TED239

1. Appeal of Adjudication Officer Decision No(S) ADJ-00036611, CA-0047802-001

BACKGROUND:

2. This is an appeal under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 30 May 2023. The following is the Court's Determination:

DETERMINATION:

This is an appeal by the Liam O’ Grady against Adjudication officer’s Decision ADJ-00036611 given under the Terms of Employment (Information) Acts 1994 to 2014 (the Act’s) in a claim by him that his employer had breached the Acts. The Adjudication Officer found the complaint was not well founded.

In this Determination the parties are referred to as they were at first instance. Hence ESB Networks is referred to as ‘the Respondent’ and Mr Liam O’ Grady as ‘the Complainant’. The complaint was lodged with the WRC on the 21^st December 2021 and therefore the cognisable period as defined by the Act is the 22^nd June 2021 to 21^st December 2021. This case is linked to PW/23/8 and CD/23/43.

Background

The Complainant is employed as a Network Technician. The Respondent introduced a new payroll system which required the Complainant submit his overtime and other claims through the new online system (MyTime app) . The Complainant continued to submit his claims manually which resulted in a delay in payments being made.

Summary of Complainants case

The Complainant’s representative submitted that section 3 (1) (h) of the 1994 Act requires employers in providing mandatory contracts of employment to expressly commit to specific conditions of employment, one of which is an express commitment to a regular pay interval.

In this case the pay interval in the contract was fortnightly in arrears. This commitment was breached when the Respondent delayed payments in respect of non-base payments due to the Complainant. The Complainant’s representative also submitted that there was a breach of section 5 of the Act which provides for formal notice of changes to the contract to be notified to the Complainant. In this case as the Complainant’s Union were not part of the ESB group of Unions they were not party to the negotiations in respect of this change.

Summary of Respondent’s

The Respondent submitted that the introduction of the MyTime App is not a change to terms and conditions of employment but was in fact a change in a work practise. There was no change to the pay intervals for the Complainant arising from the introduction of the App. The fact that a delay occurred arising from the phasing out of the old system does not constitute a change to pay intervals.

It was agreed with the ESB group of Unions that the My Time app would be implemented for NT’s commencing September 2020. The initial timeline was deferred, and it was the end of 2021 before all staff were migrated on to the app. In October 2021 the Respondent circulated a briefing note in respect of the phasing out of time sheets from October 2021. By letter of 2^nd November 2021, the Respondent was informed by the IWU that all their members who were using the MyTime App would cease using it and revert to paper timesheets with effect from 5^th November 2021. The Complainant had been activated on the My Time App but chose not to use the App.

By letter of the 5th November to the IWU, the Respondent set out that the use of the My Time App had not arisen from the recent collective agreement that they had issues with but in fact predated that. It set out that the scanning technology they had previously used to process timesheets was now obsolete and cannot be supported by the IT system and therefore had to be replaced.

The letter went on to say that there was no facility for Worker’s to revert back to the paper base system and that if Worker’s chose to do that it would inevitably lead to delay in processing their payments.

It is clear that the Complainant was informed of the change to the My Time system and any delay in payment in respect of his non base pay was because he opted to complete his claim by paper and not use the digital process.

The applicable law

Section 3 of the Act titled written statement of terms of employment states:

• (1) An employer shall, not later than [1 month] after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—
  (a) […]
  (b) […]
  (c) […]
  (d) […]
  (e) […]
  (f) […]
  [(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]
  [(g) […]],
  (ga) …..
  (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,
  (i) […]

• (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, 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.
  

It is clear from the submissions to the Court both written and oral that there has been no change to the intervals at which the Complainant’s salary falls to be paid. A delay arose in respect of particular payments because the Complainant chose not to use the My Time App but to use the old paper system, in circumstances where he had clearly been advised by the Respondent that this would result in a delay to his receiving payment.

In respect of the second element of his complaint it appears to the Court that the change in question was a change to a work practise and not to a term or condition of his employment. Even if the Court is wrong on this, it is clear from the correspondence opened to the Court that he was informed in advance of the proposed change.

Determination

The Court determines that there has been no breach of the Act during the cognisable period and that the complaints are completely misconceived. The appeal fails. the decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CO'R	______________________
5 July 2023	Deputy Chairman