Worker

Employer

Anonymised Parties

A Forklift Operator

A Logistics Company

Representatives

SIPTU

 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 - 00002784

24/06/2024

The respondent is a transportation, distribution and warehousing service that operates across the island of Ireland and operates a fleet of over one hundred vehicles and services customers from a variety of industries. It provides on-site services to the client in this case.

This case concerns the respondent’s operation on a site where the complainant is based exclusively. He commenced employment in 1999 and was one of a team of six working in the  ‘LA area.’

All six underwent specialist training to operate ‘15-grab fork trucks and their function was to load the delivery vehicles for the next morning or for a second run during the day.  All enjoyed pay parity with their colleagues who were direct employees of the client company when they worked in that area; they received time and a half for four hours of their shift in recognition of the differential and to compensate for it.

Work was regularly available in this area for all six of the respondent’s employees and they worked there on a variable roster. The complainant was never advised, nor was it stated policy, that regularity of work in that area had implications for access to the role on a more regular, permanent basis.

In January 2024, the complainant was advised that this work area had been restructured. Neither he, nor his union, were told of plans to restructure and there was no consultation regarding selection for roles, allocation of work, rates of pay etc. despite the obvious impact on the complainant of any such changes.

He became aware that four of the six employees had been placed in the ‘LA area’ permanently, complete with enhanced pay arrangements etc, and that the complainant and one other colleague had been excluded from the roles which had been designated as ‘transport’ roles, again, without consultation with those directly impacted.

The complainant raised a grievance covering the following points:

- Removed from the LA section without consultation

- Reduction of loaders in this section not explained

- What criteria were applied in selection process for reduced number of roles

- Why he had been excluded from consideration

The outcome was that management stated he had worked fewer hours in the area than some colleagues and cited this as the explanation for his exclusion from the selection process.

The complainant appealed the decision and re-stated that he had been unaware of any planned change in the area, was unaware also of prerequisites for consideration for a role there in the event of such a change and reminded management that the colleagues who had been placed in the LA roles permanently had enjoyed the benefit of regular rostering on double shifts. Furthermore, he had brought this to managements’ attention previously because of the loss of earnings which was resulting from reduced access to the cover hours at the enhanced rate.

He appealed but to no avail. Management refuses to acknowledge the loss of regular additional income which has resulted from this significant change in operational arrangements and has denied that the complainant had any expectation regarding access to the LA cover roster or the enhanced earnings which were attached to same.

Some informal discussions between the parties aimed at finding a mutually satisfactory outcome have been unsuccessful.

In a unionised employment with good working relationship between the parties, it remains unclear why a restructuring of any department would not be flagged to the union. A collaborative approach can result in a smoother transition in such circumstances.

The members affected significantly by the change were not involved in any consultation prior to changes being implemented and the criteria for selection for a reduced number of roles should have been shared with all employees working in the affected area. The hours worked in the relevant area should not have been relied on by management to exclude the complainant, when hours appeared to have been allocated more favourably to some workers, deliberately, and in spite of his protestations.

The disputes procedures failed to address the actual questions raised and have therefore not resolved the matter.

The complainant has worked on this site for twenty-five years and has an exemplary record. He is disappointed by how this matter has been handled and his treatment, in particular the financial loss. He wants to maintain a good working relationship with his employer but feels that this issue should be addressed.

The complainant wishes to have access to enhanced earning potential, as before, and feels also that some financial recognition of the loss to date should be included in any recommendation.

The complainant says he has suffered a financial loss as a result not having the option to avail of overtime in a different area of the loading yard to where he primarily works. He alleges he previously covered sixteen weeks a year in this other area of the site to cover absence and annual leave requirements. The employer disputes this and submits it has acted fairly and reasonably at all times.

The respondent manages a fleet of one hundred vehicles, 175 trailers, with 500 employee and it supplies distribution services to within Ireland and the UK.  In most cases this involves collecting their product from source and delivery to retail outlets specifically the current site since 2012.

A number of employees transferred by means of TUPE around then. The respondent had responsibility for all logistics on this site apart from an area called the Loading Area (LA) Yard, the area in which the delivery trucks are loaded. This area was historically managed by the client, the site owners.

Between 2012, up to 2019, the client resourced the LA yard with ten of its own employees and on occasion, called upon the respondent to cover absences and annual leave that it could not cover. We did so and it attracted a premium rate of pay to employees when they agreed to cover in this area.

In 2019, the client restructured their team and reduce the hours worked in the LA yard, which in turn led to a reduction of employees being needed in this area.  Four fulltime employees of the client remained working in this area.

The respondent continued to cover leave requirements in this area, primarily with four employees and with another two employees, including the complainant, on an ad hoc basis. To note, the four employees mentioned who primarily covered annual leave and other leave requirements, are the four employees who currently work in the LA yard on a full-time basis.

