Complainant

Respondent

Anonymised Parties

A special adviser

A Government Department

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-00031167-001

27/09/2019

The Complainant is a special adviser to a Minister of State.

This complaint was received by the Workplace Relations Commission on 27th September 2019.

The Complainant originally named the Secretary General as the Respondent, this was changed at hearing. There were no objections to this change.

The Complainant contends that his complaint relates to the terms and conditions of his

employment and the refusal of the Respondent to recognize his true headquarters location, in order to avoid compensating him for costs incurred with travel associated with his work duties.

The Complainant is an advisor to a Minister in the Department of XXXXX who is from West Cork. He works primarily form the Ministers HQ - his constituency office. He never works from the building the Secretary General is claiming to be his HQ. The last time he worked from Dublin, let alone the Department of XXXXXX building, was the 24th of July.

The Secretary General says he cannot base any employee in a Ministers constituency office, yet he is aware of a number of employees on his payroll based at their Ministers office. The Secretary General has argued it is not possible for him to base the Complainant at the minister’s office, however the Complainant has sought clarity in this regard and it has been confirmed it is entirely within the gift of the Secretary General to do so. The Complainant contends that his contract also allows for same.

In the Complainant’s opinion the bottom line is when he must leave home to travel to the parliament to carry out his duties for the minister, he receives no travel subsistence or overnight

accommodation. He contends that he has a colleague who works off the same contract, carries out the same duties and has a similar work pattern, and he is reimbursed for both his travel and his overnight accommodation.

His HQ has also been sanctioned by the Secretary General of that department as his minister’s constituency office.

An advisor to a minister is largely a political role and the HQ of any advisor depends entirely on the constituency location of that minister. There are two West Cork based civilian drivers assigned to the minister and a clerical officer working from his constituency office, they all receive travel and subsistence to work from Dublin. The Complainant assumed he would too, however after waiting 18 months to receive a contract from his employer, he was not in a position to argue this point until he received same.

The Complainant contends that all he is seeking is fairness and natural justice, he feels deeply aggrieved by this situation and the fact that the Secretary General or the HR department has refused to discuss the matter with him despite his respectful and measured approach to this matter from the outset.

Background

The Complainant was appointed as Special Advisor to a Minister of State at the Department of XXXXX which appointment took effect on 7th September 2017.

The within complaint concerns the demand of the Complainant that the Secretary General of the Department of XXXXX designate the constituency office of the Minister of State at the Department of XXXXX in Co Cork as the Complainant’s “true headquarters location” rather than the head office of the Department of XXXXX that is in a central Dublin location. The Complainant asserts his entitlement to such an amendment on the basis that he spends most of his time working in the Cork office.

At all material times, the Complainant’s terms and conditions for the post of Special Advisor are in line with the Department of Public Expenditure and Reform (hereinafter DPER) “Instructions to Personnel Officers on Ministerial Appointments for the 32nd Dail” and dated June 2016. This DPER Instruction to Personnel Officers contains a model contract for the position of Special Advisor and the Complainant was given a copy of this model contract at the time of his appointment in September 2017.

The model contract furnished to the Complainant clearly states that his “headquarters” will be such as may be designated from time to time by the Secretary General of that Department and that travel to and from this headquarters will not be eligible for travel expenses.

All Ministers or Ministers of State in the Department of XXXXX and all of their Special Advisors are headquartered in the Department Headquarters in Dublin, which is the Department’s only office. In line with every other Minister and Advisor, the Secretary General designated the Complainant’s headquarters in his role as Special Advisor to his Minister to be the Department headquarters. This is entirely in keeping with each of the other Special Advisors appointed to the other Ministers of State at the Department of XXXXX as well as those Special Advisors appointed to the Minister for XXXXX himself.

In accordance with DPER instructions and the terms of the model contract, upon appointment the Complainant was placed on the first point of the Assistant Principal standard salary scale.

In January 2018 the Minister of State at Department of XXXXX contacted the Secretary General to request a review of the Complainant’s terms and conditions. In his reply to the Minister of State, the Secretary General confirmed that he had reviewed the Complainant’s position in line with the department instructions.   Inter alia, the following points were noted.

1. The Secretary General cannot deem the Complainant to be headquartered anywhere other than in an office of the Department.

