Case Number: ADJ-00000002. Workplace Relations Commission

• Docket Number: ADJ-00000002
• Date: 22 November 2016
• Court: Workplace Relations Commission
• Parties: A Sales Assistant v A Retailer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000002

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-00000003-001	1st October 2015

Date of Adjudication Hearing: 15/09/2016

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 and 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.

Background:

Mandate were in dispute with the Respondent in relation to the Complainant’s pay rate.

Summary of Trade Union Case:

My Employer has maintained a 7.5% pay differential between me and my colleagues who carry out the same duties.

Mandate said that the dispute relates to the Complainant not receiving a 7.5% pay differential by the Respondent to which Mandate maintains she is entitled.

Mandate said the Complainant commenced employment with the Respondent as a General Sales Assistant with the Respondent at a named store on 22^nd September 1986. She is employed on a full-time 39 hour week basis and has 3 rostered late night hours per week, which are paid at the overtime rate of double time. Her current pay rate is €14.31c per hour. For the last 24 years she has been working in the cash office, a position that carries responsibility suitable only to employees with a proven record of accuracy, accountability, honesty and discipline to process and procedures which are regularly audited and tested.

Mandate said that the Complainant in common with other colleagues received a 7.5% pay differential in addition to her normal hourly pay rate for chargehand covering duties she was required to perform when her Chargehand was off work. The Complainant was the designated person for chargehand cover of the Cash Office business.

Mandate said that prior to and for a period after 2001 the Respondent introduced into their new and replacement stores the role of Section Manager. For a number of years this role was in conflict with that which already existed, namely the chargehand role. Through protracted negotiations the Respondent and the trade unions finalised an Agreement, known as the Management Structure Agreement 2006. This Agreement, amongst other things presented a number of options to those employees then in the chargehand role and provided for the non-replacement of a chargehand in the event she or he left the employment and the Agreement also provided monies for those employees designated to cover their respective chargehands during their absence from work. This Agreement was designed to and in the main saw the gradual erosion of the chargehand role within the employment. Mandate said that this Agreement applied to all the existing chargehands in the employment, including the Store the Complainant worked in.

On 5^th June 2009, the Complainant attended an in-store local management/union meeting. In attendance were the Complainant another named Union Representative, the local store manager and named local management representative. The Union Representative asked the Store Manager why his and another colleague’s rate of pay was being reduced. He was informed that they were not performing any management duties, but when the union representative referred to another named colleague was in receipt of this pay rate the Store Manager stated that person was carrying out managerial duties, such as product ordering and organising staff roster. When the Union Representative informed that he was performing similar work the Store Manager then stated that the Union Representative and his colleague would receive the 7.5% pay rate differential until a Section Manager was appointed.

The Complainant immediately informed the Store Manager that she was in a similar situation, that in 2006 she lost her 7.5% pay differential when her Chargehand left the employment. She also informed the Store Manager that she was seeking restoration of this pay differential for the same reasons as her colleagues. The Store Manager never responded and he was subsequently transferred from the store in which the Complainant and the Complainant never received a response to her representations, but she was informed by a named colleague in February 2010 that some of her colleagues were receiving this 7.5% pay differential, despite the fact that their particular department how has a Section Manager in place.

The Complainant then approached the named new Store Manager and asked why she was not receiving this pay differential as compared as to her 3 colleagues despite the fact that she was carrying out a comparatively similar type role and associated functions. The Store Manager’s response was that none of them should be receiving this pay differential and that he would look into it. Mandate said that however it is apparent that the Store Manager did not look into this, however he was subsequently off work on sick leave and never returned to the Store.

The Complainant then made similar representations to the subsequent Store Manager, who also stated that he would have to look into the matter. He reverted to the Complainant stating that while her 3 colleagues were and would continue to receive the 7.5% pay differential, she would not.

In March 2014, Mandate wrote to the ER Manager, stating their concerns on the Complainant’s treatment in this matter. The Respondent responded on 28^th March 2014, and referred to the need for an investigation in the matter. Mandate again wrote to the ER Manager, more than 6 months later, on 8^th October 2014 enquiring if the investigation was completed and if so what were the conclusions. The ER Manager replied by letter of 12^th November 2014. As the matter had not been progressed Mandate wrote to the Respondent on 3^rd February 2015 requesting a meeting to discuss the matter. That Meeting took place on 21^st April 2015 at which the Complainant’s position was put and the Respondent confirmed their final position by letter of 10^th June 2015.

Mandate said it is very clear that the Respondent said has, for whatever reason, unilaterally decided to step away from the Management Structures Agreement 2006.

Mandate said that the Complainant, like her colleagues, was the designated person covering her department’s chargehand when that chargehand was off work and for this role, like her colleagues, she received the 7.5% pay differential.

Mandate contends that the Complainant’s roles and responsibilities are similar if not identical, to those of her colleagues receiving this pay differential. Despite numerous opportunities, the Respondent has not identified the actual reasons why the Complainant does not satisfy the qualifying criteria for the pay differential as compared to her colleagues.

Mandate said the Company/Union Management Structures Agreement 2006 provided for the removal of the pay differential, which if applied fairly and equitably in this Store would have seen the pay differential completely removed, as was the Agreement’s stated intention, but this did not happen.

Mandate contended on behalf of the Complainant that the Respondent’s different treatment of her is at best unfair and unjust and this treatment has had an obvious financial impact on the Complainant when compared to her colleagues.

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