TED1610

FULL RECOMMENDATION

TE/16/16

DETERMINATIONNO.TED1610

R-157337-TE-15

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012

PARTIES :

MCDONALDS RESTAURANTS OF IRELAND PLC
(REPRESENTED BY MAPLES AND CALDER)

- AND -

MARY COMERFORD
(REPRESENTED BY JAMES NERNEY B.L., INSTRUCTED BY JF WALSH SOLICITORS)

DIVISION :

Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Mr Shanahan

SUBJECT:
1. An appeal of an Adjudication Officers Decision no: r-157337-te-15.

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 11th February 2016 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court hearing took place on the 22nd March 2016. The following is the Decision of the Court.

DETERMINATION:

This is an appeal by Ms Mary Comerford (the Appellant) against a decision of an Adjudication Officer / Rights Commissioner in her complaint against her former employer, McDonalds Restaurants Ireland Ltd (the Respondent) made under the Terms of Employment (Information) Acts 1994 to 2012 (the Act).

The Appellant had complained that the nature of her work changed significantly in 2013 and that she was not notified of changes to the particulars of the statement furnished by her employer in accordance with Section 3 of the Act. She had complained that the failure to so notify her of such changes was a breach of Section 5 of the Act. The Adjudication Officer / Rights Commissioner decided that her complaint was not well founded.

Background

The Appellant was employed by the Respondent as a Franchise Accountant from 29^thAugust 2011 until 3^rdJuly 2015.

The Appellant contends that changes made to her workload and duties took place in 2013 and that these changes constituted changes to the particulars set out in the statement supplied to the Appellant in accordance with Section 3(1)(d) of the Act. The Appellant contends that her work was initially focussed on the Respondent’s franchise operation but that a range of duties were assigned to her in 2013 which required her to engage with the Respondent’s non-franchise outlets. The Appellant also contended that the changes to her duties involved her in non-financial duties. She further contended that her workload had been increased by 55% as a result of the introduction of changes in 2013.

The Respondent contended that no tasks were assigned to the Appellant arising from developments in 2013 which were outside the terms of her employment contract and that all of the tasks assigned were related to the conduct of her role as described in that contract. The Respondent submitted that the Appellant’s employment contract set out her duties and responsibilities and included the requirement that the Appellant would “work flexibly and efficiently” and that her job description identified a principal activity and accountability as “other ad-hoc requests and projects as the need arises”.

Discussion and conclusions.

The Act, at Section 3, requires in relevant part as follows

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—
(d) the title of the job or nature of the work for which the employee is employed,

It is common case that developments occurred affecting the work of the Complainant in 2013. Those developments are contended by the Appellant to be of such a nature as to constitute a change to the statement originally supplied to her and as such fell to be notified to her in accordance with Section 5 of the Act. Section 5 of the Act provides as follows:

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—
(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 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 Complainant in this case was supplied with details of both her job title and the nature of the work for which she was employed. The nature of the work was communicated in a document headed ‘McDonald’s Job Specification, Franchise Accountant’. That document set out detail as regards the Position and Purpose of the Role and its Principal Accountabilities.

The Court must consider whether the developments in the work of the Appellant in 2013 constituted a change in the particulars supplied to the Appellant in her contract of employment which is put forward as meeting the requirements of the Act at Section 3. If the developments involved did constitute such a change then the Court must deal with the question of the alleged failure of the Respondent to notify the Appellant in accordance with Section 5 of the Act.

The Court has received detailed written and oral submissions from the parties as regards the detail of the Appellant’s duties for the Respondent both before and after the development of her work in 2013. The Court does not accept that the changes set out by the Appellant in this case are of such significance as to constitute a change in the particulars of the statement originally furnished by the Respondent in accordance with Section 3 of the Act as referenced above.

Determination

For the reasons set out above the Court finds that the Act has not been breached at Section 5.

The appeal is disallowed and the decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court

Kevin Foley
CR______________________
12th March, 2016Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.