EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Waldemar Konarzewski – claimant UD243/2013
against
Johnston Logistics Limited – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey B.L.
Members: Mr C. McHugh
Mr C. Ryan
heard this claim at Dublin on 14th March 2014
Representation:
_______________
Claimant(s): Ms Faye Revington BL, instructed by:
Mr Niall Bass
Keans Solicitors, Unit 3, Griffeen Centre, Lucan, Co Dublin
Respondent(s): Company Representative
The determination of the Tribunal was as follows:-
Summary of evidence:
This was a claim for alleged constructive dismissal resulting from a change in the claimant’s hours of work in October 2012 from 7am to 4pm, to 2pm to 10pm. The claimant was employed by the respondent as a warehouse operative.
The claimant contended that he could have done the same work as two of those on the early shift and was not consulted on the change. He had a partner and child and the new hours would have impacted on his home life, though he did not raise this at any meeting. He sought a 17.5% pay increase for the change of shift. The claimant, a Polish national, attended company meetings with a Polish/English speaking colleague. The claimant had also attended English classes paid for by the Company.
The claimant received his first terms and conditions when he began on 23rd March 2006. In regard to hours it stated:
7am to 4pm Monday to Friday (flexibility will be required with full assistance in time in lieu requests). The company reserves the right to alter these working hours from time to time and flexibility is required.
Further terms and conditions were issued in 2007, although the claimant did not sign this document. It stated in regard to hours:
Your hours of work are as rostered by your supervisor. Flexibility is required in relation to start and finish times…The Company reserves the right to transfer you to different work patterns including night work should business requirements dictate.
On 25th September the warehouse operatives were informed that in October 2012 the company were going to change the hours of work at the warehouse. Three shifts were created; 7am to 3pm, 10am to 6pm & 2pm to 10pm. The employees were invited to make suggestions but none were received. It was stipulated that any suggestions submitted must be agreed by all the employees. Four operatives were assigned to each shift. The change was required to meet customer requirements which demanded late night orders. The Warehouse Manager and Warehouse Supervisor (also a Polish national) devised the new plan based on the strengths and weaknesses of the employees and how long they were with the company. The claimant was required to work the 2pm to 10pm shift from 15th October 2012.
The claimant raised a grievance regarding the change in hours and a meeting was held on 9th October 2012 with the Warehouse Manager. The Warehouse Manager referred to the ‘hours of work’ outlined in the second contract of employment. The claimant sought a 17.5% pay increase for working the later shift, but put forward no other reason for not working the new hours. The claim was not upheld and the claimant was instructed to report for work at 2pm on Monday 15th October 2012. He was advised that he could work under protest if necessary.
The claimant appealed the outcome and this was heard on 19th October 2012 by the Logistics Manager. The Logistics Manager also quoted the claimant’s most recent contract of employment. He acknowledged that the claimant had not signed it, but noted that the claimant had not raised any objection to it and therefore the Company considered that he was working under it. The only issue presented by the claimant was his request for a 17.5% pay increase. He explained that the claimant was put on the late shift as he was an experienced member of staff who could operate without office/management support at night. Two of the staff members on the early shift had less than 2 years’ service which the company considered the minimum service required to work on the late shift without the usual supervision. Also those two staff members on the early shift worked on a particular contract which they were most familiar with as they had been assigned to it since they began with the company.
The Logistics Manager indicated in his letter of 30th October 2012 that there was a possibility of making the arrangement temporary until some staff members reached 2 years’ service. This would have been in July 2013. This occurred in the case of another employee who remained with the Company. The claimant was instructed to commence his new hours from 5th November 2012, under protest if necessary and advised of his right of appeal to the Managing Director.
The claimant was suspended without pay on 6th November 2012 for reporting to work on 6th November 2012 at his old start time. He was suspended until such time as he confirmed in writing that he would carry out the instruction to work the changed hours, under protest if necessary.
On 8th November 2012 the Managing Director heard the appeal of the claimant’s grievance. He noted the claimant’s hours of work under his terms and conditions and the offer to revert to earlier hours in July 2013. The claimant was offered an appeal to an outside party and instructed to report for work on 12th November 2012 at 2pm, even if under protest. Failure to report could lead to disciplinary action, up to and including dismissal.
The claimant then went on sick leave. He attended a solicitor who began communicating with his employer on his behalf. On 14th January 2013 through his solicitor he terminated his contract of employment and requested his P45.
Determination:
Having considered the evidence given and documents submitted the Tribunal finds that the claimant has not reached the level required to meet a claim of constructive dismissal. The terms of the contract were such that required flexibility. Reasons were given why the changes were required. From the evidence it appears that the main bone of contention was the company’s refusal to pay a 17.5% increase. The shift change would have been temporary until July 2013 when the claimant would have been put back on the earlier shift as happened with another employee but the claimant terminated his own employment. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007, is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)