Complainant

Respondent

Parties

Alice  Maher

Thunders Bakery Ltd

Representatives

 Self- represented

The HR suite

Act

Complaint/Dispute 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-00055263-001

23/02/2023

The complainant submits that she was not notified in writing of a change to her terms of employment, contrary to the provisions of the Terms of Employment (lnformation) Act, 1994.

She started work as a cleaner in the respondent’s bakery on 31/5/2019.

Her weekly wage was €247.49.

She worked 20 hours a week.

She submitted her complaint on the 24/2/23.

The complainant gave evidence under affirmation.

The complainant commenced employment as a cleaner in the respondent’s bakery on 31/5/2019.

Her complaint is that her terms of her employment were changed contrary to section 5 of the Act of 1994.

The location of her work and her working hours were changed without written notification.

Change in work location.

The complainant’s contract of employment lists her assigned work location as Rear Phibsboro Road, Devery’s Lane. She worked in the Phibsboro bakery until 2021.

In November 2021 she was transferred out of the Phibsboro bakery and down to Drumcondra Bakery for 8 hours on a Saturday.

Change in number of hours.

The respondent increased her hours from 19.25 to 20 per week, in April 2023, without written notification. The respondent added on one extra hour to her Saturday shift in Drumcondra.

The complainant maintains that there was ample scope to give her more hours in Phibsboro, but the respondent refused to give her these extra hours preferring to give hours in Phibsboro to another employee and assigning the complainant to Drumcondra against her preferred wishes.

She asks the adjudicator to find in her favour.

The Respondent disputes that a breach of the complainant’s terms and conditions of employment occurred.

The respondent disputes the claim that the changes in the complainant’s working hours or location were not notified to her in writing.

The respondent runs bakeries at multiple locations around Dublin,

Location of work.

The complainant’s contract states that she can be transferred to another bakery according to the needs of the business.

A notification issued to all cleaners including the complainant on 28th October 2021 that they would have to move cleaners between bakeries. The complainant regularly worked in Drumcondra since this notification in 2021, and no issue was raised, therefore the respondent refutes the complainant’s place of work was changed without notification.

Hours of work.

The complainant’s contract of employment is for 20 hours per week, rostered Monday to Saturday.

The respondent submitted rosters from 2019, showing that the complainant was rostered 5 days. The complainant requested to go to three days per week in 2020 in order to obtain social welfare benefit for the remaining days.

An error in hours of work/rest breaks was brought to the Company’s attention by Citizens Information on behalf of the complainant in April 2023.

The complainant was rostered for 20 hours per week until the respondent was notified of the error While the complainant was being rostered for 20 hours, breaks within the Company were unpaid and therefore the complainant’s breaks were deducted from the 20 hours. Once they were made aware of the error, this was investigated, the complainant was given a shift in Drumcondra to ensure that she was receiving 20 hours per week and for which she would be paid, and so an extra hour was added to her working hours to make up for the unpaid breaks. The respondent Managing Director confirmed this to the complainant on 5/4/23. The complainant responded on the 12/5/ 2023, outlining that the efforts to rectify same were appreciated and no issue was raised at the time that two shifts were in Drumcondra, or no issue was raised with regards payment.

The respondent states that all employees’ hours of work were reviewed in light of this notification from Citizens Information and rectified.

The complainant wanted the extra hour to be in Phibsboro. Further hours in Phibsboro were not required, therefore the Complainant’s 6-hour shift in Phibsboro remained unchanged and her longer shifts were based in Drumcondra after the complainant raised the issue of not receiving 20 hours per week.

Concerning the complainant’s request for additional hours, additional days of work have previously been offered to the complainant on numerous occasions where they were available, however the complainant declined to work additional days as it impacts her job seeker’s benefit.

 Additional hours are not required on the days that the complainant is working in Phibsboro.

LEGISLATION

Section 5 of the Act of 1994provides 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) 1 month after the change takes effect

The respondent complied with this term. It was specified within the contract of employment that the complainant may be required to work in other locations as the needs of the business required.

The complainant receives 20 hours per week as per her signed contract of employment.

Conclusion.

The complainant’s place of work has not changed.

The number of days in which the complainant was rostered in Drumcondra was increased in light of the error being brought to the attention of the respondent by Citizen Information and to ensure her weekly hours were brought up to twenty.

The respondent refutes that there has been any breach of the complainant’s terms and conditions of employment.

I am obliged to decide if the respondent failed to notify the complainant of a change in the location of her work and in her hours of work in contravention of section 5 of the Act of 1994.

Relevant law

Section 5 of the Act of 1994 states:

”—(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. “

The particulars which the complainant maintains have been changed are those found in Section 3 (c) and (i) of the Act of 1994, viz,

“(c) the place or work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places”

and

(i)“any terms or conditions relating to hours of work (including overtime)”,

Place of Work

The first alleged contravention concerned the deployment of the complainant out of the Phibsboro site to work for a portion of her time in the Drumcondra site. This occurred in October 2021. This alleged contravention, submitted as a complaint on 23/2/23, fails to comply with the limitation period set out in at section 41(6) of the Workplace Relations Act, 2015 which provides as follows:

 “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Aside from this fact, the complainant’s contract allows for her deployment to the respondent’s other bakeries as needs arise is not a change in the particulars of her employment, was notified to the complainant and is, therefore, not a breach of section 5 of the Act.

Change in Working Hours

The second contravention identified by the complainant concerns a change in her working hours from 19.25 hours a week to 20 hours a week and took effect in April 2023.

Her contract specified 20 hours a week.

The increase in her hours from 19.25 to 20 hours a week came about as a result of pressure from the complainant to secure payment for 20 hours a week as opposed to the 19 or 19.25 hours which represents 20 hours timetabled minus her statutory breaks.

She was notified of this change in April 2023, to bring her into line with her contract.

 Aside from the fact that her contract provided for 20 hours a week, this alleged contravention occurred in April 2023 which post-dates the lodgement of her complaint which was submitted on 24/2/23 and is therefore inadmissible as the contravention did not occur in the 6-month period prior to the submission of the complaint.

The complainant also raised matters about unsuccessful efforts to increase her working hours in Phibsboro, but that is not within the remit of my jurisdiction, confined, as it is, to establish if there has been a breach of section 5 of the Act of 1994.

Both these complaints of alleged contraventions fail to comply with section 41(6) of the Workplace Relations Act, 2015.

 Due to the aforesaid reasons, I find that I do not have jurisdiction to hear this complaint.

I decide that I do not have jurisdiction to hear this complaint.

Failure to meet statutory time limits. Terms of Employment.