Complainant

Respondent

Parties

Ciaran  Kelly

Radio Telefis Eireann

Complainant

Respondent

Anonymised Parties

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Representatives

Peter Duff Peter Duff & Co. Solicitors

Colm Kitson BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00065450-001

16/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00065450-002

16/08/2024

In attendance was Mr Kelly (the Complainant) and his representative, Mr Peter Duff, of Peter Duff Solicitors.

In attendance for Respondent were Colm Kitson BL, Rostam Kilgour, Liam Mac Gearailt, Dierdre Kelly, Niamh Killeen and John Paul Coakley

The Respondent provided a detailed written submission in advance of the hearing and the Complainant provided a written submission, in addition to their complaint form, on the morning of the hearing. This was by way of replying submission to the Respondent ‘s written submission.

The Complaint, seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994, was withdrawn early in the hearing.

The Respondent presented a preliminary submission challenging the jurisdiction of the Commission to hear the case. A decision on this was deferred by the Adjudicator, preferring to hear the matter in full before deciding on that submission.

Having heard all submissions from both parties, in full, the hearing was closed.

The Complainant has been employed with the Respondent since September 2021, having previously been  an employee and leaving for another broadcasting entity. He left the first employment of the Respondent at the top of the relevant pay scale and on his return was placed on the first point.

The remaining issue for the Complainant is under the 1997 Act, that, with the introduction of new rosters, his work hours are the same, but his days of attendance are changed with him discharging his hours of work over four days rather than five in twelve-hour shifts. This influences the hours required to discharge his 26 days of annual leave and differs from that set out in the Employee Handbook.

The Complainant accepts that the Respondent has a right to alter his schedule within the parameters laid out in his contract of employment. However, he denies that a right exists to alter the implied condition of employment that he works a 7-day fortnight, given he is paid a regular shift allowance. This is in addition to his working an irregular shift which would attract a more generous allowance than he receives, having been classified as a regular shift worker.

The issue of the Complainant leave arises from the new rosters implemented; these rosters followed a recommendation of the RTE Industrial Relations Tribunal (IRT). Within the internal IR process there exists a provision for those who would suffer adverse effects of the new rosters that they should raise this with management. The Complainant has tried to do so with no response which is part of the reason the complaints were referred.

The Complainant denies that he was under notice of the changes to the rosters at interview, as set out by the Respondent. It is his position that it was relayed to him as a “hope” there would be future changes.

It is accepted that the Respondent may organise their business as they see fit, and the Respondent expectation was that they would allow for training and cost savings. The Complainant set out that neither of those expectations have been realised and the changes have been cost increasing instead.

Under the 1997 Act the Complainant accepts that his annual leave entitlement has not been altered, but his issue is in how it is discharged. He refers to the Employee Handbook issued at induction where it sets out that Annual Leave is computed and how it is computed for staff on an irregular roster.

“In the case of leave taken in single weeks, reference will be made to the net hours scheduled on duty and annual leave expended will be computed on the basis of a 36- hour net working week. When two consecutive weeks are taken, this will count as two weeks' annual leave (ie.10 days)”

The Complainant position is that the new method of calculation does not conform to that within the Employee Handbook.

The Complainant rejects the case set out by the Respondent that the Complainant is given the benefit of a very generous time in lieu policy. This is a separate arrangement and reliant upon the working of additional hours to gain the benefit.

Preliminary Submission on Jurisdiction

The Respondent set out in writing on the 7th of November 2024 its view on the Jurisdiction of the WRC to hear the case and submitting that it should be dismissed on the basis that the matter has implications for a body of workers and that the origins of the Complainant’s complaint have been dealt with by the IRT.  The Respondent reiterated this assertion at the hearing.

The substance of the complaint has been the subject of a binding arbitration by the IRT on the 23rd of November 2023. In Recommendation 04/23 it was set out that the rosters proposed be implemented and those who may be adversely affected raise those issues with management. This has been accepted by SIPTU; the union for the grades concerned and of which the Complainant was involved with and a participant in working groups on the same matter.

Further to this binding arbitration, the Respondent relies upon the management and union agreed Guiding Principles Code of Practice 2013 and the contract of the Complainant that sets out the weekly attendance being spread over seven days. The Respondent also relies upon s 13(2) of the Industrial Relations Act, 1969:

“2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

It is the Respondent case that this complaint is a dispute involving a body of workers within the meaning of that act and it is on this basis that the Respondent asked the Adjudicator to refuse jurisdiction.

Substantive Respondent Case

The Respondent set out the background to the Respondent Organisation and its effort to improve its structures to ensure the viability of the organisation going forward. The Respondent relies upon the Respondent Code of Practice/Guiding Principles, 2013 which has been agreed with the relevant trade unions as part of a broader and highly robust IR process and quotes from paragraph 1.4.

“Working practices are expected to change on an ongoing basis and the acceptance and implementation of such change is a normal part of an employee’s duties. Any dispute pertaining to this will be referred to the IRT following normal local procedural discussions.

