Complainant

Respondent

Anonymised Parties

A General Manager

A Car Company

Representatives

  Appeared in Person

 Sean Cullinane, HR Practitioner

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-00029194-001

20/06/2019

This case has originated in an employment within a Family Business. The Complainant, at the time of lodging his claim was the General Manager. He has since been made redundant.

The Respondent represented by a Human Resource Practitioner contested the claim made under Section 5 of the Act.

The Complainant submitted his case by oral means and the respondent submitted a brief written submission which was copied to the complainant. The Respondent submitted a copy of the contract of employment. The Complainant confirmed its authenticity.

On June 20, 2019, the Complainant, a General Manager at his Family Car Business submitted a complaint to the WRC that he had not been notified in writing of a change in his terms of employment.

By way of background, the complainant summarised that he had presented in WRC in 2018 seeking a contract of employment. He secured a positive decision in that vein and proceeded to sign a contract of employment in February 2019. This followed a period of uncertainty at the business, where a WRC Inspection in May 2018 had generated a focus on contracts in the business. Staff not previously in receipt of contracts were now covered by contracts of employment.

The Complainant outlined that he received a letter from the Company Director dated April 2, 2019 which purported to change the calculation of his Commission on bought and sold cars. This unnerved him.

The Complainant went on to say that he had been suspended from employment over a 3-month period in June 2019, subject to an internal investigated, where he was vindicated and had since been made redundant.

The Complainant had a clear difficulty linking his complaint to Section 5 of the Act. He was keen to place on the record all the wrongs he had experienced at work. I explained that an Adjudication hearing is focussed on addressing the complaint made and not on extraneous issues which appeared to more linked to a Family discord.

 Considering his being a lay litigant, I passed a copy of the Act to him and asked him to take 10 minutes, in the company of his support person to reflect on the claim he was making at the hearing. I resumed the hearing at 11.05 hrs.

The Complainant proceeded to submit that he had not been provided with a safe place to work and had been replaced by his brother at the business.

In addressing the instant claim, he referred to the morning of June 20,2019, where his brother came on site amidst considerable arguments. He believed that his personal safety was threatened. The Company Director told him that both his and his brothers’ attendance at the company would be on alternative days going forward and he argued that this was contrary to his terms of employment. The Gardai were involved.

Two days later, the complainant was suspended just days before his holidays, and he was subsequently made redundant from the business. He mentioned that he had made several statements to the WRC on what he had experienced at work.

The Complainant was seeking assistance from the WRC .

The Respondent operates a Family Car Business. The Respondents representative disputed any contravention of the legislation.

The Respondent outlined that the complainant had been appointed Manager of the Business in February 2019, prior to that he had been employed for the purposes of selling cars. His contract confirms a 45-hour week in return for €62,452.00 plus commission per annum.

In addressing the complainant’s complaint that he was asked to leave the site; the Respondent attributed this proposal to the Gardai to avoid acts of aggression which had previously been witnessed which involved the complainant’s brother.

The Respondent confirmed that the complainant had been suspended and subsequently made redundant from the business. His working time had changed by suspension and not by any other alteration.

I have listened carefully to both parties. I have read the contract of employment exhibited and copied by the Respondent. I have read the letter of April 2.2019 exhibited by the complainant.

It became clear to me at the very beginning of the hearing that the complainant had come to ventilate his negative experiences at the company. I had no idea of his suspension or dismissal through redundancy during my preparation of the case. This had not occurred prior to the submission of his complaint.

The Complainant had a difficulty articulating his claim under Section 5 of the Act and appeared in my opinion to be overwhelmed and in distress at his recent experiences at work. He said that he had come to talk but was not aware that a decision would follow in the case. I have difficulty with this interpretation as I had met the complainant late in 2018, where he represented himself at a WRC hearing in seeking a statement of terms of employment. On that occasion, the complainant succeeded in his claim for a statement of terms of employment.

 I appreciate that the complainant identifies with the WRC as a point of help , however, an Adjudicator in the absence of settlement, is required to provide a decision to both parties .

I gave the parties a 15-minute adjournment to allow the complainant to absorb the contents of the Act and Section 5 on which his claim appeared to be based.

On resumption, the complainant submitted that he had not been provided with a safe workplace and believed that he was being penalised following a WRC Inspectorate Visit to the business in May 2018. He felt threatened and undermined by his brother’s presence in the business which was breach of his contract. He submitted that he had been informed that his working hours were to be reduced on June 20 to accommodate his brother. The proposed change had not actually taken place as the circumstances of the suspension took over.

The Respondent disputed that any breach had occurred to the complainant’s terms of employment which he had signed in February 2019. The Complainants brother worked outside the business and was not employed there. Instead, he had taken a two-year sabbatical from his full-time job as a family in law had become seriously ill. the Respondent confirmed that major discord existed between these two parties and remained unresolved.

The Respondent confirmed the circumstances of the complainant’s suspension and submitted he had not returned to work after this.

In analysing the facts of the case, my primary finding is that this is essentially a family dispute in urgent need of expert attention. I have concerns for the wellbeing of the complainant.

I explained my role as an Adjudicator is to inquire into the complaint before me and allow for both parties to be heard. I cannot judge a family dispute, irrespective of the familial ties in an employment setting.

Section 5 of the Act covers notified changes in a statement of terms of employment. Section 5(1)(a) requires a written notification of change not later than 1 month after the change takes effect

 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, 4or 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 3or 4.

I have found that the complainant raised an anticipative breach of Section 5 of the Act. He was then overtaken by a suspension from his employment without the changes as flagged (alternative attendance patterns) being affected. He did not return to work after his suspension.

I asked the complainant if he had considered representation and he told me that he is in touch with a Solicitor, but he was running this case himself as he had not anticipated needing legal representation.

 Based on the facts as presented by both parties, I  have not established a breach of Section 5 of the Act. The claim is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have found that the claim is not well founded.

Terms of Employment