ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001984

Dispute for Resolution:

 Date of Adjudication Hearing:   12/05/2016 and  04/08/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

 Procedure:

 In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act, 1969, 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 Hearing:

Complainant’s Submission and Presentation:

The Complainant is seeking to retain her work pattern and is challenging the insistence of the respondent that she move from a three day to a five day week.

The complainant has worked as a Training Sponsor/ General Assistant at the respondent store since September, 2003.In May 2006, the complainant requested a restructuring of her hours from five hours a day to three full days a week to accommodate child care. This was important for her as she sought to work opposite her husband who also worked for the company. They did not have family supports available to them in the vicinity.

The respondent agreed a working pattern with the complainant, which presented as the core working pattern at the date of the hearing. This constituted a three day week.

06:00hr – 15.30 hrs on     Thursday, Friday and Saturday

06:00 hr – 15.30 hrs      Monday, Tuesday and Wednesday (following week)

In May 2007, The Company and the Union entered a comprehensive agreement on banding of hours and other matters. This resulted in the complainant signing a “Day Contract “on 31 May, 2007. The complainant had concerns regarding “a flexibility clause “and raised it with the Personnel Manager at the time. Her submission to the hearing contained an extract from the agreement which she sought the Adjudicator to review:

“It is recognised that there may be certain staff that by local agreement may have specific local arrangements.i.e. A 3 day week. In these cases the number of weekly hours the staff member works will be assimilated into the appropriate band and they will retain their working pattern and number of hours, unless otherwise agreed”

The complainant submitted that she had agreed to the new contract having reached a local understanding that she had secured a personal waiver on the flexibility clause. She understood that she was permitted not to work on Sundays and public holidays.

In September, 2014, the Complainant was approached by the respondent to “buy out “her existing contract by way of a once off lump sum. She did not accept this offer. The complainant agreed to modify her work pattern in October, 2015 by inclusion of one late night shift once a month to accommodate training. She thought that comprised sufficient flexibility from her.

In October, 2015, she was approached by her line manager and informed that she would be required to start 5 day working following a 12 week notification period. The complainant explained that due to personal circumstances that she was unable to undertake this change .She sought to resolve the matter informally based on the certainties that she had been assured of, but was alarmed when she was informed that local agreements no longer had standing.

The complainant initiated the grievance procedure on October 29^th 2015. This concluded on 12 February 2016 with an outcome presented by the manager of a neighbouring store.

“I can conclude that you will be required to work as per your contract and you will be rostered in line with your 5/7 contract on file. I can confirm that there are genuine business reasons for this change. Your line manager will sit down with you in the coming days to discuss your roster and to also discuss your needs. I also recommend that you are given sufficient notice if your line manager is rostering you for a Sunday or a public holiday “

The issue was referred to the WRC on 18 February, 2016. The Union raised a comparator case heard by the Labour Court in A Worker V Tesco Ireland AD 1562 within a similar time scale. In this case a compromise was reached and a new set working pattern was agreed over a five day period.

The Union also raised a concern that 19 workers had left the respondent store via redundancy and had been replaced by 9 new employees. This had caused some pressure.

The complainant addressed the hearing by emphasising the over arching domestic need for her to continue with her existing work pattern and gave several examples of how effective this pattern was for the business. There was no business case presented to her to underpin a change of hours. Instead, she was informed that company policy sought to alter hours. She contended that she had received assurances that her work pattern would be protected in 2007 and sought to retain this pattern.

Respondent’s Submission and Presentation:

The respondent disputed the claim in its entirety and relied on the “contractual obligation” argument from the employee employment records. They contended that there was a defined business need to roster the complainant 5/7 days a week and this had intensified in the current highly competitive market place. They submitted the complainants 2003 contract of employment for 18-25 hrs per week on a 5/7 basis.

The complainant signed a new contract on 31 May 2007 which provided:

• 5/7 Days a week, (Saturday and Sunday , ticked)

• 25-30 hr band

• Public Holidays

The respondent submitted that there was no “add on or exemption “in the 2007 contract which distinguished the complainant from the other 5/7 employees. They did refer to an instance where an employee had incorporated a three day week agreement into the contract in 2007. This was not incorporated into the complainant’s contract.

The respondent store had suffered through a combination of on line sales, competition and the recession, which resulted in a voluntary redundancy programme. There were rostering deficits on Sundays and Public Holidays after this and this created the backdrop where the complainant was approached by the respondent to alter her work pattern. The norm in the respondent store was a ratio of 3:4 Sunday working pattern.

The respondent had spent a considerable period of time in discussions with the complainant and processed her grievance in line with company procedure. They sought to action the terms of the appeal hearing dated 12 February 2016, which did not uphold the grievance.

“1. The needs of the business required all those who are contractually liable to work 5/7 to be restored in order to have the right people in the right place at the right time in order to provide the best level of service to customers. It is also important to ensure that there is fairness and equality across all colleagues to create a more equal environment.

The respondent contended that these findings informed their legitimacy to seek the required change given the shortfalls in the rostering and the surge in customer activity at the weekends.

The company sought to action the terms of the contract agreed in 2007. This contract did not contain a waiver for the complainant. The respondent contended that the store managers had endeavoured to reach a mutually agreeable work pattern, having regard for the complainant’s domestic arrangements but had been unable to reach agreement.

