ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004126

Disputes for Resolution:

Date of Adjudication Hearing: 14/12/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

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

Background

There are two complainants in the case; both employed by the respondent as cleaners which then provides cleaning services to third party clients.

Both complainants came to be employed by the respondent by means of a number of transfers and they continued to be employed on their previous contracts of employments which came with them on transfer.

The current dispute arose when a third party client approached the respondent seeking improved contract terms (i.e.) at reduced costs which would have had a ‘knock on’ effect on the number of hours which could be funded, and therefore on the working hours of the complainants.

Complainant’s Submission and Presentation:

The complainant’s say that they have a provision in their contract requiring the respondent to give them one month’s notice of changes in any of their terms and conditions of employment.

In this case they received correspondence from the respondent on March 24^th 2016 stating that ‘a review’ of hours was taking place but that the company was not in a position to provide any detail on what those changes might be.

On April 7^th another letter was sent stating the expected date of the change but no further detail on what it would be.

Then on May 6^th they received a letter stating that their hours would be cut from fifteen hours to nine hours and fifteen minutes with effect from May 16^th.

Their hours have since been increased to twelve hours.

Respondent’s Submission and Presentation:

The above narrative in relation to the letters is largely accepted. The respondent says that there was an earlier letter on February 23^rd 2016.

The respondent says that this letter represents notice of the change. It also complains that the grievance was not processed through the company grievance policy.

The respondent says that it simply did not know what the change would be until the discussions concluded with the client company

Findings and conclusions

There are a number of issues here.

Clearly workers are entitled to notice of change in their rosters, and all the more so when a reduction in hours is involved.

Their contracts of employment are in parts inconsistent and inadequate and in need of modernisation and overhaul. They contain a provision for the notification of changes in the pattern of hours (e.g. a shift change) but nothing on a variation in the total hours.

I find that the provision relied on as requiring one month’s prior notification of a change is being misinterpreted by the complainants.

The text is as follows.

‘Any of the Terms and Conditions in this document may be subject to change following consultation. Written confirmation will be given within one month of the agreed change.’

I find that this is a general statement governing the entire document. I also find that the second sentence relates to a requirement to advise the employee after the process which is described in the first has been undertaken and it reflects the provisions of section 5 of the Terms of Employment (Information) Act 1994. I do not see this as creating an obligation to give one month’s notice in advance of a specific change, such as in the current case.

The respondent accepted at the hearing that two week’s notice of a change of the order involved here would be normal, although in fact the actual notice was somewhat shorter than that. I also accept that the respondent was not in same position an employer would normally be in as the third party client company was driving the change to which the respondent had to react.

There is not much, if anything between the parties. The complainants want, and the employer is prepared to give notice of such changes in the future. My recommendation is that they agree a protocol for such an eventuality and either append it to, or amend the current contract; at paragraph 10, perhaps.

But for clarity the correct interpretation of the ‘header’ quoted above regarding notification is as I have found; it is an obligation to formally notify of agreed changes after the event and within one month as required by the Terms of Employment (Information) Act.

Decision:

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

I uphold the complaints in part in that the notification was somewhat inadequate but the respondent acted in good faith and due allowance must be made for the external constraints and the extent to which the respondent was not in control of events. I make no award as to compensation for that reason.

I recommend that the respondent should enter into discussions with the complainants as outlined above to define a revised, clear procedure for the notification of changes in hours and that this should be completed within three months.

Dated 10/03/2017