PW21/2015

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                        CASE NO.

Dunnes Stores             -appellant                                                             PW21/2015

against the recommendation of the Rights Commissioner in the case of:

Elizabeth Doyle           -respondent

under

 PAYMENT OF WAGES ACT 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. O. Madden B.L.

Members:     Mr. L. Tobin

                     Mr. S. O'Donnell

heard this appeal at Dublin on 19th January 2017

Representation:

Appellant:       Mr. Martin Hayden S.C. instructed by:

                       Ms Fleur O'Shea, Byrne Wallace, Solicitors, 88 Harcourt Street, Dublin 2

Respondent:    Mandate Trade Union, O'Lehane House, 9 Cavendish Row, Dublin 1

Background:

This appeal came before the Tribunal by way of an employer (the appellant) appealing against a Rights Commissioner Decision dated 4 February 2015 (references: r-139729/r-139731/r-130261/r-144413 –pw-13/RG).

Following a recess the parties agreed that the relevant periods covered by the complaints were as set out in the Rights Commissioner’s Decision:

• 5^th August 2012 to 4^th February 2013
• 8^th May 2013 to 7^th November 2013
• 1^st October 2013 to 30^th April 2014 

At the outset of the hearing it was outlined to the Tribunal that an earlier but a similar clam had been lodged by the employee. The previous matter came before a Division of the EAT on appeal from a Rights Commissioner. The employee received a favourable decision wherein the EAT found that custom and practice entitled her to 2.5 hours of overtime per week. The company disputed this and referred the matter to the High Court on a point of law.

The employee was based in the company’s Branch S which operated as a textile store. The store closed temporarily. The company planned to re-open Branch S as a grocery store. In the interim period the employees of Branch S were offered a temporary move to Branch C or the option of accepting redundancy. The employee in this case opted to transfer. Subsequently, there was a doubt as to whether or not Branch S would re-open at all but ultimately it did re-open as a textile store.

It was the employee’s case that her contract of employment was for a 37.5 hour week plus one “late night” which equated to 2.5 hours of overtime payment almost every week for over 30 years. The employee was paid for the 2.5 hours when she was on annual leave. She could not refuse to work the hours and she was required to submit a request if she did not want to work the overtime. It was the employee’s case that in over 30 years she seldom made this request.

It was the company’s case that it had no obligation to provide the employee with 2.5 hours of overtime. The employee was not paid for the hours if she was on sick leave. The company disputed that the provision of 2.5 hours of overtime for the employee in this case constituted custom and practice.

The Tribunal heard evidence from a number of witnesses surrounding the meetings which took place regarding the above issues. The employee in this case was the only person affected by the change to Branch S’ operating hours, as she was the only full-time employee returning to the store.

Summary of evidence:

A Human Resources Manager (Ms. C) gave evidence that her employment with the company spans 42 years. When her employment began she was employed as a Grade A sales assistant which was a similar role to that held by the employee in this case. The witness later became a member of the management team in 1986. The witness had reviewed the employee’s file and confirmed to the Tribunal that the employee was employed on the basis of a 37.5 hour week.

During December 2009 the witness had some responsibility for Branch S and as part of that responsibility she attended a meeting with the staff of Branch S regarding the proposed change. At that time Branch S had 14 employees, six of whom were present for the meeting on the 17^th December 2009.

Ms. C prepared minutes of the meeting  and these were opened to the Tribunal.  The Regional Manager for textiles explained to staff at that meeting that Branch S would close for a period of time and that in the interim staff would relocate to Branch C for 6-8 weeks training in the grocery department.

Ms. C recollected that a staff member made an enquiry at the meeting as to whether the contracts of employment would remain the same but she failed to recall which staff member had raised the query.  The staff at Branch S were assured that there would be no changes to their hours.  During cross-examination Ms. C stated that this confirmation related to the move from Branch S to Branch C.

The minutes of the meeting noted that all contracts would be the same although there would be changes to the hours. Ms. C stated that this change was in relation to staff with flexi contracts as the trading hours in Branch C was different to those in Branch S. Redundancies were also available at that time. If the company closes a branch an employee may be offered redundancy or a transfer to another branch if there is a vacancy.

A meeting also took place on the 25^th February 2010. The employees at that time were concerned as no work seemed to have been carried out on Branch S. The witness told them that she would keep them informed as matters progressed.

At a further meeting on the 16^th April 2010 staff were informed that Branch S would not re-open. The Store Manager of Branch C gave evidence to the Tribunal that he informed the staff at this meeting that Branch S would not re-open. Staff were given the option of transferring to Branch C or another store (subject to a vacancy) or redundancy.

