ADJ-00021517

Complainant

Respondent

Anonymised Parties

A Consultant

A Service Company

Representatives

AmandaKaneMandate Trade Union

Owen Keany BL instructed byLK Shields Solicitors

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-00028218-001

07/05/2019

The complainant is employed by the respondent as a Relocation Counsellor since December 2013. She works an average of 30 hours per week and is paid €432.60 per week gross. The complainant is claiming that the respondent breached the Terms of Employment (Information)1994 by not informing her of a change to her contract from ‘zero hour’ contract.

At the commencement of the employment the complainant signed a contract of employment dated 1st of December 2013 which stated that she was on a zero hours contract. In January 2019 she requested a copy of a contract which the respondent had on file and she received it on 30th of January 2019. After comparing the contracts with the one the complainant had she realised that the HR contract stated that she was employed on a casual contract. The complainant wrote to HR enclosing a copy of the original contract and pointing out that her status as an employee had been changed from a zero hours contract to that of a casual employee and requested an explanation for this matter. As other employees had similar changes to the written terms and conditions of employment, the employees decided that the matter should be taken up as a group. A meeting with management and the relocation councillors took place on the 6th of February 2019 and it transpired that other staff had their contracts altered in the same manner as the complainant’s contract had been altered. Management told them that they took the matter very seriously and would revert back to them.

In February the complainant advised the employer that she was applying for banded hours in accordance with the Employment (Miscellaneous Provisions) Act 2018. On the 22nd of February HR emailed the complainant in response to her application informing her “your zero hour contract that you initially signed will remain on file and any other documents relevant to the operation of your contract of employment would remain on file as a record of the employment arrangement in place up until 28^th March 2019” and setting out choices for a new contract which they would require her to sign. The complainant wrote to HR on the 25th of February stating that she would like the company to honour her current contract and that she was not agreeing to any diminishing in her terms and conditions of employment. She also pointed out that the new laws were designed to protect her employment and should not be used as a as a means of diminishing her current zero hour contract.

Following a meeting with the complainant on the 25th of March 2019, HR wrote to the complainant stating that while the contract stated she was on a zero hours contract, in practice she always operated as a casual employee. The complainant rejected this contention and said that she never turned down work and that under no circumstances were they to change her contract of employment without her permission. The complainants Union submitted that the respondent was attempting to unilaterally change the complainant’s terms of employment from that of a zero hours contract to that of a casual employee as a casual employee is not covered by the legislation in relation to banded hours. 

The respondent stated that it acquired the business from another company in November 2017 and was provided with a copy of the terms and conditions of employment for the relevant employees including the complainant. The respondent received a copy of the complainant’s terms and conditions of employment dated 1st of December 2013 which stated that her contract is a casual contract. On the 28th of January 2019, the complainant requested a copy of her terms and conditions of employment held by the respondent and she was furnished with same. She subsequently contacted HR to state that the terms furnished to her were not the same terms previously furnished to her in 2013 and enclosed a copy of the contract which she had, and which stated that it was a zero hours contract. 

Following the discovery of the discrepancies in the contracts the respondent carried out an investigation and concluded that the change to the contract was made prior to the respondent acquiring the business in November 2017. Prior to the matter being brought to their attention in January 2019, the respondent had only ever seen the contract which stated that it was a casual contract. The respondent stated that the complainant’s actual working conditions reflects the fact that she is a casual worker. It submits that the complainant enjoyed that autonomy and flexibility in arranging her work as she has an entitlement to refuse work and she is not required to work specific hours in any week. Since the matter came to light the respondent has engaged with the complainant in an attempt to resolve the issue.

The respondent’s barrister submits that Section 5 of the Terms of Employment (Information) Act 1994 provides that where changes take place in terms and conditions of employment it provides that an employer must notify an employee of the change. Section 5 would also seem to provide that where an employer furnishes terms of employment and a subsequent employer makes changes to those terms, the subsequent employer must notify the employee. However, the position of Section 5 is not clear where changes are made by a previous employer without notifying the employee or the subsequent employer. It would seem illogical to impose notification obligations on a subsequent employer with no knowledge of the fact that there were changes requiring notification. 

He submits that the changed terms of employment which have been operated by the respondent reflect the reality of the complainant's actual terms of work. The importance of assessing the reality of the relevant situation was emphasised in the case of in re Sunday Tribune Limited 1984 IR 505 and which case was cited with approval by the Supreme Court in Henry Denny and Sons Ireland Ltd vs Minister for Social Welfare [1998] 1 IR 34. In the Sunday Tribune case Carroll J stated: “the Court must look at the realities of the situation to determine whether the relationship of employer and employee in fact exist, regardless of how the parties describe themselves” (at page 508).

 It is accepted by the respondent that the complainant was furnished with terms and conditions of employment which states that her contract is a zero hours contract. However, this does not reflect the realities of the employment relationship and in particular it does not reflect the degree of flexibility and autonomy that the complainant has regarding her conditions at work. The relevant legal principles and the term zero-hour employee does not apply to the complainant’s position of employment or status.

I was referred to section 18 of the Organisation of Working Time Act which defines zero hours contracts and the Labour Court case law in connection with the same in the case of Ocean Manpower Ltd vs MPGWU ELR [1998] 299 and Contract Personal Marketing Ireland vs Maria Buckley WTC/11/58.

It was submitted that based on the above that have zero hour contract excuse casual work and requires an employee to make himself or herself available for a certain number of hours as and when required to do so.  This is fundamentally inconsistent with an employee’s right to refuse work and a unilateral option to determine when she or he is available for work and therefore the complainant’s contention that the respondent has contravened the notification obligations under section 5 of the Act is not well founded.

Section 5 of the Terms of Employment (Information) Act, 1994 provides:

(1) “Subject to subsection (2), whenever a change is made or occurs in any of

the particulars of the statement furnished by an employer under section 3, 4 or 6,

the employer shall notify the employee in writing of the nature and date of the change

as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work

outside the State for a period of more than 1 month, the time of the

employee’s departure.

The matter for decision by me is whether the complainant was notified of a change to her terms and conditions of employment by the respondents in accordance with section 5 cited above. I have no legal powers or function under the terms of the Act to determine whether the complainant actually worked on a zero hours contract or a casual contract.

It was accepted in evidence that an alteration from a zero hours contract to a casual contract of employment had been made and was not notified to the complainant in accordance with the Act. The respondent evidence is that they were not responsible for the change to the contract. The obligation to notify an employee of changes to the contract of employment under the Terms of Employment (Information) Act lies with the employer. The respondent in this case failed to notify the complainant of the change and is therefore liable for any changes regardless of whether the contract was changed before or after acquiring the business.  I find therefore that the complaint is well founded. I award redress in the amount of €1,500.

I find that the complaint made pursuant to the Act is well founded and I order the respondent to pay the complainant redress of €1,500.

Terms of Employment (Information) Act, 2019, no notice of change to terms of employment.