Complainant

Respondent

Anonymised Parties

A Network Technician

An owner of the transmission & distribution electricity networks

Representatives

John Keenan Independent Workers' Union (IWU)

Rosemary Mallon BL instructed by In House Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00059146-001

29/09/2023

This is a complaint under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004 alleging contravention of Section 8 of the 2004 Act which prohibits victimisation. Specifically, the Complainant states that the Respondent has not considered him for grade progression because of his refusal to use their online system for recording his working hours. He states that he does not use this system because it is at odds with the stated policy of the Independent Workers' Union (IWU), the union of which he is a member.

The Complainant has been employed as a Network Technician (NT) since 3 November 2003.

He stated that in the context of the 2022-2023 portfolio grading review, he was advised by his manager that he would not be considered for a grade review because of his continued use of hardcopy timesheets instead of an online system. This issue had been raised during previous WRC hearings but it was denied by the Respondent that use of the online system would be a consideration in the grade review process.

In contradiction of management’s denial, NTs were invited, in correspondence from the Respondent, to consider “extremely attractive portfolio enhancements” and also advised that; “The portfolio assessment process is underway and will be concluded very soon. While the assessment process will consider many aspects of performance (Compliance with Safety, Qualifications & Approvals, Delivery of Results, Attendance, Customer Service) I want to clarify that your decision not to use (the online system) will mean that you will fall short of minimum performance requirement and you will not be successful in terms of grade promotion/grade progression”.

This correspondence was dated 11 July 2022 and addressed to an NT colleague of the Complainant. The same letter was addressed to the Worker on 12 July 2022 from his manager. It was asserted that this correspondence suggested that it was centrally managed policy to exclude the Complainant from access to grade progression on the grounds of his refusal to use the online system.

Given that the 5 headline/category performance criteria and expanded subdivided into 20 associated criteria in the grade review process do not include any reference to the use or non-use of the online system, the Complainant stated that he was effectively sanctioned by exclusion from grade progression without regard to his performance. Such sanction was not preceded by any form of, or attempt at, fair procedure. The Complainant, by virtue of his membership of his choice of union, namely the IWU, was effectively denied grade progression because of his adherence to his trade union’s policy decision to maintain use of paper timesheets. In effect, the Complainant stated that he was penalised because of his choice of trade union. 

The Respondent stated that the instant complaint is misconceived because it is their practice to engage in collective bargaining and it does so with its recognised trade unions. The Complainant is a member of the Independent Workers Union however which the Respondent does not recognise for collective bargaining purposes and is not required to.

Preliminary Matter:

The Law:

Section 9 of the Act provides that “An employee, a trade union, an excepted body or an employer on behalf and with the consent of the employee, may present a complaint to a rights commissioner that a person has contravened section 8 in relation to the employee.

Section 8 of the Act states as follows:

8.—(1) This section applies where it is not the practice of the employer to engage in collective bargaining and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and— (a) a trade union takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or (b) such procedures have been invoked by a trade union in relation to a trade dispute, or (c) an employee intends to request the trade union of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union intends to make such a request, or (d) such a request by a trade union has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or (e) the Court determines that those requirements have been met and either— (i) that investigation is being or has been carried out, or (ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

Findings:

Given that it was not disputed by the Complainant’s representative that the Respondent engages in collective bargaining with other unions but not with the union of which the Complainant is a member, I have regard to the Labour Court decision opened to me by the Respondent in the case of ESB v A Worker Determination No. VCD231 where it was held that: “It is clear that in order for a party to invoke the protections contained in this section, it must not be the practise (sic) of the employer to engage in collective bargaining.”

Considering the foregoing, I find that this complaint is misconceived.

I find that this complaint is misconceived for the reasons set out above and therefore fails.