Between 2019 and 2023, there was an increase in requests to cover the LA yard area, due to the client employees retiring, long term sick leave or taking voluntarily redundancy payments. As such, the need for cover in this area rose year on year over this period of time.

The complainant commenced employment on 19/05/2003 and was provided with a permanent contract of employment in the capacity of Forklift Operator. He receives an hourly rate of pay of €22.34 and primarily works in the Front Yard area of the site, and it is important to note that he has access to overtime in this area.

In 2023, the client negotiated during a contract renewal with the respondent to take over the LA yard area.

Before this, the four employees who provided the main cover in this area were assigned to work in this area on a full-time basis. They are engaged as Forklift Drivers and had covered over 98% of the activity in the previous three years.

The respondent proposed that these four employees would take ownership of fulfilling any overtime requirements amongst themselves in the LA Yard. The Employer identified that it could reduce the spend in overtime hours by working in this manner as there would be no requirement to pay the overtime rate of an extra four hours that was attracted if an employee was instructed to move from their primary location in the yard, to another location within the yard.

The 2008 management union agreement is relied upon to date, it makes no reference to any agreement set out in relation to how overtime shall be allocated.

However, it very clearly specifies the following under the heading “Company Right & Responsibilities”:

“The union agrees that the company has the exclusive right and sole responsibility to plan, organise and manage its operations to achieve and maintain maximum efficiency…. This includes the right to plan, direct, schedule and control all operations, to schedule and assign work, to determine the means, methods and processes and to introduce new methods, equipment and facilities…”.

The respondent consulted the two shop stewards, who were two of the employees assigned to work in the LA Yard. The four employees affected were invited to attend discussions with management in relation to covering the activities of the LA Yard. Management proposed that these four employees take on the responsibility to fill any gaps on the roster due to leave or sickness.

Discussions took place, no issues were raised by any employee and an agreement was reached. Non-Disclosure Agreements in relation to the negotiated terms were signed by all parties involved circa May 2023.

Although the complainant was not engaged directly, he was aware of the discussions at the time and knew of the proposed changes but raised no issue until the discussions had been finalised.

After this agreement was reached, the complainant requested an informal meeting to air his concerns, and it took place on 5th January 2024 with the Site Manager and the HR People Partner. The Shop Steward was also in attendance.

On 8th February 2024, a letter summarising the informal meeting was issued to the complainant. The Site Manager stated in the letter that he did not believe there was a valid claim for loss of earnings and stated the following

Any hours volunteered  to  work  as  overtime was paid at a premium and Guaranteed cover for the LA yard for any holiday or unrostered time is not included in your contract.

Should  the  requirement  for  overtime arise in the future we are happy to revisit and assign  overtime  accordingly.

Also on 8th February 2024, the complainant raised a formal grievance which was acknowledged on February 22nd, 2024, and a meeting was scheduled for 27th February 2024 with the Managing Director to hear the grievance.

At that meeting between the complainant and the management team, at which he raised the following points:

1.      He was removed from cover of the backloading (LA Yard) section without consultations, resulting in a loss of earnings.

2.      He previously covered 16 weeks per year of overtime in this area and now other Forklift Drivers carry out the work he had carried out for several years.

3.      When management introduced the new cover arrangements, he was not included in discussions on the change that would have a direct negative impact on him in the future.

4.      He stated he was at a financial loss and believed him not being required to cover work in this area was unfair.

5.      He wished to know what criteria were used to select those who would continue to cover the backloading area.

On March 21st, 2024, management issued the complainant with a letter containing the outcome of the grievance meeting and set out a comparison table in his letter which showed the number of days worked in the LA Yard by the complainant in comparison to the 4 Forklift Drivers assigned to the LA Yard.

It showed that out of a total of 2010 days worked in the area over four years, by the five employees in question, the complainant had only worked a total of 38 days in the LA Yard over the four years. It showed that the complainant covered this area on a minimal basis and only when the other four Forklift Drivers were unavailable to do so.  The letter also explained the criteria used to select these four Forklift Drivers was based on the level of activity by each in the previous 4 years.

On March 25th, 2024, the complainant appealed the grievance outcome to the Group Head of HR. on the basis that he had been removed from the LA section without any consultation and for the following reasons.

            He sought the criteria for the picking off the four drivers currently doing the job now.

            There was no interview process for the 4 drivers currently in the LA section. You have more seniority that 3 of those & was not offered the position.

The lack of consultations

Management had included hours you only did in the LA which again is wrong, the four drivers were doing double shifts. When you brought this to management, nothing was done about it.

