Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Public Service

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-00027420-001

01/04/2019

This complaint has arisen following the circumstances surrounding a request made to redeploy the complainant, a Clerical Officer in October 2018. This request was met by a “Working under Protest” position since November 22, 2018.

The Complainant has submitted that there has been a contravention of Section 5 of the Act. The Respondent, by way of Preliminary argument has rejected this claim and has pointed instead to a live, active and incomplete Grievance procedure currently underway.

Both parties were represented, the Complainant, by her Solicitor and the Public Service by a Senior Employee Relations Team, accompanied by a Service Manager. Both parties, helpfully presented submissions on the day of hearing.

On 1 April 2018, the Complainant, a Clerical Officer with the Respondent since 1997 submitted a complaint under the Terms of Employment (Information) Act, 1994. She submitted that she was a Lay Litigant and had not received a statement in writing of her Terms of Employment in accordance with the Act. She outlined that she had been compulsorily redeployed in November 2018 and could not secure a platform to address her grievance as a direct result of this. She had been working under protest since November 2018 and described a fear of skills erosion as a direct consequence of her compulsory redeployment.

The Complainant outlined that she had not received an “official and final statement of my place of work, nor a statement indicating where I as an employee am required or permitted to work at various places “. She indicated that she had endured a frustrating waiting period before her grievance had been addressed by her employer and remained dissatisfied with the slow progress.

The Complainant subsequently secured Legal representation and was represented at hearing. The Solicitor for the Complainant submitted that The Respondent had fundamentally breached Section 5 of the Act and sought an order to restore the complainant to her former position or at least its equivalent.

The Complainants representative submitted that that Complainant had not been given a statement indicating where she was required or permitted to work. The Complainant had been removed from her extensive range of duties and had been reduced to the role of a mobile postal operator (on foot). This did not constitute a stateable job description. Her role was already carried out by porters and she was left without direction. The Complainant wants to return to her former place of work.

The Complainant rejected the Respondent application of TED 1815, HSE and Larry O Connor, and emphasised the variation in the facts of that case. The Complainant also rejected the application of Cork County Council and Catherine Sheehan, TED 196.

The Complainants Solicitor submitted Hill V Peter Gorman Ltd (1957) 9 DLR 124 , contended that the complainant in the case had not left employment and could not lead to the conclusion that the variation of salary by 10% had been accepted .In further reliance on Mc Carroll V Hickling Pentecost and Co (1971)NI 250, The Representative argued that the complainant in the case was not compromised as a result in staying at work in a post demotion and unhappy period .

The Complainant Representative sought an opportunity to scope out possible compromise resolutions at hearing as his client remained very unhappy with her current placement which had significantly disadvantaged her skills maintenance and career opportunities to date.

In addressing the Grievance Update Report of 25 April 2019, he submitted that the complainant had waited too long for its inauguration and no progress had been made.

The respondent is a Large Public Service and has acknowledged that the Complainant has worked for many years as a Clerical Officer.

Preliminary Issue:

The Respondent outlined that the Complainant had submitted her complaint under Section 3 of the Act.

The Respondent submitted details of the complainant accession to the role of Clerical Officer Grade 3, Permanent in 1999. The complainant had relocated her base during her tenure.

The Respondent exhibited a letter dated January 6, 2000 which served as a written statement in line with Section 3 of the Act. In their preparation for the hearing, the Respondent wrote to the complainant seeking clarification of her claim. This letter requested the complainant to declare which specific information had been denied to her under the Act? . The letter gave an undertaking to provide any information identified as outstanding directly to the Complainant. The Respondent did not receive a response to this letter dated June 6, 2019, some 10 calendar days before the hearing.

The Respondent concluded that as the complainant had relocated as part of a service evolution, her grade, pay and conditions had not altered. The Respondent contended that that the grievance raised by the Complainant in October 2018 did not amount to a breach of the legislation but rather served as a grievance to be processed under the Public Service Grievance Procedure.

In support of this contention, the Respondent relied on HSE V Larry O Connor TED 1815 and Cork County Council and Catherine Sheehan TED 196.

The respondent confirmed that the complainant has activated her grievance, the parties had met once with a resumed date has been planned for the third week of July. The Respondent could not accept the Complainant invitation to scope out possible resolutions at the hearing under the referring Act.

The Respondent contended that the grievance procedure should be respected and allowed to run its course. The Respondent was committed to this process and continued to rebut any suggestion of breaches of either Section 3 and Section 5 of the Act.

I have listened carefully to both parties to this claim. I have also reviewed the submissions, documents and case law advanced by the parties at hearing. It is of note that the complainant has diversified from being a lay litigant to securing legal representation during the lifetime of the complaint.

The Foundation Claim form received by the WRC on April 1,2019, records a complaint based on the complainant not having a statement in writing on terms of employment.

Section 3 of the Act requires this to be provided not later than 2 months after the commencement of employment. The Law has been amended in March 2019 to provide a 5-item core document not later than 5 days of employment.

The Complainant clarified that she has not raised an issue under Section 3 of the Act. Rather, it was her stated intention to raise a claim under Section 5 of the Act. The Respondent accepted that this was the complainant’s intention but re-affirmed that the Respondent had not acted in breach of Section 5.

For my part, I discussed the parameters of Section 5 of the Act and clarified my role and options of redress provided for in Section 7 of the Act, for both parties. Both parties considered this direction.

I went on to clarify that this claim was a separate and distinct claim than any claim which might be raised under the Industrial Relations Act. I felt the need to clarify this as the Complainants representative sought an opportunity to tease out the potential for a compromise resolution to the case.

I explained that both parties had a right of appeal to the Labour Court.

Preliminary Issue:

Section 5 of the Terms of Employment (Information) Act, 1994 provides:

Notification of changes.

5

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 .

It seems to me at first glance that the Base Change proposed by the Respondent in October 2018 may well excuse the application of Section 5(1) in this case as the proposed change seems to have evolved through a service closure which in turn emerged from circumstances surrounding the Public Service Stability Agreement.

I understand that the complainant has held and continues to hold a high level of dissatisfaction at where she relocated to and what she has been asked to do since that relocation. However, she has confirmed that she received written confirmation of these changes within one month of their occurrence.

The Complainant explained that she had taken a friend’s advice to make the claim under the current legislation. She also acknowledged that she had lodged her claim to seek to ignite a return to a fulfilling job.

In all the circumstances, I must conclude that the claim is misconceived on behalf of the complainant. The claim is not well founded as the proposed changes emerged from circumstances cited in Section 5(2) of the Act ,as an exclusion of the application of Section 5(1) of the Act.

Rider:

I have added a rider to these findings. I advised the parties to focus on and advance on the challenge of conflict resolution through the procedural framework currently underway. I note that the Respondent has committed to leading this process through their Employee Relations Team.

Nothing in the above findings should detract from this pursuance of a mutually acceptable resolution to the grievance and I have advised the parties to focus on the current circumstances rather than a retrospective analysis of missed opportunities . It is important for both parties to consider that the complainant has been working under protest for a period of 7 months which cannot be good for positive and productive staff relations and a sense of fulfilment at work. I wish the parties well in their endeavours.

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.

Section 7 of the Terms of Employment (Information) Act, 1994 requires me to decide in accordance with Section 5 of the Act.

I have found the complaint to be not well founded.

Notification of Change, Section 5