Complainant

Respondent

Anonymised Parties

A Driver

A Courier Company

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-00011254-001

11/05/2017

The Claimant works as a Driver in a Courier company, which   serves as a sub-contractor courier service engaged in parcel delivery in   parts of County Cork. The Claimant is seeking restoration and retrospection   of a €50 allowance.

The Claimant commenced work as a Driver on February 1 2008.He left   the position in 2013 and returned in 2014. He worked a 45-hour week and   received €550 gross per week, inclusive of a €50 allowance.

This allowance stemmed from an agreement made with the employer   and served as an inducement payment when he was headhunted back to work in   2014.The claimant submitted that the allowance was unilaterally withdrawn in   January 2017.He was aggrieved that this action was undertaken by a party   secondary to the Principal party to the agreement in the first instance.

The Claimant   submitted that he had received a text at the end of February which signalled   the cessation of the allowance. He had sought to contact the employer on 11   occasions before he declared there was no further point in pursuing the   matter locally.

He then sought   restoration with the support of the Union, but had not resolved the issue. He   referred his case to the WRC on 11 May 2017.

The Claimant confirmed that the allowance was not linked   to a finite duration. His working time now ranged over 7.45 am – 4.30 pm. He   contended that the employer had not engaged on the claim and sought   restoration and retrospection.

The Employer rejected the claim. The Employer submitted   that the claimant was contracted to work for €500 per week.

For most of the claimant’s   employment, he commenced work at approximately 8 am and finished at   approximately 4 pm. The Employers client is a major Distribution company and   they insisted that the drivers commence work at 7 am as opposed to 8 am.

The Claimant was paid an additional €50 per week in   recognition of this earlier start time. In February 2017, the client reverted   to an 8 am start time. Consequently, the additional €50 per week paid to the   claimant was removed and he remained on his contractual salary.

The Employer submitted that the company was under pressure   to meet Insurance payments for their 13 vans. In addition, several Driver   issues had emerged and were being addressed.

The Employer submitted that the Employer no longer had a   need for the claimant to commence work at 7 am and it could not transfer the   Claimants start time to any other customer account. The Employer contended   that the payment of the allowance came to a natural end and the employer had   acted reasonably in their dealings with the claimant. The Employer sought   that the claim would fail.

I have considered both party’s submissions regarding this claim.   I noted that the claimants contract of employment had not incorporated the “inducement   allowance” at the centre of the claim. The contract remained unsigned by   either party at the date of hearing.

I found that the claimant had a strong sense of an   injustice directed at him by his employer both in relation to the unilateral   withdrawal of the allowance and in the communication of this measure. He did,   however, confirm that his starting   times had altered from 7 am.

It was evident that a defined background of collective   industrial relations issues served as a backdrop to the case and I had cause   to remind the parties that I was dealing with the claimants claim alone.

I found the employer to be focussed on a forthcoming   personal injuries case in addition to securing Insurance cover for his fleet.   The Respondent understood that the communication of the cessation of the   allowance was fair considering the changed start time.

For my part, I was struck by the variances in both party’s   interpretation of the longevity of the allowance. The Claimant understood   that it was an open-ended allowance without a defined duration and linked it   to an inducement and retention measure. the Employer understood it was a   productivity allowance and should end when the circumstances of starting time   altered at the client company.

I found that the management of the allowance would have   been best served by a record of the agreement at the time of the agreement. Time   had passed and this had clearly raised the claimant’s expectation of retention.   However, the reduction in working hours should have prompted both parties to   reflect and engage on the issue.

I was not satisfied   that a text was viewed by the Employer as a sufficient tool of communication   for the loss of a substantial weekly payment to the claimant, which by   January 2017 had taken on a “custom and practice” platform.

I found the claimant was denied a timely   opportunity to put his point of view forward in real time. Positions had   hardened greatly on both sides by the day of hearing. I acknowledge that the   Employer was dealing with pressing commercial issues and it was a difficult   trading period.

However, I cannot support the claim for restoration of the   allowance when the claimants working time had reduced. Both parties accepted   this to be the case. However, I find that the unilateral withdrawal of an   allowance encapsulated in custom and practice to neither be fair or reasonable.

I have found some merit in this dispute and I find in   favour of the claimant. I find that he is entitled to compensation in respect   of the buyout of the allowance.

Recommendation:

Section 13 of the Industrial   Relations Acts, 1969 requires that I make a recommendation in relation to the   dispute.

I recommend that both parties   complete their respective parts of the contract of employment. Any changes in   terms and conditions going should be incorporated in the contract following a   period of consultation and negotiation.

I have found that the claimant   is entitled to receive compensation for the buyout of the allowance . I award   the sum of €1,000 in compensation to be paid consistent with the manner in   which the allowance was paid. I make   this recommendation in full and final settlement of the claim.

Allowance /custom and practice.