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FULL RECOMMENDATION
PARTIES : TESCO IRELAND LTD DIVISION :
SUBJECT: 1. Appeal Of Adjudication Officer Decision No. ADJ-00030764 CA-00041037 This is to be done within six weeks” A Labour Court hearing took place on 14 December 2021.
This is an appeal by the Employer of Recommendation ADJ-00030764 of an Adjudication Officer in respect of the Worker’s grievance pertaining to a loss of earnings. The Adjudication Officer recommended that the Worker be paid compensation of €2,718.69 which is one and a half times the annual value of the overtime worked. Worker’s submission The Worker has been employed since 2004 as a general assistant on a 5 over 6 contract which excludes Sunday working. With effect from 2005 the Worker worked three hours overtime every alternative Sunday in the cash office. She was paid those hours at time and a half. On the 26th/27th February 2019 the Worker was advised by the Employer that the cash office would be closed on Sundays as and from the 17th March 2019. The Worker lodged a grievance with her Employer as she had worked the extra hours for fourteen years and the impact of the decision was that she suffered a loss of € 69.71 gross every alternative Sunday. The Worker’s grievance was not upheld as the Employer found that the overtime was voluntary. The Worker disputes that the overtime was voluntary or that she could chose not to do it. The Worker submitted that she was rostered to do this work every alternative Sunday and therefore was entitled to compensation for loss of earnings arising from the Employers decision to close the cash office on Sundays. Employer’s submission It is the Employer’s submission that the Worker is on a 5 over 6 contract meaning she is liable to be rostered Monday to Saturday only. When additional hours become available the Worker is entitled to accept or reject those hours. The Worker has voluntarily been working an additional three hours on alternative Sundays in the cash office for a number of years. The Employer for operational reasons made the decision to close the cash office on Sundays. The net effect of that decision was that the Worker’s voluntary overtime came to an end. The overtime was not regular rostered overtime and therefore did not attract a buyout. The Employer was happy to engage with the Worker about changing her contract to a 5 over 7 contract which would provide the opportunity for her to work Sundays. Decision It is not disputed that the Worker carried out this additional work for around fourteen years and did so every alternative Sunday and that this was an unusual situation. Nor is it disputed that she has a 5 over 6-day contract. In an industrial relations dispute such as this the role of the Court is to consider if it can assist the parties in reaching a resolution of the issue in dispute between them. The Court notes the Employers submission that operationally there was no longer a requirement for the cash office to be open on a Sunday. The Court decides that taking account of the number of years that the Worker worked these additional hours she should be paid compensation of €2,718.69 in full and final settlement of this issue. The appeal fails. The decision of the Adjudication Officer is varied accordingly. The Court so decides.
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