TED2120

FULL RECOMMENDATION

SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014

PARTIES :

FLANNERYS BAR LTD, FLANNERYS BAR GLASHEEN LTD.
REPRESENTED BY BDM BOYLAN SOLICITORS

- AND -

MR FREDERICK KIDNEY

DIVISION :

SUBJECT:

1. Appeal of Adjudication Officer Decision No(s). ADJ-00021483 CA-00027723-004.

BACKGROUND:

2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(1) of the Terms of Employment (Information) Act 1994 to 2014. A Labour Court hearing took place on 2 November 2021. The following is the Determination of the Court:-

DETERMINATION :

This is an appeal by Frederick Kidney (the Complainant) against the Adjudication Officer’s Decision ADJ-00021483 on the grounds that his then employer Flannery’s Bar Ltd ( the Respondent) was in breach of the Terms of Employment(Information) Acts 1994 to 2014. The Adjudication Officer found that the complaint was not well-founded.

Background

The Complainant was employed with the Respondent as a Part-time Chef at the Respondent’s business from 9th May 2018 to the 14^th March 2019. The Complainant lodged this complaint along with a number of other claims with the WRC on the 12^th April 2019. The cognisable period for the purpose of this Act, is 13th October 2018 to the 12^th April 2019.

Complainant’s case

It is the Complainant’s case that the Respondent breached the Act when he was asked to do extra hours on two occasions, over a two- week period in early 2019. The Complainant submitted that he was not notified in writing of this change to his terms and conditions of employment as required by section 5 of the Act.

Respondent’s case

It is the Respondent’s position that there was no change to the Complainant’s terms and conditions of employment. On two occasions he was requested to work some additional hours as they were short staffed. A request of that nature does not constitute a change to his terms and conditions of employment and therefore section 5 of the Act does not apply.

Relevant Law

Section 5 of the Act states 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, 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.

Determination.

The Court determines that a request to work additional hours on two occasions over a ten-month period cannot be considered a change to the Complainants terms and conditions of employment. The Complainant has failed to identify a breach of the Act within the cognisable period and therefore his complaint must fail.

The Court so determines. The decision of the Adjudication officer is upheld.

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.