ADJ-00047748

Complainant

Respondent

Anonymised Parties

An employee

A passenger transport company

Representatives

Thomas O'Connor, National Bus and Rail Union

 Company Management

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00058789-001

12/09/2023

The complainant has been employed by the Respondent since December 2019, he remains in employment.

In complaints submitted under section 13 of the Industrial Relations Act, 1969 the Complainant is referred to as the Worker and the Respondent is referred to as the Employer.

This complaint was received by the Workplace Relations Commission on 12th September 2023.

The Worker is an Engineering Operative employed by the Employer since December 2019. He is based in Drogheda and his duties include shunting, fuelling, cleaning, parking and recovery of buses so that the fleet is prepared for service the following day. The Worker works predominately on nightshift.

The Worker began to experience a negative working environment, mainly due to derogatory actions and innuendo from one individual in particular. Mediation was arranged and this came to naught after one session. No further interventions by the Employer took place.

The issues accumulated and the Worker began to experience a work environment that was bordering on untenable. The Worker issued further complaints and grievances on 3rd May 2023 and 27th September 2023.

The Worker sought to engage with the Employer utilising the agreed mechanisms but requests to have his grievance heard at both local and central levels were ignored leaving the Worker exposed in his workplace without the protections and interventions that the Code of Practice (S.I.146 of 2000) are supposed to provide, exposed to unwarranted behaviour by a person in authority and colleagues.

Some of the issues facing the Worker included:

·       Constant mistakes in his wages

·       Incorrect overtime payments

·       Incorrect Public Holiday payments

·       Working alone at night with an increased workload

·       Unsubstantiated disciplinary allegations

Day Job.

An engineering operative day job became vacant, and the Worker applied for it. One of the interviewers was the manager who signs off on the overtime each week and was pushing the disciplinary charges against the Worker.

The Worker was deemed unsuitable for the day role, an identical job to his current role but on dayshift. Instead, management sought to recruit drivers and ex-drivers for the position despite the fact that the Worker currently carries out that role.

The Worker had reported ill effects and fatigue from constantly working nights. The Employer’s CMO had recommended daywork for the Worker however these recommendations had not been acted upon by the Employer.

Agreed Procedures.

Pages 10 and 11 of the agreed policy booklets on procedures lists the timelines to be followed. Senior Management should have responded and dealt with the Stage C grievance within 9 days, 12 days is the extended timeline. After 5 months the Worker did not even receive anacknowledgement. Nothing was done to process the Worker's request to have the matters dealt with informally (mediation).

The Employer has a statutory responsibility under the Health and Safety Act to facilitate the Worker with day work in circumstances whereby he was suffering from fatigue as a consequence of being on nights. The issue was ignored.

The agreed procedures state “every effort will be made to have the grievance resolved as quickly as possible”. No effort was made in the Worker’s case. The treatment he alleges is quite serious.

Consequences.

The Employer, its servants and agents have abdicated their legal and statutory responsibilities towards the Worker by failing to comply with its own policy.

The length of time it has taken to investigate these matters has meant vital evidence has probably disappeared, witness memories and recollections have become clouded, and the Worker has been left in a situation whereby he is continually exposed to ongoing unwarranted behaviour. The Worker is currently out sick due to the cumulative effect of the night work and the aforementioned work-related matters. The medical note from the CMO testifies to this.

Summary.

The Worker’s work environment is not a nice place for him. The Worker utilised the agreed procedures thinking he would receive a modicum of protection; he has been left high and dry.

Due to the Employer’s failure to take the necessary steps to provide the Worker with a safe place to work, a safe system of work, take his complaints seriously, investigate them in a timely manner and put the necessary interventions in place so a pattern of abuse did not develop, the Worker is now seeking the following:

a)       Compensation for the failure of the Employer to deal with his complaint under the agreed procures contrary to S.I. 146 /2000.

b)      Guarantees that he will not be penalised in future

c)       Access to the day work as recommended by the Chief Medical Officer

d)      An apology for the failure to deal with these matters in a timely manner.

The complaint specifically refers to a job competition in 2023 in which the worker was unsuccessful, and where a more suitable candidate for the position was selected.

Background to the Worker.

The worker has been employed by the respondent since December 2019 and is based in the bus depot in Drogheda.  He commenced employment as an Engineering Operative working nights, and amongst others his duties involve fuelling, washing, and cleaning of vehicles.

The Worker’s working arrangements haven’t changed since he commenced employment, he works a static Sunday to Thursday shift (2100-0500) every week. Every Tuesday, Wednesday & Thursday the Worker is joined on this shift by his co-colleague. Every night (7 nights per week), a contract employee is on site to carry out the ‘deep cleaning’ of vehicles in Drogheda.

