ADJUDICATION OFFICER DECISION

A Doctor V An Employer

Adjudication Decision Reference: ADJ-00000497

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 29/01/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

1. Procedure:

1.1. In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act 1994 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(s)/dispute(s).

1.2. At the hearing the Respondent made a written submission. The Claimant object to not receiving same in advance of the hearing referring to the WRC guideline document “Procedures in the Investigation and Adjudication of Employment and Equality Complaints”. Whilst the written submission was submitted at the hearing, at the close of the hearing the Claimant requested time to consider this submission as he had not received it in advance. The Respondent was happy to facilitate this request.

1.3. Having subsequently reviewed the written submission the Claimant made a written response on 11th February 2016 which was forwarded to the Respondent. The Respondent made a written response which was received by the Workplace Relations Commission (WRC) on 7th March 2016, a copy of which was forwarded to the Claimant by the Respondent.

1.4. Based on the above process the Adjudication considered the matters and made its findings.

3. Complainant’s Submission and Presentation:

3.1. This claim refers to the alleged failure of the Respondent to provide the Claimant with a written statement of his Terms and Conditions of Employment, and an alleged failure to provide written notification of changes in accordance with Section 3 of the Terms of Employment (Information) Act 1994.

3.2. The Claimant joined the organisation on 14th August 2000 with an understanding he was on a “Category II Contract” for his terms and conditions of employment. He advised that he received an appointment notice before he took up his appointment but he never received a statement on his terms of employment including any express terms derogating from normal pension terms & conditions (including professional added years). He also advised in reply to the Respondent’s response that his contract was changed from a 27 to a 33 hour week on 1st January 2004, and subsequently to a 37 hour week but that he did not receive written notification of the change in accordance with Section 5 of the Act.

3.3. The Claimant further complained that the Respondent has not adhered to the WRC guidance on procedures with particular reference to the written submission being made on the day of the hearing regarding its reliance a legal point, rather than submitting same 21 days in advance of the hearing as is required by the WRC procedures.

4. Respondent’s Submission and Presentation:

4.1. The Respondent contended that the claim under the 1994 Act is statute barred and is therefore outside the jurisdiction of the Adjudication officer to hear. In this regard the Respondent argued that Section 7(3) of the Terms of Employment (Information) Act, 1994 was removed by the Workplace Relations Act 2015 and as such the Claimants time limits under the 1994 Act have expired.

4.2. The Respondent submitted that the Claimant was appointed to a permanent part-time and pensionable position on 14th August 2000 where his contractual commitment was changed from 27 to 33 hours per week from 1 January 2004, and he now has a 37 hour commitment in line with the Haddington Road Agreement. The Respondent advised that the Claimant is remunerated at a salary applicable to a Category II Consultant, but he is not on a Category II Consultant contract of employment.

4.3. The Respondent contended that Claimant was initially furnished with the full particulars of office and a very detailed job description when he applied for the post and subsequently received a letter of offer in May 2000. The respondent argued that copies of the conditions of appointment, qualifications for the post and duties thereof were enclosed together with a copy of paragraph 8 of the employer’s circular 10/71 containing the provisions relating to tenure of office.

4.4. The Respondent contended that Claimant had signed acceptance of offer for on 19th May 2000 and in so doing he acknowledged he was aware of the terms and conditions on which his appointment was made, and signed the form to confirm he understood and accepted the terms offered. The Respondent submitted a copy of the aforementioned acceptance form to the hearing.

4.5. Furthermore Respondent advised that in July 2000 the Claimant was informed in writing that he had been appointed to the post subject to the conditions of paragraph 8 of circular 10/71, and that he would hold office under part two of the Health Act 1970 and any regulations made thereunder applicable to the office. At this time he was also advised of his base salary, his PRSI class, and that his name will be entered in the register of pensionable officers with effect from his appointment date. The Respondent therefore submitted that all of this keeping with an employer’s obligation under Section 3 of the Act.

4.6. At the hearing the Respondent also contended that the Claimant was incorrect in relation to his reference to his “Category 2 Contract” and advised the hearing that claimant was aligned to the Category 2 Consultant contract for salary for payroll purposes only.

5. Decision:

5.1. Section 41(4) 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.

5.2. Firstly the Claimant contended the Respondent did not adhere to WRC Guideline Procedures regarding the making of submissions. I must therefore decide on this issue as it was raised as a matter of procedure.

5.3. I must then decide whether the claim is statute barred.

5.4. If the claim is not statute barred I must then decide whether the Respondent has adhered to the requirement of Sections 3 and 5 of the Terms of Employment (Information) Act 1994, as amended.

5.5. Findings and Conclusions

5.5.1. Procedural Matters
Referring to the WRC guideline document “Procedures in the Investigation and Adjudication of Employment and Equality Complaints”, the Claimant argued that contrary to (section 6 of) these procedures that the Respondent raised a legal point in relation to the time limits but failed to include this in a statement sent to the WRC within 21 days of receiving the complaint form.

