ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015014
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
Date of Adjudication Hearing: 30/10/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant is employed by the respondent as a general operative in a food production unit. The complainant commenced employment in January 2001 and works part-time hours. The complainant alleges that she was always paid for her breaks and that the respondent changed this term of her employment requiring the complainant to clock for unpaid breaks.
Summary of Complainant’s Case:
The complainant has worked a specific shift pattern for a number of years, commencing at 6.30 and finishing at 13.30 inclusive of paid breaks.
The complainant was not required to clock out / in for these breaks.
Following a restructuring in the plant in 2017 there were discussions about possible changes and options available arising from same.
The complainant changed departments on the understanding that her hours would remain unchanged but the respondent told her that she would in future commence at 7.00.
The complainant was then absent on sick leave for five months and prior to her return was informed that if she commenced work at 6.30 she would be required to clock for an unpaid 30 min. break.
The complainant refused to clock and was threatened with disciplinary action.
Summary of Respondent’s Case:
The complainant agreed to change departments and a number of options were made available to her.
The complainant was advised that the respondent was legally obliged to record breaks and that she would be required to clock for these breaks which would be unpaid.
The complainant was given options of maintaining her present hours with a 2.5 hours reduction in pay or working until 14.00 each day and retaining her gross pay.
The complainant opted to maintain her present hours but she did not clock as per the agreement.
The requirement to clock is a legal obligation and as such does not require notice under the Terms of Employment (Information) Act 1994.
Findings and Conclusions:
The complainant’s original contract in 2001 was a full-time contract for a 39-hour week. Over time this had changed and in 2017 the complainant was working a shift commencing at 6.30 and finishing at 13.30 over 5 days. It is accepted by both parties that the breaks (2 x 15 mins.) within that shift were paid breaks. A restructuring exercise was carried out in late 2017 and the respondent offered the complainant a full-time position which the complainant was unable to take up. It was then proposed that the complainant change departments with effect from January 2, 2018. The complainant stated that she had agreed this on the basis that her hours and pay remained unchanged. The respondent’s position was that it had been outlined to the complainant that this department had a commencing time of 7.00 and advised the complainant that she could utilise the grievance procedure in this regard but that she would be expected to work as per her roster in the meantime. On 2 January the complainant clocked in at 6.30. Management met with the complainant who raised the issue of her starting time and was advised that there was no work in the department at 6.30. The respondent stated that the complainant was again advised to put her grievance in writing. The following day the complainant again reported for work at 6.30 and in a subsequent conversation informed management that she was feeling unwell. The complainant went to see her GP and went on sick-leave. This absence continued until May.
The respondent’s HR Dept. wrote to the complainant on 9 January 2018 setting out the background as they perceived it and offering two options for the complainant. These options were to work 7.00 to 12.00 for 5 days per week in the new department or alternatively to start work at 6.30 retaining her present 6.5 hours per day in another department. There were exchanges of correspondence and on 30 January 2018 the complainant wrote stating that she had for a number of years worked 6.30 to 13.30 with two 15-minute breaks and no requirement to clock and that she considered that these now formed part of her contract. The HR Dept. replied on 2 February with the following options; working 6.30 to 13.30 with a 30-minute unpaid break or 6.30 to 14.00 with a 30-minute unpaid break thus maintaining her gross pay. Reference was made to the requirement to clock for breaks. I note that in her evidence the complainant referred to this email stating that the option of 6.30 to 13.30 made no mention of clocking but it is in fact included in the paragraph following the options. I also note that the complainant sent two further emails reiterating her position regarding being paid for breaks and not clocking for same.
On 17 May 2018 the HR Dept. wrote to the complainant stating that they had been advised that she would be fit to return to work and arranging a meeting for the following Monday, 21 May. The letter asked the complainant to consider the most recent two options which were those outlined in the email of 2 February but without the paragraph regarding clocking for breaks. The respondent produced hand-written minutes of the meeting which were not signed and not given to the complainant. It is clear from reading those minutes that the complainant was unhappy regarding the choices being put to her. The complainant was informed that the fact that she had been paid for breaks was a mistake and that it was something that the company had not managed. In the end the complainant opted for 6.30 to 13.30. Asked about this at the hearing the complainant stated that she felt that she had to agree as she needed to get back to work.
The complainant returned to work on 28 May. On 30 May the complainant was approached by her line manager in relation to the fact that she had not clocked for her breaks and the complainant stated that she never had to clock for breaks. The line manager reported the matter to the HR Dept. The line manager was instructed that if the complainant continued to refuse to clock then the disciplinary process should be initiated. A meeting was held which the complainant stated was a disciplinary hearing but which the respondent categorised as an investigation. The complainant then lodged her complaint with the WRC and it appears that the issue was put on hold. The complainant told the hearing that the impact of the respondent’s actions had reduced her gross wages by 30 minutes pay per day.
Finally, I note that the complainant left the respondent’s employment about three weeks prior to the adjudication hearing.
The complaint before me is that the respondent had not notified the complainant of a change in her terms and conditions of employment. Section 5 of the Terms of Employment (Information) Act, 1994, states:
(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by the 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 place…
(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 respondent’s representative argued that the requirement to clock arose from the provisions of Section 25(1) of the Organisation of Working Time Act in relation to the necessity on the part of the employer to keep records demonstrating compliance with that Act including those sections of that Act dealing with employees’ breaks. It was also pointed out that the Staff Handbook referred to the necessity on the part of the employee to comply with clocking / swiping requirements as set out by management.
The original statement of terms and conditions of employment was issued to the complainant in January 2001 and it would appear that a number of changes occurred over the years which were not recorded / notified in writing. The issue in question, however, involves more than the issue of clocking as it also involved the matter of payment for breaks. It was accepted that the complainant had for some time been paid for breaks. The law specifies that employees must get breaks but is silent on the matter of payment for these breaks. The requirement to keep records is an onus on employers and indeed it appears that not all of the workforce of the respondent clocked for all breaks. I accept that the Staff Handbook required employees to clock and it would not be unreasonable for an employer to insist that an employee comply with that provision. That is not, however, the only matter before me. The final choice put to the complainant was that she could maintain her present hours but consequently reduce her gross pay or she could maintain her gross pay and consequently increase her working hours. It is clear that the complainant was unhappy when she indicated a preference at the meeting of 21 May but either choice was certainly a change of a term or condition relating to the rate or method of calculating her remuneration / hours of work. It was therefore a matter that required written notification as per Section 5 of the Terms of Employment (Information) Act, 1994, and the evidence is that no such notification was issued. I do not find that Section 5(2) of the Act absolves the respondent from that requirement.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint No. CA-00019551-001:
For the reasons outlined above I find this complaint to be well founded. As noted above the complainant has now left the respondent’s employment. I therefore require the respondent to pay to the complainant the sum of €1,250.00 as compensation in this regard.
Workplace Relations Commission Adjudication Officer: Joe Donnelly