Worker

Employer

Anonymised Parties

Retail Worker

Retailer

Representatives

John O'Donnell Mandate Trade Union

Lisa Moloney 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 - 00002150

22/01/2024

The Worker commenced employment as a delivery driver on 17 March 2012. The Employer implemented a roster change which made it difficult for the Worker to fulfil family obligations. He sought flexible hours to facilitate  his commitments and after the exhaustion of the grievance process, he was put on a trial roster for six months. The Worker is seeking an extension of the trial roster to two years.

The Employer’s position  that a full and fair consultation and grievance process took place in line with fair procedures. The Employer contends it  is making reasonable changes to the Worker’s rostered hours taking into account the needs of the business and that an extension of two years to the present arrangement is not feasible

The Worker was employed as a delivery driver from 2012. On the week commencing 19 February 2023, the Employer  changed the operating hours of the Worker's department thus altering his established pattern of work.  The Worker had  consistently worked a set shift pattern of day shifts every Monday and Saturday and 3 evening shifts between Tuesday and Friday. The Worker  is the primary carer for his children, and  he could not sustain any alteration to his set pattern as it would negatively affect his family commitments. The Worker  lodged a formal grievance on 8 April 2023 in accordance with the well-established Mandate (his Trade Union)/Employer  grievance procedure. The Worker  was not given adequate notice of the change as per the normal practice by the Employer, whereby due to an agreed 4-week rosters system all changes must be communicated 4 weeks in advance of any changes being made to rosters/patterns.

The full grievance procedure was exhausted. Attempts were made to address the matter at local level with the Worker writing to his Store Manager on 31 January 2024, with a suggested solution to last for a period of 2 years, this time period is necessary given the age profile of his young children and the need to provide certainty for his family. On expiry of this 2-year agreement the Worker offered to return to a fully flexible working pattern.  A meeting was held on 26 February 2024 and the Employer issued its response to the Worker's suggested solution and offered a 6-month trial period with a review after 6 months. 

The Worker submits he  was not provided with adequate notice of the change to his set working pattern. He argues that  working pattern has allowed him to build his family commitments around same and for it to be changed without proper notice is unreasonable behaviour by the Employer.

All Workers  sign a contract that allows the Employer  to vary their hours as business needs dictate. This is clearly referred to in all employee Terms and Conditions of Employment as well as a number of agreements reached between the Employer  and Mandate Trade Union, which are as follows:

a.      The 1996  agreement provided for flexibility whereby staff employed prior to 12 December 1996  maintained their working pattern however staff employed after  December 1996 were employed on a fully flexible basis.

b.        In 1999 the Employer /Mandate new agreement  reaffirmed this position. Under clause 2 it states:  “This agreement will ensure that going forward all staff employed after December 12th, 1996, will be fully skilled and work in all areas of the store. Staff will be scheduled to suit the needs of the business taking into account their individual needs.”

c.       This position was further reaffirmed in 2006 in a new  agreement, where it states:  “As is the current situation hours may fluctuate and start and finish times may vary within these bands”.

In addition to the above the Employer  has a number of family friendly policies to support workers who may need support from time to time due to their own commitments including a “Flexible Working Policy”.

In February 2023 the operating hours in the Grocery Home Shopping department changed due to business needs. The Worker, prior to this, was being supported with set hours to support his personal needs however this working pattern could no longer be facilitated in the department with the changes to the department operating hours. Due to the changes in the operating hours the Worker stated that he was only available to work two days per week. Numerous conversations took place with the Complainant to try to support him in the short-term however the Complainant was not happy with the options available to him. A full grievance procedure was facilitated by the Employer.

After the claim was sent into the WRC, the Employer submits it reached out to the Worker and after further meetings implemented a trail period of six months with a revised roster for the Worker as set out in a letter of 1 March 2024.

 The Employer asserts that it conducted a full and fair consultation and grievance process, adhering to its established policy, and the Code of Practice on Grievance and Disciplinary Procedures (SI146 of 2000), consistent with the grievance process under section 13 of the Industrial Relations Act 1969.

The Employer submits that the  role of the Adjudication Officer in an industrial relations dispute is to investigate the matter and provide a recommendation, as outlined in Section 13, rather than making specific findings on internal investigations. Their role is to assess whether the process aligned with the principles in the Code of Practice (SI146 of 2000). It is not within their remit to determine if the respondent’s conclusions were objectively correct but to establish whether the company acted fairly.

In Cash in Transit Driver v Security Transport Respondent (ADJ-00025311), the Adjudicator found that the disciplinary process was handled according to policy, rejecting the worker's claim that it was biased or unfair. Similarly, in Euro Car Parts Ireland Limited v A Worker (LCR22092), the Court concluded that the worker's grievance was fairly investigated, despite their disagreement with the investigator’s findings, and dismissed the appeal.

The Employer  argues that recognising a specific working pattern in this case would set a dangerous precedent, particularly as the flexible hours were offered as support and not as a contractual term. Furthermore, the Employer argues that the Worker is now working some shifts on the shopfloor, he is paid the delivery driver rate, and this creates a difficult situation for the Employer, where other shopfloor workers are paid less, whilst doing similar work. The Employer submits that deviating from collective agreements to accommodate one employee would create inflexibility across its extensive  workforce, undermining collective agreements and the company's ability to adapt and remain competitive.

While the employer  acknowledges the Worker  had an established work pattern, it contends that this does not prevent it changing his hours in line with the flexible (5/7) contract, consistent with the 2006 Collective Agreement. Thus, the Employer believes the process was fair and the changes to the complainant’s roster reasonable, requesting that the claim be dismissed.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. I note that the Employer’s Flexible Working policy was exhibited at the hearing which stated in its relevant part: “Fixed term flexible working requests can be agreed up to two years at a time”.  I note the word “can” in the context of its ordinary meaning which suggests that there is no compulsion to do so. I also note the Employer/Union agreement which states clearly that full flexibility is allowed and importantly that “Staff will be scheduled to suit the needs of the business taking into account their individual needs.”  There is no doubt in this case that the change in the delivery hours is a fait accompli and it is something that the Worker will have to adopt going into the future. I note that that the Worker was not given the agreed four week notice for the change of hours. The Employer cannot seek to apply the agreements on flexible hours in an a la carte fashion. Due to the relatively abrupt changes in work hours which caused the Worker unnecessary stress and confusion that necessitated an adjustment to his childminding arrangements, I recommend that the employer would pay the Worker €1000 compensation. I recommend also that the present provisional flexible working arrangement whereby the Worker works a period on the shopfloor interspersed with delivery duties would be extended for a further six months from the date of receipt this decision, but that at the conclusion of that period the Worker should adopt the revised delivery hour shifts.