Worker

Employer

Anonymised Parties

Sales Assistant

Supermarket

Representatives

Mr. Eoin Griffin, Mandate Trade Union

Ms. Aisling McDevitt, IBEC

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-00041033

16/11/2020

The Worker commenced employment on 7th November 2000. At all times the Worker’s job title was described as “sales assistant”.

On 16th November 2020, the Worker referred the present dispute to the Commission. Herein, she alleged that a custom and practice had arisen whereby she would work three hours overtime every second Sunday. She submitted that the Employer, in unilaterally removing this overtime, subjected the Worker to unfair treatment. In disputing this allegation, the Respondent submitted that the Worker had no contractual right to the over-time. They further submitted that they treated the Worker fairly in all their dealings. A hearing in relation to this matter was convened for and finalised on 13th December 2021. This hearing was conducted 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. No technical issues were experienced by either side during the hearing. No objections as to my jurisdiction to hear the matter were raised at any stage of the proceedings.

The Worker submitted that she commenced employment on 7th November 2000. She stated that from February 2005 she consistently worked three hours overtime every second Sunday. This overtime was exclusively spent working in the Employer’s cash office and paid at a rate of time and a half.

On 26th February 2019 a representative from the Employer approached the Worker and informed her that the cash office was the be henceforth closed on Sundays. As a consequence of the same, as of 17th March 2019, the Worker would not be rostered for any further Sundays. The Worker was informed that the cash office was to close to meet store weekly budgets and that premium payments were to be cut. When the Worker raised issue with this development with was informed that the Employer had a right to implement change and that, contrary to the Worker’s beliefs, the over-time was voluntary at all times. The Worker fully engaged with the Employer’s grievance process, however, the Employer refused to resile from their initial position.

In summary, the Worker submitted that a custom and practice had arisen whereby the Worker received three hours overtime every second Sunday. This custom and practice had continued, interrupted for a period of almost 14 years, until it was unilaterally and unceremoniously withdrawn by the Respondent. In these circumstances, the Worker’s representative submitted that she was entitled to a payment of compensation regarding her poor treatment by the Employer.

In denying the complaint, the submitted that the Worker was engaged on a “a five over six” day contract. When additional hours became available the Worker was entitled to accept or decline these hours on a voluntary basis, with no obligation arising in respect of the same. It was accepted by the Employer that the Worker had been offered and accepted three hours of overtime every alternate Sunday for a period of 14 years.

In February 2019, the store manager made the decision to close the cash office for budgetary and operational reasons. The Worker was informed of this decision on 27th February 2019.

The Complainant raised a grievance regarding the non-availability of her overtime hours. Following a thorough investigation, and subsequent appeal, the Employer did not uphold the Worker’s grievance. In so finding, the Employer stated that overtime hours are not guaranteed, that the Complainant had no contractual right to overtime on a Sunday and that the Complainant could apply for a “a five over seven” day contract which would permit Sunday work in future.

In summary the Employer submitted that they had a right to organise their business in the manner in which they see fit. They submitted that the Worker had no statutory or contractual right to the overtime hours. Finally, they submitted that it was open to the Worker to amend her contract as to allow for Sunday working should she wish to do so.

The present dispute concerns the unilateral withdrawal of the Worker’s scheduled overtime. It is not in dispute that this overtime was regular and was continued for a lengthy period of time. Notwithstanding the same, the Employer has submitted that they are entitled to re-organise their business as they see fit and that the Worker had no contractual entitlement to the overtime hours.

In this regard, I accept that a business has a right, if not a responsibility, to seek efficiencies within their operations and re-organise themselves accordingly. In this regard, it would not be unusual for an operation such as cash handling, which undoubtedly has decreased in recent years, to fall foul of such re-organisation and be centralised or otherwise moved off-site. In such circumstances the Worker is collateral damage to such re-organisation, and she unfortunately lost a benefit which she enjoyed for many years.

Notwithstanding the same, at no stage has to Worker suggested that the weekly cash handling duties be returned to the store. Rather she has submitted that the Employer has treated her poorly in unilaterally removing a benefit which she enjoyed for many years. In this regard, I note that the Worker enjoyed the uninterrupted benefit for an extremely long period of time. It is apparent that the Employer, unilaterally and unceremoniously, informed her that this benefit was going to discontinue. When the Worker sought to challenge this decision, the Employer sought to rely on a strict interpretation of the relevant contractual provision to support their position.

In this circumstance I find that the Worker suffered the loss of benefit on which she had come to rely. It is also apparent that the Employer made no effort to provide other overtime hours or otherwise compensate the Worker for the loss of this benefit. In circumstances whereby the weekly cash handling function has been moved of site and clearly will not return, I recommenced that the Employer pay the Worker a one off compensatory payment of €2,718.69 in settlement of this dispute.

I find in that the Worker’s complaint is well-founded. In these circumstances, I recommence that the Employer pay the Worker a one off compensatory payment of €2718.69 in settlement of this dispute.

Overtime, Unilateral Withdrawal