LCR21860

The Union agreed to be bound by the Court’s Recommendation.



RECOMMENDATION:

Background

This case concerns a claim by the Union in relation to a group of workers in the Employer’s store in Tullow, Co. Carlow seeking compensation for the alleged failure to receive paid breaks between 2008 and 2013. In December 2013 the workers submitted individual grievances to the Employer. A collective grievance issued in March 2015. Due to a series of events outlined to the Court, the issue remained unresolved until December 2015 when a meeting took place between the Union and the Employer. A further meeting took place in July 2016, following which, as there was no agreement on the facts, the matter was referred to the WRC and was heard there in October 2016.

The Union provided an explanation to the Court for the subsequent delay, which was disputed by the Employer. The Union sought a further hearing in the WRC. The Employer declined to attend. The matter was then referred to the Court in September 2018 by the Union in accordance with Section 20(1) of the Industrial Relations Act 1969.

Union arguments

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  1. The staff hand-book and the employment contracts of the staff concerned provide for 15 minutes’ paid breaks if staff are rostered for 4.5 hours or more. This was not applied to the staff concerned between 2008 and 2013. Staff who transferred into the store from other stores received these breaks and the staff concerned were told that this was part of the contracts of transferees.

  2. The launch of a new hand-book by the Employer in 2013, which re-stated this entitlement, re-inforced the belief of the workers concerned that they had been deprived of these breaks for many years.

  3. This problem surfaced in other stores and was the subject of two Labour Court recommendations in 2016 , (LCR21154 and LCR21155), both of which followed on from resolutions to similar problems in a number of other stores.

  4. The delay in finalising the matter in this store had arisen due to a series of events outlined but the workers concerned had not received the breaks that they were due and were entitled to compensation.

  5. The Union was seeking full retrospective payment of all amounts due.

Employer arguments

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  1. The Employer was attending the hearing solely out of respect for the Court and this should not be construed as any form of endorsement of this direct referral from the Union. The Employer, having heard nothing since the WRC hearing in October 2016, had understandably considered the matter to have been concluded.

  2. Management in the store could assert that the workers concerned had received their paid rest breaks.

  3. The entitlement to rest breaks was and is set out in the workers’ contracts. At no stage in the 5 year period concerned did any of the workers raise this issue and it was only after workers in other stores received compensation that the Union raised the matter in this store.

  4. The store did not apply proper clocking arrangements. However, when the Employer reminded workers of their contractual obligations, this was met by resistance from the Union.

  5. The claim is disingenuous and vexatious in nature.

Recommendation

There are no records available to prove or disprove this claim definitively. Furthermore, there has been a significant lapse in time since the issue complained of first arose. The Court does not believe it to be reasonable to consider applying full retrospective payment as claimed in all the circumstances. That was not recommended in previous analogous disputes between the parties

There was an agreement reached in January 2014 between the parties to resolve a dispute in one of the Employer’s stores, in circumstances where it was accepted that breaks had not been applied. This was modified subsequently and the revised version was used in a number of other stores and then, subsequent to that, this Court issued the two Recommendations to which the Union referred in their submission. In view of the absence of definitive records and the lapse of time, the Court is unable to recommend that the formulae set out in those Recommendations should be applied in this case.

In all the circumstances, the Court is of the view that a payment of €500 to the workers concerned in the form of tax-efficient vouchers should be made by the Employer.

The Court so recommends.

Signed on behalf of the Labour Court



Tom Geraghty
10th January 2018______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.