Worker

Employer

Anonymised Parties

A Worker

A Supermarket

Representatives

John O'Donnell Mandate Trade Union

Cait Lynch  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

IR - SC - 00001482

26/06/2023

The dispute concerns the Worker’s terms and conditions with reference to a letter of comfort he stated he has relied on since 2005. The Respondent disputes the currency of any such letter which it states was overtaken by a contract of employment signed by the Complainant in June 2007.

The Worker commenced employment as a General Sales Assistant with the Respondent in 2003. The Worker stated that he was employed on a greater than 35 hours/week and less than full-time basis and 5 days over 7 fully flexible. The Worker stated that he was issued with a letter of comfort in 2005 in conjunction with staff moving to a larger store. The Worker stated that the letter of comfort stated as follows:

This letter is to confirm that you will retain all your terms and conditions that you currently hold in… Branch [X]. You will not be required to work on Sundays and Bank Holidays…. You will continue to hold your two 8-minute breaks to be taken at 12pm and 4pm daily.”

The Worker stated that in 2008 he successfully applied for a position in the Respondent’s warehouse and continued to maintain the terms and conditions stated in his letter of comfort. In or around 2011 he moved to the shop floor and began working 5:30am to 12:30pm while maintaining his terms and conditions. At this time he stated he entered into a local agreement with the Store Manager that going forward he would work Mondays to Fridays and one Saturday every 8 weeks. By agreement with the Store Manager he changed his shift hours to 5am to 12pm. In 2017 he agreed to a request by the Personnel Manager to again change his shift hours to 5am to 12:15pm and to clock out for his two 8-minute breaks for audit purposes. The Complainant stated that he was coded as a full time employee.

There was an engagement between the Respondent and the Complainant in January 2022 arising from which the Respondent stated that the Complainant had led it to be believed that there was “an agreement” but that his contract stated he was “5/7 fully flexible”.  The Complainant responded that he had “an implied contract”. In that regard the Respondent stated that whilst it had no immediate intention to change his shift hours – ie the hours he worked from 5am - 12.15pm,  it was not correct that the Complainant did not work Sundays, or Bank Holidays and only worked 1 in 8 Saturdays and that it would be reviewing this in the interests of fairness and equality with other staff. The Complainant maintained that he had been informed by a previous Personnel Manager that his terms and conditions were not impacted by his signing the 2007 contract.

In February 2022 the Complainant was advised that he was to work Saturdays and Bank Holidays for subsequent rosters in accordance with the terms of his most recent contract of employment – ie the contract signed by him in June 2007. He was also informed that his shift hours would be increased to 12.30pm to make up a 35+ hours/week otherwise his contract would be adjusted to 30-35 hours/ie less than full time with a 45 minute break.

The Complainant initiated an internal grievance on 25 January 2023 as a result of the Respondent’s proposed changes and in March 2023 he was advised that his grievance was not upheld. The Complainant appealed and on 17 May 2023 he was informed that his appeal was not upheld either.

It is the position of the Complainant that he never deceived anyone in relation to his hours and that since 2005, he always worked the terms of his letter of comfort and agreements reached subsequently with his previous store Manager. The Complainant strongly objected to the Respondent’s unilateral changes to his terms and conditions. At the time of the adjudication hearing the Complainant’s shift hours had increased from 5am – 12.30pm with two 8-minute breaks and he was working Sundays and Bank Holidays under protest.

The Respondent referred to the Complainant’s contract of employment signed in June 2007. In terms of shift hours, the Respondent cited the contract as providing for a fully flexible day during which an employee can be rostered between the hours of 7am – 11pm with the proviso that start and finish times will vary and with the inclusion of a requirement to cooperate with changed practices. The Respondent stated that the contract also included a contractual liability to work public holidays and that working hours were scheduled 5 over 7 including Saturdays and Sundays. The Respondent stated that the rest breaks outlined in the 2007 contract did not provide for any 8-minute breaks but stipulated a 15 minute break for a 4.5 hour shift and 30 minutes for 6 hours or more.

The Respondent outlined the background to the letter of comfort which it stated was agreed following negotiations with the trade union Mandate for the purpose of assuring staff in 2005 that they would transfer to a new store on their existing terms and conditions. The Respondent stated that this letter was superseded in 2006 following a collective agreement between it and Mandate which resulted in a new contract issued to staff – including the Complainant – which was signed by him in June 2007.

It is the position of the Respondent that it is entitled to comply and is complying with the Complainant’s 2007 contract of employment which supersedes the 2005 letter of comfort and that it has no evidence of any arrangements made with the Complainant to the contrary. The Respondent stated that any deviation from a collective agreement would have significant implications for it across its business. Further, the Respondent submits that it conducted a fair and impartial grievance and appeal procedure which did not uphold the Complainant’s grievances.

Section 13 of the Industrial Relations Act 1969 provides that ".... Where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended….., a party to the dispute may refer it to a rights commissioner [ie Adjudication Officer]".

In conducting my investigation into this dispute, I have taken into account all relevant submissions and documentation presented to me by the parties and have come to the following conclusions:

·        I am satisfied that the meeting held with staff on 9 May 2005 was for the stated purpose of discussing “…..concerns raised by staff…..prior to the move to the replacement store”. I am further satisfied that was the background context to the Respondent’s letters of comfort which assured the Complainant (and other colleagues) that “they were transferring to the replacement store on their current contract of employment”. In that regard, in the Complainant’s letter of 15 December 2005 he was advised that he would hold his existing terms and conditions including not being required to work on Sundays and Bank Holidays and that he would hold his existing two 8-minute breaks;

·        In light of the previous point, I am satisfied that the letter of comfort was time bound and retrospective in nature – in terms of reflecting the terms and conditions in existence in 2005 prior to the move to the new store. Accordingly, I am not persuaded that any such letter supersedes or was intended to supersede subsequent negotiations or collective agreements between the Respondent and the Workers including the Complainant – nor has any enduring clause been brought to my attention which would suggest otherwise;

·        I accept the position of the Respondent that fresh negotiations took place in 2006 and that as a result a new contract of employment was signed by the Complainant on 30 June 2007. In that regard, I am satisfied that the Complainant’s Terms and Conditions of Employment as outlined in the 2007 contract specifically provide that his working hours maybe scheduled on a 5 over 7 basis to include Saturdays and Sundays and that as he was employed post 12/12/1996 he is contractually liable to work on public holidays;

·        In terms of the two 8-minute breaks, I note the contract is silent on breaks of this duration notwithstanding that the Complainant continued to take such breaks on a paid basis from 2005 right through and beyond 2007. I am of the view that the taking of these breaks by the Complainant was a de facto reality which was neither addressed nor contradicted in the 2007 contract. I also note the Complainant’s hours were coded in the 2007 contract on the basis of being greater than 35 hours and less than full time hours.

In light of the foregoing, I make the below recommendations.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In light of my conclusions I recommend as follows:

·        That the Respondent is entitled to roster the Complainant on a 5 over 7 day work schedule to include Saturdays, Sundays and Public Holidays;

·        That the Complainant retain his two paid 8-minute breaks on an individual red circle basis – subject to the timing of such breaks - whether taken separately or as part of a longer break time - being agreed in advance with Management;

·        That if necessary, the parties re-engage to resolve the Complainant’s hours of work in a manner that both reflects the de-facto reality of the Complainant’s hours since 2005 but also ensures that he continues to be coded on a plus 35 hours basis with no loss of pay, having regard to the Respondent’s established range of hours and work schedules.  

Letter of Comfort