Complainant

Respondent

Anonymised Parties

Technical Sales Engineer

A Distributor of Laboratory Products

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-00012020-001

20/06/2017

The complainant maintains that the respondent is in breach of the Terms of Employment (Information) Acts, 1994 and other various pieces of legislation in relation to his contract of employment.

The respondent claims that the complaint raised does not relate to the Terms of Employment (Information) Act. It also claims that the other complaints submitted have no basis.

The complainant is employed with the respondent as a Technical Sales Engineer since the 19 October 2015. He claims that he is paid a gross salary of €55,000 per year and he claims that he works around 37 and half hours per week.

The following is a short summary of the complainant’s complaint against the respondent.

The complainant claims that historically there has only been two sales roles within the respondent filled by the complainant and another sales engineer. He said the respondent hired a third person without prior discussion with the complainant or advertisement of the position. He also claims that the respondent wants the existing two sales people to relinquish their viable roles to the additional employee. He claims that he has requested clarification from the respondent on a new employee’s job description as he wants clarification and reassurance that the new employee was not given his job and he was imposed with a new role.

The complainant states that the respondent is in contravention of employment law by imposing a contract that is not in accordance with EU law. He claims that the company refused incentives and prevented him from earning a wage, he claims that the respondent has expanded his scope of employment and tried to insert a restrictive covenant into the contract that was not in accordance with EU law. He claims that the proposed changes were only rescinded when he raised with the respondent that is was not in accordance with EU law.

The complainant claims that the respondent has breached his contract by “unfairly dismissing him” and giving his job to another person. The complainant claims that the respondent has effectively breached his contract by imposing a new role on him without his consent.

The respondent is in contravention of employment law by not advertising any vacancies internally or externally and is in contravention of employment law by hiring a new employee without there being a job available.

The complainant claims that the respondent has breached his contract by not notifying him of all the non-statutory changes in the company handbook and not explaining where they differ from the current sections.

The respondent is a distributor /agency to market and sells products in clinical and industrial fields in Ireland.

The complainant has been employed with it since October 2015 as a Sales Engineer and was provided with a written statement of terms and conditions in advance of commencing his employment. The respondent claims that all staff employed with the respondent were provided with a staff handbook containing all the respondent’s policies and procedures.

The respondent claims that in 2016 it sought to make some changes to certain aspects of the complainant’s contract of employment. However, having engaged in a lengthy consultation with the complainant on the matter decided against the introduction of these changes.

The respondent claims that the relevant and applicable sections of the Terms of Employment (Information) Act 1994 that it must and does comply with are as follows,

·         Section 3 – where the employer should provide a written statement of terms of employment not later than two months after commencement of employment. The respondent claims that the complainant was provided with his contract of employment on 16 September 2015, prior to him commencing employment and this was accepted by him on 17 September 2015.

·         Section 4 – relates to employment outside of the state. The respondent stated that this does not apply here as the complainant is not employed outside of the state.

·         Section 5 – notification of changes to the contract of employment should be notified to the employee in writing of the nature and date of the change not later than one month after that change takes effect. The complainant was consulted on necessary internal business arrangements to ensure that the company remains profitable and for business needs. These changes included the redistribution of sales within certain areas. The respondent claims that there are no material changes to the complainant’s written statement of employment. The complainant was informed of all the necessary changes and his role as a sales engineer continues. The respondent said that the Acts do not provide for the employees to determine their role within the organisation.

The respondent addressed many of the other aspects of the complaint presented notwithstanding that they were of the opinion that they were not before the Workplace Relations Commission for adjudication.

The relevant law

Written statement of terms of employment.

Section 3 of the Terms of Employment (Information) Act 1994 specifies the particulars of the terms of employment which an employer must give in writing to an employee. It states,

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee’ s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’ s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

Employment outside State.

Section 4 deals with employment outside the State.

4.— (1) Where, after the commencement of this Act, an employee is required to work outside the State for a period of not less than 1 month, the employer concerned shall give or cause to be given to the employee, prior to the departure of the employee from the State, a statement under section 3 and there shall be added to the statement the following particulars, that is to say—

(a) the period of employment outside the State,

(b) the currency in which the employee is to be remunerated in respect of that period,

(c) any benefits in cash or kind for the employee attendant on the employment outside the State,

(d) the terms and conditions, where appropriate, governing the employee’s repatriation.

(2) The particulars referred to in paragraphs (b) and (c) of subsection (1) may be given in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing such particulars.

Notification of changes.

Section 5 deals with changes in the particulars of the terms of employment and provides that such changes must be notified to the employee in writing within one month after the changes take effect. It states that,

5.— (1) Subject to subsection (2), 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, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply 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 .

Existing contracts of employment.

Section 6 provides that where an existing employee requires the employer to furnish a written statement of particulars, the employer must do so within two months of the date of the request. It reads,

6.— (1) Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement under section 3 and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4 .

(2) An employer shall, within 2 months after the employer has been required to do so under subsection (1) furnish to the employee concerned a written statement in accordance with that subsection.

Complaint to adjudication officer under section 41of Workplace Relations Act 2015

Section 7 sets out the jurisdiction of the Adjudication Officer.

7. — (1) An employee shall not be entitled to present a complaint under section 41of the Workplace Relations Act 2015 in respect of a contravention of section 3 , 4 , 5 or 6 , if the employer concerned has —

(a) complied with a direction under section 6A given in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015, or

(b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3 , 4 , 5 or 6 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.

Conclusions

Having considered the written and oral evidence that has been presented to me, I am satisfied that this matter was referred under the Terms of Employment (Information) Act, 1994 and accordingly, I must confine my adjudication to the requirements of that Act. I will note that a plethora of other matters what would appear to be of a personal, contractual or other internal industrial relations nature were raised at the hearing and were sent to me in communications post-hearing. The complainant maintains that there are multiple breaches of EU Law. However, the particulars have not been clearly defined nor linked to a particular piece(s) of legislation. I am satisfied these additional matters are not before me in relation to this complaint including, in particular, one of unfair dismissal when the complainant has not been dismissed and is still employed.

The Terms of Employment (Information) Act, 1994 specifies the manner and nature of the information that must be given to each employee and nothing has been alleged by the complainant that this was not provided in the first instance by the respondent. The issue here is that certain new terms and conditions that were up for negotiation in relation to a new contract were refused by the complainant. I note that the respondent after much consultation with the complainant, claims this opened up other side issues and withdrew all the suggested changes to the terms and conditions and on balance I am satisfied with this explanation of events.

In relation to the complainant’s position, the respondent has decided to look to develop its business and I am satisfied that the respondent is the master of its own business direction and it should determine its own course and the resource needs, as long as it meets the obligations of this Act.

I therefore conclude, that the complainant was notified appropriately in relation to the terms and conditions of employment. I am satisfied that it is for the respondent to prioritise its own goals, business direction and resource needs and it is not for the complainant. The proposed amendment by the respondent to the complainant’s expressed terms and conditions were withdrawn. The complainant claims this was because he notified the respondent that it was in breach of EU law; the respondent claims its because they were not acceptable to the complainant. I am satisfied that the reason for the withdrawal of the changes are not matters which are relevant to my inquiry, the terms and conditions as defined by the Acts were not changed and having examined the scope of the Act, I find that there are no breaches.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.  I declare that the complaint is not well founded and it cannot succeed.  

Terms of Employment (Information) Act - complaint is not well founded.