Complainant

Respondent

Anonymised Parties

Employee

Retail Company

Representatives

AmandaKaneMandate Trade Union

Conor O'GormanIBEC

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-00021900-001

17/09/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and has submitted  they have a trade dispute that they would like investigated (CA-00021900-001)

The Complainant commenced employment with the Respondent Company on the 20^th October 2015 as Sales Manager for Menswear and Homeware Departments on a level 10 contract and the salary was €31,500.00

On or about January 2016, the Complainant went on maternity leave and returned in October 2016 to become the sales manager for children’s wear and lingerie. In June 2017, upon returning from annual leave the Complainant was informed that she was being transferred to Womenswear, Women’s Accessories, Concessions and Cosmetics.

The Complainant became aware that a new manager commenced work in the children’s and homeware departments on a level 3 contract and his salary was €38,000.00.

The Complainant sought an explanation from the Store Manager  for the disparity in salary considering the responsibilities she had in comparison with the new employee. Furthermore, although her salary had remained the same since the commencement of her employment her responsibilities had almost tripled.

The Complainant continued to seek an explanation and was informed that her concerns would be raised with the Area Manager and the Regional Director.

Ultimately , in or about April 2018 the Store Manager informed the Complainant that she would be upgraded to a level 2 salary with a salary increase to €35,000,00 with immediate effect. The Complainant asked for this increase in salary to be backdated to July 2017 and this was agreed to. However, the Complainant sought that her salary be increased to €38,000.00.

The Complainant appealed the decision to increase her salary to €35,000.00 instead of the €38,000.00 on the 30^th May 2018 and following a meeting on the 5^th July 2018, wherein the Complainant was represented, the decision was upheld.

It was submitted on the Complainants behalf that it is evident that based on her previous work experience and her responsibility, work load and experience with the Respondent Company that she should be on a salary of €38,000.00 that the other Sales Manager had been placed on. It would appear to be grossly unfair that the pay differential between the two managers could not have been based on experience or workload.   

The Complainant referred this matter to the Workplace Relations Commission on the 17^th September 2018.

The Respondent Company accepts the timeline in relation to the Complainant’s employment.

The Respondent Company explained that there retail stores are graded as green, amber and red. Red being the busiest in relation to sales turnover, foot fall, environment and the complexity of the store. The employee was a sales manager for a green store.

Within the retail stores managerial system, all managers have a grade linked to their role (level 1, 2 or 3). This job grade is linked to a number of factors including the sales turnover of the business managed, the complexity of the role, the complexity of the store, behaviours and experience and people development amongst other issues.

In relation to the Complainant, the division she managed equated to 40% of the overall store sales. This particular retail store was classed as a green store and so it was decided that level 2 was the appropriate grade for the Complainant. Each of the levels have a 3 point salary band which is made up of entry, experienced and maximum. These bands  are market based and are reviewed each year in line with competitors to ensure parity. Further, when people are promoted or appointed to a new level, they are placed on the entry point.

In the Complainants circumstances, she was placed between the entry and experienced point on the level 2 band. It was recognised that although level 2 grade was the appropriate division, her experience warranted more than the entry point.

The Respondent Company did not accept that the Comparator referred to by the Complainant in her evidence was a suitable comparator. This individual was appointed as a level 3 (entry rate) and  based on his previous experience he was recruited as part of a development program. Ultimately, this particular individual resigned and did not complete this program. These development programs are generally run on and reviewed annually and the Complainant was offered the opportunity to become involved in same if interested.

The Respondent Company explained that a calibration process takes place before the annual performance reviews to ensure there’s fairness and consistency in the assessment of performance against objectives. The calibration process is conducted by the Regional Director, Area Manager and HR Business partner to ensure all areas are being reviewed and people are being measured fairly on performance.  Then Store managers meet to review how individuals have performed against their peer group at a comparable level, to check that full range of ratings have been used and they reflect team and business performance.

The Retail Company completed a management restructure in early 2018 which did result in fewer managers remaining in the business. Further, the direct impact of this would mean that managers are overseeing more divisions that they would have historically would have covered however it was submitted that the workload had not increased just because more divisions are being covered.

In the circumstances of this case, the Respondent Company believed the offer that had been made was fair and reasonable in light of the above . The Respondent Company further submitted that the increase in salary that the Complainant was seeking would have a detrimental impact on the Retail Company if applied  unilaterally. 

In the circumstances of this case, I have carefully listened to the evidence tendered in the course of this hearing by both parties.  

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations ( and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969 )as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

As already stated and as per the Labour Court’s position confirmed in Bord Gais Eireann -v- A Worker AD1377, my role in the context of a dispute relating to disciplinary action is confined to considering the reasonableness of procedures adopted in the particular circumstances, as opposed to placing myself in the role of the employer and making findings of fact in relation to the matters alleged.  I am further guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

In consideration of this matter and having examined the disciplinary process in question, I am satisfied that the Respondent Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

I accept the bona fides of the Complainant and note that she is a highly regarded member of the Respondent Company’s workforce, however I have considered the submission of both parties and  accept the decision made on appeal is fair and reasonable in the circumstances and I do not find that the claim is well founded and it accordingly fails. Accordingly, I will not be making any recommendations as sought by the Complainant.

In the circumstances of this matter and in accordance with Section 13 of the Industrial Relations Act, 1969, I do not make any recommendations in favour of the Complainant.