Since 2020 the Worker’s absence record is as follow, as follows -

2020 8 days

2021 23 days

2022 34 days

2023 42 days

2024 32 days (to date of this submission)

The Worker has been on certified sick leave since 25th November 2023.

Maintenance operation in Drogheda

Drogheda bus depot is part of the North East operation, which also includes Dundalk, Cavan and Monaghan. Across the Region there are almost 100 buses, 50 of which are based in Drogheda.

Staffing arrangements in the Drogheda garage include four mechanics, all who rotate an early and late shift pattern on a Monday to Friday basis. In addition, there are three ‘shunters’, two of whom rotate an early and late shift along with one ‘relief’ who works 0800-1630 (Mon-Fri). Work content for the shunters involves fuelling, positioning vehicles, dealing with breakdowns, collecting parts as well as general assistance to the mechanics.

To ensure that vehicles are prepared and ready for service each day, two ‘Engineering Operatives’ are employed in Drogheda across the seven nights (2100-0500). The Worker works Sunday to Thursday, while his colleague works Tuesday to Sunday.

Background to the Claim

The Worker has brought this claim under S13 of the Industrial Relations Act. In his complaint, The Worker refers to his unsuccessful application for a job competition in 2023.

Recruitment & Selection

All recruitment is carried out in accordance with the Recruitment & Selection policy, a copy of which was made available at the hearing.

This policy, inter-alia, outlines all stages of the recruitment process, with specific reference to the structure of the interview. The policy assists in ensuring that the most suitable candidate is chosen for all vacancies and promotions. It further enables the Company to ensure that recruitment and selection is carried out in a fair, transparent, effective, professional and consistent manner.

Job competition for an Engineering Operative in 2023

During 2023, a position of Engineering Operative in Dundalk was advertised. This position involves a static roster of 0800 to 1630 (Monday – Friday). This position was advertised on the 09th May 2023, in the normal manner i.e., a circular with a closing date of 26th May 2023.  These positions are open to all employees in the Group with the necessary qualifications, in the case of this position a full D licence was required (this was the basis of the shortlisting). 

This process followed in 2023 included the following stages:

Ø  Review and development of role profile

Ø  Advertisement (weekly circular)

Ø  Application

Ø  Invitation to interview

Ø  Evaluation

Ø  Selection

12 online applications were received for this position, in addition to this the Worker also applied verbally resulting in 13 in total applications in total. Candidates were then shortlisted; 7 candidates were eliminated at this stage with 6 candidates (including the Worker) brought forward for interview. Applicants were invited to an interview, with the same interview panel used for all interviews.

All interviews were conducted by a panel of two Company representatives. Both gentlemen who are here today, have extensive experience in conducting interviews and have previously received formal interview training.

Interview notes were recorded, scoring sheets completed and final ratings were signed by both members of the interview panel. The successful candidate was chosen, with success / regret letters issued by the local HR office.

The recruitment process was consistent with the Policy and was also consistent with the practice applied across the business – namely where successful candidates are chosen on suitability.

Unsuccessful candidates were afforded the opportunity to request feedback. While the Worker initially sought such feedback, it is disappointing that he later declined this offer. In fact, the Worker only advised that he would not be attending the scheduled feedback meeting at 21:40 the previous night. This communication was via text message with reason cited as “legal reasons”.

Medical review

The Worker was absent from work in July in 2023. On the 20th July 2023 he submitted a cert from his GP which stated that ‘he is suffering from fatigue due to B12 and vitamin D deficiency. He is on night shifts for last 4 years. This is causing insomnia during daytime. It would be better for him to do a day shift for the benefit of his health’.

This medical cert was shared with the CMO’s office who scheduled an appointment with the Worker for the 03rd August 2023. This appointment was with (doctor name redacted) who found that the Worker was ‘temporarily unfit for duties of his grade and he may return to work in the coming weeks on basis of certificate from his treating GP’.

A further CMO appointment was scheduled for the Worker for the 29th August 2023 where (doctor name redacted) found the Worker ‘fit to return to work and a return to work would be expected on 02nd September 2023’.

The Worker returned to work on the 02nd September 2023, but then went sick again on the 25th November 2023. He has been on certified illness since.

Interpersonal issues

In early 2022 the Worker brought a formal complaint against his colleague (name redacted). This complaint was received by local management in the North East, and considering the contents of same, the Company proposed mediation to address the matters raised. All parties agreed to this approach, which in addition to the Worker and the named employee, the subject of the complaint also involved two co-colleagues. The mediation was managed externally by Mr Brendan Shutte. Mediation commenced in May 2022, and within a short period of time the issues between two of the employees were resolved. Unfortunately, and at around this time, the Worker indicated that he would not participate any further in the process.

Following this confirmation, Central HR assigned the Worker’s complaint to another manager to investigate. This investigation was extensive and concluded in November 2023. The final report will be shared with the Worker on his return to work.

