ADJ-00008809

Worker

Employer

Parties

A Cash Processor

A Security 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-00011569-001

25/05/2017

The Worker has been working for the Employer for some 17 years when he successfully applied for a new position within the company in early October 2015. He claims that the Employer breached the agreement in relation to his pay.

The Worker submits that he was interviewed by then the Head of ATM Operations Mr X. Mr X subsequently confirmed to the Worker that he was successful and offered him the position. Mr X confirmed to the Worker that the rate of pay is €10.70 per hour rising in increments over a three-year period to either €14.30 or €14.70 per hour. The ambiguity in relation to the final hourly rate of pay was due to the discussions with the trade unions that were taking place. The Worker accepted the offer. Within 2 weeks of commencing employment the Worker was offered an alternative permanent position by another company on a higher rate of pay. The Worker had further discussion with Mr X. Based on the assurances given by Mr X the Worker declined the job offer. The following week the Worker received a copy of a contract, which specified his rate of pay as €10.70 per hour and made no reference to an incremental pay scale. Again, when approached, Mr X confirmed that the incremental increases would apply and committed to providing details of same. The Worker signed the contract in good faith. On the 27^th June 2016, the Worker found that the pay rates for his position were posted on a company notice board identifying the cashier rate of pay as being €10.70 per hour without reference to an incremental pay scale. Again, Mr X gave assurances that the Worker would receive incremental pay increases as agreed with HR at the time of his recruitment. On the next day, the Worker received a letter from HR advising that his rate of pay was as per his contract and would remain at that level. The Worker emailed Mr X who advised in response that he had confirmed to HR the detail of the agreement that had been entered into and further confirmed that he had been authorised to enter into said agreement. The Worker further raised the issue with the HR Director and National Director of Operations but got no positive response. The issue was subsequently raised on a formal basis by SIPTU by way of a letter dated 13^th April 2017. In the absence of a response the matter was submitted to the WRC.

The Worker advised the hearing that two staff members were re-employed by the company on their pre-redundancy rates of pay, which are significantly higher to the new entrant rate applicable to the Worker.

The Employer submits that the Worker has a contract of employment which specifies the remuneration for his role. At all times, the Worker has been paid in accordance with the stated terms of his contract. This contract is a standardised document issued to all staff employed in the position of “Cash Processor” since July 2013.

Prior to July 2013 there was an incremental pay scale. However, in July 2013 agreement was reached between the Employer and SIPTU to introduce a new entrant rate for the new recruits to cash processing of €10.70 per hour. The incremental pay scale has not been applied to any staff since this agreement. There is a mechanism whereby increments may, in the future, be applied to the Worker and his colleagues on the new contracts. This can be done only through national negotiations with SIPTU. The Employer submits that whether Mr X made a statement in relation to the rate of pay is irrelevant. The contract of employment which governs the employment relationship, clearly states what the proper remuneration is. Mr X did not sign the contract on behalf of the Employer, it was open to the Worker to query the terms of his contract with HR prior to signing the contract. He did not do so, he signed the contract and the Employer will continue to honour it.

In relation to the two staff members identified by the Worker who were re-employed on their pre-redundancy rates of pay the Employer submits that this arrangement was agreed with SIPTU.

I note that the Employer asserted that Mr X has been tasked with conducting the interviews and shortlisting of candidates but had no authorisation to enter into any agreements in respect of pay with the Worker. However, Mr X in his email to the Worker clearly states that “I did verbally give you this agreement as that is what I was told at the time and that is what I was informed to offer you”. Mr X not once but on at least four occasion affirmed to the Worker that the incremental rates would apply to him. Only some nine months later, on the 29^th of July 2016 Mr X wrote to the Worker saying “I have just spoken to [named HR person] who had discussed this with [HR Director] this morning. I have been informed that you will not be receiving the incremental rate and that the rate of pay is as per your contract which is €10.70 per hour and is not incremental”.

I note that the Worker raised the matter with Mr X, the HR Department and escalated it to the level of the HR Director and the National Director of Operations. When he received no response to his email of 4^th August 2016 he made further attempts to resolve the matter internally by requesting his trade union’s assistance. Regrettably, the Employer did not reply to SIPTU letter of 13^th April 2017.

I note that SIPTU, on behalf of the Worker submitted post-hearing that there was no agreement between the Employer and SIPTU in relation to two re-employed staff members’ rates of pay. SIPTU asserts that they have advised the Employer not to enter into any such pay agreements.

I note also that there is a collective agreement already in place which is currently under negotiations. The Worker, having worked for the Employer for some 17 years must have been aware of it.

Having considered the issues before me I find as follows:-

Section 13(2) of the Industrial Relations Act 1969 provides a statutory restriction on the types of cases which may be referred to an Adjudication Officer:

Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

The Employer employs some 640 workers who are members of SIPTU and whose rates of pay are governed by a collective agreement.

The matter before me relates to a rate of pay and my recommendation may have broader implications for at least 160 employees holding the same position as the Worker.

However, the Employer’s representative has erred and the financial implications for the Worker are substantial.

This Recommendation is confidential to the Parties and cannot be used by them or any other person in relation to any other dispute at this or any other forum.

In all the circumstances of this case I am satisfied that the dispute before me involves a claim which, if conceded, could potentially have broader implications for others. Therefore, I cannot knowingly create such a scenario.

Taking all the above into consideration I recommend the following:

1. That the Worker accepts that he must be bound by the collective agreement.
2. Taking into consideration the financial implications of the human error made by the Employer’s representative I recommend that the Employer pays to the Worker a once-off sum of €2,500 by way of compensation for the error made within 42 days of the date herewith.

Collective agreement, rate of pay