ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002531

Dispute for Resolution:

Date of Adjudication Hearing: 19th July 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, 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:                                                                                                             . The Complainant was in dispute with the Respondent in relation to her seniority and related matters

Summary of Complainant’s Case:  

The Complainant said that she has been employed by the Respondent since 7^th November 1983.   She works 37 hours per week and her weekly wage is circa €735.  

The Complainant said that seniority placing is important as it affects the choice or allocation of duties and the choice or allocation of holidays.

The Complainant said that she was on a certain point on the seniority scale until it and placings was redesigned in 2016 and since then she has dropped down 11 places and has been overtaken by 11 part-time employee and she believes this is unjust and unfair to her.

The Complainant sought a finding and recommendation that she revert to her seniority placing prior to the change in 2011.

Summary of Respondent’s Position:

The Respondent said the Complainant’s complaint is in relation to her position on the seniority listing in the Unit or Area in which she works, which has altered due to the assimilation of part-time employees to full-time status.

The Respondent said that seniority is a consideration in the allocation of duties within the same grade and in the allocation of annual leave.   In April 2013, the Labour Court appointed a Monitoring Group, who oversee the implementation of a number of change agreements in the Employment, including the 2006 Work Practice Change Agreement that covers the Complainant’s work.   This Group issued a determination in relation to the position that should be adopted in the case of     part-time employees on assimilation to full-time status.   The Respondent said that the purpose of the determination was to ensure a consistent approach to this matter and to avoid breaches under the’ Protection of Employees (Fixed-Term Work) Act 2003’.

The Monitoring Group determined that the total length of part-time service, i.e. hours worked, should be calculated by dividing it by 27.5 to calculate a pro-rata ‘reckonable full-time service’ to identify the place in the full-time seniority list the former part-time employee should be assimilated at.   The Monitoring Group decided that the determination should coincide with the next annual allocation of duties within the same grade or the allocation of annual leave (details on the role and functioning and the determination of the Monitoring Group was submitted to the Hearing).

The Respondent said they have been implementing the determination of the Monitoring Group on a phased basis in line with the implementation of the Change Programme in each area.   In effect this means that existing seniority remain in place in each area until the next phase of Change Programme is implemented in that area.  

In the area in which the Complainant works the implementation of the Monitoring Group Determination took place as Phase 3 of the Collection and Delivery redesign.   Therefore, a number of employees (11) gained credit for previous service for seniority purposes that was not previously afforded to them and as such the Complainant’s position on the seniority list in her Area changed.

The Respondent said that in calculating the Complainant’s position on the seniority list, they are adhering to:

• The Collection and Delivery Work Practice Change Agreement of 16^th January 2006, which provides for seniority to be determined from the date of transfer to a particular area.

• The Labour Court Monitoring Group Determination of 2^nd April 2013, which provides for a fair and equitable system for identifying the point at which a former part-time employee should be assimilated for a full-time seniority list.   The Respondent said that the findings of the Monitoring Group on all matters within its remit are final and binging on all parties.

The Respondent said that in circumstances where they are simply adhering to an established collective agreement and a binding Monitoring Group Determination they were seeking the Adjudication Officer find that the complaint/claim is not well founded and that it be rejected

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.

I am completely satisfied that the Respondent is, in relation to these matters, acting in accordance with the provisions of a collective agreement, which the Complainant is a party to, and by which both she and they are bound.   I further find that the Respondent is, in this matter, simply implementing the Determination of the Monitoring Group, whose Determination is binding on all parties, including the Complainant and the Respondent.     I further note that the Respondent cannot ignore the legal rights of temporary or part-time workers, to do so would be in breach of the ‘Protection of Employees (Fixed-Term Work ) Act 2003’ and/or ‘ the ‘Protection of Employees (Part-Time Work) Act 2001’ and to do so would leave them open to challenges by temporary or part-time workers under those Acts.   The Respondent simply cannot treat temporary or part-time workers any less favourably than comparable permanent full-time workers, it is not an option that is open to them.

In all the circumstances I cannot accept that the Complainant is been treated any less favourably than other colleagues in this matter.  

I do not accept that the Respondent Employer has behaved unfairly or unreasonably towards the Complainant in this matter.

Based on the foregoing I do not see merit in the claim/complaint and it is rejected by me.

Dated: 13^th October 2016