ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000742

Complaint/Dispute for Resolution:

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-00001142-001	27/11/2015

Date of Adjudication Hearing: 26/02/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) 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.

Complainant’s Submission and Presentation:

On the 31/10/14 a complaint was made to the Labour Relations Commission on behalf of the Complainant regarding changes to her terms and conditions of employment at the Shop. Following the lodgement of the complaint, an independent investigator was appointed to try and find a solution to the problem by means of mediating between both parties. There resulted a subsequent drafting of a 75 page report, contracts of employment and detailed job description. Both parties signed the contracts deeming them to be fair and equitable. We at this stage acting in good faith and thinking this issue was resolved withdrew the complaint. However within six weeks of signing the contract the complainant’s duties were again changed, despite her job description clearly stating that she would have responsibility for stock taking and dealing with suppliers this duty was assigned to a manager. The complainant was told this was a temporary measure; however despite on numerous occasions asking that her agreed duties be restored she was ignored. As previously stated it is a policy of this office to try and resolve issues at local level but taking into consideration the fact that a very detailed investigation, several meetings and numerous phone conversations have already been carried out it is our opinion that any mediation would be of no value. We would ask therefore that the matter be resolved by decision by the WRC.

Respondent’s Submission and Presentation:

The Complainant’s employment with the Respondent is governed by a contract of employment dated 23^rd March 2015 which states inter alia:

“During the course of your employment it may be necessary to expand your duties, within the general scope of your position, or change your function. The Organisation reserves the right to assign other duties to you at any time, it being understood that you will not be assigned duties which you cannot reasonably perform”.

The Complainant contends that her terms and conditions of employment were breached by removing her responsibilities as regards ordering ambient stock for the store. Her responsibility to complete the task of ambient stock was taken from her remit due to her poor performance of the task and due to the significant financial damage caused to the employer. Her duties in the area of ambient stock ordering were restored to her following a report in February 2015 and she held the responsibility until 12^th June 2015 when the store failed an audit conducted by a Regional Manager, which resulted in significant financial loss and a significant loss in terms of overall brand compliance. On 4^th November 2015 the Respondent wrote to the Complainant outlining in specific terms the shortfall in her performance and confirming that she would no longer perform the task of ambient stock ordering. It is argued that the stock-taking/ordering duties allocated to the Complainant were never a fundamental core term and condition of her employment but a work practice carried out by her and subject to normal organisational change. Legal case law was submitted in support of the Respondent’s argument that it is reasonable for an employer to make changes in the way work operations are carried out and that this does not alter the core terms of the employee’s contract of employment.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

The specific complaint as submitted is “I was not notified in writing of a change to my terms of employment”. The Complainant’s representative submitted that the Adjudicator recommends that the Complainant “be returned to the job as per the terms agreed in her job description”.

It is not within the authority of the Adjudicator to do so under the Terms of Employment (Information) Act 1994. Section 7 of the Act provides the parameters of the jurisdiction which do not include directing or requesting action from the employer on the operation or implementation of the contract.

Legislation involved and requirements of legislation:

Section 3 of the Terms of Employment (Information) Act 1994 confers an obligation on the employer to furnish the employee with written terms of particulars of employment within two months of commencing employment. Section 5 (1) of the Act provides wherever a change is made or occurs in any of the particulars of the written statement, 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 one month after the change takes effect. Section 5(1) of the Act is the relevant section. As outlined above, the requirements of the legislation do not extend beyond the giving of the written particulars or the changes in writing of the written particulars of employment. Disputes over practical elements are not covered by the Act.

Decision:

I note the written contract dated 23^rd March 2015 and the accompanying list of specific duties which includes: “Order ambient stock from M’s – requires approval from Management”. This duty and the withdrawal of same forms are the core of the dispute here between the Complainant and Respondent. The duty was removed from the Complainant in or around 12^th June 2015. I note the letter dated 4^th November 2015 clarifying the Respondent’s position in relation to the task and outlining the reasons the task was re-allocated. This I find meets the requirement of the employer to notify the employee of the change in the particulars of her written contract. I find there was a technical breach of the Act in that this letter issued later than one month after the change took effect. In the circumstances, I declare that the complaint is well founded in that the notification in writing occurred later than one month following the change and I find that no further direction or compensated is warranted in this case.

Dated: 26^th April 2016