Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Public Service Organisation

Representatives

Mr Aaron Shearer BL

Ms Cathy Smith BL

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-00038353-001

24/06/2020

The complainant is a clerical officer in the Civil Service and she commenced employment with the respondent in September 2002.  She is on point 16 of the clerical officer’s pay scale, currently €730.34 per week.  In her current role, which she has occupied since 2006, she is responsible for the  storage of materials and documents and to do this, she operates a “stacker truck.”  Her complaint is that her terms and conditions of employment make no mention of this aspect of her job, and that she is not paid a machine operator’s allowance.

On the form that she submitted to the WRC, the complainant said that, contrary to the provisions of the Terms of Employment (Information) Act 1994 (“the Act”), she did not receive a statement of her core terms and conditions in writing.  She is seeking a recommendation, in line with section 7(2)(b)(ii) of the Act, to amend or alter the statement of terms of her employment to reflect her entitlement to the allowance.

In the unit where the complainant works, there are just two employees, the complainant and a colleague, at the grade of store man.  The store man is paid a key-holder’s allowance and a machine operator’s allowance.  These payments were agreed in 2001 between the respondent and the union that represented a specific cohort of employees and which is now part of Fórsa.  In 2016, the complainant claimed an entitlement to these allowances and in June 2019, her claim for the key-holder’s allowance was granted, but her claim for the machine operator’s allowance was rejected. 

Like her colleague, the store man, the complainant carries out key-holding responsibilities and she operates a stacker truck, but, unlike the store man, she is not paid the machine operator’s allowance.  Mr Shearer argued that the complainant’s operation of a stacker truck makes her role unique among clerical functions.  She is seeking the inclusion in the statement of her terms and conditions of employment of a reference to her use of a stacker truck and the payment to her of a machine operator’s allowance.

The respondent denies that the complainant did not receive a written copy of her terms and conditions of employment.  A copy of the employee handbook issued to employees was included in the respondent’s book of documents at the hearing.  This contains details of terms and conditions of employment and instructions to find information on pay scales on the website, www.gov.ie/circulars.  The terms of the circular setting out the clerical officer’s pay scale does not provide for the payment of a machine operator’s allowance.

The allowance which the complainant is claiming was paid to union members by way of an agreement under the Civil Service Conciliation and Arbitration Scheme in 2001.  The complainant was not a member of the union and it is the respondent’s case that this agreement does not apply to her.  At the hearing, Ms Smith said that the terms and conditions of the store man are different to those of the complainant; he is on a lower rate of pay and there are 10 incremental points in his pay scale, compared to 16 points on the complainant’s pay scale.

The complainant is seeking redress in accordance with section 7(2)(b)(ii) of the Terms of Employment (Information) Act 1994.  This section provides that, where an adjudication officer finds that an employer has failed to comply with sections 3, 4, 5, 6 or 6A of the Act, he or she may,

“…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.”

It appears from her submission that the complainant claims that the respondent has failed to comply with section 3 of the Act, although she has not specified which paragraph of that section has not been complied with.  She asserts that her statement of her terms and conditions of employment requires amendment to include the payment of the machine operator’s allowance.  At no point however, has the complainant requested a copy of a statement of her terms and conditions from her employer.  In this regard, the respondent referred to the decision of the Employment Appeals Tribunal in the case of Murphy v Tesco Ireland Limited, TE7/1999 and the finding that an essential proof in a complaint that an employer has contravened section 6 of the Act is whether the employee has asked for a statement under section 3 or 4. 

While the complainant seeks redress under section 7(2)(b)(ii) of the Act to alter what she considers to be the “current inaccuracy in the terms and conditions of her employment,” it is the respondent’s case that this section does not provide for the correction of inaccuracies in terms and conditions of employment.  Corrections are limited to inaccuracies or omissions in the statement provided under section 3 or 4 of the Act, but not to the employment itself. 

For the respondent, Ms Smith submitted that my role as the adjudicator of a complaint under section 7 of the Act, is not to determine if the complainant is entitled to an allowance, but to consider if some detail has been omitted from the statement of her terms and conditions of employment.  The respondent’s position is that I have no power to adjudicate on disputed terms of employment.  Referring to the Seanad Debate at the time of the enactment of the Terms of Employment (Information) Act 1994, Ms Smith said that the purpose of section 7(2)(b)(ii) is to allow for the correction of any inaccuracy or omission and not to adjudicate on terms of employment.  In a case at the UK Court of Appeal, Eagland v British Telecommunications [1993] ICR 644, Lord Justice Barker determined that,

“Even in cases involving mandatory terms, i.e. essential terms which a written statement must contain, the industrial tribunal has no power to impose on the parties terms which have not been agreed…”

In the case under consideration here, it is clear that the term that the complainant seeks to have included in the statement of her terms and conditions is one which is not agreed by the parties.  In these circumstances, it is the respondent’s case that, in a complaint under the Terms of Employment (Information) Act, I, as the adjudication officer, have no power to impose that term on the parties.

The Relevant Law

This is a complaint under section 7 of the Terms of Employment (Information) Act 1994 that the complainant’s employer has not complied with section 3 of the Act in relation to a written statement of her terms and condition of employment.  From the evidence submitted at the hearing, I understand that the complainant’s specific grievance is that the statement of her terms and conditions makes no mention of an entitlement to a machine operator’s allowance.  To redress this omission, in accordance with section 7(2)(b)(ii) of the Act, she asks that I amend the statement to show that she is entitled to the allowance.

Does the Complainant’s Statement of her Terms and Conditions of Employment Contain an Error?

From the evidence given by both sides at the hearing of this complaint, it is apparent that there is a dispute between the parties regarding the complainant’s contention that she is entitled to the machine operator’s allowance.  It is the respondent’s position that the terms and conditions of a clerical officer do not include an entitlement to the machine operator’s allowance.  As the complainant is not paid the allowance, and, as it is the respondent’s case that she is not entitled to the allowance, I must conclude that there is no error or omission in the complainant’s statement of her terms and conditions. 

Complaint under Section 7 of the Terms of Employment (Information) Act 1994

Having listened to the evidence at the hearing, it is clear to me that the issue confronting the parties is a grievance or a dispute, and that it is not something that can be adjudicated on under section 7 of the Terms of Employment (Information) Act.  I note Mr Shearer’s argument that the award to the complainant of the keyholder’s allowance opens the door for her to be paid the machine operator’s allowance.  While there may be some merit in this argument, I note also the respondent’s position that their decision to concede to the payment of the keyholder’s allowance does not confer an entitlement to the machine operator’s allowance.  In any event, this is a matter for adjudication under different legislation.

Conclusion

The outcome that the complainant seeks is an amendment to her terms and conditions of employment, to give her an entitlement to the machine operator’s allowance.  This outcome cannot be arrived at from consideration of a complaint under section 7 of the Terms of Employment (Information) Act, because the only redress I can make is an amendment of a statement to accurately reflect the facts.  Under this Act, I have no authority to change, amend or improve an employee’s terms and conditions of employment, or to give an entitlement to a benefit which the employer does not provide.

I have concluded that, in accordance with section 7 of the Terms of Employment (Information) Act 1994, I have no jurisdiction to amend the complainant’s statement of her terms and conditions of employment to include a benefit which her employer refuses to grant.  I decide therefore, that this complaint is not well founded.

Allowance, terms and conditions of employment