ADJUDICATION OFFICER RECOMMENDATION

 Adjudication Reference: ADJ-00010324   

ComplainantRespondentAnonymised PartiesGeneral OperativeMeat Processors   Representatives SIPTU,  IBEC,

Complaint:

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00013640-001 04/09/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00013640-002 04/09/2017   Date of Adjudication Hearing: 14/11/2017 Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969,following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.  

Background:

The Worker is employed as a General Operative since 2001. He is paid €13. 00 per hour and works 40 hours per week. He has claimed that he was not properly compensated for the Public Holiday.

1)Organisation of Working Time Act CA 13640-001

This complaint was withdrawn.                                  

2)Industrial Relations Act. CA 13640-002

Summary of Worker’s Case:

Around 10th March 2017 the Worker was asked by a Team Leader if he would work on the 17th March Public Holiday. The following week around 13th /14th March the Team Leader gave him three options for compensation for working the Public Holiday 1)he would get an extra 8 hours at double time 2)paid an extra 8 hours and get an extra 8 hour’s holidays 3) get extra 16 hours of holidays. The Worker choose option 3. He worked the 17th March and signed a document reflecting his choice of option. On 20th March the Payroll Office called him and told him that option 3 was not available and had not been so, for at last two years. He was told that he had two options 1)paid overtime hours and his Bank Holiday saved as holidays to be taken later 2)paid overtime hours and paid Bank Holiday. He was paid according to option 2. He was unhappy with this and raised a grievance. He was told by HR that the original offer was a mistake, a human error. They referred the Worker to the pay agreement from 2014 which did not stipulate any other options apart from 1 and 2. It is his position that he was offered and accepted the arrangement given by his employer. The Employer has accepted that such an offer was made and accepted. There is nothing that could stop the Employer offering a more beneficial compensation to the Worker for the Public Holiday. Complying with such an agreement would not create any precedent or put the company into financial difficulties. He is seeking that the Employer should honour the mutually agreed arrangement for working 17th March 2017.

Summary of Employer’s Case:

Prior to working the Public Holiday March 17th, the Worker enquired from his Team Leader as to the options he had regarding extra pay. He was given a form with three options A) 8 hours bank holiday pay + 8 hours at double time B) 8 hours bank holiday pay + additional 8 hours basic pay + crediting holiday balance by 8 hours (i.e. 16 hours pay and 8 hours into holidays). C) 8 hours bank holiday pay and credit holiday balance by 16 hours (i.e. 8 hours pay and 16 hours into holidays). He completed the form indicating his preference for option C. On 20th March, he received a call from the Payroll Section that option C was no longer available. He had been mistakenly offered options that existed prior to an agreement between the Respondent and the union in April 2014. Nonetheless he sought what he had been offered and accepted. The Employer apologised to the Worker for the error. They understood that he accepted the apology and understood the error. The Worker continued to voice his grievance about this matter and it was then referred to the WRC for adjudication. The Employer is a unionised company and is party to collective agreements with the union. Following challenges in the business the Employer entered into an agreement with the union assisted by the WRC and an outcome was balloted upon and accepted. These terms and conditions applied from 7th April 2014. This agreement provided for “All Public Holidays worked will be paid at a rate of 1.5 plus a day off in lieu for those who work public holidays”. Subsequent to that agreement there was an informal agreement with the union which provided the alternative of being paid the public holiday at overtime at 1.5 and to be paid for the public holiday rather than have one day applied to their holidays. This has been the position in the company since April 2014.The Worker is a member of the union and so is bound by the April 2014 agreement. He has worked four public holidays since the 2014 agreement and was paid according to that agreement. He knew clearly the agreed terms. He has been paid in accordance with the 2014 agreement since its inception. It would be wholly unfair to other staff and in direct conflict with the agreement in place. What he was offered was an error which they have apologised for. This complaint is rejected.

Findings and Conclusions:

I note that the facts of this case are not in dispute. I note that there was a change to the terms and conditions agreed in 2014. I note that the Worker has been paid according to the 2014 agreement since then. I note that it is accepted that the Employer in error offered the old arrangement that was in existence pre-2014. I note that having accepted this and worked it he was made aware of the error. I note that the Employer apologised for the error. I note that the Worker is a long-standing member of the union. I find that he was aware that what he was offered to work the March 17th was not than what had been agreed in 2014. I find that this offer of the pre-2014 terms to be a human error. I find that it is reasonable that the Employer should be able to correct its error. If they had made an error which resulted in a lesser term than the 2014 agreement, then it would be expected to correct that. I do not find that this was an employer deliberately offering a more beneficial term than what was in existence to meet a specific need or an act of generosity. The industrial relations machinery in this country and in particular in this company is governed by a voluntary mechanism of workplace regulation. I find that collective agreements play a significant part in that workplace regulation. I find that collective agreements must be supported by both sides. I find that this matter was caused by human error, not the offer of a more beneficial term.  

Recommendation:

I recommend that both parties adhere to and uphold the 2014 agreement. In full and final settlement of this dispute I recommend that the Worker be allowed to take the time in holidays at the 2014 Agreement terms. This is to be implemented within six weeks of the date below.   Dated:   08.01.2018 Workplace Relations Commission Adjudication Officer: Eugene Hanly Key Words: Compensation for Public Holiday