FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer's Decision No: ADJ-00000424.
BACKGROUND:
2. This case concerns a claim that the Company changed the terms and conditions of employment of the Worker resulting in a financial loss to him.
This matter was referred to an Adjudication Officer for investigation and decision. On 12 October 2016 the Adjudication Officer issued the following decision:-
- "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 payslips 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.
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 for that period."
A Labour Court hearing took place on 28 April 2016. The following is the Determination of the Court.
DECISION:
The dispute comes before the Court by way of an appeal by the Claimant of an Adjudication Officer Decision No. ADJ00000424.
The Adjudication Officer’s Decision dealt with two particular disputes. The first dispute related to a change by the Company to an agreement the Claimant alleges he had regarding a one-hour reduction in his working week. The Claimant alleges that this has resulted in him working additional hours for which he is not being remunerated. The second dispute related to a claim for retrospection in connection with the restoration of a 15-minute break for the Claimant.
The Adjudication Officer found in the Claimant’s favour regarding the second dispute concerning the 15-minute break. There is no appeal before the Court in relation to that issue, therefore the Court’s Decision herein relates only to the first dispute concerning the change to an agreement which the Claimant alleges he had regarding the length of his working week.
With regard to the first dispute, the Claimant told the Court that he is paid a consolidated basic rate of pay based on a gross 45-hour week. The net hours worked are 42.5 as a portion of the hours are paid at overtime premium rates. The Claimant states that in an around 1999 his then store manager awarded him a ‘senior man’ weekly allowance which equated to approximately £10.00 per week. Accordingly, his basic weekly rate of pay increased by that amount at that time.
In 2007, the Claimant sought a reduction in his working week of one hour. He states that he came to an agreement with his then store manager (different to the store manager previously referenced) to reduce his gross weekly working time by one hour in return for surrendering the ‘senior man’ weekly allowance. The reduction in the working week was to be taken by way of a four 15-minute unpaid breaks across the week. The Claimant states that this agreement resulted in 2007 in his basic weekly rate of pay being reduced by the euro equivalent of the £10.00.
In 2013, following a general internal audit of working time to ensure compliance with the Organisation of Working Time legislation, the Company adjusted the Claimant’s weekly working hours upwards by one hour to a gross 45-hour week. The Claimant disputed the matter through the grievance procedure and cited the alleged agreement in 2007 under which he believed he had traded-in his ‘senior man’ allowance in return for a reduction in working hours. Essentially the Claimant was of the view that he had paid by way of a reduction in his weekly pay for a reduced working week in 2007 and that he was now being required to work the hour for no pay.
The Claimant has now being working that one-hour since 2013. It is his position that the one-hour which he is now required to work is an additional hour for which he should be paid overtime. His claim before the Court is that the additional hour be remunerated with effect from its instigation in 2013 at an overtime rate of double time.
The Company states that it investigated the matter through the grievance procedure and that it could find no evidence of either an agreement in c.1999 to apply a ‘senior man’ allowance nor an agreement in 2007 to trade the allowance in for a reduced working week. The Company told the Court that its analysis of payroll records and working hours records did not disclose the existence of the agreements which the Claimant alleges the company entered in to with him. Furthermore, the Company stated that it had spoken with the two store managers with whom the Claimant alleges he made the agreements. Both the store managers deny that any such agreements were made with the Claimant.
The parties to this case hold sharply contrasting positions as regards the existence of an agreement which the Claimant told the Court he made with the Company in 2007 to trade in his ‘senior man’ allowance in return for a one-hour reduction in his working week. The Company told the Court that there is no evidence of such an agreement and the store manager with whom it is alleged that the agreement was made denies that there was any such agreement.
At the hearing of this case on 28th April 2017 it was accepted that if such an agreement existed then the Claimant’s payroll history for the 2007 period should disclose a reduction in his pay to coincide with the ‘trading in’ of the ‘senior man’ allowance.
The Court therefore requested an analysis of payroll information from the company to determine whether or not any such pay reduction was evident. The Court received information via the Company’s IBEC representative by email on 10thMay 2017. The Claimant was copied with this email and the Court sought that the Claimant submit any final comments and/or observations that he may wish to make. The Claimant duly submitted his comments on 14thMay 2017.
As regards the dispute before the Court which relates to an alleged change by the Company to an agreement the Claimant says that he had regarding a one-hour reduction in his working week, the Court finds, based on the totality of the information submitted in this case, that there is no evidence before it to support the existence of such an agreement. The Court, accordingly, decides that there is no basis upon which it can uphold the Claimant’s grievance and the claim fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
19 May 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.