Worker

Employer

Anonymised Parties

Worker

Transport Facilitator

Representatives

Diarmuid Long SIPTU

 In – House HR

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002701

28/05/2024

The Worker was employed from 3 April 2000 in general administration before taking up an interim Systems Support Specialist position, which she held on a permanent basis from 5 January 2021. She has a salary of €80,000 per annum. The Worker claims that her 40-hour week contract included a paid break, as was the custom, until the Employer ceased this facility in December 2023. The Employer claimed that there had been a scheduling error, which had gone undetected until then. The Worker is seeking compensation for now having to work from 9 am to 6 pm, instead of her previous schedule of 9 am to 5 pm, which included a paid break.

The Employer asserts that the Worker had been on an incorrect pay rule, and this scheduling error resulted in an overpayment of €30,192. While the Employer is not seeking to recover this sum, its position is that the Worker has been on the correct schedule since late 2023, and therefore, the Worker's claim should be rejected.

The Worker was initially seconded as a System Support Specialist, working Monday to Friday, 9 am to 5 pm. When her role became permanent in 2021, the only contractual change agreed upon was her salary, implying that other terms, including her working hours, remained the same. Her permanent contract requires her to work 40 hours per week, and based on her previous experience, she assumed this schedule would include a paid lunch break, totalling 40 hours.

For over two years, the Worker followed this 9 am to 5 pm schedule without any objection from the company. The Worker submits that this establishes the arrangement as an implied term of her contract through custom and practice. Since the company consistently paid her for her lunch break, this reinforces the practice that the break was part of her paid hours.

The Employer claims the right to correct a "scheduling error" by extending her working hours by one hour, but the Worker argues that this change contradicts the established practice and constitutes a material alteration to her employment terms. The 30-day notice provided for the change was only issued after repeated trade union communications, and both the union and the Worker explicitly opposed the change. The Worker contends that unilateral changes to an employee’s contract without consultation are unreasonable, as is the threat of disciplinary action for disagreement.

Throughout the grievance process, the Worker asserts that the Employer admitted the adjustment was due to a scheduling error but failed to consider the impact on the Worker’s routine and well-being. Rather than apologising or engaging in dialogue, the Employer threatened disciplinary action, disregarding her expectations and the fairness of the employment relationship.

The Worker cites the following as  relevant cases:

Cash Solutions Ireland Ltd v. A Worker (LCR21705), where the Labour Court recommended compensation of €10,000 after the employer failed to honour incremental pay increases promised before the contract began. The Worker argues that this case highlights the importance of honouring established expectations, which is relevant to the Worker’s understanding of her working hours in this dispute.

ADJ-00029622 Ciara Daniel v. Maximus SOS Limited T/A Offbeat Donut, a case under the Payment of Wages Act 1991, involved the employer attempting to retroactively alter contractual terms regarding holiday entitlements. The Adjudication Officer concluded that unilateral changes to contract terms are not legally permissible, which is relevant to the Worker’s case, where her employer attempted to alter her working hours without mutual agreement.

The Worker is seeking a recommendation that the employer reimburse her for the loss of 190 hours of annual leave. At an hourly rate of €38.46, this amounts to €7,307.40 in lost income. However, the Worker is seeking the restoration of the 190 hours rather than a monetary sum, as her primary concern has always been avoiding the additional working hours. The Worker is also seeking compensation for the distress caused by the prolonged process of addressing this issue, as well as for the threats of dismissal during this time

The Worker signed a permanent contract of employment on 5 January 2021, where she accepted the terms and conditions of the role, which clearly outline that the hours of work are 40 hours per week. She was appointed on a personal contract basis, as opposed to a position where terms and conditions are collectively bargained. In December 2023, it became known that the Worker had mistakenly been left on a 9 am to 5 pm schedule. This administrative error was identified when the Worker queried her annual leave deduction in an email to her manager. The Employer presented an email from the Worker during that interaction, which stated: 'I do not get paid for my break as per previous terms and conditions.' Upon investigation, it became clear to the Employer that the Worker was on an incorrect pay rule and had been scheduled to work one hour less per day than contractually obliged. The Worker was contacted and informed that this error had resulted in an overpayment of €30,102 (the Employer has not sought recovery of this sum).

The Employer argues that the Worker was offered and accepted a contract of employment for a role she willingly applied for, which paid her a salary of €80,000 per annum for working 40 hours per week. The Employer submits that it is entirely reasonable, in such circumstances, to expect the Worker to fulfil her contractual obligations. The Employer contends that it has more than honoured its part of this agreement. While the Employer acknowledges that the Worker was mistakenly left on a 9 am to 5 pm schedule for a period of time, the Worker was contacted and informed that the mistake would be rectified as soon as possible. As a result, there was a deficit in hours worked, leading to an overpayment to the Worker of €30,192 since January 2021. To date, the Employer has not sought to recoup this amount. By her own admission in an email to her line manager dated 15 November 2023, the Worker stated: 'I do not get paid for my breaks as per previous terms and conditions.' The Employer expresses confusion regarding the Worker’s claim, given her admission of this fact.

 In conducting my investigation, I have considered all relevant submissions presented by the parties.

The Employer has a large workforce, and there is no indication that paid breaks were provided to employees, whether they were in collectively bargained positions or individually negotiated contracts. Therefore, I can only conclude that the written contract does not allow for paid breaks, as it states that the Worker was expected to work 40 hours per week. This is unambiguous, and the Worker acknowledged it in her email dated 15 November 2023. However, inexplicably, the Worker was allowed to work a 9 am to 5 pm shift that included a paid break. The outbreak of COVID-19 during this period may have contributed to this lapse in record-keeping.

It is also clear that this mistake led to a benefit for the Worker. The Worker argued that the continuation of this practice from January 2021 to December 2023 created an implied term under 'custom and practice.' However, for 'custom and practice' to imply a term into a contract, it must be known to both parties. It cannot be an undisclosed practice, as was the case here. When it was disclosed, the Employer sought to rectify it immediately. Furthermore, it is well established that a worker cannot benefit from an employer's mistake, such as the overpayment of wages.

Therefore, it is beyond my authority in this investigation to imply a term into the Worker's contract that allows for a paid break when no such term was explicitly stated or implied through 'custom and practice.' Nevertheless, I recognise that the Worker was allowed to enjoy a paid break due to the Employer's negligent practice of failing to implement proper scheduling checks at the time. I am certain that the alteration of this arrangement caused the Worker considerable upset due to the disruption of her work pattern, especially given the threat of disciplinary action.

Industrial Relations Act 1969, Custom and Practice, Paid Break.