Complainant

Respondent

Parties

Branko  Drasinac

Agenbite Limited T/A Milano [amended on consent at hearing]

Representatives

Self-Represented

Ms Laura Kerin IBEC

Act

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

CA-00066102-002

18/09/2024

This matter came before the Workplace Relations Commission dated 18/09/2024.   The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to his employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 20/01/2025. 

The Complainant was employed by the Respondent as a Senior Chef at all material times.  The Respondent operates a chain of pizza restaurants across the UK and Ireland with further locations across 12 markets internationally.  The Respondent employs 463 staff across the Republic of Ireland.     

The Complainant commenced his employment with the Respondent on 20/05/2013. 

Both parties provided written submissions in advance of hearing for which I am grateful. 

CA-00066102-002

The Complainant in his WRC complaint form submits that his employer unilaterally changed the terms of his contract and with his new contract he lost paid breaks, night pay and overtime pay.  The Complainant submits that after 10 years in service his employer offered him a new contract and that the Respondent had at first stated it would be easier for payroll and then it was changed to for financial reasons. 

The Complainant submits they offered him a sum of money for his signature and later they wanted to bargain.  The Complainant submits persuasion lasted from 3 January to 5 March and then they started paying him his salary on 28 March 2024 according to a new contract which he didn’t sign and that practice has continued since then.  The Complainant submits that during that period they put pressure on him and by sending emails and coming to the restaurant. 

The Complainant submits the harassment and emotional distress he experienced was deliberate attempt to intimidate his and make him more likely to comply with their demands and this mentally exhausted him and his family.  The Complainant submits that if they are allowed to calculate his salary according to the new contract without his signature, why the months long torture was necessary.  The Complainant submits he was demoted after decades of loyal work for the company.

The Complaint at hearing submits that on 28 March he was not paid for breaks or bank holiday premium and he thought it was an error.  The Complainant submits that on 20 April he received an email from the Respondent informing him that his new contract of 18 March doesn’t count breaks. 

The Complainant submits upon inquiry that he does not find it reasonable that his contract can be changed and that he doesn’t accept the reasons and that payroll should be able to deal with it.  The Complainant submits that on 12 February he met with the Respondent and he was asked for his signature and he said he wouldn’t sign it and that he was unilaterally moved to a new contract without his consent. 

The Complainant submits nobody told him anything about the fact that his signature was not required and he did not want to sign a new contract.  The Complainant submits he did not see the reasons for the company to harmonise the contracts across all staff as being valid and questioned what the point of payroll is if they cannot manage these differences in pay for people on different contracts as that’s their job.    

CA-00066102-002

Preliminary matter – out of time

The Respondent submits this complaint is out of time.  The Respondent submits the Complainant’s terms and conditions were altered on 18 March 2024.  This complaint was submitted to the WRC on 18 September 2024, 6 months and 1 day later.  The Respondent submits that it is clear that the Complainant has not submitted his claim within the period of 6 months beginning on the date of the alleged contravention and that this matter is statute barred. 

Substantive matter

The Respondent strongly refutes this claim in its entirety and contends that no breach of the legislation has occurred.  The Respondent submits the Complainant was fully and properly informed of all applicable changes to his terms and conditions of employment well in advance of any changes taking effect. 

The Respondent categorially denies any and all allegations of intimidation or demotion.  The Respondent submits it conducted an exhaustive and transparent consultation process with all affected employees regarding the necessary changes during which every member of staff was treated with the highest level of respect and professionalism.  Any allegation that the Complainant was demoted is entirely without merit and the Complainant retains the same job title, responsibilities and position prior to the implementation of the changes to contract. 

It is submitted by the Respondent that no breach of the legislation has occurred and that the Complainant’s statement of terms of employment was altered on 18 March 2024.  It is submitted the Complainant was personally notified in writing on 12 January 2024 of the nature of the change and was notified in writing on 21 February 2024 that these changes would be taking effect on 11 March 2024. 

