Complainant

Respondent

Anonymised Parties

A Worker

Retailer

Representatives

Ciaran Campbell Mandate Trade Union

Ronnie Lawless IBEC West

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-00018522-001

16/04/2018

1. Adjudication Officer

1.1 The following submission relates to Ms K.C. – hereinafter referred to as the

claimant – and issues particular to her original contract of employment and regularised and

consistent Sunday hours she had been working over considerable periods in respect of the

same, which it is alleged has been knowingly reneged on by her employer – hereinafter referred to as the respondent.

1.2 The complaint is lodged on instruction as per Section 13 of the Industrial Relations Act,

1969.

1.3 In respect of this complaint and the obvious inordinate delay in exercising the same, it is

important that due regard is given to the complaint’s context regards the claimant’s personal

health circumstances and her obvious lack of employment law knowledge and experiences.

This will be referenced in more detail during the following submission.

2. Complaint Background

2.1 The claimant started employment as a General Sales Assistant with the respondent’s

B outlet on the 23rd September 2002. She was employed on a permanent basis working

38 hours/week and was consistently rostered to work 3 Sundays in 4 as per her and the

respondent’s contractual liabilities. Her current rate of pay is €15.49/hour (Appendix 1) and

receives time and a half for hours worked on a Sunday/Public Holiday re the Company/Union

Agreement of November 1996 (Appendix 2 re summary of the same).

2.2 Following protracted Company/Union negotiations in the mid-2000s both sides reached a

banded hours agreement et al in 2006, a copy of which is contained at Appendix 3. Inherent

within this agreement process was that existing staff would through local discussions with

their in-store Personnel Management assimilate on to the particular band of hours that

reflected their working hours at the time of and prior to the agreement. In the case of the

claimant it was agreed her assimilated band of hours on her contract - dated and signed the

27th April 2007 (Appendix 4) – would be ‘greater than 35 & less than full time hours in your

store’, that she would work 5 days over 6 Monday to Saturday. Within this contract there was

a contractual liability on both sides for her to work 3 in 4 Sundays for which she would

continue to receive time and half for all hours worked on the same and further, public

holidays. The claimant at that time and prior, worked in the respondent’s Bakery Department.

2.3 In 2008 when she was pregnant, she was moved for Health and Safety reasons from the

Bakery Department to the respondent’s front end of the business, ie cashiers. She was

informed that she would now only be working 35hrs per week, would have 2 days off and

any hours worked on Sunday while paid at time and a half would contribute to her weekly

working hours, ie if she worked 7 hours on a Sunday this would translate to approximately

38hrs pay for that week which included the 7hrs Sunday work at time and a half. The

claimant was not made aware that this was a temporary and/or permanent arrangement

particular to and after her period of confinement and maternity related leave, nor was the

claimant aware that she had maternity related employment protections in this regard.

Furthermore the respondent has not provided the claimant with a contract outlining these new

arrangements. The claimant unaware of her rights and due entitlements as well as undergoing

considerable personal health challenges – please see Appendix 5 regards evidence of same

– worked these arrangements during and after this and subsequent pregnancies, etc.

2.4 It is asserted that the respondent was aware of the claimant’s health and personal

challenges and thus should have been more sensitive to these when dealing with any and all

of her rostering changes. Whilst the respondent met and considered all of the claimant’s

requests regards returning to work from maternity leave, sick absence, paternity and carers

leave, etc it is not inconceivable that with all of the respondent’s vast resources at its disposal

that in the absence of her signing off and formalising another contract, her original contract as

at Appendix 4 remained live and pertinent, especially given that changes to the same were

maternity related and further were in the context of personal health challenges, etc.

2.5 On foot of Mandate membership wide correspondence released in August/September

2017 (Appendix 6), the claimant began to consider and question her employment situation,

especially around her contracted and rostered hours. The claimant made initial

representations to her Store Manager who it would appear that, as a consequence of the fact

the claimant had worked the new working arrangements for a considerable period of time,

they were now officially her new contractual arrangements. As a consequence of this

Mandate, by way of correspondence dated the 28th September 2017, wrote to the Store

Manager seeking confirmation of the company’s position in this regard (Appendix 7). There

was no return correspondence from the respondent which had become and is currently normal

industrial relations practice by the respondent.