His exclusion from the LA Section

The arrangement between the four employees in the LA yard excludes him

On a calculation side split 208 weeks off the LA section between six drivers gives us just under 36 weeks each or 180 days the same amount the other four drivers had in 2023, so no driver is at a financial loss but again this option was never considered.

On April 9th, 2024, the appeal was heard and on 3rd May 2024, outcome of the appeal was issued to the complainant. He upheld the decision. He stated.

Having spoken to the Front Yard management on the reasons for double shifts being completed by the 4 that are currently in role which altered in your opinion the time spent in this area. The reason double shifts were done was due to LA employees’ covering absence within their own deployed area. This also did not substantially change the hours that [a manager]  had demonstrated in his Grievance outcome letter.

There was no other new information brought to the appeal  hearing  that  was  not heard at the grievance hearing.

On 24th June 2024, the complainant lodged a claim to the WRC.

It is the respondent’s position that at all times during the grievance procedure, it acted fairly and afforded the complainant every opportunity to present his grievance through its comprehensive and agreed dispute resolution grievance procedure, in accordance with SI 146/2000.

The complainant is not at a financial loss as a result of confining the available overtime to the four Forklift Drivers who primarily work in the LA Yard. Overtime is not guaranteed and does not form part of the complainant ’s terms and conditions of employment.

The complainant primarily works in the Front Yard area where there are ongoing opportunities to avail of overtime in this area. On a thorough review of the number of days worked in the LA Yard by the complainant, it is evident that he had to cover this area on a minimalistic basis.

It is clear from an analysis of overtime worked by the complainant in 2023 and to date in 2024, that he has suffered no loss since the change in the availability of overtime available to him. (Details submitted).

The complainant’s basic gross pay was €872 per week for 2023, and it is €893.60 for 2024.It is evident from the column named “Gross Pay” on the reports that he earned above both figures each respective year. In 2023, that the complainant availed of overtime all but five weeks of last year.

This overtime was mostly worked in his own area. He has availed of overtime payments in his own area each week this year.

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

At the heart of this dispute is the manner in which the respondent decided to allocate the increased work in the LA yard when its client requested it to do so. The complainant says that there was no consultation with him about a change and that it has affected his overtime earnings and complains specifically about the criteria used in determining access to the LA yard in the future.

He also says that those criteria were unfair, and that the ensuing grievance process failed to properly address the issues he raised in his grievance and later appeals.

The background is that in 2019 following a change in the relationship with the client for whom it provides these loading services, the respondent decided to allow the four workers primarily assigned to the LA yard (this did not include the complainant who only worked there infrequently) to cover all overtime that might arise between them.

This also reduced the respondent’s overtime costs for the reason set out above.

For its part the respondent says essentially that it was not obliged to consult the complainant by virtue of its collective agreement with the union and has exclusive rights to make changes where this is necessary to achieve ‘maximum efficiency’.

It claims in its submission to the WRC that he was aware of the proposed changes, and he was given the benefit of a grievance procedure, and that in any event he is at no loss. Why it did so is not clear as the complainant specifically denied this at one of the grievance hearings.

Regrettably, a series of attempts to resolve the matter failed to do so (which for reasons of protocol are not revealed to an Adjudicator). It is a pity they did not, because it is a workplace dispute that appears to be eminently capable of resolution at local level with a degree of reasonableness on both sides.

In reviewing the submissions above, I find that both that the respondent failed to properly engage with the complainant in a matter in which he had a legitimate interest and that that failure to fully involve the complainant formally in the process of discussions about the proposed change was wrong.

He was directly affected by it, and it should have been very obvious to the respondent that anyone affected by the change should have been included in the discussions about it, even as a courtesy.

The respondent’s reliance on its right not to consult is fatally exposed by the fact that it did consult, but only with the group of four workers who stood to benefit considerably from what was being proposed. It is little wonder they did not object to it. It is not sufficient to consult only with those who are likely to benefit from an outcome and who agree with it.

The further argument that the complainant knew, or ought to have known about the change does nothing to excuse its selective approach to consultation, made worse by the fact that this is a unionised workplace. Leaving such things to chance is hardly an efficient way to run a business.

While the decision to select those had a record of working in the area has a degree of superficial logic, it also appears self-serving and intended to produce the outcome the respondent wanted anyway.

In any event, had the merits of the proposal been put to the complainant or his union it could have been properly evaluated and resolved within the workplace. It has ended up here because of the respondent’s failure to do that.

What followed was an informal meeting on January 5th, 2024, which mainly addressed the loss of earnings issue, and was followed by a formal grievance process.

Following the informal meeting, management concluding that he had no claim for loss of earnings, and he was directed towards the Grievance Procedure.

The outcome of the first stage of the Grievance Procedure was issued on March 21st and was focussed almost exclusively on the complainant’s previous record of work in the LA area. There was no reference to the failure to consult about the criteria etc, although the notes show that this was discussed at the meeting.

