Worker

Employer

Anonymised Parties

 A Worker

 A Local Authority

Representatives

Maurice Coffey Maurice Coffey & Co

HR Manager

Act

Dispute Reference No.

Date of Receipt

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

CA-00048584-003

11/02/2022

The Worker is employed as a supervisor with the Employer and commenced employment on 24/8/1998.  The Worker works 39 hours per week and is paid a gross wage of €23.88 per hour and €988.77 per week.

The Worker took up a new role as a supervisor on the 7/10/2020 and submitted that the Employer did not notify him in writing regarding the withdrawal of his entitlement to work overtime, specifically his entitlement to work weekend overtime, which he had worked for over 20 years, overtime during the busy summer period, overtime during public holidays, and an entitlement to act up. The Worker submits that the Employer has changed his terms and conditions of employment without his consent resulting in significant ongoing financial loss, revoked his overtime hours unilaterally, and refused to interview him for a promotion position. The Worker lodged a formal grievance regarding these issues and submits that the Employer failed to resolve these issues further to the Employer’s Grievance Procedure. The Employer refutes the allegations and maintains that they have addressed the Worker’s grievance through the Grievance Procedure.

The WRC received the referral of the dispute under Section 13 of the Industrial Relations Acts 1969 (the Acts) from the Worker on the 11/02/2022.    

The following is a summary of the Worker’s written and oral submissions.

The Worker is a long-standing employee with the employer.  The Worker was first employed in 1998 in a gardening role by the Employer.  He confirmed that he was first promoted in 2002 to an acting supervisor grade and again in 2008 to the position of supervisor. He works 39 hours per week over 5 days.  

Since 1998 the Worker has worked 2.5 hours of overtime every weekend apart from when he is on annual leave. There was no change to this arrangement until his entitlement to work overtime was removed in December 2020. He worked overtime at weekends, during public holidays and during the summer period and he shared working the public holiday weekends with a colleague. He also acted up when the Superintendent Gardener went on annual leave. The Worker worked overtime hours during the summer months from St. Patrick's weekend to the middle of July. The Worker confirmed that his contract of employment did not refer to the provision of overtime.

The background to this dispute involved interpersonal difficulties between the Worker and other members of staff which culminated in the Worker taking certified sick leave on 29/5/2020. Pursuant to a mediation process involving all staff of the Worker’s division, a new role was created for him, to facilitate his return to work. The Worker was not aware nor was it his understanding that by accepting the new role that he would lose his entitlement to work overtime.  

The Worker confirmed that he returned to work on the 8/10/2020, that overtime was not discussed prior to his return, and he assumed that he would be entitled to work his existing overtime as part of the new role. He confirmed that his entitlement to work overtime was withdrawn in December 2020 which has resulted in a reduction of €220 and €234 gross per fortnight in his wages.

The Worker submits that this dispute is based on the following grounds;

·        that there has been a complete failure by the Employer to resolve the workers grievances within the employer’s grievance procedure and provision is made at clause 5.8 of the grievance procedure to refer the matter to the WRC,

·        there has been a change to the worker’s terms and conditions of employment which were not notified to him, which have resulted in significant ongoing financial loss,

·        there has been a unilateral revocation of overtime hours previously worked by him,

·        the Worker will no longer cover the role of acting Superintendent as a result of his transfer to a new role which has resulted in significant ongoing financial loss,

·        the Employer has failed to interview the Worker for promotion,

·        the Worker has suffered a loss of earnings from August to October 2020 because of his extended sick leave owing to the employer's failure to properly address his grievances.

The Worker submits that he has an entitlement to overtime and that there is an established custom and practice in the Employers’ organisation which he relies upon. 

The Worker places reliance, on the decision of White J. in John Lawe v Irish Country (Pig Meats)Ltd (1998) 9 ELR 226 as authority that an employer's fundamental obligations to pay the agreed remuneration for the times of work during which the employee is prepared to work. Accordingly, the employee claims that he should be compensated for the loss of wages sustained by him during the course of his extended sick leave which leave was extended by reason of the employer’s failure to take timely and appropriate steps to resolve the matters precluding the employee’s safe attendance at the workplace. The Worker also places reliance on the decision of A Local Authority Worker V A Local Authority, ADJ 00017807.

Furthermore, the Worker is seeking compensation for the financial loss sustained by him by reason of the removal of his overtime from December 2020 to the date of determination of this dispute. The Worker is seeking to have the overtime reinstated, and if overtime is not reinstated the Worker claims that he is entitled to compensation for the loss of his overtime earnings.

