Complainant

Respondent

Anonymised Parties

A Complainant

A health service provider

Representatives

Act

Complaint/Dispute 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-00015393-001

27/10/2017

The complainant submitted a complaint on 27th of October 2017 under section 7 of the Terms of Employment (Information) Act, 1994.   The complainant in his complaint form stated that he was not notified in writing of a change to his terms of employment.

The complainant submits that

he was not notified in writing of a change to his terms of employment,

since his transfer to clerical from laboratory in 2015, he had not received his payslips as is required by law,

despite multiple attempts through email/meetings etc, his line manager and HR manager refuse to respond.

The respondent submits that

The complainant commenced employment with them on 4th of June 2008 as a Laboratory Assistant,

In 2015 the complainant as part of a rehabilitative process following sick leave was moved to a clerical role. This was done with the agreement of the complainant and he retained his terms and conditions of a lab aide while in this role,

The complainant’s payslips continued to be sent to his previous location as the recorded address for his role as Laboratory Assistant until the matter was raised by the complainant and later resolved by the respondent, payslips are also available electronically,

In March 2017 following a grievance process it was agreed that the complainant would be appointed to the role of Clerical Officer and took on the terms and conditions of a Clerical Officer, the complainant was advised of this in a meeting on 2nd of March 2017 and by letter dated 6th of March 2017 (copy submitted),

On 31st of May 2017 the complainant was issued with a new contract for the post of Clerical Officer, the complainant has not signed or returned this contract.

Preliminary Issue- complaint in respect of Payslips

The complainant lodged a claim under the Terms of Employment (Information) Act on 16th of November 2017.   The complainant in his complaint form to the WRC made an allegation that the respondent had failed to provide him with payslips. The respondent in their submissions object to the claim in respect of payslips stating that a claim in respect of payslips should have been lodged under the Payment of Wages Act and not under the Terms of Employment (Information) Act.

In considering this matter I note that the claim form lodged by the complainant on 16th of November 2017 states that the claim is being taken under the Terms of Employment (Information) Act but the narrative of the complaint form goes on to state that the complainant is alleging that he had not received payslips since transferring from his role as lab assistant to the role of clerical officer.

I am thus satisfied that the respondent was on notice that the failure to provide payslips was part of the complaint and accordingly the respondent is not in any way disadvantaged by the claim.    I am satisfied that the respondent was on notice of a claim in respect of a failure to provide payslips.  

Having said that, while I do have jurisdiction to Adjudicate on certain matters under the Payment of Wages Act the allegation of a failure to provide payslips is dealt with under Section 4 of the Payment of Wages Act and as such is a matter which comes under the remit of the Inspectorate division of the WRC and accordingly I do not have jurisdiction to adjudicate on this matter.

Complaint under the Terms of Employment (Information) Act.

The complainant submitted a complaint under the Terms of Employment (Information) Act. The complainant submitted that he was not notified in writing of a change to his terms of employment.   The complainant told the hearing that he had been employed by the respondent as a Laboratory Assistant initially but that he had in 2015 moved to a clerical officer role. He went on to state that since then he had no contract and so did not know his entitlements.

Section 3 of the Terms of Employment (Information) Act, 1994 states:

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, ……

Section 5 of the Terms of Employment (Information) act, 1994 obliges the employer to notify the employee of changes to a term or condition within 1 month and states :

(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    

The respondent advised the hearing that the complainant commenced employment with them on 4th of June 2008 as a Laboratory Assistant and for which he was provided with a contract of employment. The respondent advised the hearing that in 2015 the complainant, as part of a rehabilitative process following sick leave was moved from a Laboratory Assistant role to a clerical role.  The respondent stated that this was done with the agreement of the complainant and that he retained his terms and conditions of a lab aide while in this role.  

The respondent told the hearing that in March 2017 following a grievance process initiated by the complainant it was agreed that the complainant would be appointed to the role of Clerical Officer and that he would take on the terms and conditions of a Clerical Officer, the complainant was advised of this in a meeting on 2nd of March 2017.    The respondent went on to state that it had confirmed this by letter dated 6th of March 2017 (copy submitted) which stated that the complainant would be assimilated onto the terms and conditions of a clerical officer as agreed and that he would be provided with a clerical officer contract as agreed. The complainant signed this letter and returned it as requested.

The respondent went on to state that on 31st of May 2017 the complainant was issued with a new contract for the post of Clerical Officer but stated that he has not signed or returned this contract and so remains on the terms and conditions of a lab assistant pending the signing of his Clerical Officer contract.  

The respondent went on to state that the complainant has queried his entitlement to additional pay and holidays commensurate with his appointment to the Clerical role. The respondent told the hearing that it had clarified that these would be granted to him on signing of the Clerical Officer contract.   Copies of email correspondence between the complainant and respondent were submitted in support of this assertion.    The complainant at the hearing did not dispute the evidence of the respondent in respect of the contract and conceded that he had not signed the Clerical Officer contract provided.

Based on the totality of the evidence adduced I am satisfied that that the complainant has failed to demonstrate that there was a breach of the Terms of Employment (Information) Act, 1994 and consequently I find that the complaint is not well founded.  

Based on the totality of the evidence adduced I am satisfied that that the complainant has failed to demonstrate that there was a breach of the Terms of Employment (Information) Act, 1994 and consequently I find that the complaint is not well founded.