ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00016705

Parties:

Dispute

Date of Adjudication Hearing: 20/11/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969 andfollowing 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 has been employed as a Catering Assistant with the Respondent since 3rd October 2000. She currently works two evening shifts and is on the 9th point of the Domestic Band 4 which is the top of the scale of €32,470.00 euro (Paid pro rata). There was a WRC Proposal of 22nd January 2018 following lengthy negotiations, which was agreed by both Parties – SIPTU and the Respondent – on 9th February 2018 and implemented from 2nd April 2018. This provided for one evening shift from 4pm to 8.30pm. The Complainant referred a dispute to the Workplace Relations Commission on 10th September 2018 in relation to loss of earnings resulting from the Agreement.

A hearing was scheduled for 20th November 2018. Following discussions between the Parties and the Respondent with the Adjudication Officer it was agreed to adjourn the Hearing to enable direct discussions take place between the Parties. The Adjudication Officer sent an email to both Parties on 8th January 2019 seeking an update in relation to the discussions. Both Parties confirmed that these direct discussions did not result in a resolution of the dispute. I informed both Parties I would therefore issue my Recommendation.

SUMMARY OF COMPLAINANT’S POSITION.

Following the implementation of the WRC Agreement of February 2018 which provided as follows – ‘New Rosters will be drawn up to reflect one morning roster from 7am to 3.30pm and one evening shift from 4pm to 8.30pm.” The Complainant is alleging that her shifts were not being rostered in accordance with the agreement. Prior to this agreement catering assistants who worked the evening shift worked from 4.30pm to 9pm. Following a complaint the Complainant was informed that it was not necessary for her to commence her shift at 4pm rather she should commence at 4.30pm but finish at 8.30pm rather than 9pm as had been the case prior to the agreement. This resulted in a reduction of one half hour basic pay per evening shift and a loss of one half hour premium pay in accordance with a separate collective agreement. Siptu wrote to the HR Director on 30th April 2018 advising this was a breach of the Collective Agreement of February 2018. The Respondent responded and referred to Point 7 of the Agreement which states – “ Remaining staff will demonstrate flexibility in slotting in to new shifts”. This is disputed by SIPTU. There followed a number of local discussions with the Respondent and SIPTU. There was no agreement reached with the Complainant as the alternative rostering proposals were not acceptable to the Complainant and the Complainant’s proposals were not acceptable to the Respondent. The Complainant is at a loss of one half hour per shift. The Complainant is seeking a Recommendation to award the Complainant any financial losses suffered since April 2018 and that her roster is amended to reflect the WRC Agreement of February 2019.

SUMMARY OF RESPONDENT’S POSITION.

There was a Collective Agreement agreed through the WRC in February 2018 and implemented effective from April 2018. This referred to the Catering Department and the employees working in them. It was agreed that the evening shift in the pantries would finish at 8.30 pm rather than 9pm as heretofore. It was agreed that those who had previously finished at 9pm would now commence at 4pm rather than 4.30pm to account for the loss of the half hour between 8.30pm and 9pm. Any premium payments lost on foot of this change were bought out using the Haddington Road formula of 1.5 the actual loss.

Unfortunately an oversight was made by the Parties as the new shift is applicable to 8 of the 9 pantries on the evening shift – these being the 8 attached to wards. However the Complainant works in a pantry attached to a named ward and does not require an earlier start time of 4pm. However the Respondent has been and remains committed to trying to find an alternative arrangement to enable the Complainant to work the additional hour. The Respondent offered the Complainant three alternatives – work in the belt or dish wash area, this was not acceptable – work one additional 4 hour shift per month, which was not acceptable – reinstating a third shift per week that had been removed at the complainant’s request but this was not acceptable. Neither was the proposal to move one shift on a Monday to a Friday from 3pm to 8.30pm but this was not acceptable. During all the discussions over April/May/June the Complainant has only been agreeable to work her shift a half an hour earlier.

The Company argued that the Haddington Road Agreement buy-out sought by the Complainant is to compensate for loss of earnings where the loss cannot be avoided. The Respondent cannot move the commencement of her shift a half an hour early and the Respondent has put a number of options to the Complainant which would mitigate her loss but none are acceptable. The Respondent also reference point 7 of the Collective Agreement of February 2018 which requires employees to be flexible in slotting into new shifts.

I note that following the adjournment of the Hearing on 20th November 2018 the Parties did engage and the Respondent offered five proposals during this process as follows – swap the Complainant’s Monday shift to the Friday shift from 3pm to 8.30m – Move from her current shift on Tuesday to two earlier shifts 7am to 2pm or 7.30am to 3.30pm – work 30 minutes on her two shift days Monday and Tuesday on the belt area before the commencement of her shift at 4.30pm – work one additional 4 hour shift per month during the week and not at wends – reinstate a third shift per week which had been removed at the Complainant’s request earlier in 2018. As none of these proposals were acceptable to the Complainant the Respondent proposed on an exceptional basis to recognise the loss of earnings between April and November 2018 in accordance with labour relations proposals. The Complainant agreed to the proposal to mitigate the loss of earnings provided that the payment could be discharged/partially discharged in the form of tax free vouchers. This proposal was not acceptable to the Respondent.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence and especially the proposals and discussions that ensued between the Parties following the adjournment of the Hearing on 20th November 2018 I recommend that the Respondent apply the Haddington Road Agreement calculations in relation to loss of earnings i.e 12 months of the loss accrued x 1.5. I cannot recommend that this loss or any portion of it be offset against vouchers so as to increase the take home pay of the payment to the Complainant.

RECOMMENDATION.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In accordance with Section 13 of the Act I recommend the Respondent pay the Complainant for loss of earnings in accordance with the Haddington Road Agreement i.e 12 months of the accrued loss x 1.5. This to be paid to the Complainant within 42 days of the date of this Recommendation.

Dated:   5.2.2019

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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