ADJ-00002412

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002412

Complaint for Resolution:  

Date of Adjudication Hearing: 22nd June 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 21^st March 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Terms of Employment (Information) Act. The complaint was scheduled for adjudication on the 22^nd June 2016. The complainant attended the adjudication and was represented by the Public Service Executive Union. The respondent was represented by IBEC and the Chief Executive Officer attended as a witness.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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.

Attendance at the hearing: 

Complainant’s Submission and Presentation:

The complainant commenced her employment with a predecessor of the respondent on the 6^th November 1998 and she continues to work for the respondent. She works as a mediator for the respondent, a local partnership company. The respondent was subject to a merger between two local partnership companies and also subject to a transfer of undertaking. The complainant carried over the terms and conditions provided for in her contract of employment and in her employee handbook.

The complaint relates to the complainant’s application for financial support for a four year degree course she is undertaking at an Institute of Technology. The complainant outlines that the staff handbook provides that the respondent will fund training and development opportunities as part of its staff performance procedure. There was an established custom and practice that the respondent would pay for college courses, including the same course she was attending. The complainant outlined that in her annual appraisal in January 2014, she and her line manager, who is her mother, identified this particular course as appropriate. While the respondent paid the fees for the first year of the course, the CEO had raised issues regarding conflict of interest and transparency and asked the complainant to submit additional information directly to him. She did so on the 26^th November 2014 and in this letter, the complainant says that the course is a four year degree course and provides an academic qualification in the areas of business and management. She outlines that the qualification will help her work with clients and stakeholders of the respondent.

On the 8^th June 2015, the complainant applied to the respondent for funding for the second year of the course. She received an email response from the Chief Executive Officer on the 10^th July 2015, stating that her letter would be considered at the September board meeting. He also refers to a more detailed note on training to be issued in the coming days. This was circulated on the 17^th July 2015 and details a procedure for staff to follow. It states that the budget for training is small. On the 17^th September 2015, the respondent contacted the complainant to offer funding of €500 at the start of the academic year and €500 to be paid at the end.

Addressing the fact that her line manager is her mother, the complainant said that this had been the case for some time. It had been agreed with the previous Chief Executive Officer that matters such as any disciplinary issues would be dealt with between the complainant and the Chief Executive Officer. She had sought to address this with the current Chief Executive Officer, but he had said not to cut out her line manager. Performance appraisal and identifying training needs are matters for a staff member’s line manager.

The complainant outlined that she had received training in computer tutor training, a “train the trainer” course as well as health and safety training. The respondent had altered its training policy in the email of the 17^th July 2015 to her disadvantage. She had challenged this in an internal grievance, which concluded that while the complainant was treated differently to others, she was not treated unfairly. The complainant sought to appeal this decision and appendix 8 of her booklet refers to correspondence of the 11^th February 2016 where she sets out the basis of the appeal. She has not met the person to whom the appeal is addressed.

The complainant outlined that it had been custom and practice in the predecessor of the respondent to fund college courses, including the course she was undertaking. Furthermore, it was explicitly provided in the staff handbook that she was able to relying on terms and conditions carried over from this time.

The complainant outlined that in 2014, she had applied for support for a four year course. In approving support for the first year, the respondent had given a commitment to provide support for the entire course. The training budget was ring-fenced and provided centrally to the respondent in an annual allocation.

The complainant said that she had not accepted the €1,000 offered for her second year as she had secured support for the course prior to the change in policy in July 2015. She had spoken to the Chief Executive Officer in March and June 2015 and he gave no indication that the respondent would only part-fund the course. No issue was raised with regard to providing ongoing support and the removal of the support placed her in an invidious position. The complainant should have been made aware of any conditionality before undertaking a commitment of €10,000 in course fees. The complainant said that she was greatly disadvantaged by the lack of communication, in particular where others had been supported for the full duration of the course.

Respondent’s Submission and Presentation:

The respondent made a preliminary submission that the provision of training and education is not listed in section 3 of the Terms of Employment (Information) Act and therefore any change to such provision cannot come within the ambit of the Act. The respondent outlined that the policy is discretionary and that all applications for funding will be considered by the respondent. Not only is the provision of training and education not covered by the Terms of Employment (Information) Act, it is also not a contractual right.

The respondent outlined that the complainant had acknowledged the year-on-year and discretionary nature of the training and education support in submitting her application for funding for the second year of the course. This discretion existed in the handbook used by the predecessor of the respondent and there was no guarantee that the complainant’s application would have been successful with the predecessor. The Chief Executive Officer said that he did not think that the predecessor would have met all non-core training and education costs. There was no separate budget for training and such support would be allocated from the administration budget. The respondent stated that there would never have been a commitment to provide support for four years. The respondent said that there was a distinction between core and non-core training and that the complainant’s course was non-core. Core training for a mediator would be mediation training or matters relating to health and safety. The respondent exercised discretion with regard to providing support for non-core funding or whether to provide this in full. Support was also discretionary on a year to year basis.

