ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023507
Parties:
| Complainant | Respondent |
Anonymised Parties | A Driver | A National Health provider |
Complaint(s):
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-00030076-001 | 06/08/2019 |
Date of Adjudication Hearing: 11/10/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
Background:
The Complainant issued a workplace Relations complaint form on the 6th of August 2018. His claim is for a contravention under the Terms and Condition of Employment (Information Act), 1994 |
Summary of Complainant’s Case:
The Complainant presented in person and gave a detailed history of the perceived changes to his Contractual Terms and conditions. |
Summary of Respondent’s Case:
The Respondent was represented by it’s IR Manager and I was provided with a submission together with a book of supporting documentation. |
Findings and Conclusions:
I have carefully listened to the evidence adduced in the course of this hearing. It is common case that the Complainant commenced his employment in and around November 2006 and that he was provided with his Contract of Employment in that same month. Initially the Complainant was to work a 39 hour week performing driving duties for the provision of out of hours medical services. Over the years, the Complainant had scaled back the hours he was expected to work, and I accept that (along with many of his colleagues) he worked in accordance with a bespoke roster where he (and they) had agreed amongst themselves how things would operate. For example, each driver knew how Christmas would operate from year to year by local arrangement. In and around January 2019, I am satisfied that a memorandum was distributed by the National Human Resource facility to all levels of Management in the Health Service Provider. This memo outlined the obligations on Managers to ensure their staff were operating in accordance with the requirements set out in the Organisation of Working time Act. On foot of this memo, Management looked at the rostering of staff and in the case of the Complainant, the hours being worked by drivers was closely scrutinised. It became clear that there were up to 8 employees working in this section who operated in breach of the Act. In particular the obligation to provide an 11 hour rest period in every 24 hour period was not always being adhered to. This information was made known to management on the 18th of July 2019. I am satisfied that it was correct of the Employer herein to act on foot of the review undertaken. The Organisation of Working Time Act operates to ensure that workplaces operate a safe environment for employees and those around them. Once the Management was on notice of the fact that their drivers were working beyond what was acceptable, the Respondent/employer had to re-act. I note that the Complainant might have been away from the workplace in and around this period with a bereavement. Unfortunately, the Complainant was not communicated with in advance of seeing a change in his roster which he first saw on the 1st of August 2019. At that time, he noted that his normal Friday slot was earmarked as being in need of a driver. I accept that it was the complete lack of engagement and discussion that was the source of so much annoyance to the Complainant. Although a meeting to discuss the issue was ultimately held on the 6th of August, the lateness was an issue for him. The Complainant was offered alternative Roster choices and these were agreed upon very quickly. I note that the Complainant is not at any loss by reason of the fact that the Respondent was paid for a shift he didn’t work as the parties settled on a new arrangement. On balance I accept that the Complainant was justifiably upset that an arrangement which had pertained since 2007 was abruptly ended without any advance warning. However, I do accept that this lack of consultation was an oversight on the part of the Respondent and not intended as a slight. Ultimately this matter has been resolved. In concluding I would say that the complaint herein is not pertinent under the Terms and Condition of Employment (Information Act), 1994. There is no evidence that the Complainant has not been provided with a Statement of his employment in the time provided.
|
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00030076-001 The Complaint herein is not well-founded and the complaint fails. |
Dated: 02-12-2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
|