ADJ-00036626 - Workplace Relations Commission Gerard Tuohy v ESB Networks

• Judgment Date: 13 December 2022
• Year: 2022
• Hearing Date: 14 June 2022
• Docket Number: ADJ-00036626
• Court: Workplace Relations Commission
• Respondent: ESB Networks

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant is employed by the Respondent as a Network Technician. The complaint is one of ten that have been selected as test cases from a total of 200+ complaints from Network Technicians employed by the Respondent. There are three distinct complaints, these are as follows: 1. Complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994. 2. Complaint submitted under section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004. 3. Complaint submitted under section 6 of the Payment of Wages Act, 1991. This complaint was received by the Workplace Relations Commission on 2nd January 2022. Hearing of the complaints took place on 14th and 15th June and 13th July 2022. Comprehensive submissions were received post hearing on the interpretation of the Payment of Wages Act 1991.

Summary of Complainant’s Case:

Context. The context in which the Complaints arise is an ongoing trade dispute between the Complainants’ chosen trades union, the Independent Workers’ Union (IWU) and the ESB Group of which ESB Networks is a constituent part. The dispute in question is ongoing since 2021. This shared context is important in explaining why rights submitted to have been infringed arise in each instant case. However, it is submitted that this explanation does not excuse the fact rights and entitlements of the Complainants have been infringed or denied. Core Issue. It is submitted that the core issue concerned is the fact that the Respondent has adopted an adversarial, if not aggressive stance, in addressing Complainant’s legitimate right to challenge imposition of key changes in their terms and conditions of employment without consultation or consent. The issue at the center of the three complaints under statute law is the imposition of a new payroll processing system. This system requires each individual to utilise an Online Application (App) branded ‘MyTime’. This system has been acquired by the Respondent to replace an existing method of payroll processing involving the scanning of individual data into a payroll portal for electronic processing resulting in the calculation of payments due, and ultimately the associated electronic fund transfer to each individuals nominated bank account. This process involves completion of individual paper timesheets in respect of attendance and absence, allowances, and payments in addition to basic pay related to hours and duties in excess of basic requirements. The data collected is processed and payments are issued in accordance with a contracted and well-established fortnightly or weekly routine. In essence this routine generates payment based on data collected in respect of the two weeks completed immediately prior to the week in which payment issues. Imposition of change Since the last quarter of 2021, the Respondent has sought to impose the new MyTime App based system. This system eliminates the collection of data through the existing paper-based system described. Each of the Complainant’s has declined to utilise the MyTime App. System, based on their considered belief that the implementation of such change should be by agreement and consent arrived at through reasonable and effective consultation and bargaining, as may be necessary. However, it is submitted that because each has declined to utilise the MyTime system they have been penalised. Penalisation The penalisation in question is that the contracted and well-established payment of wages routine, which can be described as ‘fortnightly/weekly in arrears’ is no longer being adhered to. As individual testimony will affirm, each Complainant is and has been enduring two elements of penalisation: payments in respect of overtime and allowances are not being paid in a regular routine defined as ‘fortnightly/weekly in arrears. Payments due are being delayed. As a consequence of the delay involved, and its inconsistency, the statement of earnings received by the Complainants i.e., their fortnightly/weekly payslips, cannot be easily reconciled in a manner that reasonably allows each individual to confirm that payments due are equal to payments received. As will be heard through the testimony of each Complainant the delayed and unclear payments can, have and currently do accrue to amounts ranging from hundreds of Euros to thousands of Euros. Deliberate nature of penalisation It is submitted that the Respondent is, has and continues to penalise each individual in the manner described while feigning inability to correct and regularise payment. Each of the ten individual Complainants have attempted to address the penalisation involved through the medium of the Respondent’s Grievance Procedure. This procedure has typically been elongated beyond the timeframes prescribed, and not all of the ten grievances have been fully processed. However, despite the fact that fair procedure requires that individual grievances be processed individually by ‘independent’ managers it is clear from written decisions both from grievance hearings and grievance appeal hearings that a single policy and agreed script is being followed by the Respondent’s managers. Individuals are being advised that delayed payment can solely be corrected through the utilisation of the MyTime App. Explanations are alternately being offered as including the fact that; the paper-based scanning system is obsolete, or the relevant IT license is expired, and/ or that there is a collective agreement being implemented with which each individual is required to comply. The manual inputting of payroll data in respect of the Complainants is and has given rise to unavoidable delay. Accordingly, each is advised that they are responsible for any delay or interruption to the payroll routine. Th fact is, however, basic payroll data relating to attendance and absence is being input to the MyTime system on a timely and routine basis, by supervisors/mangers. The fact is that there is evidence that supervisors have been instructed to delay inputting of timesheet data as part of a concerted effort to impose the MyTime App system. Please see the attached text message exchanges in which it is evidenced that supervisors and those acting in their absence have been and continue to be excluding the timely inputting of date related to overtime and allowances when inputting other necessary payroll data related to basic attendance and absences. This deliberate exclusion is not based on lack of information or lack of capability or resources, but on management instruction. Also attached is a management memo to supervisors advising that beginning in week no.45 of 2021, Paper timesheets would not be processed on a weekly basis, as per established routine. This would create an arrears period of up to six weeks. In addition, testimony will be given in respect of a management direction to “hold off posting December timesheets until the end of the month.”. In addition to the penalisation of deliberately delayed payments and ambiguous payslips, in recent days it has emerged that supervisors have been instructed that personnel not utilising the MyTime App should not be considered for upgrading in the next round of upgrades in the NT Portfolio i.e., grading structure. Complaint under The Terms and Conditions (Information) Act 1994 In summary it is submitted on behalf of each...