Complainant

Respondent

Anonymised Parties

A Porter

A Catering Company

Act

Dispute Reference No.

Date of Receipt

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

CA-00022448-001

05/10/2018

This case arose following a later realisation of an altered working hours and rest pattern following a TUPE scenario in 2013. The respondent disputed the claim. Both sides were represented and made helpful submissions.

The Claimant had worked as a Porter at a Care Facility since November 2007. The Company Representative outlined that the claimant had transferred to the present company as a Catering Staff Member in December 2013. Prior to this takeover, consultations were held with all staff on the of the transfer. The new Company had identified a revised working arrangement to facilitate client need.

The Employer raised an issue under Section 13 (2) of the Industrial Relations Act , 1969, around the claimant’s case being outside the ambit of the Adjudication service as it referred to a larger cohort than just one worker.

The Claimants base line arrangements prior to transfer consisted of a 4/5-day week per fortnight totalling an 81-hour attendance, 72 hours were paid. Post transfer, the claimant moved to a 10-day fortnight of 85 hours attendance with 78 hours paid.

Meal arrangements were also changed from:

Pre-Transfer:

Tea break   €1.30 deducted

Lunch           € 6.50 paid by staff

Breaks         30 mins in am, 15 mins pm and 45 lunches, paid 30 mins.

Post Transfer:

Break   15 mins unpaid

Lunch   40 mins unpaid

Paid 15 minutes for breaks

These changes were agreed with the staff and were recognised as an improvement. In January 2018, the claimant realised that his previous 30-minute paid break had been replaced by a 15 minutes break. He sought to augment the 15-minute break to a 30-minute break. This was rejected by the Employer and the claimant was advised that any concession would have to amount to a revision of everything.

The Employer contended that changes were agreed to the claimants working arrangement at the time of transfer. The Employer was not obliged to pay for meal breaks, changes were implemented to favour client care and were themselves mutually agreed.

The Claimants revised work patterns translated as an 8.5 hr working day rather than 9 hours. He no longer paid €11.70 +€58.50 for meals and beverages during breaks over the course of a fortnight. Hi fortnightly pay had increased to 78 hours per fortnight. This package benefitted the claimant by €80.07 per week.

The Employer was satisfied that the claimant could resume the 30-minute paid break, but this would require him to revert to the post transfer arrangement also as they contended that it was not acceptable that he could cherry pick the best option from each package and would open the potential for other employees to seek the same.

The Employer stressed that the claimant had accepted the changes for over a 4-year period without a stated issue. The Employer was opposed to restoring the paid tea break without a commensurate concession by the claimant . They were also concerned about the potential for knock on claims .

I have considered both presentations in this complex case. I have also reviewed the documentation submitted.

I have, as a first step considered the submissions made by the Employer in the case . I am conscious that the Employer did not make an earlier argument on this aspect of the case when first invited by the WRC to respond to the claim. On 17 October 2018, the Employer registered that there was no objection to an investigation of the dispute.

I have given some thought on whether the claim is prohibited by the terms of Section 13(2) of the Act? I have decided to progress with the claim as while it is an unusual claim in terms of latter day notification, I find that it is a standalone claim fixed to one worker. The claimant told me that he had accidentally tumbled to the deficit and had sought to resolve it as an individual. I note that the “body of workers “Employer response was raised for the first time at hearing.

I note that the parties presented at hearing without any collateral from the pre-transfer entity. I note from the claimant’s contract dated January 2008 that, the previous employer agreed to notify the claimant of any changes to any of his terms and conditions of employment.

I probed whether a Collective Agreement had sprung into being at the time of the transfer? Neither party was confident that such existed and neither party was able to submit any documentation from the time of the transition outside copies of the pay slips, which I requested.

I realise that a transition of employment can be a stressful period, however, I would have expected enhanced vigilance from the claimant and his Union to ensure that his terms were protected on transfer in real time. I would also have expected some collateral from the Employers involved.

From the pay slip dated 2 December 2013, I noted that Tea Break beverage deduction was recorded as €6.50 with an annualised figure of €247.00. I noted that the pay slip of 18 December 2013 was complicated as it was a composite pay slip inclusive of week 52. I can see how a worker may have pressed on regardless in the new system, trusting that the agreed changes were following suit. However, it is clear to me that there were very visible changes in both pay slips which should have prompted a more contemporaneous inquiry by the claimant.

On balance, I have a defined difficulty accepting that a four-year lag prior to realisation and activation of a grievance was reasonable. The time has long since passed for any opportunity to resolve this under statute.

Both parties accept that the Transferor, Transferee and the claimant were in tri partite conversations during the transition. I have found a certain carelessness in the lack of retention of records governing this period by either party. In short, I cannot establish any record of forfeiture of the entire paid 30 minute tea break.

The crux of this claim is that the claimant understands that he has lost the lion’s share of his paid tea break and none of the altered conditions of work which followed the transition have ameliorated this. He is steadfast that he did not agree to surrender his 30-minute tea break.

The Employer takes a more straightforward view that they will permit a 360degree revision for the claimant, inclusive of a return to a variable hour’s contract, as a trade-off going forward. I cannot see how this addresses the central aspect of the claim in terms of December 2013 to present day. Instead, I see it as an obstacle to resolution. It is clear to all that the claimant’s terms and conditions in terms of fixed hours and length of day became more favourable and certain post transition.

I am grateful to the parties for seeking to resolve this issue during the hearing. It is for me now to make findings and if necessary to make a recommendation.

I have found no trace of a record of the forfeiture of the 30-minute tea break, which was an express term of his employment . I have identified an inordinate delay on the claimant’s side in raising this issue. I have also identified that the proposed resolution of the dispute by the Employer is not realistic. It is important to move forward in cases like this and to embrace the new working arrangement, in train now for over 5 years.

On that basis, I believe that an element of compensation should be explored as a means of focussing both party’s minds on the future while at the same time acknowledging that an omission to record a forfeiture of paid break time must be addressed.

I find that there is some merit in this aspect of the claim, however it is distilled through an inordinate delay following a lack of individual scrutiny by the claimant at the time of transition of his employment. I have not found merit in the overtime aspect of the claim.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found that this case stands on its own merits and cannot be used as a precedent. I accept that the claimant does not recall that he forfeited the entirety of his paid meal break through TUPE. I also accept the Employer argument that the delay in both discovery and advancement is phenomenal and potentially disruptive if the working arrangements must be reversed in an attempt at resolution.

I recommend that the parties draw a line on the cessation of the paid 30-minute tea break and address the claimant’s disappointment through an element of compensation for the post holder alone.

I recommend that the Employer issues 2 x €500 shopping vouchers to the claimant on the following dates, if the parties accept this recommendation.

1 The first to issue on May 1, 2019

2 The second to issue on December 1, 2019

I also recommend that the Claimant be advised in writing of his entitlement to rest breaks.

These are to be in full and final settlement of the claim and cannot be used as precedent.