ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000424

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 2 February & 27 May 2016.

Workplace Relations Commission Adjudication Officer: Roger McGrath

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 complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

 Preliminary Matters

1. Hearings
1.1 An application for an investigation by a Workplace Relations Commission Adjudicator under Section 13 of the Industrial Relations Act, 1969 into the above trade dispute was received by the WRC on 23rd October 2015. The issue in dispute relates to an allegation that the company, a grocery retailer has unilaterally altered the terms and conditions pertaining to an employee who works on the deli-counter, leaving him at a financial loss. The Complainant was represented by his union.
1.2 A hearing took place on 2nd February 2016 in Tom Johnson House, at which both parties presented their cases and provided detailed written submissions. Following some debate it was agreed that an investigation of pay records relating to the employee central to the dispute would shed a great deal of light on the matter. The Respondent's Employee Relations Manager undertook to carry out this investigation. The hearing was adjourned in order to allow such an investigation take place.
1.3 The parties re-convened on 27th May in Frederick House, however the Respondent's ER Manger, who had agreed to carry out the investigation was, justifiably, detained elsewhere in another IR forum. The hearing was again adjourned.
1.4 On 25th July the WRC received a letter from the union representing the Complainant, drawing attention to a letter, which had been received from the Respondent. The letter from the Respondent stated that due to a lack of records the investigation referred to above could not be carried out. The Complainant's representative questioned the need to re-convene for a third hearing, which was scheduled to take place on 10th August.
1.5 As no investigation had been carried out by the Respondent I decided to evaluate the matter utilising the presentations made and submissions given at the hearing which took place on 2nd February 2016 and cancel the hearing scheduled to take place on 10th August.
1.6 A letter regarding the cancellation was sent to me by the Respondent on 11th August further explaining the facts around the investigation.
1.7 Further correspondence was received from the Complainant's representative on 23rd August which included copies of payslips belonging to a colleague of the Complainant.

Union Submission

2. Background

2.1 The Complainant commenced employment with the company in 1979, is employed as a Bacon-hand on the Deli Counter and is paid €784 gross per week for a 44 hour week.
2.2 In December 2013 the Complainant was informed by local management that he was required to work one extra hour each week as they had just established that he was only working 44 hours per week but was being paid for working 45 hours per week. The Complainant objected to the company's interpretation of the situation and attempted to explain how the arrangement had come into existence, but the company insisted on imposing the change.
2.3 It is the union's contention that this man was initially employed on the basis that he was due 1 hour 15 minutes for his lunch break (of which only the 15 minutes were paid) and a 15 minute break, as was standard practice at the time. The employee in question however never took his 1 hour lunch break and finished an hour earlier than his rostered shift each day. He did continue to take his 15 minute break which was facilitated by his managers over the years.
2.4 In 2007 the Complainant requested to reduce his working week from 45 to 44 hours, to which the company agreed. This would be facilitated by taking 4 x 15 minute unpaid breaks. However, instead of reducing his basic salary, the employee proposed that he would surrender an adjustment he received in his wages for being the "senior man" on the counter, which had been paid since the early 1990s following agreement with the store manager, for performing various roles and responsibilities. The adjustment equated to approximately £10 per week at the time and was incorporated into his weekly salary. The union stated that the company accepted this arrangement and that it continued for the following seven years until they unilaterally changed it in December 2013.
2.5 In December 2013 the Complainant was informed by the store manager, (a different manager to the manager referred to above), that he was required to take his 1 hour lunch and that he was only entitled to take one 15 minute break, instead of the two he was taking. The union believe that this change meant that their member's salary had been reduced by 1 hour's pay and that he had lost an hour and a quarter in paid breaks (15 mins x 5 days) leaving him at a total loss of 2.25 hours per week.
2.6 The employee raised a grievance to this matter in December 2013. The matter was not resolved although following a meeting with the ER Manager in August 2015 the company accepted that the employee was entitled to the 15 minute break each day and this was reinstated, however without retrospection.
2.7 Further communications with the company took place over the next few months. In November 2015 the company confirmed that they believed there was no evidence to support the Complainant's claim that an agreement had been reached in 2007.
2.8 The union then referred the dispute to the Workplace Relations Commission.

