Complainant

Respondent

Anonymised Parties

A Shop Assistant

 A Supermarket Grouping

Representatives

Ciaran Campbell, Mandate Trade Union

Declan Thomas ,IBEC Executive

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00041233-001

24/11/2020

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

The Worker represented by her Union submitted her claim to WRC on 24 November 2020. She submitted that she had exhausted all stages of the Company’s grievance procedures in her efforts to retain a previous working pattern of Monday to Saturday on a 9-5pm basis.

The Company represented by IBEC rejected the claim.

Both parties had prepared extensive submissions for hearing. Unfortunately, I was delayed in received the Employer submission. The Union had received it. The Company representative read from the submission during the hearing and I received a copy of same post hearing.  I have read and considered both.

The topic of a Labour Court Recommendation was raised at hearing and I sought a copy of this Recommendation.

The Worker commenced work as a customer assistant on a part time basis in the Employers outlet on 26 November 2001. The Union contend that the sole contract signed by the Worker emanated from this time.

She currently works a 35-hour week in return for €16.12 per hour.

The Worker has worked a variety of work patterns during her employment but submitted that most of her working weeks worked were between Thursday and Saturdays at 19 hours a week up to May 2016.

Following a return from maternity leave in 2012, the worker was approached to sign a new contract, but as she was unable to secure the assurances on banding contained in the 2006 Company/ Union Agreement, she refrained from signing the contract.

In 2016, the Worker relocated on a temporary basis to the canteen where the hours were set at 35 hrs per week, Monday to Saturday, 9 to 5pm. She was informed this was a locum position, pending permanent filling. The Union submitted that this position should have been formalised for the worker in line with the 2006 Company/ Union Agreement, as she had worked beyond her contracted hours over a 4-month period.

The Canteen closed in 2018 and the Worker was requested to return to the shop floor on a contract for 19 hrs, fully flexible, 5/7 days. The Worker refused this and sought to relocate on the same working arrangement as she had in the canteen.

The Employer refused to replicate the arrangement and the worker has worked 35 hrs per week under protest from that time. This covers 35 hr week, 5/7, 8 am to 10 pm including Sunday and Public holidays. The Worker has engaged in the company grievance procedure to reverse this, without success.

She is seeking to retain the working arrangement she held when assigned to the Canteen.

The Union is seeking the application of the Company /Union Agreement from 2006 to the Worker. The Worker has been facilitated in the 35-hr week, core hours for several years. She is now resisting the unilateral imposition of an “alien “roster as she requires the core hours roster in adherence to the national agreement and in support of her work/life balance.

The Union is seeking a formalised contract of 35 hr week, 9 to 5 pm, Monday to Saturday for the Worker.

The Union exhibited the contract dated 26 November 2001.

On 9 March 2020, the Company furnished the outcome of the workers grievance:

Please be assured that a full and impartial investigation was thoroughly carried out into your grievance. During this investigation and following witness interviews, I conclude that the grievance is not supported as you are being rostered in line with your terms and conditions and collective agreements governing same. I do not find any evidence to support an alleged agreement that your working pattern of hours worked were to be fixed for the duration of your employment with the company and therefore find this also to be unsupported.

The Worker was recommended to accept the increase in contract band or revert to 19hrs fully flexible. She was also offered to make a flexible working request.

On 11 August 2020, the Worker received the outcome of her appeal lodged.

The Appeal Officer found that witnesses had not been required during the earlier grievance. He found that a delay in processing the grievance had occurred, but this had been due to operational reasons and availability of representation. The employer had been unable to interview a past employee. The Worker was not bound to a certain work pattern by either the store or the dept of social protection. The employer disputed that the worker had secured a historical agreement for her to work 19 hrs on set days.

He recommended:

I recommend as in your outcome that you accept the offer of 35-hour contract, as all contracts on file for you either signed or unsigned are fully flexible 5/7 regardless of working hours per week. I do feel that working with your line manager and taking into consideration the flexible working policy you will get some support with your working hours …. rosters are displayed four weeks in advance, helping you plan to achieve a healthy work life balance.

The Worker addressed the hearing and clarified that her revised shift pattern had impacted negatively on her work/life balance and she had a strong desire to stabilise her working conditions. She had a pronounced difficulty in working late evenings.

The Union contended that the 2006 Agreement continued to provide a platform for resolution of the dispute.

The Employer operates a large group of Department stores. The Company representative outlined that the Worker had commenced employment as a part time sales assistant 18-25 hrs per week, fully flexible, 5/7 on 26 November 2001.

The Employer argued that the only applicable contract applicable to the worker was issued on 25 October 2018, which refers to greater than 35 hrs and less than full time 5/7 Sunday to Saturday.

This is a fully flexible day contract as any employee at the business who holds a day contract post 12 December 1996 can be rostered 7 am to 11pm, 5/7, Sunday to Saturday.

