DWT1625

The Complainant complained that on a large number of occasions she was only given one hour’s notice of a requirement to work and that there were constant changes to her roster. The Complainant asserted to the Court that when short notice requests were made there was not an option available to refuse the Respondent’s request.

The Respondent contended that staff, including the Complainant, were occasionally contacted with a request to work in a manner different to the published roster when additional or relief staff were required to cover illness or annual leave or similar eventualities. The Respondent asserted to the Court that no employee received a request to attend for work at an hour’s notice save in exceptional circumstances. The Respondent asserted that in any such circumstance the staff member concerned is entitled to refuse the request of the Respondent.

Discussion

The Act at section 17 provides as follows

• 17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

  (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

  (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

  (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

  (5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.

Conflicting evidence has been put before the Court in this case. The Respondent states that where requests are made to staff to work hours different to their published rostered hours the employee concerned is permitted to refuse the Respondent’s request. The Complainant asserted to the Court that this was not the case. The Complainant stated to the Court that short notice requests to work hours different to those published were a common occurrence. The Respondent asserted to the Court that such occurrences were exceptional.

The Court, on the balance of probability, prefers the evidence of the Respondent in this matter and accepts on that basis that the Complainant was in a position to refuse a request to work hours different to her published roster and that any such event was in response to a circumstance which was unforeseeable at the time of completion of the published roster. In those circumstances the Court finds that the Respondent did not breach the Act at Section 17.

For the reasons stated above the Complainant’s appeal is disallowed and the Recommendation of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
11 April 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.