The Decision Maker simply concluded that he could not find sufficient grounds to concede the grievance.

The complainant fared no better on appeal, the outcome of which was issued on May 3rd, 2024, in which the Decision Maker endorsed the earlier stage Decision without any comment on the process which gave rise to the grievance.

Although these grounds (in general the failure to consult) formed a substantial part of the complainant’s grounds of appeal in his letter of March 25th, they were simply ignored in the decision.

This is despite being specifically set out in detail at the beginning of the meeting, being briefly discussed and extraordinarily being itemised in the outcome letter!

The ‘jurisdiction’ (used loosely) of an Adjudicator under this legislation is concerned with rights to fair treatment. Our predecessor Adjudicators before 2015 were known as ‘Rights Commissioners’, for that reason.

Reflecting on the narrative above, it is easy to conclude that the complainant has a case.

It is not disputed that there was no formal consultation with him about the proposed change although he was an interested party.

The employer’s position that it was not obliged to consult is rendered disingenuous (at best) by the fact that it did in fact do so with others. It is robbed of that defence by its own actions.

Further, its attempt to suggest that the complainant actually knew about what was happening is contradicted by the notes of the First Stage Grievance Hearing on February 27th, 2024, where he specifically denied this.

A business is, of course, entitled to make whatever proposals it wishes for the greater efficiency of its operations, but the criteria used throughout the process that led to the exclusion of the complainant are especially self-serving.

As for the grievance process, it left a great deal to be desired. As noted above key elements of the complainant’s grievance were simply ignored by the grievance hearers.

For the appeal, the complainant submitted six grievances (although there are errors in the enumeration in the letter of appeal).

The first (and the fourth and sixth, in order, though not in the complainant‘s enumeration) relate to the lack of consultation and his exclusion from the discussion, and the second is a request for the criteria used for selection of those to work in the LA area.

The other complaint (numbered 5 in the letter of appeal) relates to double shifts which is the only issue the decision maker addressed.

The decision maker had these in front of him; they are actually set out in his own letter of April 4th inviting the complainant to the appeal!

They appear again in the official notes of the meeting. He only had to check the list before concluding to see that he had addressed all the issues before him.

What makes this a good deal worse is that they are also listed in the Outcome Letter, but again, ignored in the decision.

It is not sufficient, as part of the obligations falling on a Decision Maker to use the lazy catch all phrase ‘Having given the matter full consideration’ and then proceed to say, ‘the appeal fails’.

There are two cardinal principles that apply to the hearing of any grievance, whether in the Supreme Court or in the smallest workplace. They are that the hearer demonstrate both engagement and reasoning.

In this case, there is no evidence in the outcome letter that the hearer gave any consideration to four of the grounds of appeal at all and a grievant is entitled, as a core element of natural justice, to see from the record that his appeal was given full consideration and to see any reasons why it did not succeed.

So, we see neither engagement nor reasoning here.

The earlier outcome of the first stage grievance was no better, even if it contained a little more detail on the time spent by the complainant in the disputed area, but it still ignored the key elements of the complainant’s grievance.

While the obligations falling on a decision maker are couched in the language of fair procedure and natural justice, they are not onerous. They require a person simply to approach the issue with an open mind and to hear and adjudicate on the appellant’s case diligently and objectively.

For example, it is hard to imagine any of the decision makers in this case sitting down at a business meeting and then issuing a report of the meeting without having considered most of the items on the agenda, but that is precisely what they did here.

Unfortunately for the respondent, and taken with other aspects of its submission, it lends strong support for the view that it made a decision (which it is entitled to do) and then proceeded on the basis that it was not bound by any of the normal conventions of good workplace practice to consult all of those affected (which it is not entitled to do).

It compounded this injustice to the complainant by failing to hear his grievances to anything like the minimum required standard, thereby denying him a fair hearing of his grievances.

There is quite a contrast between the impressive textbook compliance with best HR practice in drafting the various notice and outcome letters and the reality of the actual decision making process.  It is not simply a matter of knowing what the process requires as a set of technical HR steps, but also of properly understanding and applying its obligations.

In this latter respect the respondent failed utterly. I recommend below that the company undertake some basic training with potential decision makers as to their obligations. (This is easily capable of being done in a half-day)

All of this allows of only one conclusion; that the complainant’s grievance was not properly heard at either stages of the grievance and that he did not get either a fair or a full hearing of his grievance, as he is entitled to, essentially because of prejudgment.

All of this represents a very substantial breach of the complainant’s right to fair treatment.

I was not provided with sufficient information to make a reliable assessment of the complainant’s overtime losses, and therefore I make no finding or recommendation on that.

However, for the substantial breach of his rights I award him €7,500.

Fair Procedure.