ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00025650

Parties:

Dispute:

Date of Adjudication Hearing: 14/12/2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969,following 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

In February 2019, following negotiations an agreement was reached, between the respondent and the Trade Unions representing its employees, on a voluntary Redundancy Programme across a number of stores due to various reasons.

The proposals set out certain areas that were out of scope for the redundancy package.

The Selection criteria was as follows:

At least 15 years’ service by 31 March 2019, or, at least 13 years’ service in a number of stores that were named.

One colleague nearing retirement per store.

Of the remaining FTE’s reduction, it (Selection criteria), required 50% of the volunteers in each store to be selected on the first in first out basis (FIFO).

Of the remaining FTE’s reduction, it (Selection criteria), required, 50% of volunteers in each store to be selected based on business requirements and using the following criteria, weighted in the order starting at point 1 to point 3 below.

1. Contracted hours highest weekly contractors.
2. Highest weekly rate of pay,
3. Pattern of hours within the area of work.

It stated that colleagues in the scope who satisfy the selection criteria and who wish to be considered for Voluntary Redundancy need to:

1. submit applications in writing to the Store HR manager by the deadline of
2. 12 noon on Friday, 22 March 2019.
3. They would then be written to, confirming receipt of their application.
4. No application will be accepted after this deadline.Those ultimately selected for voluntary redundancy will be informed of this decision by the end of the day, Wednesday, 27 March. If you have not heard from the respondent by the end of the day, Wednesday 27 March, you have not been selected.   B.           she held a 30-hour contract.     As a general rule the use of the term “contacted hours” in agreements, policies or employment contracts referred to the normal and established hours worked. It was reason enough for the claimant to assume that her contracted hours of work would meet the criteria as set out in the agreement in the absence of any other expressed term. Moreover, it was credible for her to assume that her permanent contracted hours would be the basis on which the application was considered for VSS.The union submitted details of a comparator who was granted access and availed of VSS. It was stated that the comparator worked in the same area as the claimant, had the requisite service requirement, had the same number of contract hours but was not the highest earner.It was submitted that the respondent has acted unfairly and unreasonably in denying the claimant’s VSS application in circumstances where she would have been granted a VSS, except for the fact she agreed to temporarily reduce her hours for a period of 3 months which happened to coincide with the timeframe of the collective agreement.The Union respectfully request to declare the claimant’s case to be well founded and direct the respondent to offer the claimant the option of the Voluntary Severance Scheme (VSS) calculate based on the terms as set out in the collective agreement. Summary of the respondent's positionThe respondent submitted that discussion between them and Mandate and SIPTU trade unions agreed a proposal for Voluntary Redundancy for 93 FTE’s (103 people) across 7 large stores in February 2019.A total of 309 people applied to be considered for the VRD package. As agreed,   The respondent submitted that in the Store in Cork, where the claimant is employed a total 51 people applied for this voluntary redundancy programme 29 of whom were accepted.The respondent stated that the claimant did revert to her 30-hour contract on 1st June as she indicated was her intention and her contract change back to 30 hours from the 27th of May 2019, however, this was a full 3 months after the voluntary redundancy programme closed.Respondent received a total of 29 letters from colleagues who applied for the VRD but were not in the scope.          
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6. In conclusion the respondent would respectfully request that the adjudicator consider the foregoing arguments in the respondent's position with respect to the above complaint and dismiss the claim in its entirety.
7. In addition, we have numerous colleagues requesting a temporary change to the contracted hours for a variety of reasons and at any given time, we do not know the absolute full response as there may be other colleagues who did not even apply to be considered for this VRD as the new selection will be based on the current contracted hours.
8. The respondent stated that if they are instructed to reopen this program almost 2 years after has been closed and to treat the claimant any different to the other 143 disappointed colleagues, it would raise the possibility of a further 143 third-party claims at a potential cost of 6.2 million at a minimum.
9. The respondent stated that the 9 colleagues were given the opportunity to reverse their decision to reduce their working hours, 7 stated they wished to reduce their hours while 2 decided to revert to their previous hours, the claimant was one of the 7 people that agreed to reduce her hours.
10. The respondent submitted that 9 colleagues had agreed to reduce their contract hours temporarily just before these negotiations commenced.
11. It was stated that it is these hours that ensure all our colleagues are paid correctly every week and that they have never used any other wording in their collective agreements around redundancy.
12. The respondent submitted in every Redundancy Programme they have negotiated and agreed over the years with both Mandate and SIPTU, it is given that the respondent use the contract hours that are on the payroll for all colleagues.
13. The respondent refutes the Union’s assertion that words “Contracted hours “specifically meant the hours in place at the time of the redundancy offer, and that this was stated in unambiguous terms.
14. Of this 7, 5 colleagues accepted the response from the respondent and the union representative and that they were not in the scope for the VRD and 2 colleagues have proceeded to 3rd party hearing.
15. Of this 29, a total 7 colleagues proceeded to a full hearing with respondent and a representative of the Trade Union.
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19. This is the process that the respondent has been applied to all redundancy agreements for over 15 years with the Trade Unions.
20. The claimant is one of 144 people who applied for but were out of scope for this redundancy programme which concluded in March 2019.
21. As a result, a total of 165 of the 309 applicants were accepted for this voluntary redundancy programme.
22. the 93 FTEs (103 people) top qualifying individuals were accepted for VRD, and, as the respondent were so over prescribed with applications, they (respondent) agreed to accept applications from the next 62 people who had met the criteria from the “reserve list”.
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31. It was submitted that if there was a slightest degree of possibility that a valuable employment right, such as that contained in the collective agreement, could be placed at risk resulting from a temporary reduction in hours, then the agreement should have stipulated clearly what was being waived.
32. In fact, the claimant made a timely application for VSS in the 2nd round of the programme in May 2019 and fully met the criteria set out in the agreement.
33. The Union submitted that the respondent erred in fact when stating in the appeal outcome that the claimant was seeking exceptional treatment both in relation to the timing of her application and her eligibility based on the criteria contained in the agreement.
34. It was submitted the Claimant held and continues to hold a 30-hour contract. The fact she had reduced her hours of work on a temporary basis for 3 months during the period of the VSS programme should not have rendered her application for VSS out of scope as stated by the respondent.
35. C            she was in the highest weekly rate of pay and she met the pattern of hours within the area of work.
36. A            she was employed by the respondent since 2000 and therefore clearly complied with the 15-year service requirement.
37. The Union submitted that the claimant met all the criteria outlined in the collective agreement for successful application for VSS insofar as-
38. Summary of the Union case
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Findings

