Worker

Employer

Anonymised Parties

Manufacturing Technician

Manufacturing Company

Representatives

Ms.Patricia Rogers, Unite the Union

Ms. Alison McComiskey, 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 - 00002337

07/03/2024

The Worker commenced employment with the Employer on 17th June 2013. The Worker remains a permanent, full-time member of staff.

On 7th March 2024, the Worker referred the present dispute to the Commission. Herein, he alleged that the Employer had treated him less favourably than other colleagues in relation to an internal transfer. In denying this allegation, the Employer stated that such transfers are governed by a collective agreement and that this agreement was adhered to in the present case. They further submitted that any amendment to the same would have to be achieved by collective conciliation.

Following the Employer’s failure to object to the same within the statutory timeframe, a hearing was convened for, and finalised on, 18th November 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested in the course of the hearing. On the direction of the Adjudicator further submissions were received following the hearing.

At the outset of the hearing, the Employer raised a preliminary issue as to jurisdiction. They submitted that as the subject matter of the dispute related to a collective issue, it would be inappropriate to issue a recommendation under Section 13 of the Act. Given that nature of the same, this will be discussed following a summary of the substantive matter.

By submission, the Worker stated that he was engaged as a manufacturing operative with the Employer.

In 2023, the line on which the Worker provided his services experienced a reduction on activity. On foot of the same, four of the eleven employees were assigned to this line were displaced. The Worker took issue with his being included in the persons selected for alternative duties within the Employer. In this regard, he stated that the relevant process stated that given his seniority in the organisation, he should only be moved from his department when no other soldering work was available to him. In circumstances whereby another, less senior, employee was provided with this work, he submitted that the Employer was in breach of this arrangement.

The Worker, with the assistance of his trade union, raised an internal grievance in relation to this issue.  By response, the Employer accepted that a custom and practice had arisen where following a volume rate reduction in a department, seniority by grade is applied, resulting in the least senior within the grade being impacted. In this regard, the Employer defines seniority by the date on which the employee is engaged by the relevant section, as opposed to their overall seniority within the organisation as a whole. By submission, the Worker stated that his was not his experience and that he had personally been reallocated to numerous posts in the previous 24 months. The Worker further stated that he was aware of other persons that had been permitted to remain on their positions in contravention of the Employer’s stated position regarding seniority. In this regard he submitted that he had been unfairly treated by his employer, and sought a recommendation in his favour.

By response, the Employer denied that the Worker had been treated unfairly. In this regard, they submitted that the Worker had been relocated in accordance with the relevant collective agreement. In this regard, they submitted that the present dispute is in fact a collective issue and consequently falls outside the remit of Section 13.

By submission, the Employer stated that in recent years they ran two products, requiring two separate lines to run consecutively. As a consequence of the same, the Employer is obliged to move personnel between the lines on a frequent basis. As the movement of staff in this respect had become a contentious issue in the past, the Employer operated a “Department Seniority Agreement” that guides the process for such transfers. In this regard, staff are firstly asked to move on a voluntary basis. In circumstances whereby this does not meet the requirements of the Respondent, they then assigned based on seniority. Two factors determine an employee’s seniority for these purposes, the first department to which they are assigned and the date on which the employee moves to another department. Once an employee does agree to move between the lines, the Employer ensures that there is no impact on their compensation and benefits.

Regarding the Worker in particular, it was noted that while he had substantial service with the Employer as a whole, he was promoted to his previous role in April 2024. In such circumstances, while the Worker had a lengthy tenure with the Employer, he had a relatively short tenure in the current role. Applying the rule regarding seniority set out above, the Worker was selected for transfer as he was the had the least seniority in the position.

Following receipt of an internal grievance raised by the Worker, the Employer set out the position stated above in the first instance outcome. On appeal, the issue was fundamentally examined. As a consequence of these investigations, the Employer determined that the had previously been a custom and practice of the least senior person within the relevant grade (as opposed the position) was selected for transfer. Notwithstanding the same, it was determined that the express collective agreement was applied in this instance and that Employer did not deviate from same in this instance.

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

Regarding the present case, the Worker has submitted that he was unfairly selected for an internal transfer by the Employer. He stated that he was selected for such a transfer in contravention of an established custom and practice and that he was treated unfairly in comparison to some of his colleagues. By response, the Employer stated that they transferred the Worker in accordance with the terms of the relevant collective agreement. During the internal process in relation to this dispute, the Employer conceded that a custom and practice had arisen that appeared to contradict the terms of the collective agreement. Nonetheless, the Employer relied on the express terms to justify the transfer of the Worker.

Having regard to the foregoing, the Employer stated that the present dispute is in fact a collective matter and, as a consequence of the same, is not the appropriate subject matter for an individual dispute.

In this regard, Section 13(2) of the Act provides that,

“…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.”

Having considered the factual matrix present by the parties, it is apparent that the issue of the internal transfer of workers is governed by a collective agreement and a separate custom and practice. In this respect, I agree with the Employer insofar as any recommendation that might seek to alter either of those processes would have collective consequences and would fall foul of the exclusion set out above. By submission, the Employer has accepted that the current system is need of refinement and has indicated their wiliness to engage with the Worker’s trade union in relation to the same. While this is welcome, the fact remains that I cannot make a recommendation that might seek to interfere or alter the collective issues in dispute between the parties.

Notwithstanding the foregoing, it is noted that the Worker’s complaint relates to the operation of the transfer system and the unfairness he suffered as a consequence of he same. During the internal procedure, the Employer accepted that they operated custom and practice that appeared to contradict the terms of the written collective agreement. In this respect, the Worker’s complaint of unfair treatment appears to have merit. In this respect those employees that were transferred under the custom and practice were treated differently to those transferred under the express terms. While this recommendation cannot interfere with the collective aspects of dispute, it is apparent that the Worker was treated unfairly by the manner in which the Employer operated the existing procedures. Having regard to the foregoing, I find that the Worker was unfairly treated and, in this respect only, I recommend in his favour.

Collective Issue, Transfer, Unfiarness