ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00001647
Dispute for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969. | CA-00002251-001 | 29th January 2016 |
Date of Adjudication Hearing: 5th April 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969, 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 evidence relevant to the dispute.
Summary of Trade Union Case:
Although I was temporarily moved from my position on the night crew to working on days (this was because I was experiencing harassment from a fellow night crew colleague), I am still employed on a night crew contract but was not considered or offered the Company/Union agreed terms when the store's night working was dissolved in 2014/2015. I have raised this as an internal grievance using the Company grievance process but have received no satisfactory resolution to the same. |
The Trade Union said the dispute relates to the Complainant not being allowed to avail of the Company/Union 2014 Night Crew Agreement as implemented by the Respondent, when closing down the night crew in the Store the Complainant worked in, in early 2015.
The Complainant commenced her employment as a General Sales Assistant with the Respondent at the named location on 27th March 2007. Mandate said she is currently employed on a night crew contract of employment of 25 hours per week and her pay rate is €11.97c per hour.
In June 2010, the Complainant had reason to lodge a complaint against a colleague night crew worker for sexual harassment. This complaint was investigated and for health and safety reasons it was agreed that she would be temporarily moved to day shifts as a means of alleviating any unnecessary related workplace related stress.
In late 2012, the Complainant was subjected to unnecessary and unrequested attention by in-store security personnel regarding her cashier operations. The Trade Union said the Complainant had genuine grounds for complaining about this matter, which was in some way investigated by the Respondent, but it still remains raw with the Complainant. The Complainant raised a grievance at Regional Operations level.
In October 2014, the trade unions balloted their members on a set of new Night Crew Agreement proposals for ballot. All Union members employed on night crew contracts of employment (including the Complainant) were balloted, and the proposals were overwhelmingly accepted, thus becoming the 2014 Night Crew Agreement.
In early 2015, the Respondent decided to close down the night crew operations in the location the Complainant was employed and they implemented the terms of the 2014 Night Crew Agreement. All employees that were on night crew contracts of employment, including a number of employees who had been temporarily moved to day shifts for health reasons, were afforded the terms of the 2014 Agreement; but unfortunately the Complainant was excluded. On 31st March 2015, the Trade Union wrote to the Respondent on behalf of the Complainant raising their concerns at the treatment of the Complainant and emphasising the temporary nature of her day working. The Trade Union said that this correspondence was never challenged and similarly the Complainant remains to date on a night crew contract.
Despite efforts it did not prove possible to resolve the matter and the Trade Union referred the matter to the WRC.
The Trade Union said it is their position that the Complainant’s current contractual position provides for her to be included in the night crew that were afforded the terms of the 2014 Night Crew Agreement in early 2015. This Agreement clearly states on its first page: “For the purpose of this agreement the term Night Worker shall mean a colleague who is employed to commence and finish work between the hours of 10pm and 8am and has been issued with the relevant night workers contract.” As a consequence of this the Trade Union maintains that the Complainant satisfies the necessary terms for appropriate inclusion in the group given that she was furnished with the relevant contract of employment, which states the hours for which she was employed.
The Trade Union said the Respondent’s argument that the Complainant was and is effectively a day worker is spurious given that they have never provided her with the appropriate and necessary contractual permanence of same and similarly never verbally informed her that her night crew status was permanently removed when she moved to days and furthermore the Trade Union correspondence of 31st March 2015, was never challenged nor even received a response.
Based on the foregoing submissions the Trade Union submitted that the Complainant is entitled to be afforded the terms of the 2015 Night Crew Agreement and sought that her claim be upheld.
Summary of Respondent’s Position:
The Respondent said the Complainant states that she should have received a payment when night working ceased the Store in which she is employed in 2014/2015.
The Respondent said the Complainant commenced employment with them as a general sales assistant at a named location. She was working a 25 – 30 hours per week band, 5/7 days, Sunday to Saturday inclusive.
The Respondent said that the Complainant commenced an extended period of sick leave (6 months) from 3rd August 2011 to 13th February 2012, which was caused by her twice breaking her leg. On her return to work her doctor stated that she would not be physically capable to pack or pull cages, which is a requirement on the night shift, due to her leg injury.
The Complainant commenced working on days from Monday 13th February 2012.
The Respondent said that around the end of 2014, a decision was made by them to cease night working at the location the Complainant worked and this ceased on 10th January 2015.
The Respondent said they had made an agreement with the 2 named trade unions, the ‘Night Work Agreement 2014’. The rationale behind this Agreement was to update a written policy to account for the practices and operations for night workers going forward in the Company and covering the associated conditions of employment and working practices relating to operating night crews and this Agreement superseded the 2013 Night Working Agreement.