2.6 The claimant thus exercised the company’s grievance procedures – see Appendix 8 re

initial grievance form dated the 6th October 2017. A meeting to hear the claimant’s

grievance took place on the 10th October 2017 at which the claimant outlined the grounds for

her grievance (Appendix 9). An outcome meeting was held on the 29th October 2017 at

which correspondence dated the 24th October 2017 (Appendix 10) was read out and

presented to the claimant outlining the respondent’s findings of the grievance.

2.7 These outcomes and related findings were then appealed by way of Mandate

correspondence dated the 26th October 2017 (Appendix 11) in which the grounds for the

appeal were outlined. An appeal hearing took place on the 15th February 2018, the records of

which are held at Appendix 12. The outcome and findings of the appeal hearing vis-à-vis

correspondence dated the 23rd March 2018 are held at Appendix 13. The same clearly

demonstrates that none of the grounds of the claimants appeal, nor the substantive grievance

issues were upheld. As such the claimant then lodged a claim on the 16th April 2018 for an

Adjudication Officer hearing.

2.8 It is important to note that the Appeal Officer in his findings as per the bottom of Page 2

of Appendix 13, states ‘your contract of employment is 5 over 6 days and any Sunday

working is on a voluntary basis. Should you be rostered on a Sunday this is by mutual

agreement and you will still receive your required 2 days off’. The claimant is currently

working a maximum of 35hrs per week, has not been rostered any Sunday working hours

since this date despite the fact many of her fellow colleagues have, and further she was put in

a position that if she wanted Sunday working to be ‘a part of her terms and conditions of

employment that you discuss this with your manager who will endeavour to facilitate this

request’. It further states ‘if this can be facilitated this will result in a new contract of

employment being issued to you’, both latter quotes are at bottom of Page 2 of Appendix 13.

2.9 The latter finding clearly disadvantages the claimant in that in order for her to have the

financial benefits of Sunday working, she will be required to change her contract where it

follows that in her current contract, ie that held at Appendix 4, there is a clear provision for

her to be able to work on Sundays – 3 in every 4.

2.10 Furthermore the respondent’s assertion that the claimant’s original contract had changed

as a consequence of a ‘custom and practice’ of working hours and rosters is obviously

irreconcilable when the respondent wilfully dismisses Mandate’s claim, that the regularised

Sunday working whilst she worked in the Bakery Department and was changed to the

respondent’s front end business consequential of her pregnancy is a custom and practice in

itself.

2.11 The claimant’s original contract is that which is currently on file and all other working

hour changes were made by way of consensual agreement to offset personal situations and

responsibilities. There was no consensual agreement to variate the terms and conditions of

her original contract. It was incumbent of the respondent to ensure that the claimant would

revert to this contract and the hours she had been working in respect of the same. The

respondent has wilfully abrogated its responsibilities and duty of care towards the claimant in

ensuring that it honours their contract with her. Instead they have shifted the responsibility to

the claimant by representing the fact that it was her duty to ensure she hold the respondent to

account regards the contract relationship, even in the full knowledge of the claimant’s

considerable personal circumstances and the challenges thereof.

2.12 Similarly the claimant since the findings of her grievance has not been rostered to work

on Sundays despite her availability to do so and the fact her colleagues have, which has

clearly financially disadvantaged her in terms of real earnings potential. Her earnings

potential is further compromised in that her original contract provides that she be rostered to

work ‘greater than 35 hours per week’. This has not been the case and she has only received

35hrs/week rostering minimum which reflects the top end of the lower band of 30-35hrs per

week but reneges on her contracted entitlement to have rostered hours greater than

35hrs/week.

2.13 The financial impact of no Sunday working since the findings of the claimants grievance

at appeal stage at 23rd March 2018 to date equates to losing 3 Sundays of work in 4. Given

that it is accepted you can only receive 6 month retrospection for any financial loss, the

claimant has effectively been denied any Sunday hours for the last 26 Sundays (1st June to

present). Assuming that she had maintained her practice of working 3 in 4 Sundays, she has

missed out on approximately 18/19 Sundays. In monetary terms this represents a loss of 7hrs

at time and half for each Sunday not worked in line with the foregoing. This equates to

€161.59/Sunday which in a 6 month period as outlined is a potential loss of €2908.71.