On 15 May 2016, the Worker signed a “temporary increase in hours form” 19-35 hrs in response to additional hours becoming available in the canteen. The Employer had intended to fill this position long term.

On 14 November 2017, during her time at the Canteen, the Employer sought the workers co operation in reviewing the 2007 fully flexible contract for the worker on file. The worker was not prepared to sign as she was unhappy with the clause on Sunday /Public holiday working.

In August 2018, the Employer informed the worker that the canteen was to be repurposed and her work there was to cease. The Worker was offered substitute work at check out and systems. The other worker in the canteen left via a redundancy pathway.

In response, the Worker requested:

I am writing to request that my 35 hours with a set working day pattern, 9-5 hrs, Monday to Friday, ex bank holidays remain the same. I am requesting the above under the 2006 Agreement which states if a person works his/her bank for more than 16 weeks they are entitled to so also under same agreement the right to have a work life balance

The Employer had additional hours available and the worker was offered a 35 hr fully flexible contract. The Worker did not sign the contract but accepted the increase in band and moved to check outs in September 2018.

In June 2019, the Personnel Manager approached the worker to sit with her to review her contract status. She was requested to sign the contract to reflect 35 hrs per week, fully flexible. She was offered the protection of a six-week support lead in period, where the hours of 9 to 5 pm would remain the same. The Worker did not sign and told her Manager that she would work the new hours and rosters under protest from July 2019. By then the worker had accepted the increased hours and associated terms.

On 7 October 2019, the Worker raised a grievance,

I am aware that X has already raised her grievance with her line Manager regarding unilateral changes to her long-standing rostered hours which are potentially outside of her contractual obligations, and has formally advised that she was only working the same on an under-protest basis

The Employer did not find evidence of a contracted fixed working week. The contract on the employers file bound the worker to variable start and finish times ,3 /4 Sundays and public holidays. Canteen hours were to address a unique service need which eventually expired.

To secure additional hours, the contract requires acceptance of the terms and conditions issued.

The investigating officer set out that rosters are prepared as per needs of the business and recommended that the worker accept the increased band through the pro-offered contract. Failing that, she could revert to the 19 hour fully flexible contract.

The Employer exhibited the “Flexible Working Policy “which the worker was advised to action. The worker did not adopt this course of action.

This outcome was subject to an appeal in April 2020, which was found to be unfounded in August 2020.

The Employer summarised the arguments.

They contended that the Company continues to operate in a highly competitive, dynamic market with continuous change to keep up with customer demand and competitors. There is a very clear and consistent case that this change is needed to give flexibility to meet changing customer demand and to create a fair workplace for all colleagues.

Staff are subject to variable hours through their contracts and governed by a number of agreements.

1996 Agreement provided flexibility for staff employed prior to December 1996

After 12 December 1996, staff were employed on a fully flexible basis. 3 /4 Sunday ,5 /7 days, Time +1/2for Sundays and public holidays.

1999, re-affirmed in 2006 staff employed after Dec 12, 1996 to be “fully skilled and work in all areas of the store. Staff will be scheduled to suit the needs of the business considering their individual needs “

The Employer contended that the worker had misinterpreted a specific clause of the 2006 Agreement and it did not apply to her circumstances:

It is recognised that there may be certain staff that by local agreement may have specific local arrangements. In these cases, the number of weekly hours the staff member works will be assimilated onto the appropriate band and they will retain their working patterns several hours unless otherwise agreed

This referred to pre-existing 3-day week working, which were reflected in individual contracts at that time. This was not comparable to the worker in this case. At any rate, the worker had not raised it as an issue at that time.

The Employer provided a 35-hour week to the Worker, a favourable increase on her previous arrangement and simply want her to comply with the associated conditions of employment. The Employer cannot support her asserted bid to work Monday to Saturday , 9 am to 5 pm without Sundays or public holidays .There is no opportunity to replicate the working arrangements relevant at the Canteen to the store at large .The worker has not proved that she had a veritable agreement on a preservation of a specific work pattern .She was provided with 6 weeks’ notice of change , which was in excess of what is required under Section 5 of the Terms of Employment(Information )Act, 1994 .

The Employer employs over 13,000 staff and has no desire to deviate from the collective agreements for one individual as it would have knock on impacts on other stores. The Worker is needed in the role and work pattern that she is currently undertaking. She can tweak her work pattern through the flexible working policy but has not actioned this to date.

The Human Resource Manager addressed the hearing and emphasised that the 2006 Agreement is a live agreement.

The Company representative emphasised that rosters are fair and respectful and are issued a month in advance. The Worker had not been excessively rostered on weekend work as the records indicated a 7 Sunday pattern over 12 months and 57 late evenings over a calendar year.

The Appeals Officer re-affirmed the recommended pathway of Flexible working open to the worker.

In referring to LCR  21340, from 2016 which was dedicated to pre-1996 workers, the Employer recounted the chronological pathway surrounding the defined group of workers and changes in flexibility.

