ADJ-00004531

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004531

Parties:

Complaint(s):

Date of Adjudication Hearing: 27/02/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Location of Hearing: The Ardboyne Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 6 of the Payment of Wages Act, 1991; Section 7 of the Terms of Employment (Information) Act, 1994       ; and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003); following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant is employed as a National Manager with the Respondent.

He commenced his employment on 14^th January 2002. His gross pay is currently €3,046.50 fortnightly.

The complaints refer to the alleged failure of the Respondent to regard the terms and conditions of the Complainant’s role from 2014 in accordance with a national agreement; the subsequent loss of earnings as a consequence of the failure to regrade his position; the lack of written notification of changes to his statement of terms of employment despite a number of changes since December 2012; that following a transfer to a new employer on 1^st January 2014 his new employer did not ensure that his terms and conditions were transferred from his previous employer, and that his new employer did not observe the terms and conditions transferred from his previous employer.

Summary of Complainant’s Case:

The Complainant outlined that he worked from 2002 to 2011 as one of twenty-six nationwide Child Care Managers for a public sector organisation. In mid-2011 the organisation reduced the number of positions to seventeen and renamed the position as Area Managers. He was unsuccessful in an application for the position as Area Manager at that time however he maintains that he was informed that his role would remain on a par or equal to the Area Managers.

Between January and October 2012, the Complainant worked as the Regional Lead for a regional area, and subsequently between October 2012 and November 2013 he was acting National Lead. In October 2013, the Complainant was formally appointed to the role of National Manager.

On the 1^st January 2014, the Complainant was transferred from his employer to a newly established Agency under part 11 of the Child and Family Agency Act 2013.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991     CA-00006299-001

The Complainant advised that by letter dated 23^rd February 2017 he was informed by the Respondent that he was appointed to the position Area Manager and that he would be paid on the Area Manager 3rd Point effective from 1^st January 2014. The Complainant acknowledged that he accepts this regrading and the letter now renders his complaint under this section to be moot. Notwithstanding the Complainant advised that pending his full time appointment as an Area Manager he reserves the right to raise a separate claim under the Payment of Wages Act if he is unsuccessful in gaining a full time post.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00006299-002

The Complainant maintained that since January 2012 he has not received a contract of employment/ terms of employment. He noted that despite the fact that he has changed positions a number of times since December 2012 his position is recorded as Child Care Manager on his payslip. He further argued that in 2011/2012 it was left to him to set out the details of his new role, its accountability, responsibility etc. following his unsuccessful application for the position of Area Manger in 2011.

The Complainant submitted that he has suffered a disadvantage by reason of this as there was uncertainty as to what grade he would be on for payment purposes. The Complainant maintained that from 23^rd February 2017 he is now being told the position he currently holds is being advertised and he has to apply for it even though he has been in the position/grade since 2013. The Complainant therefore is seeking clarification on what actually constitutes his conditions of employment and documentation that adequately meets his written terms of employment for the purpose of the 1994 Act.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00006299-003/004

The Complainant submitted that his new employer did not ensure that his terms and conditions were transferred or observed from his previous employer, Accordingly since the transfer of undertakings in January 2014 he has been pursuing his claim to be treated in accordance with the promises made by his former employer which included his remuneration was to be on the same scale as the Area Managers.

With regard to the letter the Complainant received on 23^rd February 2017 (that advised him he was appointed as an Area Manager on a temporary basis with effect from 1^st January 2014, and where this temporary appointment will cease on either 31^st August 2017 or on the permanent filling of the post) the Complainant argued the requirement for him to apply for a permanent position as Area Manager was not permitted by him as it constituted a diminution in his terms and conditions of employment which applied before the transfer of undertaking to his new employer. The Complainant maintained that he has enjoyed a permanent post as National Manager and after being appointed to this post he was never described as temporary or fixed term, so by default it was a permanent appointment. He argued that a letter from the Respondent dated 23^rd February 2017 was therefore disregarding his term and conditions which applied at the time of the transfer of undertakings in January 2014.

Summary of Respondent’s Case:

The Respondent argued that all the claims made by the Complainant relate to the same issue which is that the Complainant contends that he is entitled to be in the position/grade of Area Manager since 1^st January 2014.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991     CA-00006299-001

The Respondent outlined that the regrading of posts process exercised within its organisation requires approval from its parent Government Department and the Department of Public Expenditure and reform, and this process was ongoing. In the interim the Respondent has advised the Complainant in writing on 23^rd February 2017 that he was appointed to the temporary position of Area Manager at the appropriate rate of pay (€86,761 per annum) ant this would be effective from 1^st January 2014.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00006299-002

The Respondent outlined the procedures adapted for regrading of posts and where such process required approval from its parent Government Department which sanctions the conditions of employment. Such conditions of employment are subject to arrangements that are sanctioned by the Department from time to time. The Respondent maintained that there had been no change in the Complainant’s role since 2014 and therefore it is not in contravention of the Act.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00006299-003/004

The Respondent maintained that there had been no change in the Complainant’s role since January 2014. In that regard it had honoured and observed his terms and conditions. It maintained that its letter to the Complainant of 23^rd February 2014 conformed and resolved his complaint regarding the payment of wages. It refuted that the requirement for the Complainant to apply for a permanent position was contrary to his conditions of employment outlining that regrading of roles require a sanction and approval from its parent Government Department and in accordance with normal public recruitment procedures once a permanent role is sanctioned it is required to be filled by way of the public sector recruitment process.

