ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00009511

Parties:

 Complaint(s):

Date of Adjudication Hearing: 17/11/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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 is a loader driver that was employed with the Respondent from 3 October 2016 to 18 January 2017. He was paid €860 gross per week.

The Complainant has raised complaints that the Respondent made changes to his terms and conditions of employment contrary to Section 5 of the Terms and Conditions of Employment (Information) Act 1994.

Summary of Complainant’s Case:

The Complainant submitted that changes were made to his terms and conditions of employment in that the Respondent failed to adhere to the terms of the contract of employment which were agreed with him at the time of his appointment.

The issues that the Complainant submitted which were not adhered to and/or were altered by the Respondent without his consent included the following:

1. That he had taken up employment on the basis it was a permanent full-time role; however, his employment was terminated on the basis of a drop-off in contracts, and where he maintained that the terms and conditions of employment offered to him was not contract that depended on or included a risk for him that his contract may be terminated on the basis as there was insufficient contracts held by the Respondent;

1. The Complainant maintained that is place of work was a named site and that his pay cheque would also have indicated that named site as his place of employment. However, within a matter of days of starting work he was deployed to other sites and where from the second week of his employment he was located at a different site and where he argued this was contrary to its terms and conditions of employment;

1. The Complainant maintained that contrary to his holiday entitlements in his contract of employment, the Respondent failed to pay him for his holiday pay on the termination of his employment;

1. The Complainant maintained that upon his termination of employment he was not paid the correct notice period and this amounted to a change in his terms of employment;

1. The Complainant maintained that contrary to section 15 of his contract of employment he received no performance reviews or meetings with his line manager, and as such his terms of employment were changed in this regard;

1. The Complainant maintained that his terms and conditions of employment do not include a dignity and respect policy, however he was harassed and accused of a wrongdoing by the Respondent contrary to what he contends were his entitlements under his terms and conditions of employment;

1. That he did not enjoy rest breaks as per his contract of employment, and these were changed by the Respondent contrary to his terms of employment;

1. The Complainant maintained that he was required to carry out unsafe work and where he was not provided with proper health and safety training or personal protection equipment to complete this job safely, where he argued his was also contrary to contract employment.

Summary of Respondent’s Case:

The Respondent maintained that many of the issues raised by the Complainant were outside of the Terms of Information (Employment) Act, 1994 and furthermore it maintained that throughout his employment the Complainant had never raised any concerns or any issues in relation to the complaints outlined.

The Respondent also argued that as the complaint form in front of the WRC referred to the location of the Complainant’s place of work, and to a complaint that the Complainant’s contract was terminated due to the loss of contracts, it was therefore outside the scope of the hearing to hear other issues relating to annual leave, payment of wages, rest breaks, health and safety, and the termination of employment of the Complainant.

Notwithstanding the Respondent advised that the Complainant was provided with a detailed contract of employment, was provided details in relation to his job title, work location, the rate of pay, hours of work and rest, layoff and short-time, over time working, annual leave, pension life assurance, sick pay scheme, PRSA, retirement, probation period, notice period, driver CPC and related matters, attendance and absenteeism, personal protective equipment, issues relating to his driving duties and monitoring, safety health and welfare, and changes in the terms and conditions of employment.

In response to the specific complaints raised by the Complainant, whilst acknowledging that the issues at the hearing extended beyond the complaint under the Terms Of Employment (Information) Act 1994, the Respondent responded as follows:

1. the Complainant was offered a full-time permanent role, however changing circumstances regarding contracts necessitated the termination of his role.       The Respondent submitted that prior to making its decision it had sought alternative employment within the business but was unable to do so at that time. It maintained there was no changes in relation to the terms and conditions of employment with regard to its decision to terminate the Complainant’s employment, and that it adhered to his notice period where it paid the Complainant the correct balance of his annual leave.

1. The Respondent submitted that the contract of employment actually referred to the place of work that the Complainant was employed throughout his time in employment at that was the place of work he was deployed, with the exception of the first week of work. The Respondent further maintained that the contract of employment required flexibility with regard to the work location, and where the Complainant may be expected to work at various locations. On that basis, the Respondent maintained that it made no changes to the Complainant’s terms and conditions of employment with regard his work location.

1. The Respondent maintained that it did not change the annual leave entitlements of the Complainant, and where on the termination of his employment paid him the correct amount and calculated that in accordance with his contract of employment. The Respondent argued that in fact it paid the Complainant a more favourable rate than was required under the Organisation Working Time act, and his contract.

1. The Respondent maintained that it did provide the Complainant with the correct notice for his termination in accordance with his contract of employment, and properly paid him for this notice period.

1. The Respondent submitted that the other complaints did not relate to changes of the Complainant’s terms of employment, and where it maintained that regular discussions would have taken place with the Complainant and his management. The Respondent advised that specifically the Complainant never raised any grievance during the course of his employment. Furthermore, it presented email evidence that indicated shortly after his appointment that the Complainant stated he was satisfied with his terms and conditions of employment. It also maintained that whilst the contract referred to a wage of €12.95 per hour it paid him an agreed €13.35 in recognition of his experience and for agreeing to the flexibility in working arrangements that were agreed to at the time of his appointment.

On that basis, the Respondent submitted there has been no breach of its obligations under the Terms Of Employment (Information) Act 1994. The Respondent submitted that the Complainant only raised his issues four months after the termination of his employment, and where these issues referred to the Organisation of Working Time Act, and health and safety concerns. Whilst maintaining it did not breach these matters, the Respondent insisted such complaints were outside the scope of the current hearing and that no complaints had been made by the Complainant to the WRC under any other legislation.

Findings and Conclusions:

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.      

Section 5(1) of the Act requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3…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 1 month after the change takes effect,

Based on the evidence provided I am satisfied that the Respondent had in fact met its obligations under section 3 of the Act in that it provided a detailed terms and conditions of employment to the Complainant on his appointment, and that it did not change any of the conditions as laid out within the terms of employment provided in its contract with the Complainant.

I acknowledge that the Complainant maintains a different view to the Respondent as to the interpretation and application of elements of his contract of employment, and where if he believes such breaches were made that it is appropriate that such breaches be prosecuted under the relevant Acts. I therefore find it is outside the scope in my statutory authority to address issues or complaints under other Acts which the Complainant has not made as part of the hearing within.

I therefore find the Respondent has met its obligations under sections 3 and 5 the Terms of Employment (Information) Act, 1994.

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 of the Terms of Employment (Information) Act, 1994 I find that the complaint is not well founded and therefore falls.

Dated:   2nd February 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: