Complainant

Respondent

Anonymised Parties

A Destination Consultant

An Employer

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-00027011-001

13/03/2019

The complainant commenced her employment with the respondent in July 2013.

She was given a ‘zero hours’ contract but worked, on average, twenty-eight hours per week at an hourly rate of €15.45.

In January 2019 she requested a copy of her original contract from the respondent and one was provided on January 30th.

However, on comparing it with the copy of theoriginal contract she had on her own files she discovered that it had been altered without her consent or knowledge.

Specifically, the reference to her employment being on the basis of a ‘zero hours’ contract was changed to it being a ‘casual’ contract. (it later emerged that the contract of a co-worker had also been altered in the same way).

It was raised at a staff meeting at which the company said it took the matter very seriously.

The significance of the change is that under the Employment (Miscellaneous provisions) Act 2018 the complainant was entitled to apply for the banded hours provisions applicable to zero hours contracts in that legislation to be applied to her and she did so apply at the end of February 2019.

The company responded that it would need her to sign a new contract to achieve this, even though it stated that her original contract would remain on file. She wrote to the company drawing attention to the inference that if she dd not sign the new contract she would, by default become a casual employee, and also pointing out the other changes that had been made in the contract.

The company responded that while her contract did refer to ‘zero hours’ she had always operated as a casual employee. The complainant rejects this and says she had worked on the basis of consistent hours for the respondent.

These changes were made unilaterally but were not notified to the complainant as required by the Terms of Employment (Information) Act 1994. This is compounded by the clear intention of the respondent to diminish the complainant’s rights.

The respondent acquired the business by means of a transfer of undertakings and when it was given the complainant’s statutory statement that statement contained the reference to ‘casual’ employment.

The complainant is, de facto a casual employee as she has the right to decline work and has done so in relation to a number of contracts.

The respondent accepts that a change was made but this happened prior to its acquisition of the company. It carried out a detailed investigation when the matter was brought to its attention and can state that none of its current employees made the change.

The respondent says that the complainant’s actual working conditions reflect a casual contract, and she enjoys a great deal of flexibility and autonomy in relation to her work.

The complaint that the respondent has contravened the Act is not well-founded and, in any event, the actual patter of hours worked is reflective of the changed contract. She has suffered no loss as a result of the change.

While the general background will be clear from the submissions above, the only question for decision is whether a change in the complainant’s terms of employment was made and not notified to her contrary to Section 7 of the Act.

There are, of course broader questions about how a significant change in the contract of employment came to be made in the first place but they cannot be resolved under this legislation.

The key fact is not in dispute; the alteration to the statutory statement was made and the only question relates to when it was made and by whom.

But that is irrelevant to the complaint; once the complainant became aware of the change her only action lay against her employer, to whom all these assets and liabilities passed by operation of law on the date of the transfer of undertaking.

The respondent cannot argue that the previous owner retains any liability for the matter, and while it seemed to suggest as much it wisely did not go any further than that.

Accordingly, the complaint is upheld. I have taken account of the figures given above in relation to the complainant’s income; viz, that it averaged twenty-eight hours per week at €15.45.

I declare that complaint CA-00027011 is well founded and award the complainant €1500.00.

I confirm that the particulars relating to the complainant’s status as being employed on a ‘zero hours’ contract is the correct description of her employment status.

Statutory statement of Terms of Employment, change, zero hours.