2.14 Whilst the respondent has argued that her grievance is well ‘past its sell-by date’ regards

the time the claimant has taken to lodge same, there is nevertheless an important backdrop to

this matter in that the claimant has experienced considerable personal health and family

related challenges which have proven quite daunting for her. It is for this reason the claimant

asserts that she wasn’t in the right frame of mind to consider let alone chase and challenge

her employment situation.

3. Conclusion

3.1 Adjudication Officer we respectfully request that you uphold the claimant’s complaint

and recommend -

a. that the respondent immediately reverts to her original contract ensuring that she is

rostered to work ‘greater than 35hrs/week’,

b. is afforded 3 in 4 Sundays work at correct rate of time and a half as per contract which

should be reflected as same if given and accepted as time off in lieu, ie hours that are

‘banked’. Also Christmas Sunday working is at double time as per contract.

c. is compensated for the loss of the latter over the last 6 months as has been calculated,

ie €2908.71 as per the foregoing calculation.

Background

This case concerns a claim by (claimant) against Tesco Ireland (Respondent) that her Terms & Conditions of Employment were changed as a direct result of her being pregnant. This issue relates to 2008 and was raised as a grievance to the Company by the claimant in 2017. The respondent refutes these claims.

In her claim she states:

“In 2008 I was pregnant and due to Health and Safety reasons I had to leave my long standing position in the in-store bakery counter to go to check-outs. While in the Bakery Dept. I worked 38 hours plus T1/2 for hours worked on Sundays and Public Holidays. When moved to check-outs I was officially informed that I would only receive a 35hr contract, 2 days off and when working Sundays T1/2 for any hours worked which would contribute to my total weekly working hours. To date I have not had the contract I worked prior to this workplace change/move and whilst exercising my grievance on this matter have continued to work all current rosters particular to the 35hr contract on an “under protest” basis. I have sought internal redress of this current situation exercising all stages of the grievance process available to me but unfortunately these have proven unsuccessful. I am thus representing the same to the Workplace Relations Commission for a due Adjudication Officer Hearing as per the appropriate section of the Industrial Relations Act.”

The claimant is employed as a Customer Assistant since 23rd September 2002 and earns €15.19 per hour on a permanent 35 hours+ contract.

The Case

The Respondent received a grievance from the claimant on the 16th October 2017 – see Appendix 1. Issues raised in this grievance were stated to date back to 2008, 9 years previously.

The claimant was invited to attend a grievance hearing on the 10th September 2017 by Ms. A.McG, Line Manager – see Appendix 2. During the course of this meeting it became clear that the claimant was moved out of the role as a customer assistant working in the deli department to checkouts as per her request for Health and Safety reasons. The claimant’s contract was not altered as a result and she maintained the certainty of being rostered for at least 35 hours as per the terms and conditions of employment. Also, on her return to work the claimant remained on checkout as per her request as she had been in a serious car accident and was unable to stand for long periods of time. At no stage did the Company alter her contract of employment – see Appendix 3.

Following this hearing Ms McG reviewed all the information in relation to this grievance that she could. Although 9 years had passed, meeting records were held on file which afforded Ms McG the opportunity to reach her findings and conclusion in relation to the grievance.

On review of the respondents file it was evident that when she worked in the deli department she held a contract band of a minimum of 35 hours to a maximum of 38 hours which is the contract she still retains to date. The only time she was rostered for less than 35 hours was on the claimant’s request. It also became evident that the claimant worked some overtime that was available due to the needs of the business for a period of time when she worked in the deli department. It has to be noted that this overtime is voluntary and the claimant agreed to work this on a voluntary basis when it became available. When the claimant moved to the checkouts and worked there as per her request, the overtime was no longer available and this was described to her when she accepted the move to checkouts. The claimant contends that she was misinformed at this point however this is not the case given the fact that her contract of employment was not altered. The claimant has at all times received the appropriate payment for Sunday working as per the 1996 Collective agreement – see Appendix 4.