The respondent confirmed at the hearing that the store would not benefit from the offers of resolution proposed by the complainant around a Monday to Saturday morning pattern. The respondent needed co-operation around the peak business periods of weekends and public holiday’s .The respondent disputed the application of the cited Labour Court Recommendation.

The respondent sought that the claim be dismissed.

Decision:

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.

Legislation involved and requirements of legislation:

Section 13 of the Industrial Relations Act, 1969

3. —F15[…]

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

(4)F15[…]

(5)F15[…]

(6) A rights commissioner may provide for the regulation of proceedings before him in relation to an investigation under this section and may provide for the cases in which persons may appear before him by counsel or solicitor and, except as so provided, no person shall be entitled to appear by counsel or solicitor before him.

(7)F15[…]

(8) An investigation by a rights commissioner shall be conducted in private.

(9)(a) A party to a dispute in relation to which a rights commissioner has made a recommendation may appeal to the Court against the recommendation and the parties to the dispute shall be bound by the decision of the Court on the appeal.

(b) The Court shall hear and decide any appeal to it under this subsection and it shall convey its decision thereon to the parties.

(c) A hearing under this subsection shall be held in private.

(10) The Court shall not investigate (except by way of appeal to it under subsection (9) of this section) a trade dispute in relation to which a rights commissioner has made a recommendation.

Annotations:

Amendments:

F15

Repealed (1.10.2015) by Workplace Relations Act 2015 (16/2015), s. 8 and sch. 2 part 1 item 2, S.I. No. 410 of 2015.

Decision:

On the first day of the hearing, I was concerned that the claim as lodged by the complainant could have been interpreted as anticipatory. I listened carefully to both parties submissions and was grateful for the clarity of position expressed on both sides.

However, I was concerned at the lack of a” work-sheet “or some such record on exactly what specific work pattern changes were proposed and sought by the company and whether the complainant had detailed her specific objections or possible resolutions in shift formation. I advised a short adjournment for the parties to address the claim from the individual perspective of the complainant and the individualistic perspective of the specific store rather than a “company policy “perspective. In so doing, I was conscious of the longevity of the complainant’s service and the mutual respect which was clear between the parties. I asked the parties to address the specifics of the claim and revert with what remained unresolved.

The hearing reconvened on August   4, 2016 . The parties had made some progress through local discussions but sought an Adjudicator decision.

The complainant is seeking to rely on her understanding of a confirmed personal waiver given to her at the time that she restructured her hours in 2006. I accept that the complainant was given a personal waiver in this regard. Of course, the waiver should have been recorded in writing by both parties. Nonetheless, I find that the respondent accepted that the complainant did not work Sundays or public holidays from 2006 to 2015, a period of 9 years.

I find that the onus was on the company to introduce a proposed work pattern change in a more respectful manner than by an arbitrary notification of a 12 week lead in period. I accept that the marketplace had changed considerably since 2006 in the retail sector and this should have formed the basis of their initial approach to the complainant rather than by strict express contractual terms argument. There was a presiding national agreement in place and this should not have been disregarded. I was encouraged to hear from the parties that a successor to this national agreement is anticipated in the near future.

I accept that the period of 2013-2015 signalled a period of radical change in the respondent store. I can accept that this caused a high level of fear and trepidation in the complainant. I was impressed at her methodical approach to her case and her earnest wish to prolong family contact time, whilst balancing work commitments. I was particularly impressed by her commitment to undertake any role at the store providing her work pattern was protected.

The parties agreed to compromise on the following revised work pattern and agreed to commit it to writing.

The Complainant would be rostered for

• 2 Public Holidays per year

• An additional shift of 9.30 am -14.00 hrs (during Thursday, Friday, Monday, Tuesday or Wednesday) Consideration to be given for School Drop Off times and her Husbands roster.

• Continuation of one late night shift per month.

The parties submitted the rostering of Sundays for Adjudication. I have given careful consideration to both parties’ positions on this sensitive issue. On one level, I am persuaded by the family contact time at weekends already being reduced due to the parallel work patterns of the complainant and her husband. On another level, I am persuaded by the respondent needing to be a veritable competitor in a highly competitive market and the obvious business need for Sunday working. I find that this case was overshadowed in part by an anticipated national agreement. Nonetheless, I must recommend a way forward for consideration of the parties on the Sunday issue.

I find that it would be wholly unreasonable to expect the complainant to roster for 3:4 Sundays against a backdrop of not having worked any. Furthermore, I am conscious that the compromise agreement should be given a number of months to run and bed down at the local store. I am mindful that relations between the parties were mutually respectful at the conclusion of the hearings and this was commendable given the arduous arguments advanced by both sides.

In the event that the national agreement mentioned throughout the hearings addresses Sunday working in a systematic way, I recommend that the parties engage under that umbrella. In the event that it is silent on Sunday working, I recommend that the complainant roster for Sunday working on the following basis.

From April 2017   1:4

From April 2018   1: 3

This should be followed by a conjoint review. This recommendation is made in full and final settlement of the claims against the respondent.

Dated:   11^th November 2016