Complainant

Respondent

Anonymised Parties

A General Assistant

A Large Store

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-00008193-001

15/11/2016

The Claimant works for a Large Store and has sought a   retention of her Monday To Friday Work Pattern.

The Union outlined the claimant’s case .The Claimant had   been employed in the role of a General Assistant working initially a 20 hour week   from 27 March , 2000 which subsequently increased to 25 hours per week   10 am to 3 pm .The Claimant worked one Sunday a month as overtime and has worked on Public Holidays .

In 2007, the claimant received her first written generic   contract of employment as part of a National Union /Management agreement. The   Claimant worked a Monday to Friday pattern which incorporated her 25 hr week.

In January 2008, the claimant was asked to consider   reducing her hours on a temporary basis in line with the 2006 Agreement. The   claimant reduced to a 4 day week for a short period. She then returned to her   25 hr week.

In January 2016, the claimant was requested to attend a   meeting in to discuss flexibility .The Store stated that she was now required   to work on Saturday with a day off between Monday and Friday .The Claimant rejected   this proposal as she understood that Monday to Friday pattern was contractual   for her.

Further meetings followed between the parties, where the   claimant offered to work a 1:4 rota in an effort to resolve the matter .She   sought confirmation of the revised pattern in writing but this was refused.

In July 2016, the claimant was issued with 16 weeks notice   of the requirement to change her working pattern to include Saturdays.

The Claimant initiated the Grievance Procedure which   upheld the terms of the notification to change letter issued to the claimant   .On Appeal, The recommendation centred on a 2:4 Saturday working to be   reviewed within 6 months.

The Store imposed this pattern on Saturday 17 December   2016 and the complainant has worked 2:4 Saturdays under protest from that date.

The Union contended that the Claimant understood that her   signing of a generic contract in 2007 referred to an administrative and   compliance exercise. She did not appreciate that her working pattern   established over a 5 day pattern was at risk .The claimant was not required to   change her working pattern between 2007 -2016.

The Union contended that the claimant was covered by the   terms of the 2006 Union/ Management Agreement which stated.

1 There was provision for certain staff ,who by local   agreement may have had specific local arrangements to be assimilated onto an   appropriate band where they would retain their working pattern and number of   hours unless otherwise agreed .

2 The Company and Union were to progress the topic of   pattern of hours from February 2007 onwards.

The Union argued that the Company had neglected to   underpin the proposal for change by a “need” element rather than a “want” element.   The Union referred to the case of Christopher   Gilbert V Tesco Ireland AD 1562, where an appeal of a Rights Commissioner   resulted in a compromise agreement whereby a new set pattern of work was   agreed with Mr Gilbert.

The Claimant sought to remain on her 25 hour week with a   Monday to Friday commitment.

During the course of the hearing, the parties took the   opportunity to explore the potential for a mutually acceptable resolution to   the Dispute. They agreed a 4 week adjournment to facilitate local   negotiations with a plan to reconvene to address residual difficulties, if any.

Reconvened Hearing, August 8, 2017.

The Union confirmed that the parties had engaged on   seeking to reach a mutually agreeable resolution to the Dispute but the Draft   agreement proposed by the Employer lacked the assurances needed in language formation.

The Union reported that the claimant had since found a letter governing her period of employment around 2008/2009   where the claimant was detailed as;

“ …..currently working in the checkout department .Her   pattern of hours are Monday to Friday 10 am -3pm .She is off Saturdays and   works occasionally on Sundays .I hereby declare that upon moving to X store ,   the claimants pattern and hours will remain the same .”

The Union sought to rely on the letter to preserve the claimant’s   working week before the imposition of two Saturdays in 4.

The Employer Representative set out an outline of the case.   The Claimant had been employed as General sales Assistant from 27 March, 2000   on a 25 hour week .The Company owns and operates a large number of stores and   employs 14,000 staff.

The Claimant signed   her most recent contract on 14 June 2007 which provided that :

1 Your Hours will normally be scheduled over a maximum of   5 over 6( Mon to Sat)

2 Your Weekly contracted hours of work are 25.

The Employer contended that the claimant possessed a fully   flexible contract which translated as any employee in the business who holds   a day contract post 12 December, 1996 can be rostered between the hours of 7   am and 11 pm ….5 days over 6 , Monday to Saturday .

The Employer submitted that they had concluded three sequential   Agreements with the Union

1996: staff employed after 12 December 1996 were employed   on a fully flexible basis.

