ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000647

Complaint for Resolution:

Venue : WRC Tom Johnson House

Date of Adjudication Hearing: 18/03/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under section 13 of the Industrial Relations Act, 1946 and following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Background

The Complainant is employed as a Cashier since 9^th October 2006. He is paid €1,650 per month. He has claimed under the Industrial Relations Acts 1946 that the Respondent has changed his hours of work without agreement and notice.

Complainant’s Submission and Presentation:

He initially worked 8 hours per day 5 days over 7. He now works a 12 hour shift 4 days on 4 days off known as a “block” arrangement. There now exists 11 different contract s of employment amongst the toll operators. This block arrangement has been in place since 2007 and operates on the basis of the same staff work together on the same rolling roster except for periods when a shift change is requested by either management or the employee. In March 2013 he switched to part time work due to back pain. He sought remain on the block system in place for part time staff.  He understood that he had an agreement with the Chief Operations Officer that he would be retained on the block system. His wife works in the same position and it has become a problem for them working the same block and having a young child. He requested a move opposite his wife but this was declined. In September 2014 this was arranged. However in May 2015 he was no longer assigned to his block but was rostered with no pattern and with no regard to his familial responsibilities. This was implemented without notice or explanation. He held a meeting with management to discuss his grievance in June 2015. The matter remained unresolved.  The Respondent reaffirmed that he could be rostered at will. Recently he has been restored to his block system and if this can be maintained then the matter is resolved.

It appears that the Respondent believes that only full time staff operate on the block system. Mutual application of common sense could solve this situation. Returning him to the block system carries no negative implications for the company. The current p5ractice has had negative effects both financial and familial to the complainant.  These rosters that he is placed on often supplied with the minimum of notice this creates serious difficulties for him am his family. He is not given access to Sunday, night work and public holidays whi9ch carries additional premiums/allowances.  It also causes problems with planning holidays.  He needs the certainty that being rostered on a block system gives.  He is seeking to be restored to the block system.

Respondent’s Submission and Presentation:

In March 2013 he sought a reduction in his hours of work to allow his wife to work fulltime hours, as she also works with the Respondent. This was granted and he signed a new contract on 23^rd June 2013 reflecting his new arrangements.  He also sought to be rostered opposite his wife. The Respondent agreed to it would endeavour to facilitate this however it would not always be possible. It was not a formalised arrangement and he had not worked on any particular block of hours since taking up the part time job.  He is contracted to work 24 hours per week on two 12 hour shifts over 7 days Monday to Sunday.  His contract also provides for a provision whereby he may be required to work outside these hours. It states, “The employee agrees that the company may at its discretion vary the employee’s normal working hours or normal start and finishing times if the needs of the business require”. In 2015 the Respondent was successful in a retendering process. The Client required distinct working patterns to be implemented around the staffing of the plazas in line with the varying peak periods. The employees working patterns were changed to staff the peak periods appropriately.  The Respondent can be the subject of fines and damages for not properly fulfilling the commercial contract. This was explained to staff at a general meeting on 10^th October 2014. Further meeting took place on 5^th November and the end of November to address issues arising from this new commercial contract. He had raised issues with his work hours and meeting took place. It was the Respondent’s position that these matters had been resolved at the meeting on 24^th June 2015.

His contract does not refer to a block arrangement. They reviewed his work patters on the Time Management System when he changed to part time working and there is no evidence of an established block in place. There is no custom and practice or implied term argument that can be put forward by the complainant. He has been accommodated on several occasions with shift swaps which demonstrate their reasonableness in facilitating his family circumstances.  His contract requires him to be flexible in his hours of work. All other part time employees are required to be flexible as well.  It was decided not to change the full time rosters as this would have had negative effects on the part time rosters.

Under his contract the Respondent may vary his working hours ifv required. He has signed and agreed to the terms and conditions as laid out. It is requested that the Respondent’s position is upheld.

Findings

I find that the Respondent has entered into a commercial contract to provide a service to their client.

I note that there has been a renegotiation of the contract following the successful retendering and new key performance indicators and penalties have been imposed.

Hours of work have been altered for employees within their contract provisions in order to allow the Respondent meet the needs of the business.

I find that the Complainant’s hours of work have been altered according to his contract of employment which has had the effect of him being scheduled on the same time as his wife at times and it has added to his costs.

I find that this does not have the same predictability or assuredness as when he worked full time.

I accept that it can be a complication where partners / spouses work together and are seeking times to accommodate each other and their family.

However the primary objective of this working relationship is to provide a service to the Client and their customers.

The Respondent is obliged to roster the Complainant according to the provisions of his contract of employment.

I note that he signed and agreed to a new contract in June 2013.

I am satisfied that the Respondent is operating within the parameters of that contract.

I note that the current work arrangement since March 2016 has been appreciated by the Complainant and he is seeking to maintain this arrangement.

I find that it is not possible to give guarantees in a role that requires flexibility in order to meet the needs of the customers which are of paramount concern.

I find that it is not my responsibility to set work patters for an organisation. All that I can insist upon is that the terms of the contract are being adhered to.

In this case I find that the Respondent is adhering to the terms of that contract.

While the first objective of this employment is to serve the customers it should be reasonable to accommodate the Complainant where possible as has happened since March of this year in particular.

I appreciate that fixed arrangements may be not practicable, it is hoped that the current arrangement is maintained for as long as possible.

However again I stress that I find that the Respondent is operating within the provisions of the Complainant’s contract.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and section 13 of the Industrial Relations Act, 1946 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of the Workplace Relations Act.

I recommend that the Complainant operates his contracted hours as per the contract that he signed in June 2013.

I recommend that the Respondent continues to apply reasonableness to the rostering of the Complainant so that he can meet some of his family responsibilities.

Dated:   25^th May 2016