2. In relation to expenses, the Secretary General replied that the Department is obliged to apply the rules set out in Circulars 11/82 and 05/15 regarding travel and subsistence. This position is referenced in paragraph 12 of the Instructions to Personnel Officer – Ministerial Appointments to the 32nd Dail. As is expressly stated therein, travel and subsistence expenses must be paid from home or headquarters, “whichever is closer”. In addition, Circular 11/82 provides that travel expenses in respect of the normal route between home and headquarters cannot be paid.   It is also important to note that the circular provides that the subsistence allowances payable are not intended to cover the whole cost of subsistence when absent from home or headquarters. Expenses are only available to appointees in line with the above rules; and

3) The Secretary General is unable to modify the Complainant’s contract simply because of the demand made, given the statutory restraints operable.   However, without prejudice to the basis of the refusal already outlined, given that the Complainant had regular and substantial overtime payments in his previous role, given the distances involved, given the additional responsibilities attached to the role of Special Advisor and given the particular circumstances of this appointment, the Secretary General decided on an exceptional basis to elevate this Complainant’s starting point to the sixth point rather than the first point on his salary scale. It is important to note that Advisors to other Ministers of State in the Department start on the first point of the scale.

The Complainant’s formal contract was delayed for a number of months pending the resolution of the foregoing. However, once the aforementioned proposals were incorporated, the Complainant was furnished with a finalised contract which he signed on 6th February 2019 with the Secretary General countersigning on 11th February 2019.

For the avoidance of any doubt, at all material times, the Complainant had the benefit of a model contract for his position which remained almost identical in terms and provision as his eventual contract and same was furnished to him as part of the DPER Instruction to Personnel Officers on Ministerial Appointments document which was provided to the Complainant following his appointment in September 2017.

In February 2019 following the signing of his contract, the Complainant requested that the Secretary General change the designation of the location of his headquarters. The Secretary General informed the Complainant that the only headquarters could be that in a central Dublin location as this was the headquarters of the Minister of State and all other Department of XXXXX employees and that the Minister of State’s constituency office in Cork relates to his role as a TD for that constituency and is not an office of the Department of XXXXX. In subsequent correspondence, the Secretary General confirmed that he would not make any exception to that designation.

Following repeated demands from the Complainant that his contract be amended to change the designated headquarters, the Secretary General agreed to seek the advice of DPER who confirmed that the Secretary General, as Accounting Officer, is the appropriate person to determine the headquarters of the Department’s employees. Arising therein, the Personnel Officer confirmed the position of the Secretary General that the headquarters of the Department of XXXXX for all employees would remain at the central location in Dublin and no exceptions would be made.

The Complaint

The complaint submitted on 30th September 2019 contains a number of inaccuracies.

The headquarters of a Special Advisor is not dependent on the location of the Minister to whom they are appointed to advise. It is submitted that the role of Special Advisor to a Minister of State is in respect of that Minister’s role in the department and not in respect of their role as a TD representing their constituency.   Thus, being a Civil Servant under the remit of the Secretary General of the Department of XXXXX, the Complainant’s headquarters is that of the Department of XXXXXX.

Their “headquarters” is not determined by the constituency location of the relevant Minister. Instead and as set out in the “Instructions to Personnel Officers on Ministerial Appointments for the 32nd Dail” dated June 2016, it is the decision of the relevant Secretary General to decide the official headquarters of the department and of the staff working therein. The fact that the Complainant does not routinely come to Dublin is entirely a matter between him and the Minister of State whom he is appointed to advise. It does not alter the location of the Department of XXXXX’s office.

The Complainant incorrectly asserts that Ministerial Drivers are headquartered in the Minister of State’s constituency offices.   This is not correct. They are headquartered in Dublin and are subject to special arrangements in respect of travel and subsidence for drivers as set out in the DPER instructions to Personnel Officers, a copy of which was furnished to the Complainant upon his appointment.

The Complainant also refers to a Clerical Officer who works out of the Minister’s Constituency Office and whom he asserts is a comparator.   The role of Clerical Officer is very specifically related to the constituency work of the Minister rather than the policy work of the Department of XXXXX as is the case with a special Advisor. Particular arrangements are made to support Ministers with their constituency work to take account of the fact that they experience increased constituency demands due to the fact of their ministerial portfolio. Again, the Minister’s constituency office is not an office of the Department of XXXXX. Instead, it is managed and maintained by the Minister in respect of his role as a TD.

As is clear from the various correspondences between the parties, the Secretary General has not refused to discuss this matter. At all material times, the Respondent has engaged with the Complainant and has taken numerous steps to deal with his concerns, not least the personal attention of the Secretary General and also his referral of the query to DPER for their considered opinion.

The rate and applicability of travel and work related expenses is not determined by the Secretary General but, instead, pursuant to the Department of Finance Circular 6/89 and Circular 11/82 Travel & Subsistence.