The claimant was invited to and attended and outcome meeting on the 24th of October 2017 – see Appendix 5. The investigation officer found that:

“A verbal contract was entered into in 2008 when you moved to checkouts and also in 2013 when you met with Ms. J in relation to your working hours. I find that you have been working 5 over 7 since 2008 and you have not raised any issue with this to Management until the 16th of October 2017 which is 9 years after you entered into a contract with your Line Manager at the time” – see Appendix 6.

Ms McG found that although she had worked Sunday as overtime previously, it was important to note that overtime is not guaranteed and that if and when overtime hours are no longer available she is not entitled to be rostered additional hours outside of her contract band.

The outcome was appealed on the claimant’s behalf by her Union, MANDATE, represented by Mr. Ciaran Campbell – see Appendix 7.

The claimant was invited to and attended an appeal hearing on the 12th February 2017 – see Appendix 8. This meeting was chaired by Mr. JMcC, Store Manager. An appeal outcome meeting was held on the 24th of March 2017. In his findings, Mr. McC noted that:

1.    “Based on my investigation, I note that you have had a number of personal issues in the past where the company has supported you with any request you made during this period which I note are as follows:

·         Allowing you to return to checkouts in 2009 when you had a car accident as per your request

·         Continuing to roster you on the checkouts and not returning you to the deli department on advice of your GP

·         In 2012, you applied for Carers leave to care for your father, which the company facilitated

·         In 2013, you requested a decrease in hours from your 35 hour band to a 25-30 hour band for the duration of your maternity at that time and this was agreed with the personnel manager Ms. J at the time

·         You were granted parental leave in recent times.

During this period of time the only time your contract hours changed was based on your own request. Furthermore, you have not in the past raised a grievance in relation to your working hours or your contract of employment.

To this end I find that throughout the investigation your stated pressures were taken into account. However your terms and conditions of employment have not changed other than the period of time you requested to reduce your hours which was facilitated by the store.”

2.            “Based on my investigations, I find that you moved to checkouts from the deli department was for health and safety reasons during your pregnancy. This is not in dispute. I find which is also not in dispute, that when you returned from maternity leave you requested to remain on checkouts due to a car accident which was also noted by your GP when you retuned to work in 2009, that ideally you should avoid standing for long periods. Hence, working on the checkouts suited your medical needs at the time, which is the reason you did not return to the deli department after you returned to work from maternity leave.

I find you remaining on checkouts has nothing to do with your return from maternity leave. It was based on your own request and your medical issues at the time. Furthermore, I can confirm that there is no record of you requesting to return to the deli at any point after your medical issues improved and you continued to work at the checkouts without any issue.

The above grievance ground is wholly unfounded.”

3.    “Your appeal ground relates back to a period of time in 2009 and whilst if you had an issue you should have raised this at the time there is sufficient information in your file in order for me to understand what has occurred since this time. Based on my investigation, your contract of employment is fully flexible hours 5 over 6 days (Monday to Saturday). In 2008, you were placed on the correct band of hours and you started to work Sundays as part of your normal working week; you were paid premium for working Sundays and got your required time off during your working week.

It is important to note that whilst you may have worked on occasion on a Sunday as overtime prior to this, this is not guaranteed and when these overtime hours are no longer available, you are not entitled to be rostered additional hours outside of your contract band. You have not worked overtime on a Sunday since 2008 therefore it would appear that you did not have any issue with your terms and conditions of employment and the relevant agreements supporting same until 9 years later. There is no evidence to show that your contracted hours were reduced or that there were any changes to your contract since you signed same on 27th April 2007 other than by request from you.

In addition to this you agreed with your Line manager in July 2013 that you would be rostered for 5 days per week and if you worked on a Sunday you would receive 2 days off. This is in line with your contract of employment and the Company has not altered this in any way.

As your contract of employment is 5 over 6 you are not obliged to work Sundays, although it is the case that you have done in the past on a voluntary basis where there was a requirement to roster you on a Sunday.

The above appeal ground is unfounded.”

4.    “Based on my investigation, I find that you did not raise this issue with any other member of management until 6th October 2017 and it is stated in your file that you had various interactions with management around your working hours such as reducing hours or seeking leave. This gave you ample opportunity to raise any grievance you may have had with management around your contract and terms and conditions. Notwithstanding this, I note what you have said in relation to your reasons why you did not raise this as an issue at the time and have considered this.

