Complainant

Respondent

Anonymised Parties

A Parking Host

Parking Company

Representatives

Deirdre Canty SIPTU

Peter O Shaughnessy ,IBEC Regional Manager

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00006755-001

02/09/2016

This is a case taken under the Industrial Relations Act, 1969 in relation to a claim for outstanding payment of wages and hours of work allocated .The claim is disputed by the respondent.

The complainant commenced work as a Parking Host on 4 November, 2013, initially in a training capacity and substantively in January 2014.He was paid €9.56 per hour which increased to €10.43 per hour on 28 November, 2014.

The complainant submitted that he was in fact carrying out the role in accordance with the job description issued at the start of his employment. This referred to the duties of a Senior parking Host, which carried a rate of €2 per hour higher that that of a Parking Host. He sought payment for the deficit in pay and did not receive a response. Another contract issued in September 2015. When the complainant sought payment for the role and duties of a Senior Parking Host, he was informed to stop the duties and he did .He claimed for this period of time worked at the higher level.

The complainant was employed to work 25 hrs a week and currently averaged 39 hrs a week. He sought standardisation of his hours to 39 hrs to enhance his standing and access to Credit advancements .The Union advanced his case on 25 January 2016 through a meeting and a response issued on 18 February 2016, which did not resolve the issues.

The complainant submitted a spreadsheet of the breakdown of the average hours worked.

2013: 39-40 hours worked      2014: 37.68 hrs worked     2015: 36.47 hrs worked

The Union claimed payment for the time worked by the complainant in the higher duty of Senior Parking Host and access to a contract reflective of a standardisation of working hours to permanent full time as opposed to permanent part time.

The Respondent is a leading Off Street car park operator and manages over 30 car parks across the Island of Ireland.

The Respondent submitted that the company has addressed the issues raised by the complainant and he did not appear to accept the explanations offered.

The respondent had hosted a local meeting on 9 July 2015 together with the Operations Manager, The complainant and his Union Representative. The respondent outlined that the complainant had not carried out the role of a Senior Parking Host and worked in the same manner as all other Parking Hosts within the respondent business. The complainant had accepted the role and rate for the job on his acceptance of his contract of employment on 16 November 2013. The respondent indicated that this arrangement had not changed.

The Respondent had also addressed the complainant’s application to increase his hours by way of formal arrangement .The Respondent had explained that the extra hours were in providing cover for others and were not certain. The Respondent had assured the complainant that his extra hours worked ensured a pro-rata increase in entitlements. Further meetings were held on 13 August, 2015 25 January, 2016, where the matters were raised again. The respondent understood that the matters had been resolved when the respondent set out a letter of clarification of the issues on February 18, 2016.

The respondent submitted that the claim for payment for work as a Senior Parking Host was unwarranted as the duties had been fulfilled by the appointed Senior Parking Host. The respondent had no need for an additional Senior Parking Host.

The respondent was not in favour of any standardisation of hours in the complainant’s case as he had done the hours on a voluntary, locum basis and no entitlement to permanency in the higher hours range arose from that base.

The respondent submitted a table of average hours worked on a monthly basis by the complainant over 2016-2017.

2016 varied from 25.09 in January to 44.76 in December.

2017 varied from 33.03 in January to 41.08 in February.

The respondent submitted that it was not open to the Adjudicator to award either the payment claimed or the standardisation of hours claimed by the complainant. The company did not require the work done by the complainant to be done at Senior level .The respondent also wished to protect the pool of hours, currently worked as locum but the contractual property of an absent colleague.

The respondent representative submitted that the company had made very earnest attempts to resolve the issues with the complainant over the course of a protracted period. They asked that their efforts be judged as fair and reasonable and that he Adjudicator find that both claims were not well founded.

I have carefully considered both parties oral and written submissions. From the outset, I appreciated that this was a long running dispute between the parties, that has now been submitted for Adjudication .I will address the Dispute in two parts.

Application for Payment as a Senior Parking Host 2013-2015

I considered the complainants firm views that he had been underpaid for the work he undertook .I also considered the respondent firm views that this work was not required. I noted that the respondent had a number of leavers and absences in the role of Senior Parking Host during the life-time of his claim.

However, I took my guidance from the reality contained in the presiding document in the case, that of the first contract of employment signed by the complainant on 16 November, 2013.

“ You will be employed as a parking Host and will report to the Senior parking Host or appropriate Manager “

I asked the complainant at hearing whether anybody from the company had asked him to take the senior role? he confirmed that he had not been asked. He had submitted that the job description aligned to the contract had referred to the role of Senior Parking Host .I must interpret this as an oversight.

I am satisfied that no ambiguity existed on the stated intention of the respondent in terms of the role the complainant was hired for. I appreciate that the complainant may have diversified into taking on some of the jobs associated with the senior role in a multi tasking setting. This should have been addressed on a mutual basis at the first probation meeting, which I learned did not take place.

However, I cannot establish a link to contractual entitlement or a legitimate expectation to the payment sought. The contract signed by the complainant constitutes the presiding document and the job description is a subsidiary document. I find that I cannot find in favour of the complainant in this aspect of the claim.

Application of Standardisation of Hours to Permanent Full time :

I have considered both spread-sheets submitted by the parties and I have considered the stated position of both parties in respect of this claim. I note that the complainant was hired as a part time worker and not as a relief or locum worker. I listened carefully as the respondent shared details of the recent mobility in the workforce, in particular the filling of the recent positions of Local Area Manager and Parking Host.

The complainant has certainly demonstrated his commitment to staffing the business on a virtual full time basis since the early days of his employment. I understand the submissions raised by the respondent that the company needs ongoing flexibility to cover absences, both short term and long term.

I believe that it is necessary in the interest of stability and a mutual statement of wishing   to move forward that an immediate plan is identified to permit the complainant to standardise his hours to a full time commitment on a permanent basis . I note that the respondent referred to constant work on a workforce plan in respect of the business and I would suggest that the parties sit down together to identify opportunities, reliant on that plan to realise this goal.

Grievance    Application for Higher Duty pay