Complainant

Respondent

Parties

Paul  Higgins

Deering Transport Limited

Representatives

Adam Hanlon BL, instructed by Tim Kennelly Solicitors

Peninsula Business Services Ireland

Act

Complaint 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-00070992-001

22/04/2025

The complainant, Mr. Higgins, made a complaint that he was not notified in writing of a change to his working hours. The respondent denies there has been a breach of the Act and submits that his hours of work are variable as per his contract and the change or hours was reasonable. 

Summary of Complainant’s Evidence

Mr Higgins said he commenced employment with the respondent in the mid-nineties. He took two years out when his twins were born and then started night runs around 13 years ago. He worked 5.30pm till into early morning depending on whether he did one or two runs. He worked four days, Monday to Thursday.

On 8th April 2025, he was informed of a move to day shifts. He became stressed as his wife worked days, and this would impact on his caring responsibilities.

Under cross-examination by the respondent representative, he was questioned on being facilitated to go back on night shift in or around 22nd April 2025. He replied that he was not facilitated.

When asked his weekly rate of pay, he replied €580. It was put to him that evidence would be given that it was €460 euro per week. He was questioned on the contract clause of variable start and finish times. He replied that he did not remember signing a contract.

He was asked about the effects of this change on him, as he was facilitated back to night shifts shortly afterwards. He replied that he was told that he would have to work daytime and this did not suit. When asked whether he ever raised a grievance, he replied that he often asked about a pay rise and was told that his pay would increase if he worked Fridays.

Complainant Closing Submission

It was submitted that no written notification was issued to the complainant of a change to his working hours. It was submitted that the Act had been breached. The change was more than a variation of hours as it also involved working Fridays. After working night shifts for 13 years, it was submitted that this was a radical change and not a variation to his hours, as presented. The effects on the complainant were serious, as he had caring responsibilities for his twins. The facts of this case were distinguishable from the case of Philmic Limited v. Petraitis TED1616 and Grant Engineering (Ireland) v. Delaney TED1728 where there were minor technical breaches and nil compensation awarded.

Summary of Mr Deering’s Evidence

Mr Deering confirmed that he was the owner and Transport Manager of the company. He said he advised the complainant of the change of hours on 8th April 2025, the day before they were to come into effect. He said the complainant did not come in early the next day and arrived for his late shift. He said the complainant was then on sick leave for seven to eight days and then returned to work for some night shifts. When he returned to night shifts, he thought he was back permanently although he then went on sick leave again.

He said the arrangement for days was for two weeks and this was not a material change to his terms. He said this change was expected of all staff along with the complainant. He said the complainant is paid €115 per night for four nights. He confirmed that the complainant did not submit a grievance. He said the complainant gave out when he was informed of moving to day shifts.

Under cross-examination, he said there was no written notification of the change of hours as he was relying on the variable clause of start/finish hours in the contract. He said the complainant was not aware at the time that the change to days was only for two weeks.

Respondent Closing Submission

It was submitted by the respondent representative that no change occurred, as the complainant was facilitated back to nights. The complainant did not address the issue under the grievance procedure. Without prejudice to the position that there was no breach, if decided there was, it was only a technical breach with no practical effect on the complainant.

The Law

Section 5 of the Terms of Employment (Information) Act 1994 as amended provides for notification of changes. It states that whenever 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 …….

Finding

There is a conflict between the parties on whether the contract provided for a change of hours. The complainant said in evidence he had worked the same evening shifts with a variable finish time for thirteen years. The respondent witness submitted that the change was only for two weeks and relied on the variable start and finish clause in the contract.

The terms as outlined in Section 3 (p) state ‘If the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of-

(1)    the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,

(2)    the reference hours and days within which the employee may be required to work, and …

Additionally, Section 3 (1A) includes- (j) any terms or conditions relating to hours of work (including overtime);

On a plain reading of Section 3 & 3 (1A) of the Act, the terms, and any changes to them include hours unless the pattern is unpredictable. I am not satisfied that the respondent can rely on the employment contract as per 3 (p) above, as-

·       the work pattern was predictable, and was night hours for the previous thirteen years. Even though the contract stated variable start and finish times, this was not the custom and practice over a prolonged period.

·       the written terms of the contract specify nights only (although in handwriting) along with the above statement on variable start and finish times.

I find there has been a breach of the Act in that the complainant did not receive written notification of the changes to his hours. Although the respondent informed him the day before the change, the wording of the Act puts the onus on the respondent to provide “written notification.”

Redress

I have considered the case law submitted by the respondent on nil compensation when mere technical breaches arise as per Philmic Limited v. Petraitis TED1616 and Grant Engineering (Ireland) v. DelaneyTED 1728. In Philmic, there were technical breaches of two specific terms not included in the employment contract. These were deemed by the Labour Court as having no detriment to the complainant. In Grant, the complainant admitted to suffering no detriment because of similar technical omissions in his contract. In this case, the complainant gave evidence of his caring responsibilities which meant that day shifts were not suitable. I have also considered the respondent position that the effects were merely technical as he never worked the day shift. This may be so, although at the time, the complainant was unaware that he may be later accommodated back to the night shift. I am satisfied that the effect of the change was significant and that he suffered a detriment.

I decide that the complaint is well founded. I order the employer pay to the employee the equivalent of 3 weeks’ pay which is €1,380.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

I decide that the complaint is well founded. I order the employer pay to the employee the equivalent of 3 weeks’ pay which is €1,380.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

Terms and Conditions