1999 staff will be   scheduled to suit he needs of the business taking into account their   Individual needs

2006 as the current situation, hours may fluctuate and   start and finish times may vary within these bands.

The Employer submitted that the Store where the claimant   was employed had suffered a reduction in turnover between 2014 and 2015 due   to recessionary factors .This was managed via Non Replacement of leavers and   offers of Voluntary Redundancy. Once restructuring was completed, the store   identified that there was a reduced number of employees available to cover   the store opening hours .The Managers identified the need to address the   employees who had not been rostered for Saturday, Sunday and Public Holiday   and informed them that they would now be required to be available to be “fully   flexible in accordance with their contracts “.

During a meeting on 20 January 2016, The Employer   explained that the company was striving for all staff to become fully   flexible and sought the claimant’s participation in a fully flexible work   pattern. The Claimant confirmed that she was employed to cover tea breaks and   lunch breaks Monday to Friday .the Meeting was adjourned to facilitate the   recovery of documentary evidence of this.

The meeting reconvened on 3 June 2016, without the claimant’s   recovery of documents .The Employer requested the claimant to work Saturday’s   .The Claimant refused .Further meetings followed which did not resolve the issue.

The parties reconvened on 8 July 2016 and the Company   issued 16 weeks notice of the claimants requirement to work on Saturdays .The   Claimant sought to excuse herself from Sunday working if Saturdays were to   become a requirement for her .The   Company highlighted the business needs for flexibility .

The Claimant submitted a grievance on 21 July 2016. The   conclusion of the grievance found that due to the business needs there was a   requirement for all those contractually liable to work 5 over 7 or 5 over 6   to be fully flexible .All staff were required to become more flexible to ensure fairness and equality across   Departments and grades .The Grievance was not upheld . The Appeal which   followed found that the claimant’s hours of work as well as days of work had   changed since she had started working with the Employer. The Appeal concluded   that the claimant work two Saturdays in four.

The Union sought that the company refrain from changing   the roster in anticipation of the WRC hearing. On 30 November, 2016, the   company outlined that the claimant had received 20 weeks notice regarding the   planned changes and the roster would reflect 2 Saturdays in 4.

The Employer requires the claimant to work her rostered   hours as determined by business needs in line with her terms and conditions   of employment and the collective agreements .The Employer had engaged with   the claimant and her Union during the grievance procedure, which was heard   without bias. The appeal was carried out fairly and without prejudice .The   parties spent a considerable amount of time on the issue.

The Employer contended that the request was reasonable to   work the contractual hours due to the requirements of the business. The Store   housed 106 Staff, 103 of whom committed to Saturday working.

The Employer submitted that the face of the retail sector   had changed considerably during the claimant’s employment. It was important   that the company maintain competiveness.

While the company accepted that the claimant had an established   work pattern for a number of years, this did not prevent the company from   changing her work hours in line with the flexible hour’s clause .The Claimant   had agreed to work Sundays, not provided for in her contract, yet she was   unwilling to work Saturdays.

The Respondent sought that the case be dismissed.

During the course   of the hearing, the parties took the opportunity to explore the potential for   mutually acceptable resolution to the Dispute. They agreed a 4 week   adjournment to facilitate local negotiations with a plan to reconvene to   address residual difficulties, if any.

Reconvened Hearing,   August 8, 2017.

The Employer detailed an extensive list of efforts made   during the period of adjournment to reach an agreed outcome. They had not   been apprised of the “letter of comfort from 2008/2009”.

The Employer confirmed that the Draft proposed had regard   for Family Life, Business changes, Developing competition and decrease in the   business. Saturday was the busiest day of the week and Monday was the   quietest day .There had been a large increase in Drapery business where the   claimant worked.

The Employer confirmed that the Company had not insisted previously on the 5 day work pattern Monday to Saturday ,   but had done its very best to encourage the claimant to meet the business   needs that Saturday working generated .

I have listened carefully to both parties presentations in   this case. I note that the claimant has been working under protest since   December 17 last year and she has clearly been affected by that imposition   .On the other hand, I note that the Respondent is trading in a difficult and   challenging environment which needs maximum flexibility in staffing.

My role in this dispute is to investigate whether there is   merit in the claim? I note that the employment relationship is one of long   standing and both parties report a mutually respectful relationship at work   prior to the negotiations aimed at securing a change in work pattern.

