Complainant

Respondent

Anonymised Parties

A Cinema Manager

A Cinema

Representatives

SIPTU

Sheehan & Company Solicitors

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-00017417-001

13/02/2018

The complainant is employed as a Cinema Manager. She became an employee of the respondent following a Transfer of Undertakings in September 2017. The complaint relates to alleged changes to the complainant’s terms and conditions of employment that occurred post transfer.

The complainant stated that following the Transfer of Undertakings in September 2017, the respondent sought to unilaterally change her established terms and conditions of employment which existed prior to the transfer taking place. The complainant stated that the respondent sought to change the rosters of all staff without notice or agreement which in her case would result in additional hours for no extra pay. The complainant stated that when she voiced her concerns in relation to changes to the rosters in October 2017, she was accused of acting more like a staff representative than a member of management. The complainant stated that she responded to senior management stating that the need for change was accepted but the additional rostered hours, with only two days’ notice of the changes and no discussion was a concern to all staff involved.

The complainant further submits that she was required to work all hours on site whereas she had previously carried out some of her working hours from home. The complainant stated that there were significant changes relating to her day to day work which were at variance with her established terms and conditions of employment. The complainant contends that she submitted a list of 24 duties and responsibilities to the respondent which had changed since the transfer took place and she also stated that she no longer had the same level of responsibilities post transfer as she had previously, despite remaining in her role as the Cinema Manager.

The respondent denies that it has breached the complainant’s rights under the Transfer of Undertakings Regulations.

The respondent stated that in relation to the proposed changes to the rosters in October 2017 it asked the complainant to liaise with the assistant managers and revert with a draft roster for discussion. The respondent submits that the complainant responded with a roster that the staff were prepared to accept and sought one month’s advance notice of any changes.

In relation to the alleged changes to the complainant’s contract of employment, the respondent stated that when the transfer took place in September 2017, there was no written contract in place for the complainant. The respondent submits that the complainant had supposedly given the contract to a Solicitor and had not retained a copy. The respondent stated that in the absence of a written contract it engaged with the previous owner to establish the complainant’s terms and conditions of employment. The respondent stated that it incorporated the information from the previous employer into a job description and compiled a revised contract of employment and met with the complainant in early December 2017 to discuss the contents of the documents with her. The respondent confirmed that the complainant declined to sign the contract as she claimed it was inconsistent with her previous terms and conditions of employment yet she would not confirm what the inconsistencies were.

The respondent stated that it subsequently received a letter dated 11th December 2017 from the Trade Union alleging that since the transfer took place the complainant had duties removed from her, was subject to additional hours of work for no additional payment which constituted a pay cut and was no longer permitted to work at home as had been agreed with the previous owner. The respondent stated that it subsequently contacted the previous owner to establish the complainant’s established working pattern. The respondent stated that its understanding, of the complainant working 4 days a week to a maximum of 8 hours per shift was confirmed by the previous owner in an email dated 19th December 2017. The respondent stated that the issue of the complainant working from home was not mentioned in the email. The respondent’s position on this issue is that working from home had not been raised previously by the complainant.

The respondent replied to the Trade Union by letter dated 20th December 2017 seeking clarification on any inaccuracies that existed within the revised contract of employment and job description. The respondent stated that there was no reply to this letter.

The respondent confirmed that the complainant has been absent on sick leave since January 2018.

The respondent stated that it received a letter dated 20th February 2018 from the Trade Union confirming that a complaint had been submitted to the Workplace Relations Commission (WRC). The respondent stated that it wrote to the Trade Union on 8th March 2018 enclosing a copy of its letter dated 20th December 2017 and again sought the specifics of the alleged changes to the complainant’s established terms and conditions of employment.

The respondent stated that it was notified of the WRC Adjudication hearing date by letter dated 25th July 2018 and subsequently wrote to the Trade Union once again seeking specific details of the complaints. The respondent stated that by email dated 1st August 2018, the complainant’s representative attached the specifics of the complaints as follows:

“My grievances are:

The Company are unwilling to discuss any terms of my supplied “new” contract.

They changed my shift patterns and diminished my responsibilities. It is fair to expect all changes are agreed and negotiated in advance of them taking place.

I want fair play and the hours I work at home to be taken into consideration in assessing my working week. I was still on call at home and worked 33 hrs per week on site in January 2018.

It was approximately, 20hrs on site in Jan 2017.

