ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000002
Dispute for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969 | CA-00000003-001 | 1st October 2015 |
Date of Adjudication Hearing: 15/09/2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969 and following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
Mandate were in dispute with the Respondent in relation to the Complainant’s pay rate.
Summary of Trade Union Case:
My Employer has maintained a 7.5% pay differential between me and my colleagues who carry out the same duties. |
Mandate said that the dispute relates to the Complainant not receiving a 7.5% pay differential by the Respondent to which Mandate maintains she is entitled.
Mandate said the Complainant commenced employment with the Respondent as a General Sales Assistant with the Respondent at a named store on 22nd September 1986. She is employed on a full-time 39 hour week basis and has 3 rostered late night hours per week, which are paid at the overtime rate of double time. Her current pay rate is €14.31c per hour. For the last 24 years she has been working in the cash office, a position that carries responsibility suitable only to employees with a proven record of accuracy, accountability, honesty and discipline to process and procedures which are regularly audited and tested.
Mandate said that the Complainant in common with other colleagues received a 7.5% pay differential in addition to her normal hourly pay rate for chargehand covering duties she was required to perform when her Chargehand was off work. The Complainant was the designated person for chargehand cover of the Cash Office business.
Mandate said that prior to and for a period after 2001 the Respondent introduced into their new and replacement stores the role of Section Manager. For a number of years this role was in conflict with that which already existed, namely the chargehand role. Through protracted negotiations the Respondent and the trade unions finalised an Agreement, known as the Management Structure Agreement 2006. This Agreement, amongst other things presented a number of options to those employees then in the chargehand role and provided for the non-replacement of a chargehand in the event she or he left the employment and the Agreement also provided monies for those employees designated to cover their respective chargehands during their absence from work. This Agreement was designed to and in the main saw the gradual erosion of the chargehand role within the employment. Mandate said that this Agreement applied to all the existing chargehands in the employment, including the Store the Complainant worked in.
On 5th June 2009, the Complainant attended an in-store local management/union meeting. In attendance were the Complainant another named Union Representative, the local store manager and named local management representative. The Union Representative asked the Store Manager why his and another colleague’s rate of pay was being reduced. He was informed that they were not performing any management duties, but when the union representative referred to another named colleague was in receipt of this pay rate the Store Manager stated that person was carrying out managerial duties, such as product ordering and organising staff roster. When the Union Representative informed that he was performing similar work the Store Manager then stated that the Union Representative and his colleague would receive the 7.5% pay rate differential until a Section Manager was appointed.
The Complainant immediately informed the Store Manager that she was in a similar situation, that in 2006 she lost her 7.5% pay differential when her Chargehand left the employment. She also informed the Store Manager that she was seeking restoration of this pay differential for the same reasons as her colleagues. The Store Manager never responded and he was subsequently transferred from the store in which the Complainant and the Complainant never received a response to her representations, but she was informed by a named colleague in February 2010 that some of her colleagues were receiving this 7.5% pay differential, despite the fact that their particular department how has a Section Manager in place.
The Complainant then approached the named new Store Manager and asked why she was not receiving this pay differential as compared as to her 3 colleagues despite the fact that she was carrying out a comparatively similar type role and associated functions. The Store Manager’s response was that none of them should be receiving this pay differential and that he would look into it. Mandate said that however it is apparent that the Store Manager did not look into this, however he was subsequently off work on sick leave and never returned to the Store.
The Complainant then made similar representations to the subsequent Store Manager, who also stated that he would have to look into the matter. He reverted to the Complainant stating that while her 3 colleagues were and would continue to receive the 7.5% pay differential, she would not.
In March 2014, Mandate wrote to the ER Manager, stating their concerns on the Complainant’s treatment in this matter. The Respondent responded on 28th March 2014, and referred to the need for an investigation in the matter. Mandate again wrote to the ER Manager, more than 6 months later, on 8th October 2014 enquiring if the investigation was completed and if so what were the conclusions. The ER Manager replied by letter of 12th November 2014. As the matter had not been progressed Mandate wrote to the Respondent on 3rd February 2015 requesting a meeting to discuss the matter. That Meeting took place on 21st April 2015 at which the Complainant’s position was put and the Respondent confirmed their final position by letter of 10th June 2015.
Mandate said it is very clear that the Respondent said has, for whatever reason, unilaterally decided to step away from the Management Structures Agreement 2006.
Mandate said that the Complainant, like her colleagues, was the designated person covering her department’s chargehand when that chargehand was off work and for this role, like her colleagues, she received the 7.5% pay differential.
Mandate contends that the Complainant’s roles and responsibilities are similar if not identical, to those of her colleagues receiving this pay differential. Despite numerous opportunities, the Respondent has not identified the actual reasons why the Complainant does not satisfy the qualifying criteria for the pay differential as compared to her colleagues.
Mandate said the Company/Union Management Structures Agreement 2006 provided for the removal of the pay differential, which if applied fairly and equitably in this Store would have seen the pay differential completely removed, as was the Agreement’s stated intention, but this did not happen.
Mandate contended on behalf of the Complainant that the Respondent’s different treatment of her is at best unfair and unjust and this treatment has had an obvious financial impact on the Complainant when compared to her colleagues.
Mandate sought that the claim be upheld and sought a recommendation that the Respondent retrospectively apply and maintain the 7.5% pay differential to the Complainant, including the payment of the differential from the date it was removed from her.
In discussion the Complainant and Mandate said that she did and does perform management duties, such as rostering, coin ordering, processing and bundling monies , dealing with securecor work etc.
Summary of Respondent’s Position:
IBEC said the Respondent sought an adjournment of the hearing on the basis that the claim that is the subject matter of this case has been overtaken by national discussions in relation to the pre 1996 contracts, of which the Complainant is a holder, but that request was declined. This remains the view of the Respondent, but notwithstanding this the Respondent are still refuting the claim in full and sets out their position as follows.
The Respondent said that the Complainant is employed as a customer assistant in their store in a named location since 22nd September 1986. She was one of 6 colleagues in that Store who received some element of a temporary 7.5% pay differential.
IBEC said Mandate are claiming that the Complainant should be receiving a 7.5% adjustment in her pay rate. The Respondent disagrees due to a number of factors including that she does not, or has not for a considerable period of time carried out managerial duties and that the role of chargehand no longer exists – and furthermore the pre 1996 contract which she holds is under review.
On 21st March 2014, Mandate wrote to the ER Manager regarding the Complainant’s alleged right to the 7.5% differential payment. The ER Manager replied on 28th March 2014, informing Mandate that the Complainant was not entitled to the payment as claimed. The ER Manager informed that further investigations needed to be carried out in relation to the other employees who were in receipt of the differential payment brought to their attention.
On 8th October 2014, Mandate again wrote to the ER Manager requesting an update on the Investigation. On 12th November 2014, the ER Manager responded to Mandate confirming that the investigation was carried out and she dealt with the Complainant’s claim, in a separate letter she informed Mandate what her investigations had found in respect of the other employees.
The ER Manager informed Mandate that as an overpayment had now been brought to her attention in relation to the other employees, the Store Management Team will need to meet with each of the employees to discuss this payment and what is required of them as they were no longer entitled to this payment.
In relation to the Complainant the ER Manager stated that as she did not carry out managerial duties, therefore she was not entitled to the 7.5% differential payment. Mandate responded on 13th November 2014 and followed up with a further letter on 3rd February 2015, requesting a meeting on the matter.
IBEC said that while the Respondent had at that stage on numerous occasions confirmed their position, they agreed to meet with Mandate and the Complainant and a meeting took place on 21st April 2015. At this Meeting the Complainant said that she was entitled to the 7.5% pay differential. She contended that she did in fact carry out managerial duties. The Respondent said that this was not the case; she has not, for a considerable period of time (prior to 2009) carried out any managerial duties in accordance with the roles and responsibilities contained in the Management Structures Agreement. The Complainant informed the Meeting that she did make a request to the Store Manager for the 7.5% payment and provided a diary note of a Meeting that took place; she was using this as evidence that she requested the payment. IBEC said the diary note does not support this position; in any event this is irrelevant as she did not carry out managerial duties.
Following this Meeting the ER Manager wrote to Mandate on 10th June 2015, confirming the Respondent’s position.
IBEC said that in 2006, the Respondent and the Trade Unions concluded the Management Structures Agreement 2006. IBEC said the purpose of this Agreement was to clarify the Store Management Structures going forward and in particular the role of the Chargehand (this role no longer exists).
IBEC said the chargehand group were a group of department managers in the Respondent who were in receipt of a 7.5% post of responsibility differential for managing their department and carrying out agreed roles and responsibilities. Since 2001, as chargehands left the employment or as the Respondent opened new stores the role of department managers has been replaced by section or line manager.
IBEC said that in addition to the chargehand, as part of the management structures agreement there was an existing list of ‘number 2’s ‘ in some departments who from time to time carry out full temporary department manager relief duties, i.e. during absences and annual leave for the existing chargehand role. In return they received a temporary 7.5% payment that was paid on top of their normal or basic pay, the object being to recognise the additional managerial duties of stepping up or acting up temporarily.
