ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00012797

Parties:

Complaint(s):

Date of Adjudication Hearing: 24/08/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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 Complainant submitted that he is required to work changed hours, and more hours than his contract with no regard to his previous work pattern and family life balance. The Respondent, a large retail outlet refuted the complaint on the basis it has already been subject to a Labour Court recommendation and that the Complainant is refusing to accept the change that has taken place.

Summary of Complainant’s Case:

The Complainant is employed with the Respondent since 1 November 2004.

Following a reorganisation of the business in 2010 the Complainant’s terms and conditions were changed under a flexibility clause in his standard contract of employment which had been agreed in a collective agreement in 2006.

He advised his role was subject to a restructure in March 2013 where he worked five over six days Monday to Saturday from 7am to 3pm, and he took responsibility as a team Leader.   The Complainant also maintained he had a letter for, his former section manager advising him of this change.

In May 2014 the Complainant was asked to sign a revised terms and conditions of employment which reflected the changes to his work. He maintained the changes had adversely affected his terms and conditions of employment in that it did not provide him with five working days over seven, and that it changed his working hours from 7am to 3pm. He also maintained it impacted on his hourly rate of pay as he was not being paid as a team leader. The Complainant subsequently brought a complaint to the Labour Court and in March 2016 a Labour Court decision (LCR21194) awarded him compensation for the changes.

The Complainant submitted that following the Labour Court decision he believed his hours were changed unilaterally, and where he felt he was being unfairly treated. He had been asked to sign a new contract in 2017. He raised a grievance to the Respondent during 2017 where his concerns regarding the flexibility that he was being required to provide were unfair. His grievance was not upheld, and he appealed the outcome. The appeal did not overturn the original decision. The Complainant was verbally advised of the appeal outcome in July 2017 but did not receive written notification of the appeal until January 2018.

The Complainant maintains that the Respondent cannot unilaterally change his terms and conditions and in so doing had disregarded a written addendum to his contract that had been in place since March 2013. The Complainant is seeking that his terms and conditions which were provided to him in writing in March 2013 be restored.

Summary of Respondent’s Case:

The Respondent submitted that following operational changes in 2010 the Respondent was required to exercise the flexibility afforded in its collective agreement with the Complainant’s trade union. The Respondent therefore changed the rostering of the Complainant, along with his fellow employees, and the Complainant operated the new rosters under protest.

The Respondent acknowledged that the Complainant subsequently brought a complaint to the Labour Court which determined the Complainant was entitled to compensation for the loss of earnings due to the changes. The Respondent therefore argued that this matter had been determined by the Labour Court in 2016, and that it was entitled to expect the flexibility from the Complainant in order to sustain the operational viability of its business.

The Respondent submitted that the Complainant cannot have two bites of the cherry, and as he has been compensated already following the Labour Court decision he should now provide the flexibility required, and without protest.

The Respondent acknowledged it considered a complaint from the Complainant in an internal grievance in 2017, and a subsequent appeal in July 2017. The outcome of the appeal was that the Complainant was obliged under the collective agreement to provide the flexibility and that the Respondent would take into account the family circumstances of the Complainant whilst rostering the Complainant for work on shift hours between 7am and 11pm, and where the Complainant may also be required to work on Sundays. Notwithstanding the Respondent acknowledged that the opening hours for the store the Complainant worked in had been reduced, and where the store does not currently open on Sunday. However, the Respondent maintained it required this flexibility in the future.

The Respondent also maintained that it did not recognise the addendum to the contract presented by the Complainant. The Respondent submitted that the addendum dated in March 2013 was not an official document, that it had not been approved by HR, and it did not feature on the Complainant’s personnel file. It further suggested if it had been signed by a local manager, as alleged, that manager did not have authority to issue the addendum and therefore it was not valid.

The Respondent contended that it was not in position to make individual changes to a collectively agreed contract as to do so would create an unreasonable and unmanageable precedent.

Findings and Recommendtions:

Section 13 (3)(a)(i) of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

I note that the Complainant has acknowledged since his grievance in 2017 he has been rostered fairly, but he has concerns that he may be subject to unilateral and unfair changes in the future.

Having heard the evidence presented by the parties I am satisfied that the issue regarding changes to the Complainant’s working hours were subject to change under the flexible arrangement collectively agreed as part of the Complainant’s contract and terms and conditions of employment. The Complainant was unhappy about the changes and brought his concerns to the Labour Court in 2016, and where the Labour Court decision identified that the Complainant’s arguments at the Labour Court hearing included his unhappiness about the proposed changes and where if he was to take another contract he would have to be compensated for the loss of his existing one.

Having reviewed the Labour Court decision, I am satisfied the issues central to the complaint within, i.e. that the Complainant had contractual arrangements from March 2013 that cannot be changed, were addressed in the compensation awarded by the Labour Court. Whilst acknowledging that the Labour Court may not have reviewed the specific amendment dated March 2013, the Court has determined that the changes that took place and that were being practiced in March 2016 warranted compensation and awarded same to the Complainant. The Labour Court did not reinstate the older contract.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Based on the case presented, and the decision of the Labour Court, I recommend that the Complainant provide the flexibility required in his contract and as agreed under the collective agreement. I also recommend that should any further changes be required in the future that the Respondent engages in a meaningful process of consultation with the Complainant which shall include for a reasonable transition period of any change in working patterns before implementing same, and where the Complainant’s family circumstances are to be considered when consulting around the changes.

Dated:   29 April 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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