Worker

Employer

Anonymised Parties

A Catering Supervisor

A hospital

Representatives

Siptu - Works Rights Centre

 Industrial Relations Manager

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 - 00002883

22/07/2024

The employee worked part time in an acting capacity as Catering Supervisor.  During this period her hours of work included a paid lunch break and this practice continued when she was appointed full-time and in a permanent capacity.  The employer is saying that this practice should not continue as it is different than the hours which apply to the national grade of Catering Supervisor.  The employee is claiming that custom and practice should apply.

The Complainant has been employed with the respondent hospital in the catering department since April 2008, initially as a Catering attendant and later being promoted to Catering Supervisor. She works 39 hours per week, 8am to 4pm inclusive of a 30-minute paid lunch break and works every second weekend.

On 15 February 2024 the Catering manager notified the Complainant of a grievance she had received from the Complainant’s counterpart on the opposite shift. This work colleague was aggrieved that she had to work 8.5 hours each shift while the Complainant worked 8 hours. The Complainant felt obliged to explain her situation- which came about following a move to an acting Catering Supervisor post in 2015, when the rostered hours [8am 4pm] were notified to her by the then Catering manager.  This continued without question, even when in December 2020 the Complainant moved to a 39-hour contract, and in May of 2022 when she was formally promoted into the post. Her explanation was apparently not acceptable as she soon came to understand that management were insistent on her making a change to her working hours, to bring her in line with her colleague.

She lodged a formal grievance in March 2024 and the findings were not favourable, and found that the contracted hours, [39] for a catering Supervisor nationally, includes a 15-minute paid tea break and a 30-minute unpaid break per day, and that the others in the same grade in the hospital work 8.5 hours per day.

This was appealed by the complainant on 26 March 2024.  The appeal cited that fact that it was not the Complainant’s fault that she was allowed to work her current hours, which had now become a custom and practice, and that she should not be penalised, because of management’s mistakes. Management had created this situation but in solving this the Complainant should not have retrospective changes to her terms and conditions of employment imposed upon her. The Complainant explained that she worked 8am -4pm with a paid 30-minute tea break and a short morning break. She said that she is flexible and, when she stays back after 4pm, she rarely, if ever, claims payment or TOIL. Neither did she claim payment or toil if she started her shift before 8am., which was a frequent occurrence.   She also stated that over 9 years, no one had ever raised any issues with her around her roster, and it was only after the work colleague grievance was submitted that she was required to complete formal time sheets. She now felt micromanaged.  A final appeal in May 2024 upheld the original findings.

The complainant’s contract of employment identifies hours of attendance for the grade as 39 but is silent on start and finish times. The Respondent claims lack of awareness, yet it was the Catering Manager who put this working arrangement in place, so its incorrect to claim management were unaware of it. In addition, if the Complainant is compelled to work an additional 30 minutes per day, then she is being treated less favourably than other colleagues employed in the department/hospital.

The complainant signed a Catering Supervisor contract in December 2020 for 15 hours per week. Following a grievance submitted by a colleague in August 2023 an error was identified regarding the rostered hours the complainant was working. Management sought to rectify the error resulting in a grievance being submitted by the complainant.  The outcome of the grievance was appealed by the complainant in line with the grievance procedure and following the various stages her grievance was not upheld.

The complainant was appointed initially on an acting and part time basis following interview in 2015. In 2019, following competition, another person was appointed as Catering Supervisor to the alternative shift.  Subsequently, the complainant was also appointed permanently and on a full-time basis to the role.  The Service Manager explained to the complainant that the working day was 8.5 hours with a flexible starting and finishing time.

It is unfair that an unknown discrepancy should mean that the complainant and a co-worker on the same grade work different hours.  Furthermore, the working hours claimed, means that the complainant would be the only Supervisor grade across the Support Services in the hospital to be paid in full working less hours.  The direct comparable grade of Household Supervisor has always worked 8.5 hours per day. 

The respondent does not accept that, based on a facilitation when the complainant was filling on an acting basis, that this was the roster she would be working in the substantial post.  The respondent cannot sustain a position where the complainant is the only person with more favourable hours than others in a comparable grade.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Following a review of her temporary contract under the terms of the relevant Circular Letter the complainant was awarded her entitlement to a CID for 15 hours per week.  This appointment was confirmed by email.  No mention was made of any alteration to her hours or whether or not lunch breaks were paid or unpaid.  However, it is clear that the appointment on a permanent basis was to the national grade and therefore the assumption must be that it should be on the terms and conditions of that grade. The contract for that grade included an express term, relating to hours, of a 39 hour week and the normal interpretation of a 39 hour week in the employer’s area  would not include a paid lunch break. 

The complainant is claiming custom and practice which can become an implied term in an employee’s terms of employment. Generally, an implied term such as custom and practice, should only  be applied to conditions of employment if it is felt that it is something that the parties would not only have wanted but would almost certainly have agreed on at the time of contract or a practice or arrangement which has been happening for a long period of time that both parties seemingly accept and expect. The key point here is that both parties should be aware of the practice.  Undoubtedly, in the current instance, the relevant manager was aware of the hours the complainant worked but crucially, was unaware that these hours deviated from the national norm.

I therefore conclude that custom and practice cannot apply in this instance and that the terms of employment which apply to the national grade should apply to the employee. The change in her hours has undoubtedly had an adverse effect on the employee who enjoyed superior benefit in terms of hours to that of her colleague for many years.  As a gesture of goodwill I recommend that the employer make her an award of 100 hours to be used on a similar basis to TOIL.

Custom and practice and a national grade