Change may occur for reasons of audience needs, but it is also imperative that the productivity and competitiveness of working practices are continuously improved and RTÉ welcomes the contribution of employees to this process.”

The Respondent sets out that this puts all employees on notice of change and that the Respondent IRT and article 7 of the IRT constitution sets out that in cases of work practices issues being submitted to the IRT that they are the subject of binding arbitration. The new rosters have been through that process and are therefore binding in law on the parties. Further, as part of the process, the Complainant was one of the representatives put forward by SIPTU and was fully involved and informed. Following the issuing of the binding arbitration decision; SIPTU accepted the new rosters on behalf of the staff grades concerned. The effect on the Complainant was his shifts changed and how he must discharge his hours of work and annual leave, and the Respondent asserts these are changes to working practices and not, as claimed, terms and conditions.

It is the rosters changing that form the basis of the complaint and these were arrived at through and agreed process. To find for the Complainant would undermine that process and further undermine the Respondent relationship with other employees. In essence the Respondent views the complaint as a collateral attack on its internal IR process by the re-agitation of a trade dispute that is now settled with the relevant trade union. Further, that this is prohibited under S 13(2) of the Industrial Relations Act 1969.

OWTA - Public Holidays and Holiday Entitlements

The Respondent denies in full any allegation that the Complainant has been denied leave, and the Complainant has provided no basis to substantiate this allegation. The Respondent sets out in the Complainant contract that he is entitled to “26 days annual leave pro rata”. The average working day is 8 hours, and the Complainant works irregular hours, and his leave is prorated accordingly as “entitled to 26 working days holidays per annum (exclusive of public holidays) on a pro-rata basis”.

As the Complainant works irregular shifts the 26 working days or 208 hours annual leave and the average shift is 10 hours, he is afforded 20.8 shifts (of ten hours each) rounded up to 21 shifts or 210 hours (or 26.25 days) in full compliance with the 1997 Act,

In addition to the above, the Respondent noted that the Claimant is given the benefit of a very generous time-in-lieu policy whereby he accrues an extra 12.5 working days annual leave for public holidays, with an additional 1.25 days’ time in lieu for every public holiday worked.

The Respondent reasserts that there is no sustainable basis on which the Claimant can contend that there has been a breach of the 1997 Act or that the Claimant has not been afforded his contractual entitlement to annual leave and the complaints brought should be dismissed.

It is important to consider the jurisdiction matter as a priority, however, there are a series of intertwining matters also involved.

Firstly, I note the withdrawal of the complaint, after consideration, under section 7 of the Terms of Employment (Information) Act, 1994.

It is not for me make a decision on the application of the time-in-lieu policy, which is entirely irrelevant to the complaint. Nor is it for an Adjudicator to speak to the success, or otherwise, of the new rosters to allowing for staff training or productivity.

The matters to be dealt with now are on rosters and how these are encompassed by the Organisation of Working Time Act, 1997 under which an Adjudicator may:

a)      declare that the complaint was or, as the case may be, was not well founded,

b)       require the employer to comply with the relevant provision,

c)       require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment,

It is the Complainant case that.

“Employee handbook is stated in employment contract as the terms and conditions of my employment. Deduction of annual leave calculated on a pro-rata basis rather than as per employee handbook, whereby a 10hr shift is to be deducted as 1 day’s annual leave, and not as 1.25 days. Also stated that leave is deducted as 5 days leave for a week, and not as 6.25/7.5 days as been the case - disadvantaged as a shift worker.”

The Employee Handbook can form part of the contract of employment in the facts and circumstances of an individual case. However, the Employee Handbook is a foundational document and is highly dependent on how it is referred to in the contract of employment. The most important documents between the two are the written contract of employment and subsequent agreements between the Respondent and the employee representatives.

At paragraph 29 of the Complainant contract as exhibited by the Respondent, provision is made for the update of the handbook.  It is not logical to think that what is written in the employee handbook is applicable for all time, especially in an organisation such as the Respondent’s where there is strong employee representation and a sophisticated internal, binding arbitral body, such as the IRT.

The arbitral binding recommendation of the IRT.

It is the Respondent case that the Complainant is attempting to re-agitate a dispute. The Complainant denies this completely and while I accept that this is not their intent; it would be the effect.

The matter has been well settled between the negotiating bodies and the Respondent and is subject to the IRT recommendation. In the absence of an actual breach of the Working Time Act being demonstrated by the Complainant; the arbitral basis of the IRT is binding on the parties involved.

The Complainant has not demonstrated that there has been a breach of the Organisation of Working Time Act, 1997 itself and the resulting issues for the Complainant arise from the binding recommendation of the IRT. Given that the Act is not breached, and I am bound to recognise an arbitral award, in the absence of any illegality, I have no jurisdiction on this matter and cannot find that the complaint is well founded.

For the reasons outlined above I find that the complaint is not well founded.

Arbitration, Internal IR Process