ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00030764

Parties:

	Complainant	Respondent
Anonymised Parties	General Sales Assistant	Supermarket Chain

Representatives

Ciaran Campbell Mandate Trade Union

Aisling McDevitt Ibec, Louise Kelly, Keith Cresham, Martin Daly

Dispute:

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-00041037-001	16/11/2020

Date of Adjudication Hearing: 08/06/2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

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

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

The Employee is employed as a General Sales Assistant since 15th October 2004. She is paid €628.00 per week. She is seeking compensation for the abolition of regularly worked overtime. The Employer has rejected this claim.

Summary of Employee’s Case:

The Employee is employed on a full-time basis working 5 days over 6, which excludes Sunday. She has consistently worked 3 hours overtime every alternative Sunday since February 2005. She was paid a premium of time and one half. She effectively worked 26 Sundays each year. She was earning €69.71 each Sunday she worked that overtime. She was informed by management that the cash office would cease to open with effect from 17th March 2019 and she would no longer be required to work on those Sundays. She queried this with management, but she was told that there was a contractual right to implement business changes and that her overtime was always voluntary. She fully invoked the grievance procedure from April 2019 to January /February 2020. Her grievance was not upheld. She is currently working, less that Sunday overtime under protest.

It is her position that the facts of the case are not in dispute. She worked exclusively in the cash office. She has consistently worked the overtime every alternate Sunday and this has become a work pattern that is now custom and practice. As per DP Refinery Westport PTY v Shire Hastings (1978) 52 AJLR 43. Her case meets the tests set out in that case: reasonable and equitable, necessary to give effect to the contract, it is so obvious that it goes without saying, capable of clear expression, must not contradict any express term of the contract. Therefore, these overtime hours on alternate Sundays have become an implied term of her contract. Her annual loss is €1,812.46. The normal practice when making such changes is to compensate the loss of earnings at one and a half times the annual loss. She is claiming €2,718.69 in compensation.

Summary of Employer’s Case:

The Employee is employed on a contract of working 5 days over 6 Monday to Saturday. When overtime becomes available she is entitled to accept it but not contractually required to work that overtime. In February 2019 the Employer decided to close the cash office on Sundays for budgetary and operational reasons, with effect from 17th March 2019. She has been working these hours on a voluntary basis for a number of years. She raised a grievance. During the grievance process she stated that she told management that she never believed that she had a choice about working those hours on Sundays. During the grievance process she was offered to work a roster of 5 days over 7 which would allow her work regularly on Sundays at a premium rate. She declined this offer. There was a total of three meetings in all, but the matter was not resolved. Management stated their position to her at this time as follows: - the overtime was not guaranteed, Where the overtime is no longer available there is no obligation to roster additional hours outside of the contractual 39 hours. The company had honoured the 2006 agreement. Management set out to her the benefits of switching to a 5 over 7 days contract.

The Employer’s position is that the role of the Adjudication Officer is not to make a specific finding as to the outcome of the internal investigation but to assess whether the process conformed with the general principles set out in Code of Practice S.I.146/2000. The Employer complied with each stage as set out in that code. At the heart of this dispute is the rostering arrangements that apply to those working 5 over 6 as against those working 5 over 7. There is also the business case where in this situation there is no business need to roster her to work overtime. Staff employed in the pre-1996 contract have no contractual obligation to work overtime. Her contract of employment has no obligation to work overtime. The 1996 agreement provides for a Sunday premium of time and one half. The management union agreement also states “staff member is not obliged to work in excess of their band, they may avail of these hours if they become available. When these hours are no longer available they will return to working hours within their contracted band”. These additional hours that she worked are no longer available.They cited Labour Court case in Tesco Vs Five Workers in support. The Employer’s position is not in breach of her 5 over 6 contracts. To concede this claim would set a dangerous precedent to recognise overtime as an implied term of contract or to award compensation. It would undermine the existing agreements and the company’s ability to make changes. The Employee has failed to mitigate her losses. It is their position that they have acted fairly, and this claim is rejected.

Findings and Conclusions:

I find that the facts of this case are not in dispute.

I find that the Employer had a right to close the cash office for operational and economic reasons.

I find that this employee is employed on a 5 over 6-day contract Monday to Saturday and so hours worked on Sundays were overtime and were not obligatory.

I find that the Employee has consistently worked alternate Sundays in the cash office solely since 2005.

I note that she has claimed that this overtime on alternate Sundays has become custom and practice.

I note that to rely on custom and practice Justice Pair in Bond V CAV Ltd [1983] IRLR 360 stated “a custom of the trade must be reasonable, certain and notorious.

I note that Justice Jeff in Devonshire V Rosser stated, “I have always understood that general usage is evidence in a case of this kind, on the grounds that its notoriety (very well known) makes it virtually part of the contract”.

A practice that continues for a period of time may be deemed an implied term

I note that in Shirlow V Southern Founderies (1926) Ltd [1932] 2KB at 206,207 an implied term “is something so obvious that it goes without saying”. In Sweeney V Duggan, Murphy J. states, “it must be not merely reasonable but also necessary, it cannot be implied if it is inconsistent with the express wording of the contract”. It must be necessary to give efficacy to the contract, so no term will be employed if the contract is effective without it, it must be so obvious it goes without saying, it must be capable of clear expression, it must not contradict any express term of the contract.”.

I find that where particular circumstances are not addressed by the written employment contract, a term may be implied into the contract to deal with those circumstances.

I find that terms are implied which give the contract “business efficacy” and because the implied term represents “the presumed intention” of the parties. One means of determining the presumed intention of the parties is to use the “officious bystander” test. That test was first set down in Shirlaw v. Southern Foundaries Ltd. where McKinnon J. stated “prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying: so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in the agreement, they would testily suppress him with a comment of “Oh of course”

I find that in this case the Employee has been working alternate Sundays since 2005 on a consistent basis.

Therefore, if one was to ask a colleague did she work consistently they would say “Of Course”

Therefore, I find that she has established a regular pattern of earnings on overtime.

I find that this practice meets the tests set out above and she has established custom and practice that this is a part of her contract of employment, albeit an implicit term.

So, while I find that the Employer has a right to close the cash office due to economic reasons nevertheless, they have to address the implications of such a decision which impacts of this Employee.

I find that this regular overtime has become an implied term of her contract of employment.

Therefore, when the Employer decided to cease operating the cash office on Sundays this meant that the Employee lost out on regular overtime which she has earned consistently since 2005.

I find that she is entitled to be compensated for this loss of overtime.

I find that it is accepted that the norm for such a buyout is one and a half times the annual value.

Therefore, I find that the Employee should be compensated for the loss of this regular overtime at the rate of time and one half amounting to one and a half times €1,812.46 = €2,718.69.

Recommendation:

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

For the above stated reasons, I recommend that the Employee is paid compensation of €2,718.69 which is one and a half times the annual value of the overtime worked.

This is to be done within six weeks of the date below.

Dated: 19-07-2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Buyout of regularly worked overtime