FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES : DSG RETAIL IRELAND LTD, (REPRESENTED BY DSG RETAIL IRELAND LTD,) - AND - MR PIOTR RUDZKI DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00023658 CA-00030183-001. Mr. Rudzki, ‘the Complainant’, has been employed by DSG Ltd., ‘the Respondent’, since 2008. In his original contract, he is described as a ‘Technician’. In 2019, after he transferred location, the Complainant was asked to sign a new contract. This contract described him as an ‘Instore Service Advisor’. The Complainant believes that this is a demotion. He is concerned also that he is now predominantly engaged in front of house duties rather than technical duties, for which he is qualified. The Complainant lodged a claim under the Terms of Employment (Information) Acts 1994 to 2014, ‘the Acts’ with the Workplace Relations Commission. The Adjudication Officer, ‘AO’, decided not to uphold the Complainant’s claim. The Complainant appealed this Decision to this Court. Summary of Complainant’s arguments. The Complainant was only notified in 2019 of a change in title although there is documentary proof of this change since 2017. The 2008 contract describes the Complainant as a Technician. Increasingly, he is expected to work in front of house with customers, which is a job for which he does not have the skills. His role was changed without him being so informed. Up until 2016, his role was respected and was in line with his contract. The Complainant raised the changes in his role repeatedly and was assured that there had not been a change in his position. He did not agree any such change. He was forced to perform new duties by unfavoured rostering, unfair incentives and verbal manipulation. Summary of Respondent’s arguments. The role of the Complainant has evolved over time. The traditional duties of the ‘Technician’ role began to encompass more front of house duties and it was decided, approximately 7 years ago, to re-brand the title to ‘Instore Service Advisor’. There was no change to the Complainant’s terms and conditions of employment and he was not demoted. When the Complainant transferred stores in 2019, a ‘New Start Contract’ was issued to him in error rather than a simple ‘change of location’ document. The Complainant raised a number of issues, which were rectified, and he was told that he did not need to sign this contract. The issue of his title was raised by the Complainant. Although the role of ‘Technician’ no longer exists, the Respondent is prepared to revert to this title on the Complainant’s contract, if he so wishes. The Respondent accepts that the Complainant was not notified formally of the re-branding of his position. However, he was so advised upon his transfer. The terms of the Acts have been fulfilled and the Complainant has not been prejudiced. Therefore, it would be unjust to award any compensation in this case. The applicable law Terms of Employment (Information) Acts Notification of changes. 5.— (1) Subject tosubsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer undersection 3,4or6, 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. 7. (2) A decision of an adjudication officer undersection 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention ofsections 3,4,5,6or6Cshall do one or more of the following, namely — (a) declare that the complaint was or, as the case may be, was not well founded, (b) either — (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer undersection 3,4,5,6or6C, or (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer, (c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer, (d) in relation to a complaint of a contravention under changesection 3,4,5, or6, and without prejudice to any order made underparagraph (e)]order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations undersection 17of theUnfair Dismissals Act 1977. (e) in relation to a complaint of a contravention undersection 6C, and without prejudice to any order made underparagraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations undersection 17of theUnfair Dismissals Act 1977. ] 8. — A decision of the Labour Court undersection 44of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to insection 7, shall affirm, vary or set aside the decision of the adjudication officer. Deliberation and Determination The role of the Court under the Acts does not permit any Determination regarding the fairness or otherwise of changes in the duties and functions of the Complainant, which appears to be the main basis for his concern. The Court’s function is, simply, to determine if the rights of the Complainant under s.5 of the Acts were breached and, if so, to determine compensation that is ‘just and equitable’. The Respondent in this case admits a breach of the Complainant’s rights under s. 5 from the time that his title was changed until he was so notified in 2019. However, in the view of the Court, this breach was technical in nature rather than something that made a significant, detrimental difference to the Complainant’s terms and conditions of employment. In any event, the breach was rectified in 2019. The Court notes also the willingness of the Respondent to reinstate the Complainant’s title. As the breach has been rectified, there is no outstanding breach and the Court is of the view that no compensation is warranted. The Decision of the AO is varied accordingly.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
