Complainant

Respondent

Anonymised Parties

Capital Project Manager

A Health Care Provider

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-00019084-001

11/05/2018

The complainant claims that he has not received a permanent Job Description from 2010 to date. He claims that he has not received his acting up allowance and arrears from 2010 to date. He has not received the necessary upgrade in his post as per internal circulars or payment in respect of that from June 2014 to date. The complainant said he is not paid any allowances for additional national projects undertaken. He claims that his complaints fall within section 7 of the Terms of Employment (Information) Act, 1994.

The complainant claims that his employer has failed to honour its commitment to him and failed to implement the outcome of a Job Evaluation carried out in June 2017. He said that he is looking for an upgrade of his position to the next grade within the respondent’s grade structure and arrears in pay in accordance with internal Circulars and commitments given to him by senior managers.

In relation to his Job, he claims that he has not received a Job Description and an increase in pay arising from multiple new positions and responsibilities undertaken since 2010. The complainant claims that he has been engaged in substantial projects far reaching beyond his role as a Capital Project Manager, which he has been employed in since 2000. Since 2010 he has changed his role substantially and he has been carrying out work of a higher responsibility than his current grade commands. He said that he had raised the grading issue on a number of occasions with senior management and was told that the matter would be resolved.

He claims that a Job Evaluation report was authorised in 2015 but was not completed until November 2017 after much deliberation over the Terms of Reference for the Job Evaluation and an additional Addendum was required leading to substantial delays and much frustration. The outcome of the Job Evaluation report was a recommendation that the complainant be upgraded one grade within the respondent’s grading structure. Following the report there were further comings and goings where the respondent’s HR unit at national level asked for a meeting with the complainant where it was said that “the Job Evaluation and Addendum was not worth the paper it was written on” that the Officer who authorised the Job Evaluation had not the authority to agree to such a mechanism. The complainant claims that he was subsequently threatened in a bullying tone and told not to take any further action on the matter.

The complainant further claims that since this he has been treated less favourably by his employers where he has been excluded from various meetings and his email address excluded from circulation lists.

A number of additional claims were also raised on the day of the hearing, in relation to the complainant’s Trade Union and his employers seeking details of his wife’s pension and income.  

The respondent claims that the complainant joined it in January 1990 and he was upgraded to his current grade within its salary scale in September 1999. He was subsequently seconded to the role of Business Manager in April 2011 for a minimum period of 3 years and this is also at the same grade.

The respondent claims that the complaint set out on the Workplace Relations Complainant form relates to four different aspects, (i) employer refused to implement a recommendation following a job evaluation, (ii) no job description, (iii) excluded from meetings and (vi) taken off circulation lists. None of the issues complained about fall within the provisions of the Terms of Employment (Information) Act, 1994 and therefore the complainant cannot seek redress to address issues he has with it under this Act.

The respondent claims that it has met all its legal obligations under the Terms of Employment (Information) Act, 1994 in relation to the complainant’s employment and it presented documentation to substantiate that from September 1999. The complainant remained in this post and grade with no changes to the fundamental aspects of his employment as conceived by the 1994 Act.

In 2011 on his secondment to the role of Business Manager he was provided with details in relation to the secondment and a statement in relation to his terms and conditions. There were no changes to his post, grade, contract terms and conditions until the Haddington Road Agreement in July 2013 when all public servants’ terms were changed. He was notified of these changes accordingly. There have been some structural changes to the complainant’s job since his time employed there, but none of which are of a fundamental nature to his role or his grade since his secondment in 2011.

The respondent said that the complainant has various disputes with it, his employer, but none of which qualify as a breach of the Terms of Employment (Information) Act, 1994 in relation to the complainant’s employment.

To that end the respondent cited the following authorities in support of its contention that there is no loss to the complainant Archibold v CMC (Ireland) Limited TE 05/203, that it would be unjust to award compensation Udalous v South East Vegetable Producers TE 224/2012, where, if any, there are only technical breaches, - and none were conceded- Component Distributors (CD Ireland) v Brigid (Beatrice) Burns TED1812 and where a technical breach has no practical consequences Hall v Irish Water Determination TED 161.

The Relevant Law

Section 7 of the Terms of Employment (Information) Act, 1994 provides for employers to seek redress on contravention of sections 3, 4, 5 or 6 of the Terms of Employment (Information) Act, 1994, I note that the applicable sections read as follows,

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 23of 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.

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.

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 .

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.

6A. — (1) Where it appears to an inspector that an employer has contravened section 3, 4, 5 or 6 the inspector may, where he or she considers it appropriate, give a direction to the employer to comply with the provision concerned within such period as is specified in the direction.

(2) In this section ‘ inspector ’ has the same meaning as it has in the Workplace Relations Act 2015 .

It is clear from the submissions received that much of the complaints that have been presented to me by the complainant do not fall within the jurisdiction afforded under the Terms of Employment (Information Act), 1994. I have omitted from the evidence record above many of the complaints/disputes that the complainant raised on the day of the hearing which I am satisfied are not correctly before me for consideration.

In dealing with these complaints, I am very mindful of the purpose of the legislation and the various provisions under the Terms of Employment (Information) Act, 1994, which sets out the basic terms of employment which the employer must provide to its employees in written form within 2 months of starting the employment and it obliges the employer to notify the employee of changes to a term or condition within 1 month.

I note that the complainant was issued with the terms and conditions under the Terms of Employment (Information) Act prior to taking us his position in September 1999 and on his secondment to his new role in April 2011 he was advised of the title of his new role and that his then terms and conditions of employment apply to the new role. I note that a job description in respect of the new role was included at this time. I note it is with this that the complainant seems to have a dispute with his employer, that his role has transformed from this and has expanded extraordinarily from this. I note that he was involved in a dispute with the respondent on the proper grading level for the post in question, where an evaluation was undertaken, and a recommendation given. Notwithstanding all of this, my responsibility and jurisdiction under this Act is limited to the confines of the Act.

I am satisfied that the only aspect of the complainant’s complaints that could fall within the remit of the Act relates to whether a job description/specification falls within the list of items (a) to (m) set out under Section 3 of the Act. The only item that appears to be challenged by the complainant is in relation to item (d) the title of the job or nature of the work for which the employee is employed.

I am satisfied that the job description that the complainant is in dispute with the respondent over, is not one in the same as the item (d) the title of the job or nature of the work for which the employee is employed. Section 3(d) is set out in simple language and mentions the title or general nature of the job.

I note from the Workplace Relations Commission’s own documentation which relates to the same, where is sets out sample publication forms for what should be included in a written statement of particulars of the terms of employment as required by the Terms of Employment (Information) Act, 1994. It reads at “Note 4 – JOB TITLE / NATURE OF WORK - the Employers must state either the title of the job e.g. general operative, accounts clerk or nature of work e.g. construction work, accounts work etc”. This appears to be a substantially lesser requirement to what the complainant is looking for from the respondent.

Accordingly, I am satisfied that the complainant has been provided with the minimum level of information as required under the 1994 Act and the respondent has not being in contravention of the 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.

Terms of Employment (Information) Act – job description - not well founded