ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00049531

Parties:

	Complainant	Respondent
Parties	Amanda Clarke Butler	Dehac Retail t/a Costcutter Rathfarnham

Representatives

Self-represented

Damien Johnston

Complaint:

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-00060883-001	08/01/2024

Date of Adjudication Hearing: 10/04/2024 & 15/07/2024

Workplace Relations Commission Adjudication Officer: Marie Flynn

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complainant submitted three complaint forms to the WRC, each of which was assigned a separate ADJ number – ADJ-00049531, ADJ-00049700 and ADJ-00051771. Hearing letters for ADJ-00049531 were issued to the parties on 13 March 2024 informing them that an adjudication hearing would take place on 9 May 2024. Hearing letters for ADJ-00049700 were issued to the parties on 11 March 2024 informing them that an adjudication hearing would take place on 10 April 2024.

On 14 March 2024, the WRC wrote to the parties to inform them that the hearing scheduled for 9 April 2024 in respect of ADJ-00049531 had been cancelled to allow for the complaint to the scheduled together with ADJ-00049700.

On 4 April 2024, the WRC emailed the parties to confirm that the hearing for both ADJ-00049531 and ADJ-00049700 was scheduled for 10 April 2024 and confirming that the letter of 14 March 2024 contained an error and should have referred to the cancellation of the hearing date of 9 May 2024.

On 11 April 2024 the Respondent emailed the WRC as follows: “I believe there was some confusion on the dates and hearing was to take place yesterday we had pencilled in date of 09.05.24 and didn’t see your follow up email to schedule again. Can you call me at your earliest convenience”.

On 12 April 2024 the WRC emailed the Respondent to acknowledge receipt of his email and informing him that the WRC “are currently rescheduling a new hearing and finding the best time for both parties and the Adjudication Officer”. The decision to reschedule the hearing was made due to the confusion caused by the WRC’s correspondence of 14 March 2024 and 4 April 2024.

The adjudication hearing for ADJ-00049531 and ADJ-00049700 was rescheduled for 15 July 2024. The first hearing for ADJ-00051771 was also scheduled for 15 July 2024. Both parties attended the adjudication hearing on 15 July 2024.

At the adjudication hearing on 15 July 2024, I erroneously informed the parties that this complaint was a duplicate of another complaint. The Complainant then withdrew this complaint. On discovering my error when I reviewed the complaint, I set aside the withdrawal and made a decision on this matter. This is no way prejudices either of the parties as they were both given the opportunity to make submissions in relation to this matter.

Additional unsolicited material was submitted by the Respondent following the hearing. I wish to confirm that I have based my decision solely on the evidence which was put before me at the adjudication hearing. All unsolicited material submitted after the hearing was returned unread.

At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text.

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.

I have taken the time to carefully review all the evidence both written and oral. Much of the evidence was in dispute between the parties. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.

The Complainant was self-represented. She was accompanied by her husband, John Butler.

The Respondent was represented by Damien Johnston, the owner of the Respondent company. He was accompanied by his wife, Elaine Johnston, who is involved in running the business and who gave evidence under oath.

Background:

The Complainant contends that her hours were changed without notification or her agreement.

The Respondent rejects the complaint.

Summary of Complainant’s Case:

The Complainant submits that when she was on annual leave, her hours were changed from 6am-2pm to 7am-3pm without notification and without her agreement. The Complainant returned to work on 8 January 2024 after annual leave and to speak with her Mr Johnston regarding the change. She informed him that she did not agree to the changes made to her working hours; that she would not be working after 2pm; and that she would be working her normal hours as she had done that morning.

The Complainant informed Mr Johnston that she should have been given notice in writing of the change in her hours and that he could not change her hours without her agreement. The Complainant requested that notification of any imposed changes be provided to her in writing.

Mr Johnston responded that he did not have to give her any notice and said that should she continue to work her normal working hours, keys would be taken from the other staff member who was also affected by the changes. Mr Johnston said that he was changing the operating hours of the business, and that the Complainant was informed of this via WhatsApp.

Her colleague, who was also affected by the changes and was at the meeting, said that Mr Johnston had sent a message about changes to the business hours but did not say that he was changing their hours. The Complainant submits that a plain reading of Mr Johnston’s WhatsApp message did not indicate that her working hours would be changing.

The Complainant said that her agreed hours are stated in her contract and cannot be changed. Mr Johnston denied this. The Complainant asked Mr Johnston to refer to her contract but was told that it was not available.

The Complainant was given a letter before she left work on 8 January 2024 stating that as she had refused the changes, this would be reflected in her salary going forward.

On 6 April 2024, the Complainant informed Mr Johnston via email that she would work the revised hours under protest to avoid conflict.

At the adjudication hearing, the Complainant emphasised that she had not received a message to say that her hours were changing. The Complainant said that, at the meeting on 8 January 2024, Mr Johnston said that he can change what he wants, when he wants.

Summary of Respondent’s Case:

Mr Johnston disputes the Complainant’s assertion that he signed her contract to say that her fixed hours would not be changed. He said that the signature on the contract which the Complainant exhibited at the hearing was not his.

Mr Johnston submitted that he sent a WhatsApp message to the Complainant on 23 December 2023 informing her of the change in her working hours as follows:

“… We will also be changing opening/closing hours on a trial basis during the coming January so again keep a close eye on your times of work in the coming weeks as rosters are put up.”

Mr Johnston contends that the Complainant’s colleagues knew from the WhatsApp message that their hours would be changing.

The Complainant was issued with a letter on 8 January 2024 which stated:

“As discussed today and as previously communicated on numerous occasions in the staff/management WhatsApp group our opening hours are changing, this will mean that our hours to work will also change.

Let it be noted that we have offered you alternative hours to stop you losing number of hours worked (IE. 7am-3pm instead of 6am-2pm), of which you have refused, we have also made you aware that your choice to do so will be reflective in salary.

As per each employee’s contract of employment from time to time business dictates the need for you to be flexible in your hours of work.”

At the hearing, Mr Johnston conceded that when informing the Complainant of a change to her hours he “could have been done better”.

Findings and Conclusions:

Section 5(1) of the Terms of Employment (Information) Act 1994, as amended (the Act) sets out the time limits within which an employer is required to notify an employee of a change to their terms and conditions as follows:

“(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) the day on which the change takes effect, …”

What this means is that an employer must give an employee whose terms and conditions change, the details of the change in writing, by or before the day on which the change takes effect.

I am of the view that the Respondent’s WhatsApp message of 23 December 2023 to the Complainant was not sufficiently detailed to meet the requirements of section 5(1) of the Act as it was not made clear to the Complainant that a change in the opening hours of the shop would result in a change to her hours of work. However, by responding on 8 January 2024 to the Complainant’s request to be notified in writing of the change to hours which came into effect that day, the Respondent has unintentionally met the notification requirement under section 5(1) of the Act as the Complainant was notified of the change to her terms and conditions on the day the change took effect.

There is no provision under the Act that changes to an employee’s terms and conditions are subject to agreement.

In light of the above, I find that the Respondent has not breached the Complainant’s rights under section 5(1) of the Act and, therefore, that the complainant is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Having carefully considered the arguments outlined by both parties and having regard to all of the circumstances surrounding this dispute, I declare that this complaint is not well founded.

Dated: 09-08-24

Workplace Relations Commission Adjudication Officer: Marie Flynn

Key Words:

Notice of a change to terms and conditions