ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006998

Parties:

Complaint(s):

Date of Adjudication Hearing: 11/04/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: Room G.05 Lansdowne House

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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 has been employed by the Respondent as a General Operative since 6th July 2009 and he remains in the employment of the Respondent. He is paid €495.73 gross per week and he works 37.5 hours per week.

In January 2016, following interview, the Complainant was moved to a permanent role on the night shift which, although not deemed a promotion, did bring a premium payment with it.

The Complainant referred a complaint to the Workplace Relations Commission on 2^nd February 2017 under section 7 of the Act.

Preliminary Issue:

The Respondent submitted that as the Complainant had started in the new role in January 2016 and had not lodged his claim until 2 February 2017 the claim was outside the time limits specified under Section 41 of the Workplace Relations Act 2015 and that I therefore did not have jurisdiction to hear the claim.

Section 41 (6) of the workplace Relations Act provides as follows:

"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."

Having considered the matter it is my view that as the complaint relates to what is an ongoing contravention of the 1994 Act, I do have jurisdiction in the matter.

Summary of Complainant’s Case:

The Complainant submitted that he when he was appointed permanently to the night shift in January 2016 he should have been furnished with a written statement notifying him of the nature and date of the change. This has not happened despite the Complainant writing to his manager on two occasions seeking same. The Complainant stated that not getting a written statement of these changes caused him stress.

The Complainant stated that other employees, union members, have received written confirmation regarding changes brought about by being permanently on the nightshift.

Summary of Respondent’s Case:

The Respondent submitted that no detriment or loss was caused to the Complainant and therefore no compensation is owed.

The Respondent submitted that the Complainant had previously worked on the night shift and was fully aware of the remuneration associated with night shift work. The Complainant has also been in receipt of payslips which clearly show his level of remuneration since beginning work on the night shift.

Findings and Conclusions:

Section 5 (1) of the act states that "…..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".

In this case the employer has not denied that it has not notified the Complainant in writing of the change which took place in January 2016.   It should have done so at the time yet this omission continues today.

Notwithstanding the fact that the employer has failed in its responsibilities to the Complainant in this matter I do not believe it has caused detriment to him to any significant degree.

Decision:

Section 41 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.

In accordance with Section 7(2) (c) of the 1994 Act I require the respondent to give or cause to be given to the Complainant a written statement outlining the changes made to his Terms of Employment brought about by his move to the permanent nightshift in January 2016.

This statement to be furnished to the Complainant within one month of the date of this Decision.

Dated:   18^th May 2018

Workplace Relations Commission Adjudication Officer: Roger McGrath

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