Complainant

Respondent

Parties

Hubavena  Musova

Dublin Centre Of Education

Representatives

 M.P. Moloney 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-00060026-001

15/11/2023

The complainant says her contract of employment does not state the number of hours she is supposed to work per week and has been working full time since the start of her employment (30 hours).

On 8th November she was told her hours would be reduced from 30 to 15 hours, her working day  would consist of 3 hours over 5 days. She did not agree with the change and when she asked whether anyone else's hours being reduced, she was told she was the only one.

She spoke with the Director of Studies Colm Delmar. He told her she was the newest member of staff, and this is the reason why only her hours are being reduced. He told her to speak to the Managing director for more information.

The next day, she told the Director that she think it was unfair, as she was not the newest member of staff. He again told her to speak to the Managing Director, refusing to discuss any details with her.

She told him she was not the newest member of staff, that there is another teacher who started about three months ago. He told her he never said that, and she was making it up. she lodged a formal grievance to the managing director on the same day, 8th November. she outlined that she is not the newest staff member.

She was told that the Director had never said that. She stressed the fact that this was extremely unfair and she was not treated the same way as her colleagues and she do not agree with these changes.

It would not be feasible for her to work three hours, five days a week. she also asked for her new Terms of Employment to be outlined in writing. She asked how long is this expected to continue.

Also her grievance was not resolved within the three working days, as required by the company's grievance procedure.

She feel that this is being done to force her out of her job, as there was a previous disagreement with management.

She had told them that she feel targeted and excessively monitored before, so to her this looks like some sort of punishment and she believes the way she has been treated was disrespectful and unfair.

It has caused her a lot of stress and anxiety and she feel like she is getting nowhere with her employer.

InMsMusova'sContractofEmploymentwhichshesigneditstatesthe following

(ix)    Lay off / short time section: "The College reserves the right to lay you off from work or reduce your working hours, where, through circumstances beyond its control, it is unable to maintain you in employment. You will receive as much notice of this change as is reasonably practicable prior to lay-off. You will not be paid during the lay-off period. You will be paid only for hours actually worked. If through circumstances beyond the employer’s control, the school is unable to open and operate, the employer shall not be liable to pay teaching staff for scheduled classes which do not take place."

A copy of the contract  was submitted. It clearly does not say the employee must be given the notification of a reduction in hours in writing. So what the complainant stated on the WRC complaint form was inaccurate.  Alterations to the contract are permitted by letter or memorandum in writing.

On November 8th, 2023, the respondent discontinued the class for which the complainant was engaged to teach and it remains closed. This is what led to the reduction in her hours. It was a purely commercial decision reflecting a reduction in business activity.

Regarding the complainant’s assertion that the respondent did not reply to her grievance complaint within three working days, this is also untrue. She issued a formal grievance complaint to the Managing Director of the school (Mr. Ahmed Omer) on November 8th, 2023. He responded in writing to her the following day, the 9th of November 2023 at 17:55. He invited her to attend a meeting in the school on Tuesday November 14th, to discuss further.

Ms. Musova emailed him on November 10th,  2023 in which she wrote that she would not attend the meeting on November 14th, 2023. On Monday November 17th, 2023, at approx. 7am, Ms. Musova texted a message to the Office Manager that she would not be coming to work that morning.

This is not the first time she failed to attend without reasonable notice. We have asked Ms Musova many times in the past to give us adequate time for her absences so that we could arrange teaching cover for our students. On the same day, Monday November 17th,  she submitted a Medical Certificate for two weeks from that date. Owing to her absence, management agreed that there was no point in making alternative arrangements for a meeting.

On November 24th, Ms Musova submitted another medical certificate from the 25th of November to the 22nd of December 2023.

The Advanced class (C1 Level) Ms. Musova was teaching continued to decline in numbers in a very short period of time. In addition, there were no new admissions at that level. That particular class could not proceed without a minimum number of students that would be economical viable to do so. Her class (C1 Level) had to be merged. This is normal practice in language schools. As a consequence, there was no class for her to teach. The notification of the reduction in hours was conveyed to Ms. Musova in a meeting with her on the 8th of November.

The complainant has made her complaint under the Terms of Employment information Act, specifically in respect of a failure to advise her of a change in her terms and conditions of employment.

In fact, as can be discerned from the narrative above her primary grievance, understandably, is that her working hours had been very substantially reduced. She told the hearing that the referral to the WRC under this legislation was her only means of getting a hearing about this, more substantial grievance.

A resolution, or even processing of that larger issue has been complicated by the fact that the complainant has been on sick leave since the change in hours was proposed and effected.

While it does not seem likely that the factors contributing to the reduction will change in the immediate future there may be options open to the parties to improve on the current situation as the complainant says the reduced hours make it unviable for her to travel daily for such reduced hours.

The parties have agreed to enter into discussions on this aspect of the matter.

On the complaint itself, the relevant part of section 5 of the Act states

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 late than— (a) 1 month after the change takes effect,

The Terms of Employment (Information) act may be seen by some as a sort of relatively minor administrative measure which, at the commencement of employment sets out the statutory requirements in respect of employment information.

But this is its very importance as clarity about the relevant aspects of the employment relationship may become vital in the future. It was regarded as sufficiently significant that as recently as 2022 the Oireachtas extended its ambit and imposed more rigorous time limits in respect of the provision of certain information related to an employee’s terms of employment.

The requirement for notification also extends to changes to any original conditions required by the statute, and especially on the scale involved here. Section 3(1) (i) of the Act refers to ‘any terms and conditions relating to hours of work’ and the halving of a person’s working week is most definitely caught by this provision.

It is not sufficient to rely on some technical argument to justify compliance with the Act. The obligation that falls on an employer is to be positive and transparent. In this case the respondent sought to rely on a response to the complainant’s grievance as meeting its obligations under the Act.

I find this argument to be entirely insufficient, especially on these facts and having regard to the substantial nature of the change in her terms.

The communication cannot be ‘buried ‘in any way under other material. It is a statutory requirement and should be communicated in a way that is sufficiently explicit as to be obvious that it is complying with the statute.

The respondent’s defence of its position that it was complying with the terms of the contract would not meet this statutory obligation

The email from the respondent Director of November 14th does not come close to meeting this obligation to communicate the change and indeed contains no explicit reference to it and therefore the complaint is well founded.

For the reason set out above the complaint is well founded and I award the complainant two weeks wages for the breach of her rights under the Act, at the rate obtaining before the reductions in her hours, viz €1020.00.

For the reasons set out above, Complaint CA-00060026-001 is well-founded and and I award the complainant two weeks wages for the breach of her rights under the Act, at the rate obtaining before the reductions in her hours, viz €1020.00.

Terms of Employment information