The Worker submitted a formal grievance further to the employer’s Grievance Procedure by way of letters dated 16/3/2021 and 4/5/2021 setting out five complaints. A formal grievance meeting took place on the 11/5/2021 which was heard by a senior engineer with the Employer. A decision issued dated 27/9/2021 wherein the Employer did not uphold any of the five complaints. The Worker lodged an appeal dated 10/11/2021 further to the grievance procedure. The Worker emailed the Employer on the 1/12/2021 seeking an update regarding the appeal and a letter was sent on his behalf by his solicitor dated 7/2/2022 also seeking an update regarding an appeal outcome.

At the hearing the Worker confirmed that in the context of the correct version of the grievance procedure to be applied, it was agreed that the Grievance Procedure dated 2020 would apply notwithstanding that the union had not approved this version at the material time. The Worker confirmed that the last time that he worked overtime of 2.5 hours at the weekends was in December 2020, regarding overtime on public holidays it was in August 2020, and for the summer it was between March and July 2020. The Worker confirmed that he is available to work overtime.

At the hearing the Worker confirmed that he sent a letter of appeal dated 10/11/2021 and has not received any response in this regard. He stated that the minutes of the grievance meeting dated the 11/5/2020, reflect the position that the grievance should be considered under the Grievance Procedure dated 2020 as there were no significant differences between the policies relevant to his grievance. In the context of the 2020 policy there is provision for a mediator to be appointed in the context of a grievance /dispute and the Worker asked the Employer to appoint a mediator to assist in resolving his grievances, which the employer refused to consent to. 

In terms of resolving the dispute the Worker confirmed that he wants his overtime restored, so that his wages can be restored to what he formerly earned, he wants to be able to undertake overtime and to be provided with the opportunity to interview for the role of craft foreman. The Worker confirmed that in circumstances where it is not possible to reinstate his overtime hours, he is seeking compensation for the financial losses he has incurred to date and into the future.

Under questioning from the employer’s representative, the Worker confirmed that he is seeking compensation in the sum of approximately €200,000 for loss of overtime earnings until the date of his retirement and that he is willing to work the overtime hours. The Worker confirmed his understanding that if he received compensation of the amount sought, he will be compensated for many thousands of hours that he hasn't worked.

The Worker clarified that he was not afforded the opportunity to interview for the position of craft foreman. It was put to the Worker that no one was afforded the opportunity to interview for this position as the position has not been approved by the Employer. The Worker confirmed that he wanted the opportunity to interview to regularise his position to that of craft foreman.

Counsel for the Worker confirmed that this dispute concerns claims for compensation for overtime previously worked on public holidays and during the busy summer period but does not concern a claim for compensation for 2.5 hours of overtime worked at weekends which is the subject of a separate employment rights complaint. 

At the hearing Counsel stated that the Worker was compelled to take this dispute to the WRC as he tried to engage with the Employer on both an informal and formal basis by using the Grievance Procedure and the Employer failed to issue a decision further to their own appeals process. It was submitted that there were specific issues prior to 2020 which prompted the Worker to seek to remove himself from a toxic workplace. It was further submitted that the Worker withdrew his grievance against a co-Worker who threatened to self-harm. He sought a transfer to the roads department which was refused. As a result of a mediation process, he was transferred to a new role. He was never advised that his overtime, specifically three types of overtime would be removed upon transferring to the new role if he knew this he would not have transferred. It was stated that the overtime was not confirmed to the new employee until August 2021.

Counsel submitted that referring to the actuarial reports submitted on behalf of the Worker including a revised actuary’s report, he is seeking the capital value of the losses suffered by him on an ongoing basis and into the future in the sum of €229,524 gross and €118,205 by way of compensation.

The Employer denies the allegations and submits that the Worker’s complaints were addressed by the Employer through their Grievance Procedure. The following is a summary of the Employer’s written and oral submissions.

The Employer submits that the Worker is seeking redress under the Acts for matters in which he is also seeking redress under other employment rights acts. The position of employment law generally is to limit recourse to parallel proceedings by requiring the Worker to elect between avenues of redress.

Regarding the matters raised under the Acts, notwithstanding the duplications of matters raised under the other enactments, the Worker appears to be also seeking compensation for loss of overtime under the provisions of the Public Service Agreement (PSA). The Employer refutes that there is any entitlement to compensation for loss of overtime as there was no redeployment and the Worker voluntarily sought out a transfer.  It is a matter of fact that if the Worker had not sought out a reassignment he would have remained in his previous position. The compensation for loss of overtime under the PSA only arises where such changes arise from a decision of management and not from a voluntary request by the employee.

