TED201

Mr Aidan Ryan (‘the Complainant’) referred his complaint under the Act to the Workplace Relations Commission on 24 April 2019. The Complainant’s claim is that the Respondent failed to notify him in writing, in accordance with section 5 of the Act, of certain changes introduced to the payroll system in January 2019.

It is common case that the Respondent re-organised the method by which it calculated employees’ pay in early 2019. From that time onwards, pay has been calculated in accordance with actual time worked. The change was introduced, in the Respondent’s submission, in order to align its payroll function with the changes to the PAYE system brought into effect by Revenue on 1 January 2019. Up to, and including, December 2018, the Complainant received a regular monthly payment totalling €2,333.33 to include basic pay and overtime. Since January 2019, his monthly payment has varied to reflect the different stages in his shift cycle.

The Complainant’s case is that this change was a material change to his terms and conditions of employment, that he should have been notified in writing of it in accordance with section 5 of the Act and that no such written notification issued to him. The Respondent submits that staff were notified in writing of the above changes by letter dated 3 January 2019. The Complainant denies that he received any such letter. The Respondent also opened a chain of email correspondence that was exchanged between the Complainant and the members of the Respondent’s management team in or around 12 February 2019. The replying emails to the Complainant’s queries about the changes he noticed in his January payslip include extracts from the aforementioned letter of 3 January 2019. The Respondent submits that the change only took effect when payroll for January 2019 was calculated at the end of that month and the correspondence exchanged between the Parties on 12 February 2019 both explains the change and took place within one month of the change taking effect and, therefore, fulfils its obligations under section 5 of the Act.

Section 5 of the Act

Section 5 provides:

• “5.— (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.

  (2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute, other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.”

Section 5(1)(a) of the Act requires an employer to give written notification of a material change to an employee’s terms and conditions within one month of the change taking effect. Therefore, the only relevant written communication that falls to be considered by the Court in this case comprises the email exchange that took place between the Parties on 12 February 2019 further to a query raised by the Complainant on that date in relation to his payslip for January 2019.

Having considered in detail that email exchange, the Court finds that the Respondent’s side of that correspondence cannot be said to be a clear and unequivocal notification to the Complainant “in writing of the nature and date of the change” in question. However, there was an attempted communication on the Respondent’s part and, therefore, although a breach of section 5 occurred, the Court regards the breach as being at the less serious end of the spectrum and, therefore, measures the compensation payable to the Complainant at €580.00, being approximately equivalent to one week’s gross pay. This award is by way of compensation for breach of a statutory right and is, therefore, not taxable.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
RK______________________
06/01/20Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Richard Kennedy, Court Secretary.