ADJ-00009479

Complainant

Respondent

Anonymised Parties

A General Operative

A Horticulture Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012331-001

06/07/2017

The complainant had been employed by the respondent since 2006 as a General Operative.

He was invited to a general meeting in January 2017 at which the respondent advised of various changes to the working arrangements in the company.

On January 21^st 2017 he attended a meeting at which he and his co-workers were advised of changes in their shift pattern. He says this led to a reduction in his working hours and a loss of earnings.

The complainant says that he was entitled to written notification of the changes to the particulars of his Terms of Employment under section 5 of the Terms of Employment (Information) Act 1994, (the Act).

The change involved his working week being spread over five days instead of six (five and a half working) as previously.

He also says it resulted in some loss of earnings. The complainant raised a number of grievances which do not arise under the legislation

The complainant has worked with the respondent since 2006. He had been given a statement of his terms of employment in compliance with the legislation.

The respondent says that there was no change in his terms of employment. His contract of employment states, at Paragraph 14; 

Hours of work; Thirty-nine hours is the basic minimum hour week. Because of the nature of the work it may be necessary to spread the work over a seven day period. Employees should understand that they should make themselves available for work on Sundays and Bank Holidays if required. Overtime is paid at the rate of time and one half of the hourly rate. 

The respondent is in the fresh food business and demand for its products is subject to significant seasonal variation and rosters have to be adjusted accordingly.

However, the basic requirement is to ensure that employees are guaranteed a minimum thirty-nine hour week and to put them on notice of the possibility that it might be worked over a seven day spread.

In practice, this happens and did so in respect of the working arrangement prior to the change in January. It should be noted that the change followed consultation with its employees and it is the company’s general policy to notify where a change is of a nature that requires it. 

The respondent says that the effect of the change in January was to improve the complainant‘s position by reducing the spread of his liability for work from six to five days. The company is subject to seasonal variation in its demand for labour and any variation in the complainants shift pattern, or difference between his and other workers’ shift patterns were purely a result of that and not of the roster change to which he attributes it. 

Also, the complainant fully accepted the change. However, the hours of work as outlined in his contract did not change and therefore no notification requirement arose under the Act. The respondent says that where it does arise it always ensures it is done.

The complainant agreed that the Contract of Employment as exhibited by the respondent had been seen by him.

There is no legal requirement to give an employee a written contract of employment, although it is very desirable to do so and it protects both parties insofar as it captures the terms on which they have agreed to base the employment relationship.

The statutory requirement that an employee be given a written statement of their employment is a different matter.

The Terms of Employment (Information) Act 1994 specifies what it should contain and when it should be given to the employee.

There is no requirement for the employee to agree to it, or sign it, although it is prudent to seek a signature as acknowledgement of receipt.

Section 3 is the grounding section where, it is specified that an employee be given a statement containing the following particulars of (inter alia) 

‘any terms or conditions relating to hours of work (including overtime)’. 

Section 5 then contains the requirement to notify the employee of any changes as outlined above. 

The clear purpose of these provisions in the Act is to ensure that workers know what the ‘particulars’ of their conditions of employment are, and that they will be notified as to any change in those ‘particulars’ which in its ordinary meaning means details, specifics etc. 

The respondent has argued that the particulars in its contract of employment were not varied and therefore the requirement to notify does not arise. 

This is clever argument but it is cannot succeed as the clear outcome would be to frustrate the intentions of the legislature and the Act. It would provide a device for employers to generalise the statement of the terms of employment in such a way that no change would ever be required in them and thereby avoid the clear purpose of this part of the Act to both provide particulars and notify of changes. 

However, the wording of the Act is clear and it requires ‘particulars’ not generalities. 

While in this case the change was to the employee’s benefit in reducing the number of days he had to attend for work, a similar defence to a failure to notify might be mounted if the change was an adverse one. 

In any event this argument is irrelevant as the requirement to notify is not based on whether it is to the employee’s benefit or not; it is an entitlement to be informed. 

I find that the provision in the contract of employment is too vague and imprecise to meet the requirement that ‘particulars’ be provided and that the change is of a nature intended to be notified under the provisions of the Act. 

The introduction to the Act describes it as relating to ‘an employer's obligation to inform employees of the conditions applicable to the contractor employment relationship’. (Emphasis added).

The general tendency to speak of the statutory statement and contracts of employment as if they were the same thing sometimes give rise to the difficulty and may do here also. While the latter may embrace the former parties need to be clear about the specific obligations which may arise when, and after changing the statutory statement from the point of view of the notification obligations contained in the Act.

Substantive provisions of a contract of employment may, of course, only be varied with consent, as with any contract. Lesser provisions, sometimes referred to as ‘administrative’ (e.g. starting times’ generally may not.

The current change was, if anything a significant improvement in the complainant’s conditions in that he was required to attend for work on five, rather than six days, and it appears that his main motivation in referring the complaint arose from other grievances outside the scope of this Act, and which he attempted to raise in the course of the hearing. Some of these had not been processed through the respondent’s local procedures. I am satisfied from the evidence that any variation in his earnings are not attributable to the change in his roster.

The complaint succeeds. The breach of the Act is a minor one and this is reflected in my award.

I uphold complaint CA-00012331-001 and award the complainant €150.

Variation in terms of employment, duty to notify.