Complainant

Respondent

Anonymised Parties

A Retail Employee

A Retailer

Representatives

Mandate

IBEC

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-00029778-001

19/07/2019

The complainant has thirty-six years’ service and was employed by the respondent (and its predecessors) as a Chargehand/Team Leader and therefore is part of the Management Payroll Process.

However, the respondent’s refusal to accept this status has resulted in the complainant not receiving a pay increase since 2016, whilst other staff members at the same grade and similar to his situation have received a number of pay increases since 2016.

The current respondent abolished the position of Chargehand and replaced it with ‘Team Leader’.

When this happened the chargehands were offered a flexibility payment for the role. The complainant and some co-workers refused that payment and their terms and conditions, wages, pattern of hours and management status were protected.

His current status has been recognised in various agreements and correspondence.

In January 2016, the complainant and nine colleagues attended a meeting with their manager at that at which they were given a letter stating that all employees who met certain criteria would either move to a new contract or be made redundant by 18th April 2016.

The following day the complainant discovered that he did not fall within the criteria required.

He raised his concerns with management to no avail. The complainant did not at that time raise a formal grievance, believing that management would favourably address his concerns.

The outcome was that the complainant was excluded from the pay rises that other colleagues who had similar terms and conditions.

As a result, he raised a formal grievance on 10th November 2018,

He attended Grievance Meetings on 7th November 201, 21st December 2018 and 14th February 2019, with the final outcome meeting on 8th July 2019,

 The complainant operates at management level and deals directly with Area Managers, buyers etc in Head Office on a daily basis. He has assisted with new store openings and staff re-training.

A colleague with similar service to the complainant had his terms and conditions, status, wages and pattern of hours protected by Agreement and has been awarded all the pay rises from 2016 to date.

The complainant has continued to perform his role in a professional and flexible manner and has undertaken all roles he has been tasked with by Management within the business.

He seeks a recommendation that he be paid all the pay increases since 2015/16 to-date, to bring him in line with co-workers in the same situation.

In response to the company’s submission about jurisdiction it notes that the respondent did not object to a hearing as it is entitled to under this legislation it therefore has no grounds for objecting to jurisdiction.

The respondent says that the complaint is misplaced as this is essentially a collective issue relating to the pay and conditions of a larger group of its employees.

It has been the subject of protracted discussions, including under the auspices of the WRC and the Labour Court.

The complainant has noted in the course of the processing of his internal grievance that ‘he remained part of the collective hoping this matter would be sorted out’.

The complainant’s trade union cannot step out of the collective bargaining process to secure different outcomes for individual members.

The respondent submits that the WRC does not have jurisdiction to hear the complaint as a result of the provisions of the Industrial Relations Act, 1969.

Section 13 of that Act precludes an investigation ‘where the Labour Court has made a recommendation in relation to the dispute’ and also excludes disputes ‘connected with rates of pay’.

The respondent disputes the claim made by the complainant that he is part of the management payroll system, or that the comparator he seeks to invoke is actually a comparable position.

Further he has no contractual or legal entitlement to the pay increases referred to.

In summary, the respondent relies on its submission that this is part of a collective dispute related to rates of pay and is not within jurisdiction.

Turning first to the complainant’s assertion that as the respondent failed to object to the hearing it cannot now question the jurisdiction of the WRC in the case.

This is not correct.

The jurisdiction issue is a matter of law and is as set out in Section 13 of the Industrial Relations Act, 1969.

While the respondent could have objected to a hearing its decision not to do so, presumably out of respect for the processes of the WRC and for the complainant and his union is not something they can be impugned for.

There was much detail in the submissions which I do not intend to review for two reasons.

First of all, I find with the respondent on the jurisdiction issue and therefore it is unnecessary to do so.

Secondly, it would be difficult to recite the detail and avoid a conflict with the requirements of anonymity. The issues in the case have been the subject of some high-profile public comment and in particular within the HR community and therefore it would be likely to identify the respondent.

Section 13 of the Act is very clear in relation to the exclusion of jurisdiction on issues touching on collective bargaining and pay.

The alleged anomaly arising in relation to a co-worker described as a comparator is not well-founded despite having some shared characteristics with the complainant.

I conclude that the issues arising in this complaint fall to be addressed within the collective bargaining arena and having regard to the decision of the Labour Court in the matter.

Complaint CA-00029778-001 is not within jurisdiction and I recommend that the parties address the issues arising within the established collective bargaining machinery.

Industrial Relations Act jurisdiction, collective bargaining.