Relevant Legislation

The Complainant submits that he was not notified in writing of a change to his employment terms and conditions.

Section 5 of the Terms of Employment (Information) Act 1994 states

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.

5(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

It is respectfully submitted that the Complainant was fully appraised of all changes under consideration regarding his contract of employment. The Complainant was provided with a draft contract of employment upon his appointment with a delay in formalising his actual contract pending negotiations with the Complainant of his final terms and conditions.

It is denied that the Complainant’s contract was in any way modified without any, or any adequate notice to the Complainant and, as is evident from the assortment of correspondence already exhibited herein, the Complainant was fully engaged on the issue of his contract negotiations.

It is respectfully submitted that the Complainant’s claim cannot succeed as the Complainant fails to identify any specific act or breach of Section 5 of the 1994 Act which gives rise to a cause of action.   Furthermore, any complaint the Complainant may have with the terms of his contract is defeated by the very fact that the Complainant willingly signed and returned his contract to include the attached “Form of Acceptance” which states as follows:

“I have read and noted the contract and I am prepared to accept an appointment as Special Adviser to Mr Jim Daly TD Minister of State at the Department of XXXXX on the terms and conditions set out above [within the contract itself].   I also acknowledge receipt of a copy of the Civil Service Code of Standards and Behaviour and confirm I have read same”.

Arising therein, it is respectfully submitted that the Complainant gave his formal endorsement of each express and implied term of his contract, to include his endorsement of the location of his work headquarters as a central Dublin location. As such, the Complainant is bound by the terms of his contract and can only change or vary same by agreement.

It is submitted that the Respondent entered into a contract with the Complainant in good faith and any attempt to now frustrate or vary that agreement contrary to the agreement of the Respondent runs contrary to that provision.

Conclusion

The Respondent denies that the Complainant’s contract was modified without any or any adequate notice to the Complainant.   Furthermore, any complaint or grievance the Complainant may have about his terms and conditions of work is not an appropriate matter for the WRC to consider given that the Complainant failed to identify the precise statutory provision which he contends has been breached and in circumstances where the Complainant signed and returned his contract provisions after he had an opportunity to consider the terms and conditions therein, including the precise location of the Department of XXXXX headquarters.

The Terms of Employment (Information) Act 1994 as enacted is “An Act to provide for the implementation of Directive No. 91/533/EEC of 14th 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 Act places a legal requirement on all employers to issue a ‘statement of the particulars of employment’ to each employee within 2 months of their commencement date, section 3 of the Act outlines:

3.(1) An employer shall, not later than two 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

g)      the rate or method of calculation of the employee's remuneration,

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000

       requests 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.      

On 6th February 2019 the Complainant signed a Form of Acceptance, this form read as follows:

“I have read and noted the contract and I am prepared to accept an appointment as Special Adviser to Mr xxxxxxx xxxxxxx., Minister of State at the Department of XXXXXX on the terms and conditions set out above. I also acknowledge receipt of a copy of the Civil Service Code of Standards and Behaviour and confirm that I have read same”.

This document was also signed by the Secretary General.

I note that the Complainant commenced his employment 7th September 2017 (S.I.526 of 2017), his contract was signed by the Secretary General who also signed the Form of Acceptance on 11th February 2019. This is approximately 17 months after the appointment date and this delay has been explained.

n)      In relation to the location of headquarters the full names of the employer and the employee,

o)      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 ),

p)      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,

q)      the title of the job or nature of the work for which the employee is employed,

r)        the date of commencement of the employee's contract of employment,

s)       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

t)        the rate or method of calculation of the employee's remuneration,

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000

     requests 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.

u)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

v)       any terms or conditions relating to hours of work (including overtime),

w)     any terms or conditions relating to paid leave (other than paid sick leave),

x)       any terms or conditions relating to—

(iii)               incapacity for work due to sickness or injury and paid sick leave, and

(iv)               pensions and pension schemes,

y)       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,

z)       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.      

I note that this subject as it relates to the Complainant has been the subject of discussion between the Minister of State and the Secretary General. The Secretary General as Accounting Officer has the final say in determining the head quarters of the department’s employees. In this instance the Department has only one location, the one located in a central Dublin location, the Secretary General is not in a position to make an exception in relation to the Complainant.

The complaint as presented under the Terms of Employment (Information) Act, 1994 has been considered in full and I cannot find any breach of this legislation apart from the delay in issuing the contract and this has been explained.

The complaint as presented is not well founded.

The complaint as presented is not well founded.