ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004505

Complaint for Resolution:

Date of Adjudication Hearing: 28/11/2016                                               

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and 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.

Background

The Complainant commenced employed with a named Company on 2^nd December 2012 and she transferred to the Respondent under a Transfer of Undertaking in June 2014. The Complainant referred a complaint to the Workplace Relations Commission on 16^th August 2016 alleging that the Respondent had breached Section 5 of the Terms of Employment (Information) Act, 1994 in that she had not been informed in writing of a change to her Terms and Conditions of Employment.

Summary of Complainant’s Position

The Complainant stated that she had transferred with her Terms and Conditions of Employment following a transfer of undertaking in June 2014 to the Respondent Company. She stated that on 8^th August 2016 her Supervisor sent an email to five employees regarding Hospital/Doctor Appointments outlining that she must either give back the time taken for such appointments or else take unpaid leave. This requirement was never in force prior to the TUPE and there were no negotiations or agreement prior to 8^th August 2016 in relation to this change. The Complainant, with three other employees, also former employees who transferred under TUPE, met with the Respondent where they were informed it did not constitute part of their terms and conditions of employment but was a new procedure and that she had agreed to this at an in-house training session which she disputed stating that she and the other TUPE employees were not covered by this new procedure but that their terms and conditions would apply. The Respondent sought documentation to support their contention that this procedure was a change to their terms and conditions.

Summary of Respondent’s Position.

The Respondent provided a copy of the Complainant’s Contract of Employment with the Transferor named Company prior to a Transfer of Undertaking to the Respondent in June 2014. The Respondent stated that the Terms and Conditions of Employment of the Complainant make no reference to appointments or to the manner in which appointments are to be made. The Respondent did provide a copy of the Transferor’s Handbook which does provide a procedure for taking Medical and Dental Appointments. – Copy provided. The Respondent produced emails from 2012 from a named employee, not the Complainant, which they stated shows that the practice with the Transferee Company was that employees did have to work up time taken. They also reference an email from one of the other Complainants in March 2016 in relation to a court attendance where this Complainant acknowledges she will have to work up the time taken.

The Respondent issued a standard operating Procedure in March 2016 – copy provided which sets out the policy and procedure for absence during working hours and a meeting was held on 29^th March 2016 to clarify the Respondent’s expectations in relation to requesting time off. A further email was sent on 8^th August 2016 confirming the position. There was also a meeting on 10^th August with a letter dated 12^th August 2016 from four named employees including the Complainant outlining they were not accepting the email of 8^th August 2016 and that they would pursue the issue with the WRC.

Findings

On the basis of the evidence and written submission from the Respondent I find as follows: I have examined the Statement of Terms and Conditions of Employment issued to the Complainant by the Transferor and signed and dated by the Parties on 2^nd December 2012. This Statement makes no reference to absence from work to attend Medical and/or Dental appointments.

I have examined the Handbook of the Transferor where it states under Medical and Dental Appointments as follows – you should try to arrange medical and dental appointments outside of normal working hours. If this is not practical you should seek your Manager’s authorisation for the absent. Please note that evidence of such appointments should be shown to the Manager in writing and reasonable notice (4 working days) must be given to your Manager before he/she can make a decision of reasonable time off to attend such appointments. There is no reference in the Employee Handbook on any requirement on an employee to work the time up.

I note that the emails presented by the Respondent from 2012, which is before TUPE, refers to time off to take a child to a dental appointment and to take a child to secondary school on her first day at school. The Complainants confirmed at the Hearing that other time off for appointments other than medical or dental appointments requested by an employee from the Transferor had to be worked up and this is confirmed in the email dated 30^th March 2016 from one of the Complainants where she is seeking time off to attend court and acknowledges that she will have to work up the time off for this absence.

The issue in dispute is whether the Complainant was required to work time up when taken for Dental/Medical Appointments. There was no evidence presented by the Respondent to support their argument that regardless of the nature of the absence an employee had to work up all time taken. This is not supported by the evidence of the Employee Handbook and the emails from both 2012, before the Transfer of Undertaking and in 2016 after the Transfer.

Decision

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is well founded. The Respondent has breached Section 5 of the Act. I direct the Respondent to pay the Complainant compensation of€500.00 within 42 days of the date of this Decision.

Rosaleen Glackin

Adjudication Officer

Date:_21 April 2017_