ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00005635

Dispute for Resolution:

Date of Adjudication Hearing: 20/02/2017

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:

A Sales Assistant   V   A   Large Supermarket

Complainant’s Submission and Presentation:

The claimant is a General Assistant working a 35 hour week at a Large Supermarket. She commenced work in 1998 .At that time, she incorporated Sunday and Public Holiday working into her work pattern. This changed in 2011, when through a nationwide payroll cost reduction exercise, the claimant agreed to a cessation of Sunday and Public holiday working.

In late 2010, the claimant relocated to the Meat /Deli counter .In February 2013, the claimant agreed to a further revision in her work pattern by way of a local agreement signed off in the store. This consisted of

1 One late night per week on Thursday

2 Retention of “Off on Sunday “

3 Day off every second Tuesday/Wednesday

4 Work no later than 5pm on any other day.

The suggested three month review did not follow.

In 2014, the claimant agreed to change her late night working from Thursday to Tuesday.

On 8 April, 2016,the claimant received written notification of the respondents intention to change the agreement .The claimant submitted that she was the sole recipient of such a letter and other co workers on set hours were not approached to change .

The claimant had declared support for colleagues involved in an Industrial Dispute and she contended that this view clashed with the publically stated views of the store manager who counselled against this form of staff support.

The claimant lodged a grievance, which was heard by the store manager and culminated in a pronouncement that is was thought fair and reasonable to work to the 2011 contract. The lead in period of 8 weeks to 3 June was confirmed. There was an offer to meet if the date could not be met.

There were two further appeals which culminated in findings dated 6 October, 2016.This confirmed that:

1 Hours changed in 2011 due to decline in sales, did not constitute an agreement on cessation of Sunday working.

2 The claimant had a fully flexible contract.

3 The claimant was not required to work on Sundays at the store.

4 The claimant was required to work the hours as rostered by the store which matched Union agreements and the contract of employment.

The claimant was disappointed and referred her case to the WRC. The Union submitted the provisions of 2006 Union / Management Agreement .They argued that the company request of the claimant was not underpinned by a business case for the change.

The Union sought retention of the 2013 agreement and referenced an analogous Adjudicator/ Rights Commissioner case, where the Adjudicator recommended that the claimant be allowed to continue to work a set hours pattern, Monday to Friday “until such time as an agreement is reached between the parties to change the custom and practice established over time “

The reference period was 2003 -2014 as “ custom and practice “ in this case.

Respondent’s Submission and Presentation:

The respondent rejected the claim. The respondent is a major Retailer in Ireland and relies on the capacity to react to changing customer demands. The store at the centre of the case had a fall in turnover in 2014-2015.The claimant was offered voluntary redundancy and refused in August 2015. As part of the restructuring, there were less staff available to cover the store opening hours and managers met with individual employees, not previously rostered for premium shifts and informed them they would be required to change.

The respondent referred to the claimant’s 2011 contract of employment .The terms and conditions provided for working hours greater than 35 but less than full time.

In addition, the claimant would have a contractual liability for 3:4 Sundays and Public Holidays as part of her 7 am -11 pm “fully flexible day contract” post December 1996.

The respondent met with the claimant on 7 April to clarify “her way of working “as per the 2011 contract .It was explained that she may be asked to fully fulfil those working arrangements based on adequate notice to make the necessary arrangements .On 8 April, the claimant was informed that the temporary arrangements from 2013 regarding her roster were to end, based on 8 weeks notice.

The respondent agreed with the factual background of the grievance process as advanced by the claimant, which ultimately was not upheld in October 2016.The company position remains that the claimant is to work the hours as rostered inclusive of Sundays and Public Holidays. The roster is published at weekly intervals .

The respondent contended that the company was working responsibility in seeking that the claimant works her contracted hours in accordance with her “ current contract liability “. The respondent had fully engaged in the grievance procedure without bias and with the support of representation for the claimant .

The respondent submitted that the retail sector is highly competitive and required constant change and adaptation .The respondent identified that it was a company requirement to change the 2013 local agreement with the claimant in favour of the terms of the contract of employment .The respondent contended that this was a fair and reasonable approach and the claim should be dismissed.

Recommendation:

Section 13 of the Industrial Relations Act, 1969 requires me to investigate the dispute and make a recommendation to the parties.

I have listened carefully to the parties in this Dispute and I have considered both parties comprehensive written submissions. At the closing of the written submissions, my attention was drawn to a helpful clause in the claimant’s 2011 contract of employment and I quote:

The terms and conditions of this contract may be varied by agreement in writing and/or as a result of any collective agreement in the future. Any variation will form part of this contract.

I was very mindful of the long standing nature of the claimant’s employment with the respondent and the clear respect for her demonstrated by the management team at the hearing. I was also struck by the Respondents clearly state intention to treat the 100 workers fairly .The parties sought some time to seek a resolution but were unsuccessful on the day .It falls to me to make a recommendation in the case for the parties .

It is clear to me in this case, that there was insufficient contingency in the aftermath of the restructuring programme at the store in late 2015/2016. It is seldom the answer to allow a large cohort of workers to leave and expect the remainder of the staff to just “press on regardless “.

Of the 100 workers at the store, it is reasonable to assume that people endeavoured to balance and match home / work commitments .The claimant demonstrated a pattern of sequential changes from her commencement of employment to the present day. The respondent supported these changes and I believe incorporated them into a written agreement subject to review and change in February 2013. The fact that the review did not materialise did not disturb this agreement.

I have found that the operation of the grievance procedure did not reflect a sufficient weighting to the substantive issue of “proposed change” and instead just dealt with procedural aspects which may have become submerged in repetition. I was struck by the absence of a Human Resource hand in this process. The grievances and appeal meetings were presided over by store managers and I concluded that the individual profile of the claimant was not captured sufficiently by these Managers who are also charged with Total Store Management. Instead the terms “fully flexible” were repeatedly stated without being fleshed out or delineated.

I found the letter of 8 April 2016 to be lacking in sensitivity and was bereft of correct linkage to the 2013 Agreement by the respondent . I find that this approach by the respondent was precipitous and not reflective of good Industrial Relations. It is a less than optimal way to treat an employee of 20 years standing. I must therefore recognise that this agreement varied the 2011 contract and must be seen by all parties in this manner.

I have considered the claimants contention of marginalisation and I have not found marginalisation in this claim. Instead , I have seen that the respondent has identified the remaining workers as the sole contingency post the restructuring programme of 2014-2015. I have found that the claimant is covered by this premise .

I do not consider it fair or reasonable that the claimant be separated from her agreement of 2013 by a unilateral action. The Labour Court has frequently remarked that no agreement is “ immutable” and agreements reached should move to transformation by consensus .I would like to add that an “Equality of Arms “ should  underpin that model .

There are two riders attached to the 2013 agreement on “change being subject to the needs of the business and a planned review.” These are operational tools .

I recommend that the claimant holds the terms of the February 2013 agreement with the respondent pending the commencement and conclusion of a series of direct substantive discussions on the proposed change.

1 Both parties should recognise and respect that the 2013 Agreement is an express term of the claimant’s contract.

2 The respondent should present a revised proposal on what changes if any are being sought in the 2013 Agreement.

3 Both parties should then negotiate an agreed way forward to be committed to writing in accordance with the contract of employment.

I urge the parties to work together on reaching a mutually acceptable way forward given their very evident conjoint commitment to the success of the store .

Patsy Doyle, Adjudicator.

Dated:   18^th May 2017