ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002251

Complaint for Resolution:

Date of Adjudication Hearing: 13th May 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 15^th February 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Industrial Relations Acts. The complaint was scheduled for adjudication on the 13^th May 2016. The complainant is a general operative and the respondent is a manufacturer of soft drinks.

The complainant was represented by SIPTU and one colleague attended as a witness. The respondent was represented by IBEC and three witnesses attended on its behalf.

In accordance with section 13 of the Industrial Relations Act, 1969 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant commenced working for the respondent on the 12^th October 2000 and remains in its employment. The complainant operates a filler on a production line, filling the respondent’s products into containers for distribution and consumption. Line 1 was used for glass and line 4 for cans.

The complainant seeks recovery of lost pay following his move from filler line 1 to filler line 4, a move he had undertaken in cooperation with management. The move to filler line 4 arose following the retirement of the filler operator on line 4. He explained that his role on line 1 started at 7am and he was paid double time for the first hour. He agreed with the respondent manager and in the presence of two shop stewards that he would move line but retain the 7am start and the additional hour of double time pay. This occurred in early 2012 and continued until October 2014. The complainant said that he had previously worked on line 1, he worked two shifts: a morning shift where he received double-time for the first hour and an evening shift, for which he could also work paid over-time. This too had been taken off him and never returned.

The complainant outlines that following his move to line 4, he continued to start work at 7am and was paid the first hour at double time. This was revoked by the respondent in October 2014. The respondent had broken the agreement, causing the complainant financial hardship. Given the terms of the agreement, the respondent is obliged to provide work to the complainant between 7am and 8am and to pay double time for this hour. The complainant calculates the value of the claim at €364.24 net per month and €45.53 net per day.

On the 30^th October 2014, the union referred a complaint on the complainant’s behalf regarding his guaranteed hours. In a letter of the 4^th December 2014, the respondent manager states that as line 4 is running on a three-shift cycle, there was no requirement for overtime. The letter denies that the complainant has any guaranteed hours and referred to opportunities for overtime on Monday and Saturday mornings. The complainant’s replying email of the 18^th December 2014 refers to his agreement with the manager in the presence of two shop stewards.

In reply to the respondent, the complainant said he had gone over to line 4 in January or February 2013 and it was at this time that he was also trained in line 6. This did not, however, progress. He outlined that the line 4 filler operator role was one with guaranteed double time. He stated that until 2014, there had been three shifts. He said that he commenced work at 7am and would often be assigned to other lines to provide cover, including for the line manager. The respondent manager had been very clear on reaching the agreement. The complainant was contractually obliged to show up for work at 7am, and it followed that the respondent was obliged to pay him. The respondent manager had been clear that he was guaranteeing double time. He had raised the issue of his pay at the time they were discussing changing lines. He had acquired an expectation of being paid double time as a result of the agreement.

Respondent’s Submission and Presentation:

The respondent outlines that this claim relates to whether the complainant is entitled five hours of early hours overtime every second week, established through custom and practice. The respondent denies that claim, stating that guaranteed overtime is only applicable to named and red-circled individuals provided in collective agreements. Otherwise, there is no guarantee of overtime and it was scheduled and rostered according to operational needs.

The respondent outlined that when line 4 is on a two-cycle shift, there is an hour of overtime to complete start-up. This is available to the complainant every second week. This hour of start-up, however, is not required at times the line is working continuously. It outlined that a long serving employee retired in 2013 and the complainant and a colleague were assigned to the filler operator role, sharing the start up overtime. The retired colleague had red-circled guaranteed overtime. The complainant’s colleague had taken a case to the Right Commissioner service, which was not upheld.

The respondent outlines that the complainant commenced the line 4 role in June 2013, when it was a two-cycle shift; he was paid the additional start-up overtime. Between July and September 2013, the line went to three shifts and the complainant continued to attend for the start-up overtime, even though this was not required. He was paid in error for this double time. It reverted to a two-shift cycle in September 2013 until March 2014. At this point, it went to three shifts until the 14^th September 2014 when it again reverted to two shifts. On the 6^th October 2014, it reverted to three shifts and the complainant was instructed not to attend for the start-up overtime hour. The respondent refers to the recommendation issued in respect of the colleague. This finds that the claim was not well founded as the respondent is entitled to manage overtime in an efficient fashion.

At the adjudication, the respondent manager outlined that he had no recollection of a formal meeting with the complainant regarding his move to line 4 and the payment of double time. He could also not remember any discussion regarding the hour of 7am to 8am with the complainant. He acknowledged that he had asked him to move line. As of June 2013, line 4 was a two-shift line. Line 1 had gone to one shift and required a great deal of preparation. Line 4 later went to three-shifts and also ran over weekends in order to meet demand in the UK. He had made the offer to rotate shifts in this line. He commented that there was a new filler operator assigned to line 4.

The respondent agreed that the payment of double time to the complainant ceased in October 2014. In reply to the complainant, the respondent outlined that double time was available where there was a need. There had been no need when the line operated over three shifts. 12 other people would be affected by the outcome of this complaint. The respondent ceased paying the overtime to the complainant as it had been paid in error. There had been no agreement to pay double time and the complainant had opportunities to work overtime elsewhere. It was submitted that a person did not simply walk in to work overtime.

Findings and reasoning:

Central to this dispute is whether the respondent had agreed with the complainant that he had guaranteed hours following his move to the filler operator role on line 4. The complainant sought to rely on an agreement reached with two members of the respondent, in particular the respondent manager. The respondent denied that there had been any such agreement and the respondent manager could not recall a formal meeting on the matter.

It is clear that the complainant received the hour of double-time at times when line 4 was at two shifts. The dispute relates to his entitlement when the shift cycle was increased to three shifts. The respondent said that the increase to three shifts meant that the additional hour of double time was unnecessary as the shift cycle was now 24 hours.

Having considered the oral and written submissions, I accept the complainant’s point that he believed he would receive the start-up double time on a regular basis on moving to line 4. I base this finding on what the complainant and respondent manager said at the adjudication, as well as the complainant’s email of the 18^th December 2014, where he raises the agreement. There is no retort from the respondent to say that there was no basis to believe that an agreement had been reached.

I also accept that at the time the complainant commenced in the filler operator role on line 4, the expectation was that this would continue on the two-shift cycle, except for the summer months. It has, however, operated on a three-shift basis for an extended time because of consumer demand. I also note that, ultimately, the respondent is entitled to pay overtime in accordance with operational needs. Unless provided in a collective agreement, the availability of overtime on any line arises from operational requirements.

Taking account of the submissions made by the parties, I do not believe that any agreement amounts to a contractual entitlement to a guaranteed payment of one hour of double time every second week. It does, however, raise an unfairness where the complainant does not have access to the additional hour of double time on a regular basis. The complainant is entitled to redress and I recommend that the respondent pay to the complainant a once-off, ex gratia payment of €1,500 as recompense for the withdrawal in October 2014 of the daily hour of double time every second week.

Decision:

The Industrial Relations Acts requires that I issue a recommendation in relation to the dispute. Pursuant with the findings outlined above, I recommend that the respondent pay to the complainant a once-off, ex gratia payment of €1,500 as redress for the loss of the regular one hour of double time.

Dated:   21/03/2017