined to her the manner in which the staff on shift were aligned to seniority which she dismissed as not valid and submits that as her trade union representative she should have known this.

The Worker is currently on sick leave and states that she absolutely does not want to return there on account of the way she feels she has been treated – unless it is a return to her former position on the low support house shift roster.

Summary of Employer’s Case:

The Employer representative outlined the rationale underpinning the requirement for change that is at the heart of this dispute culminating in a proposal that would impact on eleven staff members including the Worker. The Employer submits there was a requirement for the staffing profile to change in certain locations reflecting the changing needs of the service users in those particular locations.

Arising out of a clinical need to change the staffing ratios in the low support houses the service would no longer require what were known as “sleepover shifts” and this would impact on eleven staff members.

The Employer submits meetings were held with all impacted staff commencing on or around June 2021 and there was significant union engagement involving lengthy collaborative negotiations between management and the relevant trade union in order to devise a pathway with which all parties agreed.

Rather than “sleepover shifts” that are now no longer required staff will be realigned to “live” nights in other houses within the service. The methodology proposed will be on the basis of last in first out which meant that staff who were appointed first to the shift positions in the affected houses will be given access to the live night shifts in identified houses.

The Employer rejects the allegation that the Worker was not given prior notice of the change in her sleepover roster as she was notified on 04/02/2022 of the details of her new placement in the service with a start date (at that time) of week beginning 04/04/2022. The Employer submits the Worker was also officially notified to her trade union prior that date on 10 December 2021.

The Employer submits the Worker was dissatisfied and complained to management on a number of occasions. The Employer submits her complaint was that she did not want to move to the new roster, and she felt she should get a promotional post in recognition of her personal academic achievements. The Employer submits the Worker was provided with an opportunity to formally raise her concerns through the Grievance Procedure leap frogging steps 1 & 2 and invoking a stage 3 grievance which was not availed of as the Employer submits the Worker indicated that she intended to submit her complaint to the WRC rather than have it dealt with through the Grievance Procedure.

Conclusions:

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties and the information that was provided at the hearing.

Based on the information shared at hearing and the written submissions it quickly became apparent that the restructuring and the negotiations pertaining to same were characterised by and took place against a backdrop of rumour mongering, agitation, speculation and very little recognition of the negotiations taking place between the Employer and the relevant trade union for which if I were to apportion any blame I would apportion it equally to both sides as there should have been a robust communication plan undertaken to dispel all this background supposition and conjecture. I am of the view there was one What’s App group too many spinning in the background the spin content of which could and should have been negated by timely updates on progress from the Employer and the relevant trade union.

I am satisfied an agreement was reached between the Employer and the relevant trade union using the last in first out criterion in the context of the last on to that particular roster in that particular location would be the first out as opposed to the Workers interpretation of LIFO which is the longest serving person in that particular grade. In my deliberations on this matter the aforesaid agreement cannot be ignored, set aside or discounted. I note and it is clear the Worker does not accept the terms of the agreement and I note in her dissent she is not represented by her trade union.

However, I can find no basis to undermine the validity of the agreement reached between the Employer and the relevant trade union nor would it be appropriate for me to do so. I note a buy-out mechanism was agreed between the Employer and the relevant trade union for the loss of shift premium. I note also the Worker at hearing shared her concern that the buy-out formula agreed between the parties would be based on the reference period of the year in which she was on sick leave for seven months and she feared the buy-out would be based on her basic pay only. I note categoric assurances were provided by the Employer that the buy-out would be processed based on what she would have earned had she not been on sick leave for seven months.

I note the Worker remains on sick leave. I note her assertion at hearing that she does not want to remain in the sector where she currently works. The Employer representative invited the Worker to meet with him to discuss alternative options in employment in what is an Employer with a significant number of employees and a significant number of diverse roles for which the Worker could apply, and he has offered her his assistance in so doing.

I strongly urge the Worker to accept this invitation and I recommend that she do so.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend the Worker engage with the Employer following the invitation to do so in furtherance of a return to work in a role suitable to her experience and qualifications.

Dated: 12th April 2024

Workplace Relations Commission Adjudication Officer: Eileen Campbell

Key Words:

Buy-out; restructuring; LIFO;