The respondent stated that within the email attachment of 1st August 2018 was a list of approximately 24 duties which the complainant contends were withdrawn from her following the transfer of undertakings in September 2017. The respondent stated that the vast majority of the issues listed remain part of the complainant’s duties post the transfer taking place. There are other issues listed that the respondent is unclear about and a small number of the duties listed required further discussion with senior management on the basis of the planned refurbishment of the premises.

The respondent stated in conclusion that the complainant failed to specify the nature of her complaints from September 2017 onwards and refused to engage with the respondent in an attempt to resolve outstanding issues. The respondent refutes the complaint.

In relation to this complaint I find as follows:

The respondent sought to increase its opening hours once it took over the business in September 2017 and sought to implement new rosters which would result in the availability of additional hours of work. The complainant was asked to discuss the proposed changes with the assistant managers and revert to the respondent with a draft roster for discussion. Having accepted a need for change within the business, the complainant then returned a roster which the staff would accept and sought one month’s notice of any changes.

I find that at this early stage, the respondent was seeking to commence discussions on the changes required to improve the performance of the business. In addition, I accept that at this point in time the respondent was unsure what the complainant’s established terms and conditions of employment were. The complainant stated that the changes were at variance with her established working pattern but did not specify which changes were inconsistent with her established terms and conditions of employment and did not provide any clarity to the respondent.

I accept that the respondent then sought information from the previous owner in relation to the complainant and incorporated what it was told into a job description and a revised contract of employment and sought discussions on a number of occasions in relation to these documents. The complainant did not sign the contract in December 2017 as she claimed it was inconsistent with her established terms and conditions of employment. The respondent received a letter from the Trade Union on or about 12th December 2017 and replied seeking the specifics of the inaccuracies in its documents. There was no response to its correspondence and when it received the notification of the complaint to the WRC in February 2018, it again wrote to the Trade Union, enclosing its previous letter and again sought discussions on the issues in dispute.

I note that the complainant has been absent on certified sick leave since January 2018 and the complaint was submitted to the WRC on 13th February 2018. The parties confirmed at the adjudication hearing that mediation had taken place in an attempt to resolve the issue but was unsuccessful.

I note that when the parties were notified of date of the Adjudication hearing the respondent Solicitors sought information from the Trade Union and received the following correspondence in relation to the complaint.

           “My grievances are:

The Company are unwilling to discuss any terms of my supplied “new” contract.

They changed my shift patterns and diminished my responsibilities. It is fair to expect all changes are agreed and negotiated in advance of them taking place.

I want fair play and the hours I work at home to be taken into consideration in assessing my working week. I was still on call at home and worked 33 hrs per week on site in January 2018.

It was approximately, 20hrs on site in Jan 2017.

I do not find that the Company was unwilling to discuss the complainant’s new contract. I find that it initially sought discussions with a view to changing the rosters and sought further discussions on the issues in dispute on several occasions. I also find that the complainant did not engage with the respondent as a number of its letters were unanswered. I also find that when the revised contract and job description issued in December 2017 and were not signed by the complainant the respondent again sought to engage and received no response and was not provided with any specifics from the complainant in relation to her complaints. I am of the view that there were many opportunities for the complainant to engage with the respondent to resolve her outstanding issues which she did not do.

In relation to the hours of work and pattern of attendance, the complainant initially worked 5 days per week and in lieu of a pay increase worked only four days up to a maximum of 32 hours per week. I find that based on the records submitted, the complainant did not work in excess of this established pattern.

The complainant stated that she was previously permitted to work from home yet the respondent said it was unaware of this until it was raised in December 2017. The respondent had not been informed of this by the previous employer when seeking information on the complainant’s established terms and conditions of employment. I find that if the complainant had engaged with the respondent on this issue, the matter could have been resolved.

In relation to the list of 24 duties that was submitted, the parties are in direct conflict in relation to whether the complainant’s responsibilities had been reduced and whether duties had been taken from her. As previously stated, if the complainant had engaged in meaningful discussions with the respondent from September /October 2017, it is quite possible that the parties could have resolved the issues between them.

Conclusion

In all of the circumstances of this compliant, I do not find that the respondent breached the complainant’s rights under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003). The respondent, in the absence of written terms and conditions of employment for the complainant, attempted on numerous occasions to enter into discussions with her. I am satisfied that the complainant failed to engage in any meaningful way with the respondent from October 2017 to assist in resolving the issues that existed between them.

Having considered the submissions of both parties to this complaint, I declare that the complaint is not well founded. Accordingly, the complaint is dismissed.

Transfer of Undertakings