I have found it necessary to examine the numerous   documents relied on by the parties .On 14 June 2007, the claimant signed a   contract of employment which incorporated the term :

“Your hours will normally be scheduled over a maximum of 5   over 6 (Mon to Sat)”.

It is accepted by the parties that this term lay dormant   until the exigencies of the service directed the Company to activate it in   July 2016. I concur with my colleague Rights Commissioner /Adjudicator in   Gilbert that it does raise the question why the claimant was not required to   diversify sooner? I accept that the restructuring of the business prompted   the proposed change in this case.

I have reviewed the Union /Management Final proposals   dated 2006 and my attention was drawn to a clause on page 12 :

It is recognised   that there may be certain staff that by local arrangement may have specific   local arrangements. In these cases ,the number of weekly hours the staff   member works will be assimilated onto   the appropriate band and they will retain their working pattern and number of   hours unless otherwise agreed

This document went on to make a commitment that further   discussions were to follow on work patterns, but no further documentation was   submitted by either party in this regard.

It is against this backdrop that I must consider the late   presentation of the letter of comfort presented by the Union at the   reconvened hearing on 8 June .The letter is undated but is attributed to the   2008/2009 timescale. This was not disputed by the Employer, but they did not   have a reciprocal copy on file.

It is of considerable importance that I reflect that on   the commencement of negotiations in January 2016, where the Company asked the   claimant for documentary evidence of her perceived work pattern of Monday to   Friday. This was not forthcoming at   the time .Further negotiations and the subsequent grievance procedure   followed in the wake of the lack of the document and we are where we are now.

The Company has emphasised that it needs maximum   flexibility from staff to maintain its place in the competitive field of retail.   I understand this imperative .However, this is a case of an Individual who   claimed retention of Monday to Friday working and has been placed on a roster   where this has been disturbed. I have reflected on the Employers arguments on   their entitlement to vary work patterns and shifts in the name of business   imperative and contractual obligations.

I wish to acknowledge the work done by the   Company to bring compromise to this dispute during the period of adjournment   where a Draft Agreement was produced .The Union rejected this proposal on   grounds of lack of certainty and assurances and argued that the discovery of   the letter of comfort in August trumped these discussions. I have reflected   on this.

I found that the Company has endeavoured to compromise on   this issue via the grievance procedure and the discussions before the WRC.

However, the claimant has stated that she remains troubled   by the instability in her working life and the certainties she sought in the   final Draft proposal were insufficient as a means to move forward.

I have found that the obligatory re-alignment of the   Saturday working in December last year was hard on the claimant and she has   lost a certain amount of trust in her long time employer. While both parties   co-operated fully in the internal disputes resolution framework, the matter   remains unresolved.

I believe that it is regrettable that the 2008/2009 letter   of comfort was not discovered earlier and its absence from the employee file   is also regrettable. However, I cannot overlook this letter as it appears to dove   tail with the clause on the 2006 Agreement in offering an umbrella of   protection to both parties, where the Status Quo is meant to prevail pending   agreement on change.

The Labour Court has often remarked that no agreement is   immutable and this premise may have certain relevance in this Dispute. I note   that the claimant has varied her commitment over the years to incorporate   Sunday working on an overtime basis .This was a voluntary gesture.

During the course of negotiations between the parties ,   I found that the claimant had indicated she was prepared to incorporate 1 Saturday   per month into her work pattern in return for a cast iron guarantee of Monday   off in lieu . Given that the Employer has confirmed that Saturday is the   busiest trading day and Monday the quietest, I believe this to be a fair and   reasonable proposal which should be trialled by the parties in the form of an   addendum to the letter of comfort referred to above.

I have found merit in the Dispute.

Recommendation:

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

The claimant has varied her   work pattern to include 2 Saturdays per month for a 10 month period to the   date of this decision .She remains dissatisfied by this change and seeks a   revision to Monday to Friday working. She has argued that the Letter of   comfort serves as currency for this retention.

The Company still holds a   defined requirement for Saturday working.

Based on the unique and   exceptional circumstances surrounding this case, I recommend that the terms   of the letter of comfort be amended to include a trial period from January   2018-January 2019, where the claimant is rostered for one Saturday per month   with a guaranteed Monday off. This should be reviewed and evaluated by way of   a conjoined Union/Management Forum within twelve months of commencement.

I make this recommendation in   the spirit of seeking to return the parties to a certain equilibrium to restore harmonious   working relations and is in full and final settlement of the claim.

Revision of Work Pattern