ADJ-00008727

Complainant

Respondent

Anonymised Parties

Retail Assistant

Retail store

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00011648-001

30/05/2017

The Complainant commenced working for the Respondent in 2003.

In 2015 he became ill and was absent from work for a period of nine months.

The Complainants case is that on his return to work, he was no longer rostered to work in the section he did prior to his absence. Also, his hours were different.

He was very disheartened by the treatment he received from the Respondent. He raised his grievance locally in February 2016. All internal procedures were exhausted.

The Complainant wished to rely on a local agreement which made reference to his working for one late night per week. The local agreement also referred to a pattern of hours from Monday to Friday 8am to 4pm.

The Complainant also wished to rely on the Respondent’s sick policy which guaranteed a return to the same job, terms and conditions as held before sick leave.

The Complainant wasn’t able to give concrete details as to what rosters he had worked and what late shifts he had worked. All he was able to say was that wanted to go back to the pre-sick leave shifts of 8am to 4pm Monday to Friday and one late night.

The Complainant agreed that he had a fear of being rostered to work three or four late nights a week. He was happy to move into the department he was in. He was happy to work one late night a week. He was happy to work Saturdays and Sundays if required.

He had no specific reason why he wasn’t available to work the flexible hours. His preference was to return to the hours which he worked prior to his sick leave.

The Respondent’s case is that the Complainant signed and accepted his contract of employment detailing a thirty-five to thirty-eight hour working week. His contract stipulates he will be required to work in all areas and departments of the store as determined by the business requirements. His contract clearly states that he will cooperate with all business charges, new work practices and procedures and any other changes deemed necessary now and into the future.   His contract allows for changes in his start and finish times.

While the Complainant was on sick leave, restructuring took place within the store. The store underwent a refit which meant square footage reduced and trade reduced also. While the Complainant was absent, a colleague was assigned to the previous role he had.

When the Claimant returned from sick leave, he was placed in a different department with moderate change in his hours.

The store is open from 8am until 10pm.

As regards the two relevant collective agreements in place - one in 1997 and one in 2005 - both specifically stress the importance of employee flexibility and how start and finishing times may vary.

The Respondent confirmed that he would be given six weeks’ notice of any late hours so that he could plan his life. If he had a problem with any particular shift, he could speak to HR.

I have been presented with two significantly different perspectives on both sides as regards the facts of the case.

During the hearing the Complainant set out that initially on his return from sick leave he was working a number of late nights per week. However, this had reduced down to one late night per week and in some instances two late nights per week. He agreed that the instances of more than one late night were irregular.

The local agreement was read into the record. It was handwritten on a meeting record of absence form. The date of the meeting was the 15^th of March 2012. The Complainant and a co-worker were named at the top of the form.   The notes stated that the Respondent manager stated

“I will be rostering you both for one late night per week from week five. I have taken into account your personal circumstances and as/when these change to facilitate late nights, please let me know either way”.

Both workers responded OK. The document was signed by all parties and witnessed.

A further document was read into the record which was a note dated July 2016 from the same manager stating that he required the Complainant and a co-worker to work two late nights a week. Neither were prepared to do this. They stated they would work one late night per week.

Management contends that it must have flexibility in rostering to ensure fairness across all staff members.

There was agreement that there has been a reduction in the number of staff in the shop/organisation.

The Complainant was only able to point out two employees in the shop who had specific working arrangements. One of these were engaged prior to 1996 and the other had a specific contract that was unique to her.

I accept that there were a number of changes in the organisation in recent years. I am now being asked to put the Complainant on hours that he was working in 2012.

I accept that due to the passage of time and changes in trading conditions, certain customs and practice are in need of renegotiation.  

No agreement is immutable and it is common practice to update agreements in line with developments and industry generally.

Ideally it would have been better if the parties had entered into negotiations in relation to varying what one side considers to be custom and practice, however this has not been possible.

I have been notified of the roster and arrangements that are now in operation in the store and in all the circumstances of the case, I recommend that the Complainant should comply with the need for this unified arrangement. However, taking into account his change or perceived change from what he had previous to his period of sick leave, I recommend that the Respondent pay the Complainant make a payment as compensation for the variation of same as a goodwill payment and be accepted by all parties in resolution of the matter.

This payment is not in the nature of remuneration and should not be taxable accordingly.

I recommend that the Respondent pay to the Complainant the sum of €450.00 as compensation.