Findings and Conclusions:

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991     CA-00006299-001

As the Respondent confirmed the Complainant will be in receipt of the appropriate level of pay, and that this pay will be back dated to the Complainant with effect from 1^st January 2014 I find that this matter has been resolved.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00006299-002

It is clear based on the evidence available to the adjudication that the Complainant has been provided with written information regarding his terms of employment as required under section 3 of the 1994 Act.  In this regard his letter of appointment dated 26^th November 2002 references an acceptance of office form signed by the Complainant, and Circular letter 10/71. Furthermore, the letter of appointment refers to the role as being wholetime, pensionable and permanent. In addition to the letter of appointment the information as required under section 3 of the 1994 Act is contained in a number of written publications provided to and/or available to public servants.

The Act requires that a written statement of terms of employment 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. It is acknowledged that this information may be referenced in a number of documents and other letters or notifications of change of position, grade, or post.  The Complainant received notification of a change in post in correspondence from his former employer on 18^th October 2013 and this change occurred before the transfer of undertaking.

Furthermore issues that have been subject to a change in the Complainant’s terms of employment as a consequence of collective bargaining are published in relevant circular letters and letters of notification.  In this regard Section 5(2) of the Terms of Employment (Information) Act 1994 excludes 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.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00006299-003/004

The TUPE Regulations apply to public and private undertakings engaged in economic activities whether or not they are operated for gain. A transfer under the regulations means the transfer of an economic entity which retains its identity. The regulations also apply to any person holding an office under, or in the service of, the State including a Civil Servant within the meaning of the Civil Service Regulation Act, 1956, as amended. However an administrative reorganisation of public administration or the transfer of administrative functions between administrative authorities is not a transfer for the purposes of the Regulations. In addition Regulation 10 of the Regulations requires that a complaint must be made in writing within the period of six months commencing on the alleged date of the contravention.

The alleged contravention occurred on 1^st January 2014, the date of the transfer where the Complainant has raised concerns that he did not receive payment of bonuses during 2014 as a consequence of the transfer of undertaking, or that in December 2014 a further contravention occurred where his role should have received the same salary scale as Area Manager. The Complainant raised his complaint to the WRC regarding these issues on 5^th August 2016, some 19 months after the alleged contravention referred to in his complaint.   I therefore find that the date of the alleged contravention, being at the latest December 2014, is outside the date for prosecution of such a claim under the Regulations.

At the hearing the Complainant has also referred to a letter he received from the Respondent on 23^rd February 2017, over seven months after the claim was lodged. In that letter the Complainant maintains there is now a requirement that he has to apply for the post. The Complainant has alleged this is contrary to the Respondent’s obligation under TUPE to honour and observe his conditions of employment. As this complaint regarding the letter of 23^rd February 2017 has been raised after the date that his original complaint was submitted I find it is outside the scope of the current complaint to be considered.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991     CA-00006299-001

Section 6 of the Payment of Wages Act 1991 requires that I make a decision under that Act. As the Complainant acknowledged that his is now in receipt of the correct payment for his post, and this has been back dated to the date of his appointment in January 2014. As events have superseded the complaint I decide that as this matter was resolved before the hearing the complaint is deemed to be unfounded.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00006299-002

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision under that Act. I do not find that the complaint is well founded in that the Complainant would have received a written statement of the terms of his employment at the time of his appointment to office. The Respondent is in compliance with its requirements under Section 3 (f); and the Complainant would have received written notification of his reassignment to his post on 18^th October 2013, a post he held at the time of the transfer. I note no changes to his employment were made subsequent to January 2014 or at the time of the Complainant lodging his complaints to the WRC for adjudication. I therefore declare that this complaint is not well founded.

I also declare that reference to a letter the Complainant received from the Respondent on 23^rd February 2017 is outside the scope of the current complaint as any alleged contraventions as a consequence of that letter would have occurred after the date of the current complaint being submitted to the WRC.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00006299-003/004

Regulation 11 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) requires that I make a decision under the Regulations.

I find that under Regulation 10 of the Regulations the Complainant has not submitted his complaint within the prescribed time limits. I therefore do not uphold the complaint.

Dated:   06 July 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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