ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00002547

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:             27/11/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).

Background:

Summary of Workers Case:

The issue in dispute with the Employer relates to the fair distribution of 7.00am starts for the Worker who is employed as a Sales Assistant in the Respondent’s retail store.

Background to Dispute:

When The Worker commenced employment her hours were 10am to 6pm Monday-Friday. The Worker worked primarily on the Customer Service Desk and fitting rooms. Due to an increase in theft from the hours of 9.00am to 10.00am from the fitting rooms, it was decided by agreement, that The Worker would start at 9. 00am and finish at 5. 00pm. This time change caused much disruption in the household as The Worker had very young children. After a discussion with the Store Manager, The Worker agreed to the change of hours, which resulted in a significant reduction in theft. In 2013 the Employer and the Trade Union negotiated a Banded Hours Agreement with the Employer. Save for full-time staff, staff, had the option once they had worked in excess of their weekly contracted hours to assimilate onto a band. Staff who for whatever reason, had set agreed working hours could opt to be assimilated onto one of the new bands of working hours or to stay on their agreed arrangements. The Worker chose to stay on her thirty five hours contract and not to band her hours. She continued to work 9. 00am to 5. 00pm until October 2022, when Mr. L, Store Manager approached several staff including The Worker and asked if they would start at 7. 00am to 3. 00pm, this was to accommodate deliveries coming in at 7. 00am. The Worker was asked if she would be available to work three of the 7. 00am shifts. Mr. L informed staff that the shifts would be available to all staff on a fair and equitable basis. This did not require a change in contract as it was voluntary. The Worker continued to work three 7. 00am shifts until July 2023, when her number of 7. 00am shifts were reduced from 3 to 2 and after a few weeks she was then removed from the roster for 7. 00am starts. She approached the Manager who informed her that she was no longer going to be rostered as she had not banded her hours and therefore could not have a 7.00am start. She was approached coming up to Christmas 2023, to work the early shift. However, as soon as Christmas was over, she was not rostered again. The Worker to date has not been rostered to do a 7. 00am, as she was replaced on that shift by those who were on banded hour contracts. She raised the issue on several occasions and on 5th September 2023, in line with procedures raised a grievance. The Grievance Hearing took place on 12th October 2023. The Company issued its findings on 13th November 2023.

The Worker appealed the outcome, and the Appeal Hearing took place on 17th November 2023, and the Company issued their decision on 29th November 2023.

Company noted the following: .

The Store Manager asked for her support to facilitate 7am starts to accommodate store deliveries for a period of time. 

That the Store Manager never has a conversation stating that the 7am starts shifts were permanent change to your contract. .

The Company spoke to her on four separate occasions to advise of the return to her existing hours.

She was advised that the store would be advertising Band E Contracts, which she was welcome to apply for. Band E is a fully flexible contract and may include 7am shifts.

If she would like to be added for consideration of the 7am shifts, he would do that, however it will be in line with the needs of the business. 

The Worker, in line with procedures had the right to appeal the decision on 5th December 2023, and the second Appeal Hearing took place on 25th January 2024. 

The Union argued that the Company had stated that if the Worker was to be considered for 7.00am starts, she would have to change her contract to a Band E Fully Flexi Hours Contract. On the basis that the Company has stated that 7. 00am starts were in line with the needs of the business, it would not make sense that she would give up a Monday to Friday 9. 00am - 5. 00pm contract for hours that were not guaranteed. In addition, the Union argued that there was no restriction in relation to the type of contract she had in 2022, when she was approached by Management to start at 7.00am as they needed her at the time, this happened again at Christmas and again the contract that she had was not a problem either at that time.

The Company upheld its decision in so far as "the decision to uphold the decision made by the Store Manager outlining that if you wish to register your interest in being included in the roster (in line with business needs needs). Please note this is above and beyond what the store should be doing and will be red circled to you. This concludes your right to appeal internally".

Union Case

The Worker has been a loyal and cooperative member of staff since the commencement of her employment in 1999. So much so that she has accommodated the Employer over the years when they came to her as they needed her help. She discommoded herself and her young family at the time, when she changed her starting times at the request of the Store Manager in order to reduce theft. 

On at least two occasions when asked, she again supported the Company's needs when asked to start at 7.00am to assist with the early morning deliveries albeit the second time it suited her also.

She was informed that the 7.00am starts would be shared on a fair and equitable basis, and this is simply what she is asking for, a fair opportunity to work 7.00am starts when the Company operates them.

It is unreasonable for her Employer to insist that the Worker change to a fully flexible contract if she wants to be considered for 7.00am. starts.  She fully accepts that the 7.00am starts are at the discretion and needs of the business, as they have always been. It is with this in mind that the question must be asked why her Employer would insist on a change that would move her from a Monday to Friday 9. 00am - 5. 00pm contract to a flexi contract, that in no way would guarantee her any particular starting and finishing time and would have to be available five days over seven.

The Company have stated that the store does not have a set contract working 7. 00am to 3. 00pm and that there is no obligation to roster her at 7.00am.

There is no obligation on the store to roster any staff member at 7.00am whether they have a set contract or a flexi banded hours contract. 

The Banded Hours Agreement is clear for those staff who opted not to band, they had the right to stay on their contracted hours. The Worker was not looking for a change in her contract to reflect the 7. 00am start, at no time did she ask for this, merely have the facility to do a 7.00am, the same as other staff. 

