FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : TESCO IRELAND - AND - MANDATE DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Loss of earnings arising from a failure to apply a break to sales assistants.
BACKGROUND:
2. The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 29 January 2016 in accordance with Section 26 (1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 4 March 2016.
UNION'S ARGUMENTS:
3. 1.The store opened in 2008 and the Workers did not receive their entitlement to a paid break if they worked in excess of four and a half hours.
2.When the Workers questioned why they were not getting their paid breaks they were told that it did not apply to new or country stores.
3.The Respondent rectified the matter in May 2013 and the Respondent put a proposal to the Workers offering them 15 months back payment. This proposal was rejected by the Workers and the union are seeking full retrospection for the Workers in line with their service in the store.
RESPONDENT'S ARGUMENTS:
4. 1.The Respondent accepted in good faith that the Workers in question did not receive their 15 minute paid break.
2.When the matter was brought to the Respondent's attention the issue was rectified immediately and the Respondent offered to make a 15 month retrospective compensation payment to the affected Workers. This was in line with an agreement reached at the Clarehall store and a number of other stores where the same issue had arisen.
3.If the Labour Court concede to the Union's claim for full retrospection this would cause unfairness and industrial relations problems in the other stores where agreed compensation was accepted and paid by the Respondent.
RECOMMENDATION:
The Union is seeking compensation for its members employed at the Respondent’s Bailieborough store arising from the Respondent’s failure to grant the aforementioned staff a paid 15-minute break as provided in the employee handbook issued to all employees there. The following is stated on Page 25 of the Respondent’s handbook: “After 4.5 hours employees are entitled to a 15 minutes paid break.”
The non-compliance with the aforementioned provision regarding paid breaks in the Respondent’s Bailieborough store came to light when the Respondent issued a new handbook in March 2013. The issue was resolved with management at a local level and the staff were paid for their 15-minute break from May 2013 onwards. However, the Union lodged a claim with the Respondent on behalf of its members in the Bailiebrough store in respect of loss of earnings which resulted from the Respondent’s historic failure to grant the workers a paid break as provided for in the handbook.
A similar dispute arose- also in 2013 -in the Respondent’s Clarehall store. The latter dispute was resolved in January 2014 by an agreement between the Union and the Respondent, the terms of which provided for a compensation payment equivalent to the monetary value of the breaks calculated over a 15-month period. This came to be referred to as the ‘Clarehall Proposal’. It was subsequently applied, in a slightly modified form, at the Union’s request, to staff in the Respondent’s Drogheda, Monaghan and Artane stores. The revised version of the Proposal provided that - rather than being based on an average payment - the relevant compensation payment due to each worker should be calculated individually based on his/her recorded attendance.
The Court recommends that the terms of the revised ‘Clarehall Proposal’ be applied and accepted as part of the resolution of this dispute. In addition, having regard to the very particular circumstances that applied in relation to the affected workers at the Bailieborough store in 2014 – i.e. local management’s failure to grant paid breaks to any staff in that store between 2008 and May 2013 –the Court further recommends that the Respondent make an additional payment to the affected employees equivalent to 3 months’ financial loss for the failure to provide paid breaks, calculated in accordance with therevised‘Clarehall Proposal’.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
8 March 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Neville, Court Secretary.