Conclusion 

It is the Employer’s held position that the Worker was not treated unfairly in the job competition in 2023. The Company conducted approximately 2,000 interviews in 2023, and all were done in an equal, fair and transparent manner.

Communication from the CMO’s office on the 29th August 20232 confirmed that the Worker was ‘fit to return to work and a return to work would be expected on 02nd September 2023’. The Worker returned on this date.

There are a couple of issues that I would like to address prior to commenting on the actual grievance.

In relation to the submission on behalf of the Worker I refer to the letter attached at Appendix 1. This is a letter from the Worker to the Employer dated 27th September 2023. This letter begins “Approximately between the hours of 20.50 and 21.15 on Thursday 28th September 2023…….”

Am I to believe the letter of complaint was written the day before the actual incident?

Secondly, the complaint was received by the Workplace Relations Commission on the 12th September 2023. I cannot consider, as part of this complaint, any event / incident taking place after this date.

The actual complaint submitted to the Workplace Relations Commission reads as follows:

“I work for (company name redacted) as an engineering operative. My current contract involves the fuelling, washing, cleaning and shunting buses in the main. I currently work at night. A vacancy became on a day roster which I applied for. I was deemed not suitable even though it is the same job as I currently do only day work instead of night work. I have had interpersonal difficulties with the manager who carried out the interview. I sought feedback and the company would only give me verbal feedback. I was not allowed to bring my representative into the feedback meeting so it did not occur. Additionally, the agreement states that all vacancies shall be filled on suitability and seniority.  I was the most senior applicant within the grade. They have offered the job to external applicants outside the grade. I have also seen my GP and CMO as night work is causing me fatigue. I also work a number of nights on my own which poses a health and safety risk. I should be allowed to transfer from a night roster to a day roster within my grade”.

Regarding recruitment, the Employer has a policy and appear to have followed this policy. The Managers conducting the interview have received training on the subject and I am satisfied that they have followed this policy. The Worker has not mentioned his attendance record since joining the company. At the hearing of the complaint, I asked was employee attendance considered in the decision making process, the reply was yes it was. I can find no fault with this.

On the matter of interview feedback many companies offer internal candidates an opportunity of feedback, in almost every case such feedback is given verbally and without the need for having union reps present. In the instant case I believe the Worker was offered feedback and was provided with a time and date for such feedback that he accepted. It was late in the evening on the day before his feedback session that he sent a text stating that he would not be attending for legal reasons.

I believe that the Worker has made a major mistake in not attending the feedback session.

I cannot find any fault whatsoever in the way the Employer has managed their recruitment process.

Night Working.

The Worker has stated that he works a number of nights on his own and that poses a health and safety risk. There is a cleaner supplied from an external contractor who works seven nights per week. The Worker is not a lone worker.

I note that the Worker is suffering from fatigue due to the difficulties he is experiencing in sleeping.

The Chief Medical Officer has recommended that the Worker be accommodated with working a day shift if feasible, on medical grounds.

I would recommend that the Employer accept this recommendation or if it is not feasible explain to the Worker why it is not feasible and when it may become feasible.

“Failure to take the necessary steps to provide the Worker with a safe place to work, a safe system of work, take his complaints seriously, investigate them in a timely manner and put the necessary interventions in place so a pattern of abuse did not develop”.

These are the words of the Worker’s union representative. In reply the Employer states the following:

“In early 2022 the Worker brought a formal complaint against his colleague (name redacted). This complaint was received by local management in the North East, and considering the contents of same, the Company proposed mediation to address the matters raised. All parties agreed to this approach, which in addition to the Worker and the named employee, the subject of the complaint also involved two co-colleagues. The mediation was managed externally by Mr Brendan Shutte. Mediation commenced in May 2022, and within a short period of time the issues between two of the employees were resolved. Unfortunately, and at around this time, the Worker indicated that he would not participate any further in the process.

Following this confirmation, Central HR assigned the Worker’s complaint to another manager to investigate. This investigation was extensive and concluded in November 2023. The final report will be shared with the Worker on his return to work”.

I believe the Worker has made a major mistake in walking away from the Mediation process arranged by the Employer.

That said, the Employer appointed a manager to conduct an investigation. The investigation was extensive, the final report has been prepared and will be shared with the Worker on his return to work.

There is no need to say more on this aspect of the complaint.

Overall, I believe the time spent from initial complaint to the start of the Workers absence from work began has been too long and well outside the agreed procedures.

I would recommend a compensation payment of €500 be made to the Worker.

Such payment should be made within 42 days from the date of this recommendation.

With the exception of the time spent on the Worker’s grievance I can find no fault with the actions of the Employer.

As outlined above.

Industrial Relations issues.