LCR22777

1.Appeal of Adjudication Officer Decision No(s) ADJ-00036494 CA-00047675-001.

BACKGROUND:

2.The Employer appealed the Adjudication Officer's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.

The Adjudication Officer had issued the following Recommendation:

"It is recommended that the Employer pay the Employee for each Friday worked from 18 February 2021 to the date in June 2021 when her pay was restored. The reasoning for this recommendation is a review of the Employer's employment ought to have taken place as per the specific agreement made between the Employee and the Employer in the Employee's letter of 19 November 2020 to the Chief Executive Officer."

A Labour Court hearing took place on 22 June 2023.

DECISION:

Background.

The Worker’s representative made application, having regard to s.20(6) of the Industrial Relations Act 1946, for the Court’s permission, in accordance with Rule 44 of the rules of this Court, to be allowed to represent the Worker in this dispute. This permission was granted by the Court.

The matter before the Court is not an issue of the legal employment rights of the individual Worker. Rather, it is a trade dispute put forward for the consideration of the Court under the Industrial Relations Acts. Accordingly, much of the arguments advanced by the Worker’s representative regarding alleged breaches of the Worker’s rights under statute and alleged issues regarding the application of contract law are outside of the Court’s jurisdiction in respect of the matter before it and do not arise for consideration in this Recommendation. This was made clear to the parties at the Court hearing.

The background to this dispute is the impact of the Covid pandemic and steps taken by the Employer to manage the circumstances of reduced revenue. In the case of this Worker, the Employer proposed to reduce her working time from 5 to 4 days per week. The Worker stated her opposition to this proposal. Ultimately, she sought to be allowed to work 5 days per week and stated that she understood that her pay would be reduced by 20%.

The Worker sought subsequently to be repaid for the days on which she worked without payment.

Unfortunately, many workers found themselves in similar or identical circumstances during the pandemic and the Court has considered some cases already relating to arguments regarding alleged statutory breaches. As noted above, the Court is not confined in its consideration of this dispute to the specific application of provisions of statute. However, the Court has to be mindful that this dispute is not an isolated one.

The Court acknowledges that the Employer was faced with a revenue downturn and that it was required to take steps to address same. The Employer looked at each employee’s work situation in determining its approach. In the absence of a collective agreement, any recommendations from this Court to suggest that a different approach across the board would have been more appropriate would be to suggest that the Employer ought to have applied different, and potentially greater, cost-cutting measures to workers who are not party to this case. To do so, therefore, would, in the view of the Court, be quite inappropriate.

Likewise, the Court is not minded to make any recommendation that could be said to draw definitive conclusions that might be capable of being applied to all cases that are argued to be similar when considering employers’ reactions to financial difficulties encountered due to the pandemic.

There is one feature of this dispute that is unique. On the day after the Worker indicated that she understood that her pay would be reduced, she was advised that her manager would meet her in three months to review the situation. That meeting never took place. While the Employer makes the argument that a more general review did take place, a specific commitment was given to the Worker in this case that was not met. Given the then ongoing financial consequences for her due to reduced pay, the Worker is entitled to feel aggrieved about this failure. That said, there is no reason to believe that any such meeting would have altered the situation as the Employer’s difficulties were continuing at that point.

Nonetheless, this Court is consistent in calling to account parties in trade disputes who fail to live up to commitments given.

The Court notes that a proposal was put to the parties in earlier engagements that the dispute be resolved by granting the Worker two additional days’ leave but that this was rejected by the Worker. In light of the Employer’s failure to live up to a commitment to meet with the Worker to discuss a review of her situation, the Court now recommends that two additional days’ leave be granted to the Worker in the current leave year on a ‘once off’ basis and that she be paid a sum of €450 in acknowledgement of this failure.

The Court recommends that these gestures be made in full and final settlement of this matter.

	Signed on behalf of the Labour Court
	Tom Geraghty
TH	______________________
23 June 2023	Deputy Chairman