TED1821

This matter comes before the Court as a complaint by Ms Ulrike Cronje (the Appellant) against a decision of an Adjudication Officer in her complaint against her former employer, Noonan Services Group Limited (the Respondent) made under the Terms of Employment (Information) Act, 1994 (the Act).

The Adjudication Officer decided that the complaint was not well founded.

Summary position of the Appellant

The Appellant was certified fit to return to work following a period of sick leave on 14^thMarch 2016. Upon her return from sick leave she was requested to report for duty at the Respondent’s Pfizer Client site. She had worked at the Respondent’s Biomarin Client site prior to her absence on sick leave.

She submitted that the Respondent had sought to impose a change to her terms and conditions of employment without her agreement and in breach of the Act at Section 7.

Summary position of the Respondent

The Respondent submitted that the statement of terms and conditions of employment provided to the Appellant set out under the heading ‘Location’ as follows

‘will be based at the Cork Office. However, owing to the nature of its business, the Company reserves the right to transfer you to other locations in Ireland in accordance with business requirements’.

Consequently, the Respondent submitted that no change to the terms and conditions of employment of the Appellant occurred following her return from a period of sick leave and no such change could therefore be notified to her.

The Law

The Appellant had submitted that the Respondent was in breach of the Act at Section 7. The Act at Section 7 makes provision for the making of complaints by employees in relation to contraventions of the Act by their employers. It cannot be the case that the Respondent could breach the Act at Section 7 and the Court asked the Appellant to comment on this matter at its hearing.

The Appellant clarified to the Court that in fact the alleged breach of the Act was as regards Section 5. The Respondent did not make issue of this clarification.

The Act at Section 5 in relevant part provides as follows:

• 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.

The legislation in issue in the within matter does not concern itself with the fact or method of achievement or implementation of change to an employee’s terms or conditions of employment. The Act, as set out in its preamble, is

• ‘AN ACT TO PROVIDE FOR THE IMPLEMENTATION OF DIRECTIVE NO. 91/533/EEC OF 14 OCTOBER,1991 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES ON AN EMPLOYER’S OBLIGATION TO INFORM EMPLOYEES OF THE CONDITIONS APPLICABLE TO THE CONTRACT OR EMPLOYMENT RELATIONSHIP, TO AMEND THE MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACT, 1973, AND TO PROVIDE FOR RELATED MATTERS.’

• ‘…the Cork Office. However, owing to the nature of its business, the Company reserves the right to transfer you to other locations in Ireland in accordance with business requirements.’

• ‘a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—
  • (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,

Determination

The Court determines that the Respondent was not in breach of the Act at Section 5. The Appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
4th January 2018______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.