Complainant

Respondent

Anonymised Parties

Retail Worker

Retailer

Representatives

Ciaran Campbell Mandate Trade Union

Ronnie Lawless

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-00032472-001

26/11/2019

The dispute concerns the role performed by the employee in her store as a customer services assistant; whether that role was one of team leader for which she should be paid accordingly and retrospectively, or alternatively, that she is entitled to some recompense because she was denied the opportunity to apply for a specific team leader a vacancy. Having exhausted the internal grievance procedure without any resolution, the dispute was referred to the WRC for adjudication, in accordance with the agreed procedure.

The employee has worked with the employer in the same location since 2012. She has a 30/35-hour contract with a current rate of pay of €13.39 per hour. Part of her case stems from her training on additional, team leader duties in 2016 and then performing the same duties as other colleagues after that date-until management removed those duties from her at one point in the dispute about her claims. That her rate of pay and the filling of a vacancy became issues in dispute occurred because by chance, she discovered in 2019 that others doing what she maintains were the same duties were being paid a higher hourly rate of pay. She raised a grievance and it appears that at some stage during the internal procedures she discovered that a colleague was appointed as a team leader without any advertisement of a vacancy. And so, what started out as one dispute became intertwined with another. The extent to which the employee actually worked the specified duties of a team leader is disputed with the employee saying she performed the same duties as others who were paid as team leaders. The period covered by the claim for the team leader rate of pay was clarified as February 2017 to July 2019. At a meeting in 2019,she asked for an assurance that her rosters would not be changed. Management agreed but then removed her to a different area in the store.

Regarding the filling of a team leader vacancy without the knowledge of the employee, the Union cited the equal opportunities policy within the employment and submitted that in failing to advertise a promotional position, the employer had acted contrary to their own policy of equal opportunities for all employees.

The employer detailed the stages of the grievance procedure which they had followed and provided the related records. Regarding the duties performed by the employee, the employer’s position is that she has not carried out the duties of a team leader as set out in the job description. There was no formal team leader   training provided to the employee, as she claims. Another employee in the store was appointed on a temporary basis in May 2017,extended in February 2018 and confirmed as her position in May 2018. That person had previously applied for a team leader position in 2013, whereas the employee in this dispute had not done so and the first employee had 18 months longer service than the employee in dispute.

The employee had complained about the impact of the situation on her in 2019 and it was decided to move her to other work, in her own interests.

The employee in this dispute had received additional hours for a specific task in 2017,and those hours were not advertised.

Any concession of this claim has the potential to generate claims across all customer assistants in all stores given the employee in this dispute is working within her own grade and not performing the duties of the team leader grade.

I have decided to   make a recommendation in this case that the employee receive some recompense for what occurred here. The basis of the recommendation needs to be clearly understood, because this grievance turns on its own facts and the recommendation is not based only on the comparison between the team leader role and the duties performed, which is but one feature of this case.

Firstly, the employees account of what she did, and did not do, was very credible. She never claimed to perform all the duties of the team leader role. What came across and probably contributed to her comparisons with members of the same team-those directly involved were within the same area in the store (customer service)- is that while the employee was placed there-neither she or her comparator were performing the full range of , and some of the most significant team leader duties. Her claim may well have led to changes in this aspect, after she was relocated.

Secondly, the failure to advertise the team leader promotion was wrong. The grounds put forward, that the appointee had longer service (and not that much longer) or that the employee in this dispute had not applied for a team leader position which occurred four years previously; when she was only a year in the employment and before she was given additional training are incredibly subjective. If applied as a standard across the employment, this standard for selection for promotion would predictably lead to actual breaches of the equal opportunities policy.

Fourth, staff should have been notified of the appointment of a team leader, temporary or permanent.

Finally, her removal from the customer service area of the employee in this dispute does not reflect well on those involved. She expressed her feelings and spoke about the impact on her, so she was removed from the duties which gave rise to her complaint. This was expressed as a concern about her-but she was never actually told about the changes-until she saw them on her roster. If her was a claim under any aspect of the equal opportunities policy, I suggest that this would not be a mere industrial relations dispute.

The recommendation is intended as much as anything to encourage the employer to learn from this case and to apply their promotional policy more fairly in the future.

To resolve this dispute, I recommend that the employer pay the employee €1500 in full and final settlement of her claims.

Claim for higher pay/filling of a promotional position