In addition to this, the aforementioned agreement does not state that those who band their hours must be rostered in the first instance. Who was rostered up to Christmas 2023 was simply based on who was asked and who agreed.

Conclusion

The Company have acknowledged the accommodation given by the Worker and offered her the opportunity to change to a banded hours contract. Band E Fully Flexi that may include a 7. 00am start. We believe that this is not an opportunity but a derogation of her terms and conditions and is in fact an insult to the Worker. We ask that the Company roster her to work 7.00am on a fair and equitable basis going forward and not victimise her for not banding her hours.

Summary of Employer’s Case:

The Claimant is employed as a Sales Assistant and has been employed since 1999. The claimant works on a set contract, five days a week Monday to Friday, from 9am to 5pm.

The Claim was submitted following a grievance process is in respect of her wish to be guaranteed a number of 7am shifts per week.

Jurisdictional Issue - Claim is one which effects the ‘hours or times of work’ of a ‘body of workers’

The claim refers to the claimant desire to access 7am shifts. As the claim is one which effects a ‘body of workers’, it would be going beyond the jurisdiction provided to the Adjudicator in section 13 of the Industrial relations act 1969 to deal with this element of the claim.

13.—(2) Subject to the provisions of this section, 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 and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

Were the Adjudicator to recommend that the claimant be entitled to be scheduled for any specific number of 7am shifts it would affect the collective roster and impact multiple colleagues whose rosters would then be affected in turn. The claim is clearly one which affects the hours of work of a body of workers.

Background to the issue

In 2020 the then store manager introduced 7am starts to support the morning deliveries. This was done initially on a temporary basis as a trial. The store asked colleagues if they were interested in working this on a temporary basis and a number of colleagues took up the opportunity. The claimant at the time did not express an interest in the 7am starts as it did not suit her. The claimant continued to work her set hours contract.

In the run up to peak trade from October 2022 the new store manager required extra colleagues to work 7am to 3pm shifts again to support delivery needs.  The claimant was asked again whether she would be interested in working these shifts on a temporary basis. The claimant agreed and she commenced working a number of 7am starts from October 2022. To be clear this was a temporary arrangement and did not alter the fact that the claimant remained on a 9am to 5pm, five day a week set contract.  After the busy trading period from January 2023 the store no longer required as many colleagues working the 7am shift. The claimant worked generally one or two 7am shifts per week. The requirement for 7am shifts decreased with the claimant working an average of 1 per week in July and August 2023. 

From August 2023 the Store Manager deemed that that there was no requirement for a set 7-3pm shift. The company from that point required less colleagues to work at 7am. They're only four days per week which deliveries are made, Tuesday, Wednesday, Thursday and Saturday. There are also currently less colleagues working 7am shifts than previously.  There are an average of nine colleagues rostered to work 7am shifts. Some days only one or two colleagues commence at 7am. These colleagues have been available to work the 7am shifts from the point they were introduced 4 years ago. To provide the claimant what she wishes, ie. two or three 7am starts a week would mean removing these shifts from her colleagues and altering the roster of multiple colleagues.

Furthermore, there are another 30 colleagues who would also want to work those shifts. Providing the claimant with an entitlement to these shifts would in all likelihood result in extremely bad feeling among that cohort resulting in possible further claims or grievances individual and/or collective.

The claimant submitted a formal grievance and was represented throughout.  The outcome was as follows:

Due to operational needs the store does not require the Claimant to start at 7am and therefore she were reverted back to normal working hours. 

The store does not have a set contract working 7.00 a.m. to 3.00 p.m. 

There is no obligation for the company to roster her for 7.00 a.m. starts before other colleagues in store.

The outcome was appealed and was heard by the store manager on the 12th of November 2023.

The original outcome was upheld, however the store manager proposed two options;

The claimant could apply for a banded hours contract which would provide her with more opportunity to work 7am starts although she would not have the certainty of her start and finish times as she does currently. Or if the claimant would like to be considered to work 7am shifts she can consider this in line with the needs of the business (and on a rotation basis included with all colleagues).

The claimant appealed this decision to the second appeal stage. This was heard by Area Manager, who upheld the previous appeal outcome.

Company Position

This is a matter which effects the hours of work of a body of workers. Accordingly, the Adjudicator does not have jurisdiction to hear under S.13 of the Industrials Relations act.

The claimant was working a number of 7am starts for a limited period of time. This arrangement was always temporary and has not provided any ongoing entitlement for the claimant to alter her contract.

• The claimant has agreed that she is employed on a set 9-5 contract. She has no entitlement to work 7am shifts.
• To provide the claimant with these shifts would mean removing those shifts from her colleagues who have been working them since 2020.
• The claimant has chosen not to opt into a banded hours contract and has chosen to keep her set 9-5 contract. For the purpose of clarity, set contracts are generally viewed as preferential contracts. Colleagues such as the claimant who are on them, (all longer serving staff) have the benefit of knowing exactly what their hours and start and finish times are on a week-to-week basis. All other colleagues are on variable contracts, albeit within certain bands of hours. Their hours, start and finish time can vary from week to week. No new colleague has been issued with a set contract since 2014.
• The claimant is effectively looking to maintain a preferable ‘set contract’ of 9am -5pm Monday to Friday while at the same time looking for automatic access to shifts outside that set contract. This is clearly not reasonable, and the claimant has no entitlement to such.

Conclusions:

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

As this dispute is connected with the hours and times of work of a body of workers, I make no recommendation.

Dated:   06th of February 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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