Complainant

Respondent

Parties

Complainant

Respondent

Anonymised Parties

A Customer Assistant

A Retail Supermarket

Representatives

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-00022285-001

01/10/2018

The worker is employed by the employer as a Customer Assistant. The contract of employment provided at the adjudication hearing states that the worker commenced in employment on 16^th December 1996. The dispute concerns the worker’s entitlement to work the designated “Christmas Sundays” as overtime.

The worker contends that he has worked Christmas Sundays every year for 21 years and was always paid at a rate of treble time in line with the terms of his employment status, which he claims is that of a Pre-1996 employee. The Worker contends that in December 2017 he was denied access to the Christmas Sundays which resulted in him attending work and not receiving payment for the Sunday in question. The worker is seeking that he be provided with access to “Christmas Sundays” overtime in line with the previous custom and practice of his employment.

Preliminary point

The employer contends that this matter is “res judicata” on the basis that the issues at the core of the dispute have already been heard and adjudicated on by a Rights Commissioner and an appeal to the Labour Court in 2013. (Labour Court Appeal Decision AD1390 refers). The employer stated that a rule of law exists that prevents the same action being brought by the Trade Union based on the same set of facts. The employer contends that the Workplace Relations Commission (WRC) does not have jurisdiction to hear the complaint.

Substantive dispute

The employer stated that the worker does not have an automatic entitlement to overtime on Sunday’s over the Christmas period. The employer stated that the worker’s contract of employment provides that he works 5 days over 6 which excludes Sundays. The employer stated that the agreed position in relation to Christmas Sunday’s is that they be assigned firstly to those who have an established pattern of working on Sunday’s throughout the year. Additional hours if available are distributed on a fair and equitable basis to all staff thereafter. The employer stated that in 2017, there was no available overtime hours to be offered to staff.

The employer stated that the worker does not have a contractual obligation to work on Sundays and worked on only one Sunday in 2015 (December 20^th), two Sundays in 2016 (14^th August and 18^th December) an attended for work on 16th December 2017, claiming an entitlement to do so, despite not being rostered and there being no overtime available. The employer stated that the worker was instructed not to attend work on 16^th December 2017 and that if he did he would not be paid.

Respondent’s Preliminary point

Having considered the respondent’s preliminary point, I do not accept that there is a jurisdictional issue in relation to hearing this dispute. Nor do I accept the proposition that the principal of “res judicata” applies to an individual Trade Dispute on the basis that the same issue arose in relation to a different worker in the same employment previously. The specific terms and conditions of each worker’s employment differ greatly, and each dispute may be adjudicated upon based on the specific circumstances of each referral. Accordingly, I find that this dispute is properly before the Adjudication Services of the WRC.

Substantive Dispute

The status of the worker and whether he is a pre-1996 or post-1996 employee is not before the adjudication services in this referral.

The issue for recommendation relates to Christmas Sunday’s and in particular the worker’s assertion that he is entitled to overtime on the designated Christmas Sunday’s on the basis that it was provided to him for approximately 21 years.

From a review of the documentation submitted, I note that the worker does not have a contractual obligation to work on a Sunday. Overtime on the Christmas Sunday’s is provided in the first instance to staff who have an established pattern of working on a Sunday and to all interested staff on a fair and equitable basis thereafter. The worker does not have an established pattern of working on a Sunday. The worker worked three Sundays between 2015 and 2017. Two of these three Sundays appear to be “Christmas Sundays”. The other Sunday is the only normal Sunday that the worker worked in that three-year period. Based on that pattern of attendance and on the fact that the worker does not have a contractual obligation to work on a Sunday, as well as the fact that the availability of overtime is not guaranteed, I do not find that the worker could rightfully claim an entitlement to overtime on the days in question.

Having considered the submissions of both parties, I do not find that there is merit in the worker’s claim. Accordingly, I do not recommend in the worker’s favour.

Overtime