ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003341

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 09/08/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing:

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The respondent was awarded a facilities management contract with a major bank in February 2014 and the complainant transferred to the respondent along with 570 other employees.

The complainant transferred on 28 hours per week. Her contractual hours are 21 hours per week.

In 2014 the operation was restructured resulting in about 30 redundancies. There was no change at that time in the cleaning section of the operation.

In 2016 the cleaning section’s hours and practices were reviewed and hours were reduced across all regions. The complainant’s hours were reduced accordingly from 28 hours to 16 hours per week. There were also a number of redundancies.

The complainant’s original contract which was for 21 hours also contains a clause to the effect that the length of her working day can change in line with the needs of the business.

The complainant was given written notice of the changes.

Decision:

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

Issues for Decision:

Was the respondent in breach of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 as set out in S.I. No. 131/2003 and in particular Regulation 4 of the Regulations.

Legislation involved and requirements of legislation:

Regulation 4 of the above Regulations states:

1. The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

2. Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.

Decision:

The complainant commenced employment as a cleaner in the bank on 27 August 2007. Her original contract was for 21 hours per week over 3 days. In 2010 her employment and contract transferred to a new employer. During this employment the complainant accepted an offer to increase her working week to 28 hours over 4 days. On 1 February 2014 the complainant transferred employment to the respondent when the latter successfully won the facilities contract from the bank. It is accepted that this transfer was governed by the Regulations on Transfer of Undertakings. Prior to the transfer date there had been individual consultations with the employees to ensure that their terms and conditions were correct.

On 23 February 2016 the respondent wrote to the complainant advising that they were reviewing their operations in the bank and that this might lead to a reduction in her working hours. On 6 May 2016 the complainant was advised that her hours were being reduced to 16 hours over 4 days with effect from 16 May 2016.

The respondent in their submission accepted that the complainant transferred on 28 hours per week, working 7 hours per day, Monday to Thursday. The contract on file relates to the original 21 hour week. This contract contained a clause relating to Hours of Work which included the following;

“You may be required to work additional hours when authorised and as necessitated by the needs of the business.

The Company reserves the right to change your start times or the length of your working day in line with the needs of the business. You will be given contractual notice of change. “

The respondent argued that this clause enabled them to reduce the complainant’s hours and that they had provided written notice regarding same to the complainant.

I have carefully examined the submissions of both parties. It is accepted that the working hours that the complainant transferred on consisted of 28 hours over 4 days and indeed the respondent honoured these for more than two years. The contractual clause upon which the respondent relies on has two elements – the first in relation to working additional hours and the second in relation to changing start times and the length of the working day. I do not accept the company’s interpretation that this therefore allows them to reduce the complainant’s working hours. If there is a specific element dealing with increasing working hours then it follows that a reduction in working hours should also be specifically covered in the contract.

Obviously circumstances and requirements change which may necessitate alterations to working hours and these should be the subject of negotiations and agreement between the parties.

Having regard to the above I find the complaint to be well founded. I require the respondent to restore the complainant’s hours to the level on which she transferred employment, i.e. 28 hours per week. I further require the respondent to pay the complainant the sum of €2,500.00 in compensation for the breach of the regulations.

Dated: 7 November 2016