FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer Recommendation no. ADJ-00005907.
BACKGROUND:
2. This case concerns the Worker’s working pattern.
The Union on behalf of the Worker said that she has worked the same work pattern for 16 years and that she has a letter from the former HR Manager confirming her work pattern as Monday to Friday, 10:00 a.m. to 3:00 p.m., off Saturdays and working on occasional Sundays.
- The Employer said that the Worker signed a contract in 2007 which provides that her working hours vary between twenty and twenty-five and that the Worker can be scheduled to work up to five days over six.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 16 November 2017 the Adjudication Officer issued the following Recommendation:-
- “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.”
- “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 Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 20 December 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 5 April 2018.
DECISION:
Background to the Dispute
This matter comes before the Court by way of an appeal brought on behalf of Tesco Ireland Limited (‘the Company’) from a recommendation of an Adjudication Officer (ADJ-00005907, dated 16 November 2017) under section 13, Industrial Relations Act 1969 (‘the 1969 Act’). The Court heard the appeal in Cork on 5 April 2018.
The Worker has been employed as a General Assistant at the Company’s store in Douglas, Cork since 2000. Between March 2000 and December 2016, the Worker was rostered to work Monday to Friday. She initially worked a total of twenty hours per week; this later increased to 25 hours per week – 10.00 a.m. to 3.00 p.m. The Worker also worked one Sunday per month. Her working hours (but not her working pattern) were first recorded in a written contract issued to the Worker in 2007.
In January 2016, the Worker was told by local management that she would have to amend her established working pattern and agree to work Saturdays with one day off between Monday and Friday. As the Worker and the Company were unable to reach agreement on a more flexible working pattern that met the Company’s stated requirement for greater flexibility and the Worker’s need for certainty in relation to her working pattern, the Company issued her with sixteen weeks’ notice in July 2016 directing her to change her working pattern to include Saturdays. Thereafter, the Worker unsuccessfully utilised the Company’s grievance procedure in order to challenge the Company’s decision.
Following the conclusion of that process she commenced working two Saturdays in four, under protest, while awaiting to have her complaint (which she referred on 15 November 2016) heard by the Workplace Relations Commission under the 1969 Act. The Adjudication Officer assigned to deal with the complaint issued her Recommendation on 16 November 2017. She recommended that there be a trial period of one year (January 2018 to January 2019) put in place during the course of which the Worker would be rostered to work one Saturday per month with a guarantee of Mondays off. She further recommended that this trial period be reviewed “by way of a conjoined Union/Management Forum within twelve months of commencement.” Since the Recommendation issued, the Worker has worked in accordance with the pattern recommended by the Adjudication Officer notwithstanding the Company’s decision to appeal that Recommendation.
Parties’ Submissions
The Union submits that the Worker has a long-established work pattern which the Company unilaterally purported to change in January 2016, some 16 years after the Worker’s employment commenced. In addition to her established work pattern, the Worker is also relying on an undated letter she received from the then HR Manager in the Douglas store in April or May 2009 confirming that her work pattern was Monday to Friday, 10.00 a.m. to 3.00 p.m., off on Saturdays and working on occasional Sundays.
The Worker submits that when requested by the Company to commence working on Saturdays in early 2016, she made a reasonable proposal whereby she would agree to work two Saturdays per month but in return required the Company to guarantee her a fixed day off on Mondays and to confirm this revised work pattern in writing. The Company refused to do this and thereafter compelled her to change her working pattern. The Union further submits that it wrote to the Company on 1 December 2017 - shortly after the Adjudication Officer issued her Recommendation – and requested the Company to clarify its position in relation to the Recommendation. The Company did not reply to the Union’s request.
The Company submits that the letter which the Worker seeks to rely on was issued without authority and does not override the terms of the contract issued to the Worker in 2007 and signed by her. That contract provides that her working hours vary between twenty and twenty-five and that the Worker can be scheduled for up to five days over six. The Company further submits that this is a fully flexible day contract pursuant to which the Worker could be rostered between 7.00 a.m. and 11.00 p.m. The fully flexible nature of the Company’s post-1996 standard contract of employment is provided for in a 1996 Tesco/Mandate collective agreement and confirmed in the 1999 Tesco Ireland/Mandate agreement, “Building our Future Agreement”.
The Company also submits that it is operating in a very competitive environment and it must constantly adapt to changing customer needs. At present, Saturday is the busiest day of the week in the Douglas store and this is the reason why the Company moved to request her to change her working pattern to include Saturdays. It maintains that it gave the Worker ample notice (twenty weeks) of its decision to change her working pattern in accordance with the flexibility provisions in her contract of employment. Its position is that it is willing to roster her two Saturdays out of four without making any change to her daily working hours and would endeavour, whenever possible, to allow her take her day off on a Monday.
Discussion and Recommendation
Comprehensive written submissions, supported by very detailed appendices, were submitted on behalf of both the Worker and the Company. Having considered these, along with the oral submissions made in the course of the appeal, the Court is of the view that no compelling case has been made to it that the Adjudication Officer’s Recommendation should be varied or set aside.
Accordingly, the Court affirms the Adjudication Officer’s Recommendation.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
12 April, 2018Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.