LCR22816

1. Redress Sought

BACKGROUND:

2. On 14 April 2023 the Worker, referred this dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court’s Recommendation. A Labour Court hearing took place in a virtual setting on 26 July 2023.

RECOMMENDATION:

The Employer confirmed at the commencement of the hearing that they had not refused to attend an adjudication hearing in respect of this issue. Mr Keenan on behalf of the Worker confirmed that they had opted to have the case heard by the Labour Court under section 20(1) of the 1969 Act rather than having the case heard by an Adjudication Officer under section 13 (9) of the Act, fully accepting that section 20(1) was binding on the Worker but not on the Employer.

The Worker stated that he was unilaterally excluded from participating in overtime from September 2021 to November 2022 resulting in a loss of earnings in the region of €20,000 to €30,000. On the 5^th November 2021 the Worker using the prescribed form submitted a grievance to his manager citing the fact that he had been told at on the 2O^th October 2021 that he had not been approved for overtime. At a meeting on the 27^th October it was confirmed that he was the only Network Technician who had been removed from the overtime schedule.

The Worker felt that he was being discriminated against. A formal grievance meeting was held on January 17^th, 2022, and by letter of February 17th, he was informed that his grievance of discriminatory treatment was not upheld. Mr Herraghty who heard his grievance went on to state that the decision was taken to limit the assignment of overtime to him because of concerns regarding his work performance. The Worker appealed the decision, and an appeal hearing was held on the 7^th April 2022. The decision arising from his appeal was issued on the 4^th May 2022 and stated “In conclusion, by line management ceasing your overtime was in no way discriminatory and would be common practice in the company where there are clear performance concerns”

While the Worker was processing his grievance, he had sought a transfer, but this was refused, and his supervisor and project lead engineer had sought to hold a performance meeting with him on the 30^th March 2022. The Worker was concerned if he attended that meeting it would compromise his grievance, Mr Keenen on behalf of the Worker submitted that he had been excluded from overtime based on alleged deficiencies in his work which had not been identified prior to his removal from overtime and the first attempt to engage on those issues was 30^th March 2022 at which point he had been excluded from overtime for a period of five months.

The Employer submitted that it does not dispute that the Worker was not offered overtime between September 2021 and November 2022 but denies it discriminated against the Worker. The Employer highlighted four issues that arose in respect of the Worker’s conduct between May 2021 and September 2021. As a result of those issues the Employer made a decision in September 2021 that the Worker should be restricted from undertaking overtime until there was an improvement.

In October and early November there were further issues with the manner in which he was carrying out his duties. On the 6^th December 201, a counselling and cautioning meeting took place with the Worker as provided for in the Employer’s policies. Following that meeting a letter issued to the Worker on the 13^th December 2021 identifying three issues that were discussed and advising that he was being placed on a performance improvement plan.

Further issues arose in February and March 2023 and the Complainant was placed on a PIP from 31^st March 2022 until 28^th April 2022. In November 2022 the Employer carried out a review of the Complainant’s performance /conduct and noted that it had improved considerably and at that point the Complainant was offered overtime. In respect of the loss being claimed by the Worker the Employer pointed out that the comparisons being made were against overtime earnings that included travel which did not apply during the relevant period.

Discussion and Recommendation.

The Employers disciplinary policy provides for Counselling and Cautioning prior to the disciplinary procedure being invoked. In this case that process was not engaged until sometime after the Worker had been removed from overtime and the procedures set out in that element of the policy were not followed. It was accepted by the Employer, that prior to the Worker’s overtime being stopped he was not on notice that he was in danger of having his overtime stopped. The Employer confirmed that the normal practise would be that the Counselling and Cautioning process would take place before a Worker’s overtime would be stopped. They could offer no explanation for why that had not happened on this occasion.

In the course of the hearing, it transpired that a number of the allegations being relied on as the reason for removing and continuing to keep the Worker off overtime were alleged to have occurred during periods when he was on annual leave, or sick leave, or had been assigned to work elsewhere. Again, no explanation was forthcoming in respect of how this occurred, nor was it disputed that he was on annual leave / sick leave on those occasions.

The Court accepts that the Worker was not discriminated against. However, the fact that he misclassified his complaint does not take from the fact that his overtime was withdrawn which was the nub of his complaint. It is clear from the oral submissions at the hearing that the Employer did not follow their own procedures in coming to the decision to remove the Worker from overtime and the facts that were being relied on in coming to that decision were not checked and were flawed. On that basis the Court finds that the Worker is entitled to compensation for the failure of the Employer to follow their own procedures.

The Court recommends that the Employer pay the Worker compensation of €7,500.

The Court so Recommends.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CO'R	______________________
6 September 2023	Deputy Chairman