Complainant

Respondent

Anonymised Parties

Corporate Relations Manager

Multinational Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00019052-001

09/05/2018

The Complainant commenced employment with the Respondent on 8th April 2015 as Head of Corporate Relations, International Supply for Ireland.

The Respondent issued an initial contract to the Complainant dated 9 March 2105 with a start date of 1 April 2015. The contract included provision for payment of an annual flexible benefit allowance of €3,739.50.

In order to facilitate a revised start date of 8 April 2015 (the reason for which is disputed by the parties), the Respondent issued the Complainant with a revised contract dated 26 March 2015 which provided for a flexible benefit allowance of €1,200 per annum.

The Complainant alleged that he was not made aware of the revision to the flexible benefit allowance between the two contracts and that this should have been explicitly communicated to him.

The Complainant said that he applied for and was subsequently offered his current job with the Respondent on 25 Feb 2015.

According to the Complainant, the offer included, amongst other things a 'flexible benefits allowance', which could be used to purchase healthcare, make additional pension contributions, purchase travel tickets or taken in cash through payroll. In the offer of employment send to him by email the flexible benefits figure offered was €3,740 per annum. This figure was subsequently confirmed in a contract of employment, dated 9 March 2015 with a start date of 1 April, which was sent to him in hard copy. He signed this, scanned it for his records, and returned it to the Respondent.

The Complainant submitted that in the subsequent days he noticed that the start date on this contract was incorrect and contacted the Respondent to let them know that he was due to commence employment a week later than the date mentioned in the contact as his line manager was on leave until 8 April 2015.

The Complainant said that the Respondent told him that a new contract would issue with the correct start date.

The Complainant submitted that he subsequently received a second contract dated 26 March 2015 in the post. He reviewed the commencement date, found it to be correct, signed it and sent this second contract back to the Respondent.

The Complainant contended that, given the complexity of the Respondent salary statement, and multiple deductions and additions, he failed to notice any discrepancy with his pay and benefits for some time. When the Respondent introduced a new system allowing employees to choose their flexible benefits in December 2016, this system displayed the annual flexible benefits available balance. The previous system did not. So, and for the first time, he noticed that his flexible benefits balance was lower than the figure he expected i.e. the figure referenced in his offer of employment and in his first contract. According to the Complainant, he emailed the Respondent questioning why his flexible benefits balance did not correspond with the figure mentioned in his first contract.

The Complainant submitted that between December 2016 and 19 January 2017 there were a number of phone calls, emails and letters between himself and several members of the Respondent's HR team and his line manager.

The Complainant said that it was now his understanding that the Respondent changed its policy on flexible benefits between the time he was recruited and when he began his employment.

The Complainant contended that the first contract that he received from the Respondent and signed included a flexible benefits figure that corresponded with the figure mentioned in his offer - €3,740 per year. This was the contract with the inaccurate start date. He further contended that the second contract that the Respondent sent him, this time with the correct employment start date, contained a revised flexible benefits figure of €1,200 per year.

According to the Complainant, the difference between the flexible benefits package initially offered to him, and the one that was subsequently inserted into the revised contract, is worth a significant portion of his overall rewards package (almost 4% of his salary).

The Complainant contended that at no stage did anybody from the Respondent company communicate with him about any changes to his offer of employment or contract of employment, beyond correcting the start date.

The Complaint submitted that the Respondent made a unilateral change to his terms and conditions of employment and failed to communicate this to him.

The Respondent submitted that the Complainant commenced employment with the Respondent on 8 April 2015 further to the contract of employment dated 26th March 2015, and signed and dated by the Complainant confirming having read, understood and accepted the provisions of that contract. The Complainant is paid in line with this contract of employment dated the 8th April 2015.

It is the Respondent’s position that 1 April 2015 was agreed as the Complainant’s commencement date, but he was unable to commence until 8th April and accordingly requested a new contract, indicating a new start date of 8th April.

The Respondent submitted that they complied with his request in this regard and issued a new contract on 26th March 2015 with a commencement date of 8th April 2015.

The Respondent submitted that, further to instructions from head office in mid-March 2015, the flexible benefit allowance of €3,740 per annum was reduced to €1,200 per annum for new employees employed at the Complainant’s level. This meant that any contracts issued to new employees after the reduction would receive a lower flexible allowance than had previously been given.

The Respondent contended that between the issue of the first contract on 9th March and the second on 26th March, the above-mentioned instruction was received and applied to all relevant employees, one of whom was the Complainant.

It is the Respondent’s position that the second contract contained a clearly highlighted instruction at the heading of the contract specifying “This letter supersedes the letter dated 9th March 2015”. The Complainant signed and dated the second contract and returned it to the Respondent and subsequently commenced work on 8th April, in accordance with the second contract.

In December 2016 the Complainant raised an issue with the Respondent regarding his flexible allowance payment, claiming that the amount was incorrect as he received the flexible benefit of €1,200 contrary to his contractual flexible benefit of €3,739.50.  The Respondent submitted that while there was clearly some confusion around the value of the flexible benefit allowance, the Respondent’s understanding was that the Complainant’s entitlement was in fact €1,200 on the basis of the contract of 26th March 2015.

The Respondent submitted that the Complainant was relying on the first contract that he had signed, notwithstanding that this was superseded by a second subsequent contract with a lower flexible allowance of €1,200. It was, and remains the Respondent’s position that the most recent contract of employment that the Complainant had signed reflects the remuneration that he is entitled to.

The Respondent submitted that the Complainant was provided with written confirmation of all terms and conditions of employment prior to commencing employment with the Respondent. More particularly, the Complainant requested the second contract, a request with which the Respondent complied but highlighted that the second contract superseded the contract of 9th March 2015. This is the contract that the Complainant returned to the Respondent complete with his signed confirmation of having read, understood and accepted the terms and conditions, prior to commencement in his role. This is also the contract which the Respondent relied upon regarding the Complainant’s terms and conditions of employment.

It is therefore the Respondent’s position that it has complied fully with Section 5 of the Terms of Employment (Information) Act 1994 in that the Complainant was provided with written notice of the provisions of the Contract under which he is an employee of the Respondent’s, and accordingly the Complainant cannot establish a breach of the Terms of Employment (Information) Act 1994.

The time limits for submitting claims to the Workplace Relations Commission under the Terms of Employment (Information) Act 1994 are set out in Section 41 of the Workplace Relations Act 2015.

Section 41 (6) of the Workplace Relations Act provides that:

“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.”

If a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2105:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

An Adjudication Officer has no power to extend the time limit beyond 12 months after the last alleged contravention.

The Complainant has alleged that the Respondent contravened Section 5 of the Terms of Employment Information Act, 1994 when they issued the second contracted which was dated 26 March 2015.

The relevant initiating complaint form was received by the Director General of the Workplace Relations Commission on 9 May 2018. The twelve-month time limit within which the initiating complaint should have been referred to the Workplace Relations Commission expired, at the latest, on 25 March 2016. The Complainant, therefore, lodged his complaint out of time.

Having carefully considered all evidence available to me, I find that the Complainant has failed to submit his complaint within the required time limit. I find that the claim is statute barred and I lack the jurisdiction to hear the case.