The Respondent submits it has complied fully with Section 5 of the Terms of Employment (Information) Act, 1994 and that the Complainant was provided with written notice of the provisions of the contract under which he is an employee of the Respondent’s and the Complainant cannot establish a breach of the legislation. 

The Respondent submits the Complainant was provided with numerous opportunities to ask any questions or raise any issues with the changes.  It is submitted the Complainant never raised any grievance in relation to the changes.  The Respondent submits the Complainant was offered compensation for the change in his terms equivalent to 1.5 times the annual loss of that term.  When the Complainant indicated during consultation that that figure wasn’t high enough the Respondent was offered the higher amount of €795 amounting to 2 years of annual loss. 

The Respondent submits that with respect to the pre 2014 terms the Complainant had only been benefitting from the paid 15-minute break as he and not been eligible for night work or paid overtime for 18 months prior to January 2024. 

The Respondent submits there is no recourse under the impleaded Act in relation to claims pertaining to unilateral change, intimidation or demotion and asserts these allegations are misconceived.  The Respondent submits there is no jurisdiction for the Adjudication Officer under the Terms of Employment (Information) Act, 1994 to make a determination in respect of these matters. 

The Respondent at hearing concedes there was a unilateral change to the Complainant’s terms and submits there was no requirement for the Complainant to sign anything and that he had been notified in writing of the nature of the date and the changes in accordance with the legislation. 

The Respondent submits they concede there was a change but they do not concede that this wasn’t notified to him in writing. 

The Respondent submits the reasons for harmonisation of contracts in relation to recent changes in the legislation and also in order to facilitate efficiencies in the running of payroll by removing payroll complications and the manual turnarounds.  The Respondent referenced legislative changes including the additional types of statutory leaves; probationary changes; statutory leave entitlements; additional bank holidays; entitlement to banded hours; entitlement to training; tips and gratuities; sick leave piece and the data protection piece all of which required to be documented in the contracts now being used by the Respondent and the review also took into account the requirement to harmonise terms and conditions across the company. 

Law relied upon by the Respondent in support of its case

Section 41(6) Workplace Relations Act, 2015

Section 41(8) Workplace Relations Act, 2015

Section 5 Terms of Employment (Information) Act, 1994

Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338]

Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM

Sheehy v Most Reverand James Moriarty [UD1264/2008]

Employee v Employer [UD969/2009]

Bus Eireann V SIPTU [PTD048/2004]

Byrne v PJ Quigley [UD762/94]

Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR242

CA-00066102-002

Preliminary matter – out of time

Two alternative arguments have been presented to me in respect of time limits.  I note the Complainant’s position his contract was unilaterally changed 18 March 2024 but that the alleged breach did not take place until he did not receive the paid breaks in his salary on 20 April 2024 which he submits means he was inside the 6 months’ time limit for filing his complaint. 

The Respondent alleges the alleged breach occurred on the day the Complainant was notified of the change to his terms which was 18 March and that the clock started ticking then and accordingly, claim should have been filed on 17 September 2024 and not the 18 September 2024.

I note the Complainant was under the impression that because he had not signed the new contract that everything would remain the same for him and that he would retain his 15-minute and that the alleged breach did not occur until he actually received his first salary in which the breaks were not paid.

I note the within complaint was filed with the WRC on 18/09/2024.   

The Relevant Law 

In relation to the preliminary objection that these matters are statute-barred, it is necessary to examine the facts giving rise to the complaints set out above in light of the relevant legislative provisions.  The time limits for referring complaints to the WRC are set out in Sections 41(6) and 41(8) of the Workplace Relations Act 2015 (hereinafter referred to as “the 2015 Act”):

In that regard section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” 

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay.  It is a matter for the Complainant to establish that there is reasonable cause for the delay.  It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. 

I am mindful of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J in the High Court held as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.  It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  Secondly, the onus on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time.  Thirdly, the court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause.  It is the actual delay that must be explained and justified.  Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a complaint that those factors were the actual cause of a delay.  Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”  [emphasis added] 

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the proceedings. 

