Worker

Employer

Anonymised Parties

Customer Assistant

Supermarket

Representatives

 SIPTU 

 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 - 00003514

05/12/2024

This matter was heard over the course of two days. In the first instance the Complainant had lodged a complaint of a contravention of the Payment of Wages Act 1991 and thereafter sought to bring a claim under the Industrial Relations Acts legislation to expand his claim in circumstances where he is in dispute with his Employer for a number of years.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. On each of the two days, the said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 5th of December 2024.

The hearing was conducted in recognition of the fact that all formal hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969. Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence provided by the other side.

The Complainant was fully represented by his union official. I was provided with a comprehensive submission dated the 3rd day of December 2024 which was prepared in anticipation of a Payment of Wage claim but which remains pertinent herein. The Complainant provided me with further documentation on or about the 13th day of June 20225 in advance of the second hearing date. The Complainant additionally relied on the submissions set out in the two separate Workplace Relations Complaint Forms which state:

Member was moved to click and collect last june 2022.  this commences at 7am and member started at 5am for last 10 years and got premium payment from 5-7am which he has now lost. 

The claim is in respect of loss of premium from January 2022 - part of claim is being claimed under payment of wages act for period Jun-Dec 2023 and Jun to Dec 2024

I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he had agreed, in late 2021, to move across from one role to another having been given the assurance by his line Manager that the move would not impact his then arrangement which included fifteen hours shift/premium work each week at a time and a half rate which had become a fixed pattern of work for him in the four years prior to the move.

I estimate that the then (2021) value of the weekly premium payment to have been in and around €127.00 gross per week with an annual value therefore of circa €6,084.00 (gross). This was a payment on which the Complainant had inevitably come to rely as part of his pay-packet over and above his basic rate of pay for his contracted 39-hour week.

Over time, the Complainant was moved off the premium hours such that he says he incurred financial loss which he would not have incurred had he not been persuaded by his Manager to move from the position he had previously held. At present, the Complainant is on ten premium hours per week. This has dropped to as low as five and zero premium hours in the intervening years.

The Complainant’s representative estimated the losses over the intervening period (from January 2022 to June of 2025 to be in the region of €9,646.00 gross

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent was represented by the business representative group known as IBEC. The Respondent provided me with a written submission dated the 4th of December 2024. The Respondent was represented in person by the store Manager who gave evidence on his own behalf.

The Respondent does seemingly not deny that the Complainant over the course of time was at a financial loss by reason of the introduction of a role into the workplace into which the Complainant was asked to move.

The Respondent did not challenge the break down in figures provided by the Complainant’s representative and from which I have drawn an overall figure of losses at €9,646.00.

The Respondent did however robustly defend its position asserting that the Complainant - along with all of his colleagues in this store and very store - is subject to the Contractual certainty (or perhaps uncertainty) that

“as part of your contract you will co-operate with all business changes, new work practices and procedures and any other change deemed necessary now and in the future…working times and rosters may vary from store to store and from time to time. For operational reasons, such as store opening times changing, we reserve the right to change your rosters”

As noted the store Manager gave evidence and he categorically denied that he gave the Complainant any assurance and comfort that when he moved from one position to another position he would continue to work the premium hours he had been working for the previous four years.

The Respondent witness was challenged as appropriate by the Complainant representative.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have given consideration to the position outlined by the parties herein. It is interesting to note that the Complainant has worked with the Respondent company since 2000. He indicated that he was perfectly happy there. He is considered a good loyal and valuable employee with his manager noting,  in the course of his evidence, that as recently as one week ago he had dropped everything to come in and do a shift at short notice.