I find both parties made extensive written and verbal submission at the hearing

I find that the respondent and the Trade Unions reached an agreement for a voluntary redundancy package.

I find that the criteria were clearly set out in the detail in the agreement

I find based on submission 309 people applied for selection for the Voluntary Redundancy package

I find that the 103 colleagues were initially accepted based on the agreed criteria for the VRD.

I find based on submissions made at the hearing that application for the VRD were oversubscribed and that the respondent accepted an additional 62 colleagues for the VRD who had applied before the 22nd March 2019 and who had met the criteria as per the agreement.

I find that the respondent did not seek any additional applications for VRD after the closing date of the 22nd March 2019.

I find based the evidence as presented that 9 employees applied for a reduction in hours in the cork store however, I find that when advised of the criteria for the VRD, 2 changed their mind and they did not reduce their hours while the remaining 7 continued to reduce their hours.

I find based on evidence that the practice (as in wording) the respondent applied on this occasion did not differ from previous redundancy selection process agreements with the Trade Unions.

The claimant did agree to reduce her contract on a temporary basis, and she continued to work those reduced hours until the 27th May 2019 when she reverted to her 30-hour contract.

I find that having examined all documentation and listen to the various points put forward at the hearing I am making the following:

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

I find that complaint is not well founded and falls.

Dated: 13th January 2021

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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