Complainant

Respondent

Parties

Ray  Skerritt

Britvic Ireland

Representatives

Joseph Ateb Siptu

Dajana Sinik IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060851-001

05/01/2024

The Company and Union entered into a collective agreement. That agreement is referred to as an Annual Hours Agreement. It structures working time around the whole working year and matches hours to demand in contrast to fixed work schedules that assume a constant requirement for the same hours each week. A key element of such a plan is flexibility. In return for flexibility an employee receives a stable income. However, if the flexibility clauses are not honoured the rationale for the scheme is undermined as payment is made in advance for that flexibility.

This claim is brought under the Payment of Wages Act 1991 and the Complainant maintains that a cooperation payment clause stated that:

“In May 2023 employees will receive a once-off lump sum payment to the value of €5000 per employee”

The Complainant maintains that he met the requirements for this payment, and it has been unlawfully withheld.

The Respondent relies on another clause in the agreement for not paying the €5000 which is:

“If an employee ceases employment or goes out on long term sick leave within 3 months of the payment being made, the company reserves the right to deduct the payment from the employee. This will be reviewed on a case-by-case basis and at management discretion”

The Complainant maintains that he has fully cooperated with the new terms and conditions and therefore as of right he is entitled to the once off payment of €5000.

The Complainant was employed as a permanent night crew forklift driver.

The new collective agreement means that the Complainant moved from permanent night work to a staggered work pattern, where he works day and night shifts, working 12 hours shift in block of 3 days/nights.

The Complainant maintains that he has not been on long term sick and as right he is due the payment.

On the 6th of October 2023 the Complainant raised a grievance in relation to the non-payment of the Co-operation payment.

The decision not to pay related to poor attendance.

The Complainant was absent from work for 4 shifts between the 11th and 24th of July 2023. On the 21st of August 2023 the Complainant received a verbal warning for poor attendance missing, 20 days absence on  6 occasions. Despite a verbal warning the absence increased whereas the date of the appeal the Complainant had been absent for 11 of his 20 rostered shifts.

The Complainant relies on the exact wording in the agreement to fix the Employer with a new condition that they must pay as he has fulfilled the terms of this agreement by changing shift pattern and fully co-operating with the new way working while on shift.

It is argued that the Respondent is re-interpreting the agreement and unilaterally applying rules that don’t exist.

This is a collective agreement, and a key question arises relating to the intent of the parties. The Complainant asserts that the collective terms became contractual terms that formed a new legal contract that is binding on both sides.

The leading case relating to such agreements and when they legally bind parties is Reid Martin and James Turner (Appellants) v Health Service Executive(Respondent) [2016] 27 E.L.R. 194.

In summary the Supreme Court determined:

Held, by the Supreme Court (Charleton J.; Hardiman, MacMenamin, Dunne and O'Malley JJ. concurring), in dismissing the appeal:

• (1) Whether a collective agreement is binding on individual contracts of employment is heavily factually dependent.
• (2) The appellants by working the detailed procedures and conditions of the 1999 contract without protest, gives rise to the inference that the full terms of the 1994-99 collective contract were mutually accepted. Goulding Chemicals Ltd v Bolger [1977 I.R. 211 distinguished.
• (3) The basic rule for the construction of a contract is that it is the court's task to ascertain the intention of the parties and the intention must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. UPM Kymmene Corporation v BWG Limited [1999] IEHC 178; unreported, High Court, Laffoy J., 11 June 1999 considered.
• (4) Contracts must be given business efficacy, since negotiations take place for a purpose.
• (5) The objective meaning of words within a contract are informed by an objective consideration of the background knowledge of the parties to whom the contract is addressed. The Starsin [2004] 1 A.C. 715 considered.
• (6) The change introduced by the 1999 contract was unequivocal as to the effect which it might have, even though the nature of the change that was brought about thereby was unexpected in 1999 as it was the economic crash through property inflation which necessitated the measures taken by the respondent in 2010.
• (7) While the power to unilaterally alter a contract in the form agreed between parties is unusual, there is no basis upon which a court can change an unambiguous meaning through the application of any principle which contradicts express words.
• (8) Contracts without unilateral alteration clauses require consultation and agreement prior to being changed, but a term against unilateral alteration is not to be read into a contract merely because that approach might seem beneficial.
• (9) A court cannot override express terms but must affirm them. Hickey v Health Service Executive [2009] 3 I.R. 156 considered.

Under the Long-Term Absence Cover clause in the new agreement, it states:

“While reserve hours are to cover absence it is not possible to use reserve hours to cover long-term absence. Once an employee’s absence is known or deemed possible to be longer than 4/5 weeks continuous an alternative plan needs to be considered and the recruitment process may commence if necessary. Reserve hours will be used to cover up to 2 weeks of an employee’s continuous absence, or the equivalent of up to 10 shifts whichever is the greatest.”

While the Complainant’s absence was not continuous it was greater than 10 shifts and disimproved.

10 shifts or greater is deemed not be short term in the agreement. In case that absence increased. The absence while not continuous was by any standard poor and equivalent to long term absence based on the number of absent shifts.

There is a claw back clause in the agreement that provides for repayment of the co-operation payment. In other words, the payment is not unconditional.

The Complainant is maintaining a literal interpretation of one clause without having regard to the entire agreement, the intent of the parties, the requirement that absenteeism is reduced and the importance of good attendance to maintain the integrity of the scheme and the overriding reason for designing the new plan and reaching agreement on how it would work.

Poor attendance cannot be ignored. This arises as other employees must cover for that absence. An employee cannot expect to receive the cooperative payment when his attendance over a reasonable timeframe exceeds 10 shifts. In fact, the Complainant had missed 20 days. To incentivise an employee with a poor attendance record creates an inequity where others who cover such absence based on their requirement to cover absence perceive that their contribution is greater for the same pay. The absence in this case while not continuous was excessive.

The question I must answer did the parties intend that the cooperation  payment would be paid where an employee met the shift working pattern and flexibility while on shift;  but had a poor attendance record? The answer is no that was never the intention of the parties. Arising from that conclusion I determine that the claim is not well founded. There is no express term anywhere that would support the Complainant’s claim that an express term exists where he must receive the payment. There is no unilateral change being made by the Respondent. The co-operation payment is conditional and allows for repayment even after being paid where attendance is poor or an employee leaves. For these reasons I find against the employee.

The Complaint is not well founded:

While the Complainant’s absence was not continuous it was greater than 10 shifts and disimproved.

10 shifts or greater is deemed not be short term in the agreement.

There is a claw back clause in the agreement that provides for repayment of the co-operation payment.

The Complainant is maintaining a literal interpretation of one clause and having regard to the entire agreement and the importance of good attendance to maintain the integrity of the scheme, poor attendance cannot be ignored when deciding to make a cooperation payment. This arises as other employees must cover for that absence. An employee cannot expect to receive the cooperation payment when his attendance over a reasonable timeframe exceeds 10 shifts. In fact, the Complainant had missed 20 days. To incentivise an employee with a poor attendance record creates an inequity where others who cover such absence feel aggrieved.

The question I must answer did the parties intend that the cooperation  payment would be paid where an employee met the shift working pattern and flexibility while on shift;  but had a poor attendance record? The answer is no that was never the intention of the parties. Arising from that conclusion I determine that the claim is not well founded. There is no express term anywhere that would support that conclusion.

Collective Agreement-Contract Term-Binding