LCR21930

The Union said that the Claimant's hours were cut from 40 to 20 on 20 December 2016. He had received a letter on 14 October 2016 which implied a term into his contract that he was entitled to 40 hours per week.

The Employer said that the Claimant's 40-hour week was dependent on a major airline operating from Shannon. The airline withdrew and there is no operational business need for the Claimant to work 40 hours.

The Union on behalf of the Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 1 November 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969. On the 26 September 2018 the Adjudication Officer issued the following Recommendation:-

"The Complainant was given a letter in October 2016 which stated “the Company is pleased to confirm in writing your transfer to a 40 hour working week effective November 1st 2016 to meet the operational needs of X Airline”. This was quite a specific justification for the change of hours per week to 40 and understandably gave the Complainant the impression that he was moving to a 40 hour per week as long as the X Airline service was operational. However, as another member of staff became available again to work in the Complainants Department it appears the need for the Complainant to work 40 hours per week was eliminated. While the letter provided to the Complainant was very specific in nature it does not super-cede, in legal terms, the contract of employment which allows for the variation of hours or that the normal working week are 20 hours per week. It is not for the Adjudicator to comment on why the letter changing the Complainants hours to 40 was so specific and did not just say the change to 40 hours was subject to business needs at any time but it is clear that it created a reasonable expectation in the Complainants view that as long as X Airline was operational he would be working 40 hours per week. In summary, from a legal perspective the letter amending the hours to 40 per week does not override the contract of employment but in the manner it was written gave a reasonable expectation to the Complainant that he would be working the 40 hours per week as long as x Airline was operating. For these reasons, I find that the Complainant does not have a legal entitlement to be guaranteed to work 40 hours while x Airline operates as his contract of employment only provides that he is only guaranteed a 20 hour working week but that in view of the expectation created by the letter dated October 24th 2016, I recommend that the Complainant be given a goodwill gesture payment of 5,000 Euros in lieu of the misunderstanding as to his increased hours of work while x Airline was operational".

A Labour Court hearing took place on the 19 February 2019.

DECISION:

This is an appeal by both parties of recommendation ADJ-00013634 of an Adjudication Officer.

The worker is employed on a contract of indefinite duration for 20 hours per week. From time to time the opportunities arise for part-time workers to take on additional hours for specified periods of time. In this case in 2016 the worker applied for and took up a 40hr position which he understood was linked to the operational needs of a specific Airline. He understood that to mean that as long as that Airline had specific requirements he would remain on a ‘40 hr’ week contract.

In December 2017 the Worker was given two weeks’ notice that he was being transferred back to his substantive hours i.e. 20 hours. It is the Employers position that the move to 40 hours was only temporary. While they accept that the letter that issued could imply a link to the specified Airlines the nature of the work in the sector is that there are ebbs and flows.

In this case a full-time worker had returned to work in that area and had to be accommodated. There were agency hours available at that time however, the hours could not be given to the Worker as additional hours as the Employer needed the additional staff during specific time periods. Within the last few weeks the contract for the block of work that the Worker was doing when he was on the full- time hours ceased and is not going to be renewed as far as the Employer is aware.

The Employer accepts that the Worker was given short notice of the reduction of his hours but submitted that this was a feature of the flexibility required in their sector. They did however accept that they had approximately 3 months’ notice of the return to work of the full-time worker that they had to accommodate, and could give no reasonable explanation as to why the Worker in this case could not have been given more advance notice of the likely termination of his 40 hour contract.

The Court having read the submissions and listen to the oral submissions on the day of the hearing notes that it was not disputed that there is an inherent requirement for flexibility in the sector and that changes can occur rapidly which can impact on employees. However, in this case the employer was on notice of a factor which was likely to impact on the duration of the Workers contract nearly three months in advance of the two weeks- notice that they gave him and for that reason the Court recommends the payment of €3,750 compensation to the Worker.

The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
22 March, 2019.Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.