FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED TRADING AS TESCO IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Recommendation No: r-155316-ir-15/RG
BACKGROUND:
2. This is an appeal by the worker of Adjudication Officer's Recommendation No: r-155316-ir-15/RG. The issue concerns a reduction in pay following a transfer to a different role within the Company. The Union's position is that the worker's salary was reduced without consultation or agreement when the night shift terminated and the worker transferred to the day shift. Management's position is that the role of Night Manager ceased and the new role which the worker accepted was paid at a lower rate of pay. Management contends that the reduction in pay is due to the fact that there is no unsocial hours/ night premium attaching to the new role. Management further contends there were other options put to the worker including voluntary redundancy which he did not accept.
The parties are also in dispute in relation to whether the dispute is collective in nature as the change involved a group of workers or whether it relates to an individual grievance. The Union contends that the dispute is an individual grievance and relates only to the worker in question as there is no Collective Agreement in place for this category of worker.
The matter was referred to an Adjudication Officer for investigation. A Recommendation issued on the 17th November 2015. The Adjudication Officer did not make a Recommendation on the basis that the dispute was not an individual issue as it related to a group/ category of workers.
On the 8th December 2015 the worker appealed the Adjudication Officer's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 22nd January 2016
UNION'S ARGUMENT:
3 1 The worker was informed that his new role within the Company would result in a significant reduction in earnings. There was no consultation nor agreement in relation to the salary reduction. The offer of voluntary redundancy was rescinded and the worker was given just one week to sign a new contract accepting the terms and conditions that would apply to the new role.
MANAGEMENT'S ARGUMENT:
4 1 The worker was given the option to accept voluntary redundancy or accept the change to day shift. The Company does not offer buy-outs of allowances/loss of earnings in circumstances where voluntary redundancy is an option. Of the 80 Night Managers affected 51 accepted voluntary redundancy and 29 accepted different roles within the Company and accepted the terms and conditions that applied to each role. In the circumstances the Company acted appropriately at all times.
RECOMMENDATION:
Having given careful consideration to the submissions of both parties to this dispute the Court finds the Respondent Company accepts that the issue before the Court relates to a claim by an individual in circumstances where there is no collective bargaining in place for that category of staff. Accordingly the Court decides that the matter is properly before it.
Regarding the substantive matter the Court finds that good practice in industry in cases involving reductions in earnings is to compensate workers adversely affected by restructuring arrangements that impact on pay by offering compensation in the nature of a buy-out of the differential involved or by phasing the introduction of the reduced rate of pay over a period of time to facilitate the inevitable adjustment process involved.
In this case neither approach was applied by the Company. Accordingly, therefore, in the exceptional circumstances of this case, the Court finds merit in the Union claim and recommends that the Company pay the Complainant compensation in the amount of 1.5 times the annual loss of earnings incurred as a result of the reduction in pay that arose when the Complainant moved from night to day duties.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
10th February 2016______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.