Complainant

Respondent

Parties

Cathal  Russell

Health Service Executive

Representatives

  Self-Represented

 Self-Represented

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-00034858-001

26/02/2020

The Complainant commenced employment with the Respondent on 8th June 2017. The Complainant is full-time, permanent member of staff. He received a weekly payment of €1,116.50. At all times the Complainant’s role was described as that of “catering services manager”.

On 26th February, the Complainant lodged the present complaint with the Commission. Herein, he alleged that the Respondent reneged on a verbal agreement regarding his hours of work. In denying this allegation, the Respondent submitted that no such verbal agreement existed. They further submitted that notwithstanding the same, the Complainant’s contract did not requirement amendment in accordance with Section 5 of the Act.

A hearing in relation to this matter was convened and finalised on 22nd October 2021.  This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No objections as to my jurisdiction to heat the matter were raised at any stage of the proceedings.

The Complainant stated that in February of 2017 he was successful in his application for the post of catering services manager within the Respondent organisation. Prior to accepting this post, the Complainant sought certain reassurances from the Respondent regarding his remuneration, and other matters. Part of these discussions related to the provision of one “premium day” per month, this being a date on which the Complainant would receive an increased salary for working weekends or unsocial hours. Prior to the Complainant accepting this post, this arrangement was agreed informally with the Respondent.

During the Complainant’s employment, a new facilities manager was appointed. This manager advised that the Complainant’s role required him to work Monday to Friday, effectively removing his entitlement to the previously agreed premium days.

In summary, the Complainant submitted that the Respondent reneged on a verbal agreement regarding his working hours. As a consequence of the same, the Complainant requested that he be reimbursed for the premium payments he missed from December 2017.

At the outset the Respondent denied the Complainant’s allegation. They submitted that the Complainant’s role was in a senior managerial capacity, and as such his hours of work are Monday to Friday. Regarding the alleged misrepresentation regarding the premium days, the Respondent submitted that issue was not discussed during the pre-employment meetings. While it was accepted that the Complainant ticked a box requesting a seven-day working week, this was changed to a five-day working week as the role did not require work on the weekends.

In addition to the foregoing, it was submitted that the contract issued to the Complainant was correct and did not requirement amendment. In particular, the Respondent referred to the section which stated that roster / on call arrangements would be advised in advance by the line manager. It was submitted that this cause describes the Complainant’s working arrangements and did not require clarification or amendment.

Section 3(1) of the Act provides that,

“An Employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing confirming the following particulars of the terms of the employee’s employment, that is to say…

(i)           Any terms or conditions relating to hours of work (including overtime).”

Section 5 of the Act then provides that,

“…whenever a change is made or occurs in any particulars of the statement furnished by an employer …the employer shall notify the employee in writing of the nature and date of the change soon as may be thereafter”.

In the present case, the Complainant’s contract of employment contains the following clause, under the heading “Required Hours of Attendance”,

“You may be required to work the agreed roster / on call arrangements advised to you by your line manager. Your work schedule is liable to change to meet the requirements of the service in accordance with the terms of the Public Service Agreement. Where you are required to work unsocial hours and/or night duty you will be remunerated at the nationally approved rates for your grade.”

It is the Complainant’s contention that the Respondent is in breach of section 5 by initially agreeing to one day of work at a premium rate (i.e. a day of work at the weekend) and then subsequently reneging on that offer.

Having carefully reviewed the relevant clause, I find that I cannot agree with the Complainant’s submission. The clause cited above allows for the Complainant to work unsocial hours or night duty and receive a premium for the same. The Complainant’s issue is that the Respondent has not provided the same in contradiction of an earlier verbal representation made to him. Taking this submission at its height, and noting that the Respondent strongly disputes the same, the Respondent’s withdrawal of this offer does not contradict the contractual provision regarding his hours of work and consequently would not require amendment on foot of the same. Following from the same, I find that the Respondent is not in breach of Section 5 of the Act and consequently the Complainant’s application is not well-founded.

I find that the Respondent is not in breach of Section 5 of the Act and consequently the Complainant’s application is not well-founded.

Section 5, Amendment, Hours of Work