At the request of the employee in this case, Ms. C held an individual meeting with her on the 6^th May 2010. By this time it had been decided to re-open Branch S once again. Ms. C explained to the employee that while Branch S was re-opening, the hours of the store were changing and an overtime night was no longer available due to the earlier closing time of the store in the latter part of the week. She explained to the employee that if she remained in Branch C she could retain her overtime night. Branch S would now close at 7pm on Thursdays and Fridays and the employee enquired if she could split her overtime hours between the two nights but it was explained to her by Ms. C that it was not feasible to give overtime in Branch S and the employee was to revert with her decision.

The Store Manager for Branch C gave evidence that he met with the employee in May 2010 and she informed him of her decision to return to Branch S. He was the relevant person to contact as Branch S did not have a store manager allocated to it at that time.

He was satisfied that the employee knew that returning to Branch S meant the loss of her overtime. He offered her a position in Branch C with an overtime night but the employee confirmed her wish to return to Branch S; however she did enquire about a payment to cover the loss of the overtime night. The Store Manager informed her that the company does not make such payments.

A Human Resources Manager (Ms. E) gave evidence that she was present at the meeting on the 11^th May 2010 with the Store Manager of Branch C. The witness reiterated the company’s position to the employee at that meeting to ensure she made an informed decision in choosing between Branch S and Branch C. It was clear in the witness’s mind that the employee was aware that she would not receive overtime in Branch S.

The overtime hours attracted a higher rate of pay but the company did not guarantee overtime. In reply to questions from the Tribunal, the witness stated that overtime is paid to some employees when they are on annual leave. This is dependent on the commencement date of the employment.

The Regional Manager for the textiles division (at the time of the events) gave evidence that she was present at the meeting on the 17^th December 2009. The witness recollected that staff were concerned about the move to Branch C. It was confirmed to staff that their contracts would remain the same but that their hours would change. An offer of redundancy was also made to staff at that time. The witness outlined that overtime is dictated by the trading hours of a store and it is the Store Manager’s discretion to decide when it is required.

The witness stated that when the company decided to re-open the store as a textile unit a number of issues were considered including costs, trading hours and reduced stock options given the footfall to the store. The company needed to trial different things in the store and for that reason flexibility was required. The hours of the store changed in response to trading conditions. The opening hours of Branch S have changed since it re-opened in response to trading conditions. As a result the company is in a position to offer overtime to the employee once again.

The Head of Employee Relations gave evidence that the company does not buy out contract entitlements. She confirmed that some employees have overtime pay included in their holiday pay. The witness outlined that the company mirrored a Registered Employment Agreement when it became the norm but noted that the situation does not apply to persons employed after 1996. As the employee in this case commenced her employment prior to that year she did have the benefit of the agreement.

A full-time employee works a standard of 37.5 hours per week. There were two ways in which overtime could apply and these two methods were outlined to the Tribunal.   During cross-examination the witness confirmed that the employee was rostered each week for the late night unless she requested it off. It was open to management to refuse the time off.

The employee gave evidence of commencing in the position of full-time sales assistant in 1982. From that time she was based in Branch S. Since 1982 she was rostered each week for one late night. On those days the employee worked 7.5 hours and additional 2.5 hours overtime. It was not open to her to refuse this work. As a result she had to make a request if she did not wish to work the late night.

The employee recalled the meeting that took place on the 17^th December 2009. She understood that the meeting related to Branch S; as the move to Branch C was only temporary. At the meeting she enquired if the terms and conditions of employment would be the same on the return to Branch S and it was confirmed by the Regional Manager they would remain unchanged. However, the late night was later refused to her. The employee subsequently raised payment of wages claims in relation to the matter.

The employee outlined her reasons for needing to remain based in Branch S. The employee reiterated that she had understood that she would return to that store on the same terms and she believed she was contractually entitled to the overtime. During cross-examination the employee agreed that she was ultimately offered and accepted a return to Branch S on the basis of it being a 37.5 hour week.

The employee confirmed that she is currently receiving 2.5 hours overtime in Branch S.

Determination:

The Claimant argues that for over 30 years, she worked 37.5 hours plus one late night and that the Respondent has made unlawful deductions for the following periods:

• 5^th August 2012 to 4^th February 2013
• 8^th May 2013 to 7^th November 2013
• 1^st October 2013 to 30^th April 2014

 The Tribunal finds, by majority decision that these were not unlawful deductions under the Payment of Wages Act 1991. An employee is only entitled to be paid for the one late night if worked and because the claimant did not work this one late night for the periods as set out above, she is not entitled to the payments. The Respondent is only obliged to provide overtime or one late night, equating to 2.5 hours, if it was available and as such custom and practice does not apply.

The majority of the Tribunal, Mr O’Donnell dissenting, find that the claim under the Payment of Wages Act, 1991, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)