IBEC said the Agreement also allowed for those ‘number 2’s ‘ on the named list that they continued to have the opportunity to perform temporary relief for the chargehand. Exceptionally, this relief work may need to be carried out in another department/area of the store and in that case it can be agreed by mutual consent. Alternatively it could, at the time of the Agreement in 2006 be bought out at 1.5 times the annual loss.
IBEC said the role of chargehand no longer exists in the employment following an agreement reached with the trade unions in 2011.
Despite the fact that the chargehand role no longer exists, the employees who were on the named list of number 2’s as part of the Management Structures Agreement were still given the opportunity to continue to carry out the full duties as stated in chargehand duties and responsibilities temporarily and receive a temporary 7.5% pay differential.
IBEC submitted the following in support of the Respondent’s position.
1. The role of chargehand no longer exists and has not existed since 2010
2. The 7.5% pay differential that is the subject of this claim has been overtaken by broader national discussions in relation to pre 1996 contract of which the Complainant is a holder.
3. The Complainant does not carry out managerial duties, nor has done prior to 2009. Furthermore she was not required to carry out management duties on a weekly basis
4. At the time the other employees in the same Store as the Complainant receive the 7.5% pay differential they all carried out managerial duties and it was evident that it was not intended to be a permanent payment, but was provided in recognition that they carried out the managerial roles as described in the roles and responsibilities.
5. The Complainant maintains that she requested to receive a 7.5% pay differential and the then Store Manager denies such a request was made. This could not be substantiated for obvious reasons. In any event it is irrelevant as she did not carry out any managerial duties.
6. The duties performed by the Complainant are consistent with those required of the Customer Assistant job as stated in the job description which supports this.
Based on the foregoing, IBEC and the Respondent sought that their position be upheld and the claim be rejected.
The Store Manager gave evidence and he said that in relation to two of the other employees to whom the pay differential continued to be paid that there was no Section or Line Manager at the time and the two employees shared his work and thus earned and were entitled to the pay differential (even though they were only performing this work half of the time) and it was confirmed in response to questions that the payment continued to be paid even after this.
The Respondent said that the pay differential was wrongly paid to others and is an overpayment. They confirmed that it mistakenly continued and in response to questions confirmed that it still continues, despite the fact that they have been aware of it for some considerable time.
The Respondent reiterated that any concession of the claim would inevitably lead to repercussive or knock-on claims and would create serious financial problems for them.
Findings and Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
While I readily understand and indeed agree as submitted by the Respondent that it would not be reasonable or fair to find that a payment that was wrongly made to some people and was in fact an overpayment of wages (even if the overpayment was not recouped) should be extended to others. A genuine mistake and overpayment to some employees should not oblige an employer to extend that mistake to others. However I am not satisfied that this reasoning applies in the instant case.
I note that even after the payment of the 7.5% differential was found or believed to have been wrongly applied to a number of the Complainant’s colleagues in the same Store that she is employed in it continued and still continues to be paid to them but not to her. If it can continue to be paid to the Complainant’s in-store colleagues then it is difficult to understand why it cannot be extended and paid to her on the same basis that it is paid to them. It is a fact that the Complainant is been treated differently and less favourably than her instore colleagues and I accept that she and they are in the same position in terms of duties performed.
I note that the Respondent states that the 7.5% pay differential is part of national discussions in relation to pre 1996 contracts of employment, which will deal with this matter. If an Agreement emerges from these discussions then it will, at that time, fall to be dealt with in accordance with its own terms at any such time. However the Complainant is entitled to have her claim dealt with on its own merits and should not be expected to wait to have it dealt until if and when a new agreement might emerge.
The Respondent has chosen to act outside the Management Structure Agreement 2006 in relation to the Complainant’s instore colleagues in the same position as her in respect of the payment of the 7.5% pay differential and I can see no good reason why this payment cannot and should not be extended to her. It is certainly not fair or reasonable to treat her differently and less favourably than her instore colleagues in that respect.
I see considerable merit in the claim and it is upheld.
As a full and final settlement of the claim I recommend that the 7.5% pay differential be paid to the Complainant by the Respondent with effect from 1st January 2012.
For the removal of doubt I wish to confirm that this recommendation is particular to the unique facts and circumstances of the instant case and it cannot and will not be used or quoted by either party of any other party in any other dispute.
I so recommend.
Seán Reilly, Adjudication Officer
Dated: 22 November 2016