My findings as that whether or not you raised the issue at the time or now in relation to your contract of employment, there has been no changes to your terms of conditions in employment other than by your own request. There has been no shift of responsibility as the company has issued you with your terms of conditions of employment and has explained same to you. I note however that you now don’t accept this.

Mr. K has left the business and could not be interviewed and there is no information on file in relation to your allegation you were misinformed and therefore this allegation is unsubstantiated.

The above appeal ground is unfounded.”

-          See Appendix 9.

Company Position

1.    The claimant raised an issue with the Company 9 years after an alleged event which the Company contends is without any foundation. It is also totally disingenuous to now make a claim 9 years later to the WRC that the Company is in breach of her contract of employment when this is evidently not the case up to an including evidence of her own requests to remain working on checkouts, to decrease her hours and her understanding of her rostered days of work.

2.    The claimant entered into a contract of employment with the Company with the full knowledge of her terms and conditions of employment which she signed and accepted. This included the fact that her rostered basic hours were a minimum of 35 and a maximum of 38.

3.    The only time the claimant’s contract of employment was altered was based on her own request and on each occasion it was altered it was always temporary in nature as agreed with the management in the store.

4.    In general colleagues in the Company are entitled to receive time and a half for working Sundays. The claimant has always received this premium payment.

5.    Overtime in its very nature is time worked over the full time hours for the store (38 hours in the case of this store). It is not guaranteed nor is it an entitlement.

6.    Overtime arises when there is an operational requirement in line with business needs. When available, overtime is granted at the discretion of management on a fair and equitable basis. There is no right either by law or agreement to overtime; likewise, management does not impose its overtime requirement on an individual. The Company union agreement reached in 2006 (Appendix 10) states:

“From time to time additional hours may become available for staff over and above the hours outlined in their contract. Although a staff member is not obliged to work hours in excess of their band, they may want to avail of these hours if they arise. When these hours are no longer available they will return to working hours within their band of hours”.

7.    Whilst the claimant may have enjoyed overtime hours whilst working on the deli department when it became available, she has no entitlement to work these hours unless the business dictates the need and she agrees to work them. There was no business need for her to work overtime which is the case to date.

8.    The Company is not in breach of the claimants contract of employment as alleged by her. When the respondent requested to move to the checkouts the duration of such was meant to temporary. However on her request on return from maternity leave she continued to work on the checkouts which became her primary department.

9.    The Company acknowledges the claimant has some difficulties in her personal life over a number of years and it is clearly evident that the Company has supported her throughout her employment. However this cannot be used as a reason as to why she did not raise issue with her hours of work until 9 years later especially given that at no stage did the Company breach her terms and conditions of employment. We are at a loss to understand why in 2017 the claimant suddenly felt that her contract was breached 9 years previously.

10. In 2013 the claimant requested to reduce her hours (temporarily) - given this is the case the claimant cannot now claim that she did not receive overtime hours that she felt she was guaranteed when she herself was not available to work same.

11. Based on her contract of employment the Company can roster the claimant between 35 and 38 hours and any hours outside of this is additional, is not guaranteed and must be agreed with the colleague.

12. Her allegation that her contract was breached while she was pregnant is wholly unfounded and without any supportive evidence.

Conclusion

The respondent was more than a little surprised to receive this grievance given the time line that it involves. It is absolutely incredulous that these matters were not raised in the intervening 9 years. The claimant’s assertion (through her union representative) that she was under so much pressure that she was unable to process a grievance does not stand up. Whilst this is the case, the Company investigated the matter in line with Company policy and a full and fair investigation and appeal applied. The claimant’s terms and conditions were never altered by the Company and she continues to enjoy the contract of employment she was issued in 2007 to date. We say that in all the circumstances this claim has no merit and ask you to recommend accordingly.

I have reviewed all of the evidence presented at the hearing and considered the submissions of the parties.I have also considered the justification advanced by the union for the delay in making the complaint.I have concluded that it is unreasonable to expect an employer to address a grievance that has remained dormant for 9 years. Accordingly , I am not upholding the complaint and I recommend against the claimant.