ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000785

Complaint for Resolution:

Date of Adjudication Hearing: 21^st March 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On 27^th November 2015, the complainant referred a dispute to the Workplace Relations Commission pursuant to the Industrial Relations Act. The complainant is a store assistant and the respondent is a supermarket chain.

The dispute was scheduled for adjudication on the 21^st March 2016. The complainant was in attendance and was represented by Mandate trade union. The respondent was represented by IBEC and two witnesses attended on its behalf.

In accordance with of the Industrial Relations Acts and the Workplace Relations Act, 2015 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.

Attendance at the Hearing:

Complainant’s Submission and Presentation:

The complainant is a current employee of the respondent and works in one of its large supermarkets. The respondent operates a system of banded hours that is subject to a national collective agreement. The complainant had been on the 30 to 35 hours band and the claim relates to whether she should be assimilated into the 39 hours band. Further to the complainant’s appeal, the respondent assimilated the complainant into the intermediate band, i.e. the 35+ hours band.

In submissions, the complainant outlines that in February 2015 she sought to have her weekly hours increased to 39 hours on the basis that she had consistently worked 39 hours for more than 16 weeks. On the 16^th April 2015, the respondent declined to issue a new contract of complainant. Coincidentally, the complainant had lodged a fresh grievance regarding this issue. The respondent replied on the 2^nd May 2015. This acknowledged that the complainant had worked above her band during the seasonal peak and on a temporary basis. It stated that based on the varied nature of these hours, it would not be issuing a new contract to the complainant. There followed a meeting where the respondent denied the claim where it referenced a 27-week period and excluded the Christmas period at its discretion. The complainant appealed this outcome. The appeal determined that the complainant was entitled to a 35+ hour contract, but that additional hours were not available in the stockroom. It found that the complainant had worked 39 hours over a 16-week period but that this was for genuine business needs.

At the hearing, the complainant raises her entitlement to the 39-hour contract and the delay on the part of the respondent in dealing with her claim. She outlines that the respondent misapplied the national agreement, seeking to extend the reference period, to exclude the Christmas period and to introduce discretion into applying the agreement. It was submitted that there exists documentary procedure to follow where additional work was allocated on a temporary basis, but the respondent did not use the forms for such temporary over-hours work. As reliefs, the complainant seeks that she be issued with a 39-hour contract, back-dated to February 2015 and that she be compensated for the difference between her actual hours worked and the 39 hours, again from the 2^nd February 2015. The complainant outlines that she had been penalised by the respondent in being given reduced hours since she sought to be issued with a new contract. She refers to the statement that work was not available in the stock room.

Respondent’s Submission and Presentation:

The respondent denies the claim. It states that the complainant worked hours over and above 35 hours between August 2014 and February 2015. She was then awarded a contract of 35+ hours, the next point of the banded hours contracts. The respondent refers to the national collective agreement that provides for the 35+ hours contract and to the clause regarding staff moving up bands where they consistently work in excess of their band for 4 months or more. In May 2015, the respondent declined to move the complainant to a higher band as the hours in excess of 35 hours were due to the busy/seasonal period and exceptional circumstances. There was no further requirement for such additional hours. The store declined to issue a new contract, but a 35+ hours contract was issued further to the complainant’s appeal. The respondent outlines that in a 31-week period, the complainant’s average working hours was 37.43 hours. The respondent denied the claim of penalisation.

In additional submissions made after the adjudication, the respondent submitted documentation regarding the hours worked by the complainant. Nine documents were submitted as well as a spreadsheet showing the hours worked for each week, according to the weeks of the year, the reference weeks used by the complainant and the respondent’s own payroll software. This was submitted by email and copied to the complainant.

Findings and reasoning:

This dispute relates to whether the complainant is entitled to a particular band of contracted hours on the basis of the hours she worked in a 16-week period. The complainant referred a grievance and she was moved to a higher band, but not the one she states she is entitled to.

A collective agreement provides for the increase and decrease of hours for respondent staff members. The document exhibited by the complainant provides that a staff member who works in excess of their band for four months or more have the option to move up to the band which reflects the hours they have been working.

Given that such a collective agreement, it is appropriate that this dispute be determined according to the terms of the agreement. It is also appropriate to include annual leave accrued by the complainant in the relevant four month period.

The period relied on by the complainant is that from the 23^rd August 2014 and the 31^st January 2015, a period of 24 weeks. In the table presented by the complainant, she worked 39 hours in all weeks within this time frame except for four weeks when she availed of public holidays or annual leave accrued over the preceding 13 weeks (some of which precedes this reference period). The complainant provides the pay slips she received over this time, which detail her hours of work.

At the adjudication, the respondent presented a schedule of weekly hours worked by the complainant. It differed from that presented by the complainant, for example the respondent’s listed a 53-week year and that of the complainant’s was based on a 52-week year. The respondent’s schedule differed from that of the complainant’s in relation to hours worked for the first weeks of 2015. In their additional submissions, the respondent provides payroll documentation as well as a spreadsheet detailing the hours worked according to the payroll system, the weeks of the year and the weeks provided in the complaint.

As a result of the complainant’s grievance, the respondent increased the complainant’s banded hours to the 35+ hours a week contract. Having reviewed all of the submissions and the documentation, I believe that the complainant is entitled to a 39-hour contract at the time of her grievance of the 5^th February 2015. It is clear from the schedules, when factoring in annual leave, that the complainant worked 39 hours per week over the relevant time period. In respect of the week of 19 – 25 October 2014, the respondent records the complainant as working 36 hours. However, taking account of the pay slips exhibited by the complainant, the complainant worked 39 hours in this week. I recommend that the complainant be backdated a 39-hour week contract to February 2015.

The further element to the complaint is that the complainant’s hours were reduced because of the grievance she pursued. It is submitted that the complainant was penalised for making the complaint; the respondent denies this and provides an alternative explanation for the reduction in hours. It is not readily discernible whether there is a causal link between the reduction in hours and the grievance, in particular in hearing a dispute arising from the Industrial Relations Act. It is clear that from the outset, the complainant had a prima facie entitlement to the 39-hour a week contract, which she has had to pursue, first, with partial success on appeal, and, second, to advance the matter via this complaint. For this, I recommend that the respondent pay the complainant €500 as redress.

Recommendation:

Pursuant to the Industrial Relations Acts, I recommend that the complainant be provided with a 39-hour contract, back-dated to the 5^th February 2015 and that the respondent pay to the complainant €500 as redress for the manner in which it dealt with her grievance.

Dated:   11^th November 2016