The Labour Court drew heavily from the High Court case of O’Donnell when setting out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] as follows:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.  In the context in which the expression reasonable appears it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material time.  The length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. [emphasis added] Where reasonable cause is shown, the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.  Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.” [emphasis added]

For an explanation of reasonable cause to succeed –

(i)                  A complainant must explain the delay and afford an excuse for the delay.

(ii)                The explanation must be reasonable.

(iii)               There must be an objective standard applied to the circumstances of the case.

(iv)               There must be a causal link between the circumstances and the delay.

(v)                 A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

In arriving at my decision I am guided by the fact that the Labour Court has given consideration to the meaning to be ascribed to “reasonable cause” in employment Statutes as the basis for extending time to initiate complaints under those enactments.  

The Labour Court has further emphasised that where reasonable cause is shown a decision maker must still consider if it is appropriate in the circumstances to exercise their discretion in favour of granting an extension of time.  Whether or not the respondent has suffered any prejudice by the delay should be considered. 

The within complaint was filed with the WRC on 18/09/2024.  If I accept the Respondent’s position that the Complainant’s terms and conditions were altered on 18/03/2024 that would mean that the within complaint should have been filed on 17/09/2024. 

I am mindful of and in this instance, I am guided by Cementation Skanska set out above where the Labour Court held that “the length of the delay should be taken into account” and “a short delay may require only a slight explanation whereas a long delay may require more cogent reasons.” 

The Complainant has grounded his application for an extension of time on the basis the alleged contravention occurred on the day when he did not receive payment as he had believed that because he did not sign the revised terms that his terms would remain the same.    

Taking into consideration the evidence of the Complainant together with consideration of any prejudice caused to the Respondent and in line with the case law referred to above I find that in the totality of the circumstances of the instant case the Complainant has met the threshold required in order for me to exercise my discretion and extend the relevant timeframe on the basis that “reasonable cause” exists within the meaning of the 2015 Act.  I am satisfied there is no prejudice served upon the Respondent in so doing. 

In these specific circumstances I am satisfied that the failure to present the complaint within the relevant period was due to reasonable cause.  I decide I may entertain this complaint. 

Substantive matter

The Relevant Law

Notification of changes.

5.—(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—

F22[(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.

The Relevant Facts

I note the Complainant’s contract of employment dated 20/05/2013 provides as follows at clause 18:

18. Variations

“Changes to these Terms and Conditions will be notified to you in writing within one month of such an alteration coming into effect.” 

The aforesaid contract or provides as follows at clause 4:

“…you will be entitled to breaks in accordance with the Organisation of Working Time Act 1997 as follows:

Where hours are worked between 4 and a half hours and 6 hours – 15 minutes paid break

Where hours are worked between 6 hours and 8 hours – 15 minutes paid and 15 minutes unpaid

In excess of 8 hours – 15 minutes paid and 30 minutes unpaid lunch break.”

I note and it is not in dispute that there was a comprehensive process of engagement between the Respondent and the Complainant commencing with an email communication on 05/01/2024 to arrange individual consultation meetings. 

It is not in dispute a number of meetings took place between the Respondent and the Complainant.  It is not in dispute a buy-out was offered for the 15-minute paid break which is the only change in terms that impacted on the Complainant.  The buy-out offered of 1.5 times the annual loss is in line with the formula recognised industry wide in such cases.    

I note the Complainant was fully engaged with the consultation process and he sought that this buy-out offer be increased and it was increased by the Respondent.   

When I apply the law to the facts as set out in the written submissions and orally at hearing I am unable to find a contravention of the impleaded legislation as set out above namely section 5 of the Terms of Employment (Information) Act, 1994 which provides for the notification of changes. 

I am satisfied there was no contravention by the Respondent of the provisions of the legislation as set out above.  Accordingly, I find this complaint as presented under the Terms of Employment (Information) Act, 1994 to be not well-founded.    

CA-00066102-002

For the reasons set out above, I decide this complaint is not well-founded. 

Notification; consultation; buy-out;