The Employer sought that the Adjudicator find that they had not breached a collective agreement and were operating within the content of those agreements in this case.

I have been asked to investigate this Dispute in accordance with Section 13(2) of the Industrial Relations Act, 1969. I am satisfied that the Labour Court has not made a recommendation in relation to the dispute and that LCR 21340 refers to a different cohort of workers.

I have, therefore considered this Dispute as being stand alone and particularised to the worker in this case.

 I have observed that the dispute is very important to both parties and I have respected that.

This dispute comes to me on foot of an exhausted grievance procedure and a part time worker who is working under protest with a desire to access a contract for Monday to Saturday working, 9 to 5pm. The Employer is not able to accede to this request. The Dispute has reached an impasse.

I respect the over arching presence of the Company / Union Agreement of 2006.

The Company is keen to secure the workers signature on a revised contract to reflect a fully flexible 35 hr per week working pattern. The Worker is keen to maintain the 35-hr week, albeit on a narrower focus of 9 am to 5 pm, Monday to Saturday.  She fully accepts that she was directed, during her grievance, towards exploring an application for flexible working. She declares a certain scepticism on this approach, as she believes that the tenure of such an arrangement would be short lived.

In my review of this case, I note that the worker is in the twentieth year of employment in this fast-paced competitive market. I appreciate that both parties want closure on this long running dispute.

I was drawn to the sole dual signed document, (apart from 2001 contract), of 15 May 2016 when the worker agreed to take on the canteen work on a temporary basis, pending cover being secured. I note the various attempts to secure the workers transition to a fresh contract prior to her relocation back to floor from the canteen. However, cover was never secured, and the circumstance was overtaken by a canteen repurpose, where the worker was not required. By then she had recorded over two years of 9-5pm working and liked it and wished for it to continue.

I was drawn to the request made by the worker dated 16 August 2018, where she sought a replication of her 35 hours, 9 -5 pm on relocation from the canteen. I could not see a follow-on engagement from that point. The worker did not complete a mirror form from 15 May 2016 which may have settled the banded question for her, or at the very least placed it into a process. Neither did she action a grievance.

Instead, she was permitted to drift on until the company made another approach to seek to incentivise a formalised arrangement to 35 hrs fully flexible by permitting a lead in time on a 9-5 pm basis in 2019.

I accept the company interpretation of 2006 Agreement, that the transition through the bands post a 4-month exposure, refers to hours of work, but not necessarily a work pattern within the upwardly adjusted hours.

If a staff member consistently works hours in excess of their band for 4 months or more, they are given the option to move up into the band which reflects the number of hours the staff member has been working.

 It is regrettable that the company did not address this consistent with the 16 August 2018 handwritten note exhibited in their file. I did find a handwritten note dated September 2018, but for me it was inconclusive as it did not contain an action plan.

I have considered the pathway of the Grievance procedure and had some concerns that both Investigator and Appeals Officers were Store Managers at the same level.

I found that the Employer had a very strong stated priority in having “ fully flexible “ as an operational model and I could see that the primary contract in the case was modelled on this. However , through the passage of time , I can also see that the worker navigated towards a more favourable and predictable pattern of work , which was greatly enhanced by her work experience in the canteen . She gave the impression at least that she had agreed to support the company in agreeing to diversify to the canteen and in return she argued that she held a certain currency for a predictable and core hour working.

This is a difficult dilemma as both parties have made very compelling arguments in support of their respective positions.

I had some unease that the grievance was managed by the workers own store manager at first instance. I would have preferred to have seen a more impartial approach, giving the previous approaches made to the worker to change her contract from within the store. The outcome of this dispute will clearly have a direct impact on her store. In addition, I would have preferred if the appeal had been undertaken by a higher-level manager than the first manager.

I listened carefully to all contributors at hearing and find that I should make a cautious and nuanced recommendation in this case for the sole purpose of allowing the parties to have some certainty and stability  in the employment relationship, now almost 20 years old.

I have found some merit in the dispute.

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

I recommend that the Worker formally moves to the band of 35 hrs per week in accordance with the 2006 Company / Union Agreement from October 2018. This is reflective of her having consistently worked more than her band for over 4 months, 2016-2019 and should be conjointly signed.

However, I urge the parties to take a considered approach to the workers work pattern associated with this change. I recommend that the parties agree to a 12-month trial of 9 am to 5pm working in accordance with the assurances outlined in the Flexible Working Policy. This would include an availability to roster over 7 days, inclusive of Sundays and Public holidays.  This should be conjointly reviewed for continuance after the 12 months has elapsed.

This working arrangement should be formalised within 6 weeks of this recommendation and should be designed solely for this worker without” knock on” to any other worker.

I have made this recommendation under the heading of fairness and reasonableness and in sole recognition of the continued uncertainty in the employment relationship that needs to crystallise into one of certainty in all parties’ best interests.

Dispute on access to part time working in a supermarket setting