Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00007094-001

20/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00007094-002

20/09/2016

The complainant has been employed as a cleaner since November 2014 and the employment transferred under TUPE with effect from 6^th of December 2015. The complainant alleges that the respondent has unilaterally changed his terms and conditions resulting in breach of the abovementioned Act and Regulations. The complaints were received by the WRC on the 20^th of September 2016. The parties made written and oral submission to the hearing.

The complainant submits that he transferred to the employment of the respondent on December 6^th 2015 as a result of a TUPE. His contract extant provided that ….your normal hours of work for the 33 weeks of the peak weeks can fluctuate between 30-37.5 hours per week subject to the business needs. In our off peak periods which are detailed below your hours can fluctuate from 0-37.5 hours per week subject to the business needs…. He was informed by the respondent in mid-August 2016 that his minimum, hours of work per week entitlement, was 4 hours. His trade union wrote to the respondent immediately thereafter clarifying his contractual entitlement. He was only allocated 16 hours in the week remunerated on the 25^th of September 2016 which was a peak week within the contractual provision. No written notice in respect of contractual change was provided or issued as provided at s. 5 of the Terms of Employment (Information) Act, 1994.

00007094-001: The contractual obligations transferred by virtue of Regulation 4 (1) and therefore the failure by the respondent to provide a minimum of 30 hours work in the week comprehended in the wages paid on the 25^th of September amounts to a breach of the said Regulation. In anticipation of the respondent’s reliance on the contractual variation clause the complainant submits that an implied term of reasonableness exists in every employment contract and the behaviour of the respondent in this matter exemplifies its antithesis. Consequently the implied term is breached.   The complainant seeks payment of the loss €136.50 in September and an additional amount of €872.15 arising from the same failure by the respondent in the period 2^nd of October to 7^th of December 2016 together with general compensation for breach of statutory rights.

00007094-002: The complainant submits that the failure to provide the minimum contractual hours of work in the relevant week amounts to an unlawful deduction in breach of s. 5 of the Act resulting in the loss of €130 net in his wages paid on the 25^th of September 2016.

The respondent submits that the complainant transferred under TUPE on the 6^th of December 2015. The client in this case has five buildings. On transfer the complainant was working relief, covering employee absences. That situation continued post TUPE. Every effort is made to provide the complainant with as many hours as possible but there is a problem with his lack of flexibility. His contract with the transferor provided for peak and off peak hours and the offer of employment was made on the basis of 4 hours per week in a 5 day per week period. The respondent operates on the basis of contracts which provide for 0-39 hours per week and the customer needs dictate and it does not operate hourly provision on the basis of peak/off peak.

On transfer the complainant was working set hours on Saturdays (7.5) and on Thursdays (8). In March 2016 he was required to cover for a colleague on long term sick but this arrangement was ceased as a result of the dissatisfaction of the client with the standard of cleaning within his group. He was working for 4 hours in another of the client’s buildings but these were cancelled by the client on the 29^th of March. He was thereafter offered numerous extra shifts which he refused on the basis that they did not suit him. Various efforts were made to facilitate the complainant with additional hours including work on other sites. He informed the site co-ordinator that he could no longer work a shift on a Saturday as he had taken up a position with another company and this despite the fact that he had done so when he originally transferred. Additionally he also informed her that it was not worth his while driving 2 hours per day for a 4hour shift. At a meeting on the 15^th of November 2016 he was offered a permanent position working 28.5 hours per week as another employee was leaving, which he refused. He is currently covering for another employee but has been advised that no guarantee of hours can be made when that employee returns.

00007094-001: The complaint is well founded and I hereby require that the respondent apply the contract in accordance with its terms as outlined in the signed document of 24^th of November 2014. Furthermore I require that the respondent pay the complainant compensation in the amount of €630 (say six hundred and thirty euro) for breach of Regulation 4. For the avoidance of doubt the compensatory sum is inclusive of the net pay value of the unallocated hours.

00007094-002: The complaint is not well founded.