In this document a night worker is defined as “for the purposes of this Agreement the term night worker shall mean a colleague who is employed to commence and finish work between the hours of 10.00pm and 8.00am and is issued with the relevant night workers contract” The document also defines a day worker as “for the purpose of this Agreement the term day worker shall mean a colleague who is employed to commence and finish work between the hours of 7.00am and 11.00pm and has been issued with the relevant day workers contract.” The Respondent said that Section 2.1 of the Agreement states that permanent night crew will be recruited and paid on a consolidated rate equivalent to time and one third for all hours worked. Section 8 deals with the full discontinuance of a permanent night crew and it states in the first instance they will be given an opportunity to transfer to another night crew, where a vacancy exists. If this is not available there are a number of other options for consideration.
Employees that move from permanent night crew to days are covered under the Agreement as follows: “It is recognised that colleagues who chose this option will lose their night premium, the loss will be compensated at two time the gross annual difference for the gross annual loss of their premium pay for working nights and the consequential impact on their share bonus.” The Respondent said that 7 of the employees who were working on the night shift in December 2014, were compensated under these terms.
The Respondent said that the Complainant was in possession of a permanent night crew contract of employment from the commencement of her employment with them. However, on her return to work after a period of absence she commenced on days from 13th December 2012.
The Respondent said the previous Store Personnel Manager has provided a statement that the reason for the Complainant’s move to days was for medical reasons and not to do with the contention put forward by her that “this was because I was experiencing harassment from a fellow night crew colleague.” She also stated that the move to days was a temporary arrangement; however there is no record of this nor did she lodge a grievance or complaint in relation to her move to days, nor assert in writing any desire or demand to return to the night crew contract terms.
The Respondent said that the claim does not come under the scope of the Night Working Agreement 2014 and it appears this is an opportunistic claim lodged after the Complainant had last worked on a night shift 3.5 years prior to the discontinuance of it in the location where she works. As such it appears that only when other night crew colleagues received the terms under the 2014 Night Working Agreement that she raised this issue.
The Respondent said the Complainant is not a night worker as defined in the Agreement, in that her working hours did not commence and finish between the hours of 10.00pm and 8.00am prior to the cessation of the permanent night shift crew in the location where she worked. While there is a night crew contract of employment on file for her the Complainant had not been working in that position for a period of 3.5 years.
The Respondent submitted that they fully complied with the terms of the Night Working Agreement 2014 as agreed between them and the two named trade Union for all relevant employees in the application of compensation for cessation of the permanent night crew shift at the location she works at. She was not a member of the night crew and as such was not entitled to and did not receive compensation for that change.
Based on the foregoing submissions the Respondent sought that their position be upheld and that the claim be rejected.
Findings and Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13(3) of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
Both parties quoted from and relied upon the 2014 ‘Night Work Agreement’, which both parties, along with the other named trade union, are a party to, and which defines a night worker for the purposes of that Agreement as, “for the purposes of this Agreementthe term night worker shall mean a colleague who is employed to commence and finish work between the hours of 10.00pm and is issued with the relevant night workers contract”, it further defines a day worker as, “for the purpose of this Agreement the term day worker shall mean a colleague who is employed to commence and finish work between the hours of 7.00am and 11.00pm and has been issued with the relevant day workers contract.”
It is not in dispute that the Complainant has, since the commencement of her employment with the Respondent, been issued with a relevant night workers contract and that position has never changed, i.e. she has never been issued with a relevant day workers contract. On that basis it would appear that she was night shift crew worker at the relevant period and accordingly would be entitled to be covered by the compensation terms of the 2014 ‘Night Work Agreement’ at the cessation or discontinuation of night crew working in the location at which the Complainant works.
However on the other hand the Respondent argues that prior to the time of the cessation of night crew working the Complainant had not worked the night shift for a 3.5 year period. In addition the Respondent further states that the Complainant was moved off night shift on to day work at her own request for medical reasons, upon her return to work after a period of absence caused by a leg injury unconnected with work. The Respondent further said that at no time in the intervening period did the Complainant seek to return to night shift working and that accordingly it could not be said that the (requested) transfer was a temporary one.
There is some merit in these submissions. It is a fact that the Complainant never did, over a lengthy period of 3.5 years, request a move back to night shift working, which implies that she was content to remain on day work.
However the fact remains that the Complainant was never issued by the Respondent with a day workers contract or employment, nor was she ever informed (verbally or otherwise) by the Respondent that her status as a contracted night shift worker had changed and has remained on a night workers contract and on that basis I am satisfied that there is some merit in her claim that she was entitled to some compensation on the cessation of night shift working at the location where she worked. I note that the Trade Union have estimated that the Complainant would have, in accordance with the provisions of the 2014 Night Work Agreement, been entitled to compensation in the sum of €7,500.00c to €8,000.00c at the cessation of night crew working.
In all the circumstances and as a full and final settlement of the claims, I recommend that the Respondent pay the Complainant the sum of €4,000.00c within 6 weeks of the date of this recommendation. For the avoidance of doubt I wish to confirm that this award is not wages of arrears of wages.
Also for the avoidance of doubt I wish to confirm that this recommendation is particular to the unique facts and circumstances of the instant case and it cannot and will not be used or quoted by either party or any other party in any other case.
I so recommend.
Dated: 5th July 2016