Complainant

Respondent

Anonymised Parties

A Hotel Employee

A Hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011363-001

16/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011363-002

16/05/2017

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-00011363-003

16/05/2017

The complainant is a hotel worker and earns €380 per week for a thirty-three-hour week.

The complaint under the Employment Equality Acts was withdrawn at the hearing.

This complaint was initially taken by a number of the employees of the respondent, only two of whom presented their case. A separate decision has been issued along the same lines as this in the other case.

The complainant’s employer has changed several times in recent years under the Transfer of Undertakings regulations but there has been a lack of consultation about the changes.

On the occasion of the first transfer in 2013 a letter was provided outlining the change but a subsequent change, believed to be in 2015 was less transparent.

There was specific concern about a new provision in the contracts provided by the current respondent that implied that employees might be assigned to work at other locations.

The complainant also says that there is a lack of provision for, and record keeping of rest breaks.

The matter of the TUPE transfer has already been the subject of a conciliation conference at the WRC and was agreed to be in compliance with the regulations. The Transfer occurred in 2014 and any complaint arising from it is now outside the statutory time limits.

In respect of the new provision in the contracts of employment the respondent says it has no intention of acting on it and agreed at the hearing that it will be removed from the document.

The company accepts that its procedures for recording breaks has been inadequate.

However, evidence was given of serious difficulty in getting employees to comply with its clocking in system and attempts to persuade the employees to do so. Out of twelve employees only two or three do not comply and the respondent intends to renew its efforts to achieve full compliance.

It will be seen below that the complainant did not succeed in their formal complaints in this case.

Despite that, there was a cordial spirit regarding future cooperation between the parties by the time the hearing ended and general agreement that better communication between them would go a long way to avoiding such difficulties in the future.

This is a two-way process and could be improved in both directions.

The complaint under the Transfer of Undertakings is without merit.

It is too late and in any event, apart from the minor matter which the respondent says it will correct, there has been no change in the employees’ contractual terms. There has been some change in their working environment, but their complaints on this score seem churlish as the changes are likely to lead to greater job security, and indeed less unpredictable work.

The infringement of the record keeping requirements is a minor one and in my decision, I address this for the future.

As noted above the complaint under the Employment Equality Acts was withdrawn.

In respect of Complaint CA-00011363-001 I uphold the complaint in part and order the respondent to ensure full compliance with record keeping requirements in respect of all breaks and working hours.

Complaint CA-00011363-002 was withdrawn.

In respect of Complaint CA-000113663-03, for the reasons set out above it is not upheld.

Key Words: TUPE,