It is provided within the Worker’s contract of employment like all staff of the Employer that they can be assigned to duties anywhere within the administrative boundary of the local authority. This was neither a reassignment nor a redeployment but rather a response by the Employer to a voluntary request to be facilitated with a transfer from his post into another post. The Worker was met on several occasions and discussed in detail the implications of his request to transfer posts. With full knowledge of the fact, the Worker made the decision to move.

There is no precedent or agreement to compensate staff of the Employer or wider Public Service for loss of earnings in circumstances where they request a transfer and are facilitated. It was submitted that the Labour Court has established case law providing compensation for loss of regular rostered mandatory overtime resulting from circumstances where a Local Authority changes existing structures for delivery of services. However, there is no case law, PSA provision or otherwise that provides compensation for such a loss when the transfer was requested by the employee and facilitated by the Employer.

The Employer asserts that the Worker in the current case was the one who initiated the transfer and, in such circumstances, incurred the loss solely from his own decision to transfer. If the Worker had not sought a transfer, he would have remained in his previous role and continued to enjoy the overtime in question. The Worker having raised a grievance in relation to a colleague however subsequently did not pursue and withdrew his complaint and so the Employer was unable to pursue any matters where it had not been provided with any details or any complaint or grievance.

Regarding the grievance raised by the Worker, the Employer met with the Worker both informally and formally, on 2/12/2020 and 15/12/2020 and subsequently on 11/5/2021. A determination of the grievances was issued on 28/9/2021.  The Employer submits that it has addressed the Worker’s grievance however other than the Employer providing the Worker with a guarantee that he be provided with overtime for which there is no operational requirement, he remains unsatisfied with the outcome of this process.

Regarding the loss of acting opportunities raised by the Worker in his original grievance, the Worker has stated he will no longer cover the role of Acting Superintendent while the relevant officer is on holidays. At the time of grievance, this matter had not arisen and so the grievance was moot. However, the Employer submits that it is not appropriate that he would "act" for the superintendent while on leave as such acting would be allocated to someone within the general parks area who works directly with the relevant officer in a staff management responsibility.

Regarding the Worker’s claim to be regraded to that of Foreman Craft position, the Worker’s current grade is that of Supervisor. The appointment to any position within the Employer’s organisation is normally by competition. Prior to the appointment of any position, a business case must be submitted setting details of the position to be filled and the reasons for same. This business case must be approved by the Director of Services for the department, by the Finance Department, to ensure funding is available and by the Head of Human Resources. At no stage did the Human Resources department provide any commitment to the Worker to regrade his position to that of craft foreman. Supervisory positions within Parks remit are balanced with the duties arising. No information has been provided as to why these positions should move to a craft foreman grade other than citing a comparison with housing. It is submitted that this claim by the Worker is precluded under the PSA which precludes such cost increasing claims such as this for regrading.

Regarding payment for sick leave, the Worker was absent on sick leave for the period 28/5/ 2020 to 7/8/2020 inclusive. In accordance with the provisions of Public Service Management (Sick Leave) Regulations 2014, "Sick leave remuneration at the full rate may be paid in a given instance if, in the 12 month preceding the first day of the relevant person's current period of sick leave, the period of sick leave, remunerated at the full rate, has not exceeded 66 days" pro-rata subject to agreed attendance pattern in 12 month period". Medical certificates on file show that the Worker was unfit for duty. It is submitted that the Employer must comply with legislative requirements as all payments made by the Employer were in accordance with the provisions of the Public Service Sick pay scheme.

The Employer submits that it has been reasonable in the manner in which the Worker was assigned a new role, it has upheld it’s contractual obligations to the Worker. The Worker was a willing participant and contributor to the duties, which were assigned to him following his return to work on 8/10/2020. It is submitted that a decision to award compensation in circumstances where employees request to be transferred and are compensated for a resulting loss would have consequential effects on the Local Authority sector and the wider public sector. The Employer submits that this dispute is not well founded.

Counsel for the Employer submitted at the hearing that it is a matter of fact that the Worker sought to be reassigned to a new role. It was confirmed that the request was raised in the context of the of the Worker’s occupational health and he returned to work in October 2020 after a period of certified sick leave. Counsel for the Employer conceded that the investigation pursuant to the Grievance Procedure was protracted. It was submitted that there is little difference between the Grievance Procedure dated 2015 and the updated version in 2020 and submitted it was his understating that the 2020 process applied. Counsel submitted the reason the appeal was not progressed was not due to “to any male fides other than tardiness”. He further stated that he could not offer any other reason to explain the Employer’s failure to progress the appeal.