3. Union Arguments

3.1 The union submit that it is clear that between 2007 and the end of 2013 that the Complainant worked a specific number of hours for an agreed salary and took his breaks in a particular manner, otherwise there would have been no reason to approach him in December 2013, the company have failed to provide any explanation as to how this arrangement came into place.
3.2 There is ample evidence that the employee took his breaks in a particular manner proving that agreement had been reached with management.
3.3 Pay slip evidence indicates that the employee was in receipt of a "senior man" allowance.
3.4 Evidence from an Equality Tribunal case taken by the employee show he was in receipt of an allowance.
3.5 Other employees got paid for more hours than they had physically worked.
3.6 in December 2014 the Complainant was offered his hour back but without retrospection. In August 2015 the Complainant had his 15 minute break re-instated but without retrospection.
3.7 The union seeks payment of all monies arising from the withdrawal of the 15 minute break x 5 days per week from December 2013 until it was re-instated in August 2015. Also that the agreement reached in 2007 regarding the reduction in his working week be honoured and retrospection applied to December 2013.
3.8 Subsequent to the hearing the union sent pay slips from a colleague of the Complainant which they argue indicates the existence of the "senior man" allowance.
Company Position

4. Background

4.1 In 2013 the Respondent was required to make changes to their practices and ensure employees took their correct rest breaks in line with the Organisation of Working Time Act, 1997. The Complainant was required to get a one hour lunch break (unpaid) in line with the said Act. When this change was being introduced the Complainant alleged that he was entitled to a further one hour break in line with an alleged 2007 agreement that he had made with the store manager in situ at the time.
4.2 The Complainant raised the matter as a grievance and at a meeting in August 2014 he stated that an agreement had been reached in 2007 whereby he offset a "senior man" allowance in exchange for additional rest breaks. The Complainant submitted that from 2013 he was losing out on one hours pay that he used to receive in additional breaks. Following this meeting attempts were made by the manager to ascertain details of the alleged 2007 agreement but could find no evidence that such an agreement existed and that therefore the complainant could not be at a loss. The Complainant was not satisfied with this outcome and the matter was escalated to the company's Employee Relations team.
4.3 As a separate matter the Complainant also argued that he was entitled to an additional 15 minutes break as part of a pre-1996 agreement, this claim was acceded to by the company though no retrospection was granted for the period December 2013 to September 2015.
4.4 The company's Employee Relations Team carried out an investigation into the claim regarding the alleged 2007 agreement but found no evidence to support the Complainant's claim that he was entitled to back pay as a result of the alleged breach of this agreement.
4.5 As the Complainant remained unhappy with this outcome the Employee Relations Manager carried out a further investigation, the outcome of which was that no one confirmed that any 2007 agreement was in place and payroll records were such that no consistent evidence was found that he was in receipt of the "senior man" allowance. The Employee Relations Manager also spoke with the manager who had been the store manager in 2007 who could not confirm that any agreement had been put in place. The company's view after this investigation was that there was a lack of evidence to show that the 2007 agreement was in place or that the Complainant was ever in receipt of the "senior man" adjustment, therefore, there could not have been any trade off in relation to additional breaks; the Complainant's grievance was not upheld.

5. Company arguments

5. 1 The Company has carried out a thorough investigation into this matter and has not found any evidence to support the Complainant's claim.
5.2 The Complainant has provided no evidence to support his claim regarding a 2007 agreement.
5.3 Payroll have confirmed that the Complainant was never in receipt of the "senior man" allowance. Therefore he had nothing to trade off to receive additional rest breaks as per the alleged 2007 agreement.
5.4 Regarding the 15 minute break it is the company's argument that the Complainant continued to take 30 minutes at breakfast when the hour change was implemented. Therefore he is getting his 15 minutes in the morning rather than at lunchbreak.
6. Summary
6.1 There are two items in dispute here:
(a) Whether the company unilaterally changed the terms and conditions of the Complainant by ignoring a 2007 agreement, resulting in a financial loss to him. The Complainant says he traded his "senior man" allowance in return for the agreement. The company says there is no evidence to demonstrate that the Complainant was ever in receipt of this allowance and as such he could not have traded it in.
(b) Whether retrospection is due for a period between December 2013 when a 15 minute break was not facilitated by the company and August 2015 when this break was restored.
The Complainant says that this should never have been taken away and as such retrospection is due.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Act 1946, requires that I make a recommendation to the parties to the dispute.
7. Recommendation
7.1 There is not enough evidence to demonstrate that a "senior man" allowance existed and could have been utilised to barter for an agreement in 2007. There does not seem to be any contemporaneous documentation to support the notion of a 2007 agreement. Extrapolating facts by study of pay slips of other employees is beyond the scope of this process. My recommendation in relation to this claim is that there is not enough evidence to support it.
7.2 A stronger case exists in relation to the claim for retrospection in regard to the 15 minute break. This break was reinstated by the company in August 2015 having been removed in December 2013. In my view retrospection is due for this period. The Complainant should be reimbursed to the value of 1 hour 15 minutes per week in that period.

Dated: 12th October 2016