Complainant

Respondent

Anonymised Parties

A Team Leader

A Technology Solutions Provider

Representatives

IBEC

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-00022134-001

24/09/2018

Following a recruitment process, in June 2018, the complainant in this case was promoted to the position of Team Lead. Her promotion was not confirmed in writing until November 9th 2018 and she did not receive her salary increase, which was back-dated to June, until October 30th. Her complaint is, that in failing to confirm the changes to her job, her employer is in breach of section 5 of the Terms of Employment (Information) Act 1994 (“the Act”).

Following her appointment as Team Lead in June 2018, the complainant took up the role and, from then on, carried out the work associated with that job. She was informed that her salary would be increased from €29,000 to €34,500; however, when she commenced in the new role, she did not receive confirmation of the change in her job title and she didn’t receive the pay increase.

The complainant was in the process of applying for a mortgage and she said t said that she asked the HR Department for a letter confirming her new status and salary.   As she was earning more than previously, she was in a position to borrow more, but her bank would not accept her earning capacity without written confirmation and evidence in the form of a payslip. The complainant outlined the inconvenience and stress that this caused.

Following the submission of her complaint to the WRC, a hearing was arranged for November 16th. However, the complainant received the increase she was due on October 30th and she received written confirmation of the changes in a letter dated November 9th. She got his letter on November 12th. She feels that the letter and salary issues have been resolved only because she made a complaint to the WRC.

At the hearing, the representatives for the respondent said that changes to contracts were managed by a shared services office in India. The practice was to issue contract change letters once every quarter.   It was accepted that there were inefficiencies in this process and that this caused delays. The situation was exacerbated by the growth in recruitment over the previous year. This work of issuing contract change letters has been taken “in house” and such letters are now issued every month. The respondent’s position is that the problem experienced by the complainant will not occur again. They also argued that, as she had suffered no financial loss, no compensation should be paid.

In her submission, Ms Ní Cheallaigh referred to the Labour Court case involving the Department of Employment Affairs and Social Protection and Anna Concarr, FTD 184. This was a complaint under the Protection of Employment (Fixed-term Work) Act 2003.   Before the hearing at the Labour Court, Ms Concarr was offered a permanent contract and the employer argued that the case was then moot. It is my view that the situation that pertains in the case under consideration here is not reflected in “Concarr,” because, in that case, the Court found that no breach of the Fixed-term Work Act had had occurred.

The Relevant Law

Section 5 of the Terms of Employment (Information) Act 1994 (“the Act”) sets out the obligation on an employer to confirm changes to terms and conditions of employment:

“…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.”

Section 3 referred to above sets out the details to be provided in a statement of terms and conditions of employment. Section 4 refers to employment outside the State and section 5 is now irrelevant as it deals with contracts entered into before the enactment of the Act.

Findings

In the case of this complainant, she was promoted and got a salary increase in June 2018. She should have been provided with a written statement confirming this in July but this didn’t happen until November, four months later. At the hearing, the complainant described the difficulties this caused for her, as she was in the process of applying for a mortgage. She said that she had to accept a loan of €20,000 less than what she could have borrowed if she had been able to show her bank that she was earning €34,500. The timing of the employer’s failure to provide confirmation of her new job was therefore, very significant for this complainant. If she had not been applying for a mortgage, the effect would not have been so detrimental. It is my view that, despite the delays in the corporate shared services office, there could have been some local intervention so that the complainant’s bank was informed of her salary effective from June 2018.

Conclusion

Based on the evidence, it is clear that the employer in this case was in breach of section 5 of the Terms of Employment (Information) Act, and that this breach was properly remedied in November 2018, four months after the complainant was entitled to receive confirmation of her new terms and conditions.

I have found that the respondent is in breach of section 5 of the Terms of Employment (Information) Act 1994 in respect of the complainant’s entitlement to receive confirmation of her changed terms and conditions of employment in July 2018.   I have decided therefore that the respondent should pay the complainant compensation of €1,000, equivalent to one and a half weeks’ pay.

Changes to terms and conditions of employment, written confirmation