The respondent stated that there was only one employee handbook provided to staff and that this reflected differences in certain terms and conditions for red-circled staff.

Findings and reasoning:

The complainant is a longstanding employee of the respondent, having commenced in a partnership company in 1998. The respondent was established as a merger of two local partnership companies and was subject to a transfer of undertaking. This complaint relates to financial support for third level study the complainant commenced in 2014. The course is a four year programme and will lead to a Bachelor of Business Management. The respondent provided support for the first year, but declined to give the same level of support for the second year, the academic year of 2015-16. The respondent offered €1,000 for this year, to be paid in two instalments. The complainant declined this offer.

This is a claim made pursuant to the Terms of Employment (Information) Act and the complainant asserts that she was not notified in writing of a change to her terms of employment. The Act transposes EC Directive 91/533/EEC, which provides, at Article 2, the obligation to provide “at least” certain particulars of the employment relationship, for example the identities of the parties, the place of work and the normal working day. Article 5 provides for modifications of aspects of the contract or employment relationship. At Article 5(1), the Directive provides “1.   Any change in the details referred to in Articles 2 (2) and 4 (1) must be the subject of a written document to be given by the employer to the employee at the earliest opportunity and not later than one month after the date of entry into effect of the change in question.”

Section 3 of the Terms of Employment (Information) Act, as amended, requires the employer to provide an employee with particulars of the terms of their employment. Section 5 provides that the employee must be notified of changes to any of the particulars of the statement furnished by an employer under sections 3, 4 and 6.

The respondent raised a preliminary point that as the Training and Education policy does not fall within a term stated in section 3, any change to the policy does not fall within section 5.

I did not accept that this matter should be dealt with as a preliminary matter. In addressing preliminary issues arising in tortious actions, O’Donnell J., in L.M. v. An Garda Síochána [2015] IESC 81, urged caution in deciding cases on preliminary points:

“32. It is, as a general matter, important that the point sought to be tried as a preliminary issue should have the possibility of either terminating the claim altogether or at least resulting in an obvious saving in both costs and time consequent on a reduction of the issues to be tried. A point should also raise a clear issue to which it is possible to give a clear answer. The more qualified and contingent the possible answers, the less likely that the court will be able to provide a clear and decisive disposition of the case and a clarification of the law. The decision to direct a trial of a preliminary issue is therefore one which requires careful consideration by trial judges. It is important that judges do not too readily accept a respondent’s protestations of complexity, impossibility or inconvenience in trying a preliminary issue, while at the same time interrogating with some scepticism a moving party’s claim that the point is clear and potentially dispositive of the litigation or some significant portion of it.”

Having heard all the evidence and addressing the preliminary point, Article 2 of the Directive refers to the terms that must be included in a statement to be provided to the employee; this is not exhaustive. On this basis, I do not believe that it is correct to interpret section 5 of the Act as applying only to the particulars listed in section 3(1)(a) to (m) of the Act. Reading section 3 of the Act and Article 2 of the Directive together, section 5 applies to any terms contained in the statement provided to the employee. In this regard, I note that the complainant’s contract of employment provides at section 14 that “all additional terms and conditions of employment” are provided in the Staff Handbook under which the complainant transferred. I also note the contents of 3.13 ‘Training and Education’ of the handbook, which states that funding is discretionary and made on a year-to-year basis. It follows that the provision of training and education support is a term of the complainant’s employment and any modification falls within the ambit of section 5.

The nub of the complainant’s case is that she is entitled to secure funding for the full costs of the course for the second and subsequent years. She relies on custom and practice, and refers to others who have received this level of support and the contractual terms of her employment. Having considered the oral and written submissions, I find that the complainant is not entitled to assert that it is a term of her employment that the respondent pays the full costs of the second and subsequent years of the course. While I accept that the course was identified as part of her 2014 appraisal and full support provided for the first year, the respondent was entitled to assess her application for funding on a year-to-year basis. The policy provides criteria on which applications are assessed and the July 2015 document introduces the concept of ‘core training’, narrowing the scope of how far discretion could be exercised. While the complainant is correct that others received full support in the past, the clear wording of the policy means that this cannot be seen as having established a contractual right emanating from custom and practice and which continued following the transfer of undertaking.

I, therefore, find that the complaint is not well founded. The complainant has not demonstrated a contractual entitlement to full support for the course for the second and subsequent years and there has been no change to the terms of her employment.

The complainant has a contractual right to apply for support within the terms of the Training and Education policy, and I note that after considering her application, the respondent offered the complainant support of €1,000 for the 2015-16 year. While this was not availed of by the complainant, it presumably remains on offer.

Decision:

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.

CA-00003293-001

Pursuant to the findings outlined above, I find that the complaint made under the Terms of Employment (Information) Act is not well founded. 

Dated:   20 March 2017