The WRC procedures allows that an adjudication officer hearing the complaint may draw such inference or inferences as he or she deems appropriate where relevant information is not presented in a timely manner.

Whilst it is acknowledged that the Respondent did not make its submission as required under the procedures it was explained to the parties that the Claimant could, after considering the matters, make a submission to the Adjudicator, which he did. In this regard and in accordance with the aforementioned WRC guidelines I exercised my right to vary the procedures as appropriate in the circumstances of the case; and in so varying the procedures I did so with regard to the principle set out within the guidelines which state that a postponement of the hearing should only be given in exceptional circumstances, and only for substantial reasons.

I am therefore satisfied, notwithstanding the Respondent’s failure to adhere to the aforementioned guidelines, that the parties were provided with a fair procedure and where all matters submitted have been exchanged and considered before making my findings. In that regard I am satisfied no exceptional or substantial circumstances pertained to this case, particularly in view of the facility provided to the Claimant.

Furthermore I do not view the Respondent intentionally set out to frustrate the process by not making its submission in advance of the hearing. In making this conclusion I have borne in mind that the Adjudication process is relatively new where the guidelines and procedures are only becoming familiar to the users of the service.

5.5.2. Findings in Relation To Whether The Claim Is Statute Barred
Section 7 of the Terms of Employment (Information) Act 1994 has been amended by the Workplace Relations Act 2015 (WR Act 2015) as follows:
7.—(1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4,5 or 6, if the employer concerned has—
(a) complied with a direction under section 6A given in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015, or
(b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.
Based on this section of the Act, as the complaint is not subject to sub sections 1(a) and 1(b) I am satisfied that the Claimant is qualified to make his complaint.
I therefore must decide if the complaint complies with Section 41 subjection (6) of the WR Act, 2015:
41- (6) 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.
In consideration of this requirement, the Claimant in his complaint has not been specific in relation to when the contravention occurred; and in any event he is relying upon the general principle that as he is still in employment he is therefore entitled to redress under the 1994 Act. In this regard the Claimant has indicated he never received his terms of employment in a written statement, and he has experienced ongoing difficulty for some time in attempting to get this information in writing from his employer.
Based on the submission from the Respondent it appears the matter was explored in detail with the Claimant in 2014 as a result of a claim brought by the Claimant to the Pension Ombudsman; and on completion of that procedure on 14th November 2014 where the Claimant subsequently sought information from the employer in relation to his superannuation. On that basis I am satisfied that the Claimant had alleged the contravention had occurred by November 2014, and most probably much earlier than that date, particularly as the Pension Ombudsman’s report highlights that a number of documents were submitted or referred to by the Claimant relating to the Claimant’s terms of employment at that time.

The WR Act 2015 is specific in precluding an Adjudication Officer from hearing a complaint under the 1994 Act after the expiration of the period of six 6 months beginning on the date of the contravention (or in accordance with S41(8) 12 months for reasonable causes). As I am satisfied the claimant would have raised his complaint with the Respondent on or before November 2014, I find that the contravention occurred at the latest in November 2014. I am therefore precluded from hearing the complaint.
The claim therefore fails as it is statute barred under the WR Act 2015.

5.5.3. Conclusions
Whilst concluding that the claim fails as it is statute barred, it is clear based on the evidence available that the Claimant has been provided with written information regarding his terms of employment as required under section 3 of the 1994 Act. It is significant that he confirmed his awareness and acceptance of the conditions on which his appointment was made in a signed Acceptance of Office Form dated 19th May 2000. In addition the information as required under the 1994 Act is contained in a number of written publications provided to and/or available to the Claimant, including his letter of appointment dated July 2000, his letter of offer dated May 2000, written particulars of office enclosed/referred to with his letter of appointment, Circular letter 10/71, and notification in writing that he had been entered into the Register of Pensionable officers from the date of his appointment on 14th August 2000. Some of this information was provided to the Claimant before his appointment.
It is not a requirement of the Act that this information must only be provided after an employee’s appointment as contended by the Claimant. Rather it must be provided not later than 2 months after commencement of employment. In this regard relevant information provided before employment, and upon which the employee has been asked to confirm his awareness and acceptance of same, meets the requirements of the Act. All of this information, albeit across a number of documents in view of the complexity of the employment arrangements and various terms of employment managed by his employer, does satisfy the requirements of the 1994 Act, and are an accepted norm within the context of his employer’s collective bargaining arrangements and Government Departmental controls that apply under various Acts, Regulations, and Statutory Instruments.
Furthermore issues that have been subject to a change in his terms of employment as a consequence of collective bargaining are published in the relevant circular letters and letters of notification. In this regard Section 5(2) of the Terms of Employment (Information) Act 1994 precludes the employer from notifying the employee in writing of the nature and date of changes of the terms of employment 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.
Notwithstanding that the claim is time barred, as concluded above the Claimant has been provided the information his employer is obliged to provide him under the 1994 Act.

Date: 11th May 2016