The Complainant accepted that he was well aware of Management’s prerogative to move him from any department and trade so as to best utilise his skills in the store. The Complainant gave evidence of having worked in the deli area, in household goods, on the grocery floor. The Complainant accepted that there was no guarantee of premium time and that this payment only attached to the most unsociable hours from 5am to 8am with a limited number of departments having to be open this early. The Complainant said that for a while in 2009 he had worked in the Fresh Department which involved a 5am to 2pm shift. This was his first experience working on a regular time and a half premium shift. The Complainant was moved again and did not return to a premium shift job until in and around 2015 at which time the Complainant was returned to the Fresh Department where he remined for six years. By November 2021, it seems to me, that the Complainant was on a basic 39-hour weekly salary of circa €659.00 with a premium additional payment of €126.00 for working fifteen unsocial hours every week.

For the avoidance of doubt, I accept that the Complainant was not in position to be casual about his earnings and I accept that over the five or six years that the €126.00 premium payment had become built into his expectations.

I am therefore accepting that the Complainant must surely have been very wary about moving out of the fresh department and into an alternative department which was being rolled out for the first time in the Respondent store. The hours of work associated with this role were unknown.

In his evidence, the Respondent Manager BB was very honest in saying that he had quickly identified the Complainant as one of his most trusted workers with the skill and competency required to engage with the necessary training and get involved with the implementation of the required roll out.

The Respondent witness gave clear evidence about a meeting held with the Complainant and another senior member of staff concerning a programme of training to be implemented in another store, as well as to discuss the day-to-day logistics of the new role. The same Manager BB was however absolutely vague on what basis the Complainant had come to be persuaded to come on board and attend this meeting in the first place. In his evidence he confirmed that he was not even sure if it was him or the other Senior Manager who had had the initial chat with the Complainant about the new role.

For his part, the Complainant is categorically clear that he was approached by his Manager BB and was invited to come on board with this new role. The Complainant says that he hesitated as he did not want to lose the premium shift he was currently working to. The Complainant says he was given a verbal assurance by BB, his Manager, that there would be no change in his contracted hours, and that he would continue to work five days over seven with a start time of 5am. It was only on this basis that the Complainant agreed to move from the fresh department to the new department.

As noted, over time the shift pattern drifted away from the 5am start. At one stage it was an 8am start and now I understand it is a 6am start. The Complainant’s representative estimated the losses over the intervening period from January 2022 to June of 2025 to be in the region of €9,646.00 gross. This figure I understand takes into account different hourly rates of pay over the period. The figures presented were not challenged.

On balance I am inclined to accept the Complainant’s simple contention that he would not have moved and would have had no interest in moving if he had thought that he would take a drop in salary. I am therefore accepting his evidence that he was given an assurance that this would not happen. I am not going to suggest who might have over-promised in this regard but on balance I am satisfied that the Complainant was lured from one position to another which gave rise to a financial hit to him.

Beyond that finding is the issue of whether or not the Complainant was, in any event, obliged to move at the direction of his Manager. After all, the contract of employment and the employment relationship is very much predicated on the understanding that no shift pattern is guaranteed. Referring once again to the language:

“as part of your contract you will co-operate with all business changes, new work practices and procedures and any other change deemed necessary now and in the future…working times and rosters may vary from store to store and from time to time. For operational reasons, such as store opening times changing, we reserve the right to change your rosters

The Respondent has pushed the narrative that the Complainant must under the terms of the contract, submit to the will of the employer. The will of the employer was that the Complainant should move from one position that paid a certain amount to another position that paid a lesser amount - though this last fact would only become known over the course of time. This seems to me to be a wholly unsatisfactory arrangement.

I wonder that with so much uncertainty surrounding the proposed new roll that neither the Complainant nor management thought to introduce a trial period? Say for six months. Thereby allowing the Complainant return to the fresh department if he found the new role unsatisfactory.

At the heart of this case is an employment relationship that has endured for twenty-five years. I cannot think that there is a particularly high percentage of employees who can say that. It therefore seems a pity to me that the Complainant’s longevity and loyalty has been devalued by the employer  that has insisted on imposing it’s right to direct when and where the Complainant works even when it operates to give rise to a significant loss of income.  It is neither desirable nor equitable. It amounts to a unilateral change to an implied contractual understanding.