ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022463
Personal Lines Insurance advisor
Flynn O'Driscoll Business Lawyers. Ms. M.P Guinness, B.L
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: 23/08/2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
In accordance with Section 41 of the Workplace Relations Act, 2015 following 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 commenced work with the respondent on 9 May 2017 as an insurance broker. The respondent failed to notify her in writing of a change in the terms of her employment.
She worked 40 hours a week. Her gross monthly salary was €2750.
She submitted her complaint to the WRC on 12/6/2019.
Name of the Respondent.
It was agreed to correct the respondent’s name and this is reflected in this decision.
Summary of Complainant’s Case:
The complainant had worked as a broker with the respondent since May 2017.
On the 4th March the respondent owner of the company advised all employees that he was selling his company, X, and that Y insurance company had bought over the business. All contracts, pay, hours of work, terms of employment would remain unchanged with Y, but staff would have to move to the Y office in area A, within 2 weeks as their current office would be closing. Staff would all stay together, and the book of business would remain in place and continue as normal. This was a massive shock to all staff as it was unexpected. Staff were given an hour or so to talk and take this in.
The complainant and staff met the new CEO and HR manager on the 5 March at 8 am, in advance of the scheduled start time of 9 am.
The complainant states that her terms of employment were changed.
Increase in her working hours.
Her working hours from 25 March onwards exceeded the contracted hours of 9.00 to 17.00 as fewer staff were available to meet an increased number of telephone calls. This led to an Increase in the number of telephone calls which the complainant had to take. There were numerous occasions when there was 10 plus calls in the queue with clients trying to get through at 5pm (closing time). The complainant had to take those calls. She was coming into work between 7.30 and 8am to get work done. She did not receive time in lieu or payment for these extra hours. The respondent never asked her to come in early, but it was the only thing she could do to try and clear the backlog – an unrealisable objective.
She had numerous meetings with the CEO and the HR department between 25th March and the 24th May telling them of the stress experienced because of the work load and that extra staff were needed. None were ever provided.
The respondent CEO and HR manager advised the complainant that she would receive a performance bonus of €2000 based on KPIs but failed to tell the complainant within the 2-month period before her resignation on 24 May 2019 what she should be working towards or the KPIs to achieve this performance bonus. The previous bonus was based on acquiring new business for the company.
Change of location.
The complainant was not advised of a change in the respondent’s location 30 days in advance of it happening. She was advised on the 14 March when she went on leave that the next working day would be in the new location. She did not know where she would sit as she had a fixed place in the former location. The move to Area A meant extra traveling time and parking costs.
The complainant confirmed that there was no change in her annual leave entitlement or agreement to attend medical appointments.
Summary of Respondent’s Case:
The respondent denies any breach of section 5 of the Act of 1994.
The complainant’s contract requires her to be flexible in her work. Clause 2.3 states
“During the course of your employment, as the respondent’s business changes and develops, it may be necessary to expand your duties within the general scopes of your position or to change your function. Such a change may occur to suit market demands, manpower availability, increased competitiveness etc and is a condition of employment that you agree to be totally flexible with regards to your work”.
The respondent argues that any changes to how the business operated were provided for in this clause of the complainant’s contract.
Change in working hours.
The respondent acknowledges that the working environment was busier that it had been before the two companies combined but the HR manager made herself available to deal with any issues. More importantly, the CEO and HR manager made it clear to the complainant on the 4 April that no responsibility lay with her for the unmet calls arising from the increased demand. She was perfectly entitled to leave at her scheduled finish time. The respondent shut down the phone lines for the complainant and staff at 4.45 so as to ensure that no more than 4-5 calls could be transmitted, and that the complainant could maintain her finish time of 5 pm.
Clause 2.4 of the complainant’s contract of employment provides for assignments to other duties but not duties “which you cannot reasonably perform”.
The complainant continued to perform the same functions as that performed under the previous management.
Change in location of business.
Clause 3.1 of h complainant’s contract provides for a change in location of business.
As a result of the purchase of the former owner’s company, the previous owner of the respondent company informed the staff of the changed location on 4 March. Mr J, the former owner chose not to inform staff of the change of ownership until that date. On 5 March the complainant was advised of the move to the new location in Area A and was given an information booklet.
Respondent states that she received full pay while on sick leave though not part of her contract.
The respondent points to enhanced conditions of employment since Y took over in relation to annual leave, access to group pension scheme with an employer contribution, company contribution towards private health insurance, educational benefits and access to a sports and social club.
The respondent HR manager advised that they informed the complainant that there would be a performance bonus of €2000 but that as the new company was only 6- 8 weeks in being, they were still working on identifying the key performance indicators which could yield this sum to all staff.
The respondent denies that the complainant’s terms and conditions of employment were amended. Without prejudice to that, even if her working environment changed and she had additional duties (which is denied) it is submitted that this is encompassed by clause 2 of her contract of employment.
Findings and Conclusions:
I am required to establish if the respondent has breached section 5 of the Act of 1994. The relevant provision, section 5, 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 .”
In order to uncover a breach of section 5, I must identify which of the particulars set out in section 3 of the Act of 1994 were altered.
Alleged increase in contracted working hours due to having to answer an increased volume of telephone calls.
I can understand that it is difficult for a conscientious employee to walk away from customers waiting on a telephone line, but both the complainant and the respondent manager testified to the fact that there was no requirement for the complainant to commence before or stay beyond her contracted hours to meet the increased demand of these calls. I accept that it was clarified to her that it was not her responsibility.
If the complainant chose to work beyond her contracted hours though admirable, and all the more so given that she suffered from Crohns disease, it was not respondent dictated and therefore I do not find that it was a change in her conditions of employment for which the respondent is liable
I do not find that a change in the administrative support structure constitutes a change in any of the particulars set out in section 3 of the Act of 1994.
Overall the complainant’s complaint is not that she had a different function after the buyout but that the workload increased.
Failure to notify the complainant of a change in the performance bonus system.
The complainant’s contract of June 2017 while it provides for an attendance bonus makes no reference to a performance bonus. It was therefore not one of the particulars furnished by the employer under section 3. Accordingly, I do not find that an obligation exists to advise on a change to a non-existent particular. I do not find that this constitutes a breach of section 5 of the Act of 1994.
One day’s verbal notice of change of location.
Section (3)(c) of the Act does require the employer to furnish details on the place of work. It is therefore a particular which if changed must conform to section 5 of the Act. While an undated information booklet was circulated to all staff containing the new address, I was not provided with any letter informing the complainant of this change in that particular element of her contract. Furthermore, the complainant’s contract states that she will be given as much notice as reasonable possible of any move. I find that the sale of the company to the respondent was known well in advance of the announcement made on the 4 March of the new work address. Given the planning and decisions made, I do not find that an announcement 3 weeks before the move took place meets the test of as “much notice as reasonably possible”.
I find this omission constitutes a breach of section 5 of the Act.
On the basis of the evidence tendered and for the above reasons, I find the complaint to be well founded. I require the respondent to pay the complainant the sum of €634 which equals one week’s wages.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find the complaint to be well founded. I require the respondent to pay the complainant the sum of €634 in compensation for the contravention of section 5 of the Act of 1994.
Dated: 29th November 2019
Workplace Relations Commission Adjudication Officer: Maire Mulcahy