In summation it was submitted that to award compensation for loss of earnings which are reckonable for pension purposes that this would involve a complex assessment under the superannuation acts including a look back at all service and all allowances paid for the period of service in question. Accordingly, it would be very difficult to estimate the precise figure regarding an estimate of loss of earnings in the context of calculating a pension payment.  

In conducting my investigation, I have carefully listened to and considered all relevant submissions both written and oral presented to me by the parties. 

My role here is to examine the merits of the dispute in line with the standards of fairness and reasonableness. I am mindful that both parties are in a live working relationship, therefore, my role here is to try and assist the parties reach a resolution of the dispute.

At the centre of this dispute is a failure by the Employer to communicate to the Worker a change to his terms and conditions of employment regarding an entitlement to work overtime hours upon his transfer to a new role. The Worker submits that his request for a transfer was necessitated by a toxic workplace environment, whereby the Worker’s entitlement to work various types of overtime hours was withdrawn unilaterally, after commencing a new role, which has resulted in a significant loss of earnings for him.  The Employer refutes the claim in full.

I note that the Worker submits that he has suffered significant losses, referring to actuarial reports submitted on his behalf, he is seeking the capital value of the losses incurred by him on an ongoing basis and into the future in the sum of €229,524 gross and €118,205 net by way of compensation.  I also note the Employer’s reservations regarding the calculations in this regard, which it is submitted if such losses are reckonable for pension purposes that any calculation in this regard would involve a complex assessment under the relevant superannuation statutes.  

The Worker lodged five formal complaints further to the Employer’s Grievance Procedure in March and May 2021.  A formal grievance meeting took place on the 11/5/2021 which was heard by a senior engineer.  The Employer did not uphold any of the five complaints by way of decision issued on the 27/9/2021. The Worker lodged an appeal dated 10/11/2021 further to the grievance procedure. The Employer has not issued a decision further to the appeal process, despite numerous requests from the Worker.

It is well established that a Worker is required to have exhausted all internal procedures before referring a dispute under Section 13 of the Acts as set out in Geoghegan T/A Taps v A Worker INT1014LC, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed”.

Firstly, I note that the same grounds were advanced as the basis of the Worker’s five complaints further to the Grievance Procedure, as are submitted by the Worker in respect of this dispute.   Secondly, it is undisputed that the Employer has failed to process the Worker’s appeal lodged on the 10/11/2021 further to the Grievance Procedure.  I note that the Worker notified the Employer of his intention to lodge an appeal by way of letter dated 5/10/2021.  There was a discussion between the parties at the hearing regarding the correct version of the grievance process to be applied. Considering the understanding of both parties that the 2020 grievance process should be applied as reflected in the minutes of formal grievance meeting on the 11/5/2020, I am satisfied that the correct procedure is the Grievance Procedure dated September 2020.

The Labour Court in A Health Services Executive v A Worker LCR22888, in upholding an Employer’s appeal on the basis that a thorough and exhaustive investigation of the Worker’s grievance had taken place stated the following regarding the Court’s role in investigating such disputes.

“It is not the Court’s role to second guess internal operational decisions taken by an employer. In a dispute such as this under s.13 of the Industrial Relations Act 1969, stemming from a grievance process, the Court is primarily focused on whether the Employer had an adequate grievance procedure in place, whether the Worker was permitted to avail themselves fully of those procedures with the assistance of appropriate representation, and whether the process was completed in a timely manner.”

I note the Employer’s explanation for the reason the appeal was not progressed was not due “to any male fides other than tardiness”. It is my view that this explanation is unsatisfactory and wholly inadequate, particularly for a statutory body, to explain the Employer’s delay and failure to adhere to its own appeals procedure. This failure has caused significant and inordinate delay for the Worker in progressing his grievance which he commenced in early 2021.

Applying the well-established principle that an employee must exhaust all internal procedures prior to the referral of a dispute to the WRC, notwithstanding the Worker’s attempts to progress the appeals process, an Employer is required to complete the procedure by processing all stages of the process including an appeal, prior to the referral of the dispute by an employee to the WRC. Accordingly, I recommend that the Employer processes the appeal forthwith to complete the grievance process in line with its appeals process set out at paragraph 13 of the Grievance Procedure dated 2020.

Investigation Grievance Procedure- failure to process appeal -