ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003801

Complaint for Resolution:  

Date of Adjudication Hearing: 21/09/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing: 

Complainant’s Submission and Presentation:

On May 25^th 2016 the ownership of the restaurant in which the complainant was employed changed hands. The complainant was told that all jobs were safe and that the restaurant would continue trading as before as an Italian restaurant.

In his direct evidence he itemised five issues as giving rise to his complaint; these were a change in how the meal breaks were to be taken, having to consume food which was prepared several hours earlier and which was cold, being required to clean the toilets, losing responsibility for managing bookings in the restaurant, and that cigarette breaks were abolished.

(He had other complaints about the attitude and tone of one of the new owners but this falls outside the jurisdiction of the Act).

He says that these issues had an adverse effect on his health and he went on certified sick leave on June 3^rd 2016. He submitted his resignation on June 15^th.

Respondent’s Submission and Presentation:

The respondent says that no terms and conditions of employment were changed. In respect of the issues itemised by the complainant, it says that any change in the meal break regime was to ensure that staff were not taking their meal breaks during periods of peak service. It also accepts that meals were prepared in advance but says that it was a matter for the complainant to insist that his meal be served hot.

Regarding the cleaning of toilets the respondent says that he was told that it was his responsibility to ensure that the toilets were maintained in a good condition, and that this may, on occasion, have required him to clean the toilets himself. But his contract of employment does provide that he may be required to undertake such additional duties.

There was no change to the arrangement for ‘cigarette’ breaks. A dispute arose in relation to the complainant in respect of one occasion only, May 28^th, 2016 when the complainant took a break without notifying his colleagues and that he was unavailable to deal with a customer query when needed. Following this it was communicated to him that breaks must be taken outside peak service and during a break period. However, they were not, as claimed, abolished.

The respondent also gave evidence (which was not disputed by the complainant) that efforts had been underway to resolve the outstanding matters through the company grievance machinery. The respondent says that on receipt of his letter of resignation, it attempted to persuade the complainant to change his mind and offered to continue to process matters through the grievance machinery.

The day before his resignation he wrote to the respondent suggesting that a severance package might be agreed.

Conclusions and Findings

I have considered all the relevant evidence that was laid before me both before and in the course of the hearing.

The complaint in this case arises under section 5 of the Terms of Employment (Information) Act which requires that an employer communicate any changes in the matters covered in the statement of an employee’s terms of employment within four weeks of the change.

The complaint in this case faces a number of difficulties. The first and greatest of them is that he resigned on June 15^th. Even if all of the matters complained of took place on the exact date of the change of ownership, which seems highly improbable, this is less than the four weeks’ window required by the Act by the end of which changes are required to be notified.

The second difficulty lies in identifying whether any of the five items complained of represent changes in his Terms of Employment, or if they do whether they are changes in the terms required to be included in the statement.

The main issues covered there (section 3 of the Act) relate to such things as the names of the employee and employer, the work address, the job title and nature of duties, the rate of pay and frequency of payment, the hours of work, leave etc.

Of the five items listed by the complainant he may have some complaint arising from the nature of his duties although there is very little in his contract of employment to indicate what these are. While they contain the ‘catch all’ ‘You may on occasion be required to undertake reasonable alternative duties’ it could hardly be thought to be reasonable that a Restaurant Manager should be personally engaged in a deep clean of the toilets. On the other hand it was not established that this was an actual change to be added to his duties on a continuing basis.

Evidence was given by the respondent and accepted by the complainant that on June 9^th 2015 he confirmed by email that he was willing to engage with the company grievance procedure. This was confirmed by the company. By June 14^th, and bearing in mind that he had been on sick leave since June 3^rd, he wrote saying that he did not feel he would ever be able to work with the new owner and asking the company to ‘offer me a way to be finally released from [the new owner]’, which the company interpreted as an invitation to offer a severance package and this interpretation was not disputed by the complainant at the hearing.

The company replied offering to meet him on a mutually suitable date but by the next day he had resigned.

In all the circumstances, while the complainant may have had grievances of a more general nature it is clear from this that almost up to the moment he resigned there was an active engagement with the respondent which clearly could have included whether or not the alleged changes represented changes in his Terms of Employment triggering the notice requirement.

In any event, some of them, and perhaps all of them scarcely meet the requirements for notification, and even had they done so he resigned before the notification period had expired. I can make no finding therefore that the requirements of the Act were triggered, or, if they were, that they were not complied with as the period within which to do so had not expired.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have carefully considered complaint CA-00005597-001. It is not well founded and I dismiss it. The complaint fails.

Dated:   7^th December 2016