TED218

1.Appeal of Adjudication Officer Decision No(s) ADJ-00024854 CA-00031584-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 4 February 2021 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. A remote Labour Court hearing was scheduled on 15 April 2021. The following is the Decision of the Court:-



DETERMINATION:

This matter comes before the Court as an appeal by The Blackdog Communications Limited (the Appellant) against a decision of an Adjudication Officer in a complaint made by Barbara Coyle (the Complainant) under the Terms of Employment (information) Act, 1994 (the Act).

The complaint was made to the Workplace Relations Commission (WRC) on 15^thOctober 2019. The Adjudication Officer, in a decision dated 12^thJanuary 2021, found that the complaint was well founded.

The Case

The Court, at the outset of the hearing, spent considerable time in engagement with the Complainant in order that the Court and the Appellant would clearly understand the detail of the complaint under the Act.

The Court established that the complaint is made under Section 5 of the Act and is a complaint that, contrary to that section of the Act, the Appellant made changes to the particulars of the statement furnished by the Appellant to the Complainant under section 3 of the Act and that the Appellant did not notify her in writing of the nature and date of the changes.

Section 5 of the Act provides in relevant part as follows:

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,

Specifically, the Complainant contended that changes had been made to the particulars set out in the Act at Sections 3(1)(d), (h)(k) and Section 3(1A)(e). Those sections make provision as follows:

3.— (1) An employer shall, not later than 2 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—

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

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

(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,

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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

(e) the number of hours which the employer reasonably expects the employee to work —

(i) per normal working day, and

(ii) per normal working week.

The Complainant submitted that when she was provided with a written statement of the terms of her employment her job title was stated to be Advertising and Media Accounts Co-ordinator. She said that her title had changed and that she had not been notified of the change. The Appellant did not identify to the Court when her job title had changed or the detail of the new job title.

The Appellant submitted that the Complainant’s job title had not changed and that it remained the same as that stated on the written statement of terms of her employment provided to the Complainant at the commencement of her employment.

The Court has been unable to establish, on the balance of probabilities, facts from which it could be determined that the Complainant’s job title was changed by the Appellant during the cognisable period for the within complaint or at all and that this change was not notified to her as required by the Act at Section 5.

Alleged breach of Section 5 in that Complainant was not notified of a change to particulars referred to at Section 3(1)(h) of the Act

The Complainant submitted that her complaint, made on 15^thOctober 2019, was that the written statement of the terms of her employment provided to her by the Appellant specified that she would be paid at intervals of one month.

She submitted that this had been changed at the beginning of October 2019 and that she was not notified of that change as required by the Act at Section 5. She confirmed that she had been paid in accordance with the interval set out in the written statement of her terms of employment at the end of September 2019.

The Appellant submitted that the interval between the times at which the Complainant’s remuneration was paid was not changed at the beginning of October 2019 or at all.

The Court notes that Section 5 of the Act requires that a change to the pay interval must be notified to the employee in writing as soon as may be after the change is made, but not later than one month after the change takes effect. The Complainant alleges that a change did occur at the beginning of October 2019 and she made the within complaint to the WRC on 15^thOctober 2019.

The Act is an Act to provide for the implementation ofDirective No. 91/533/EECof 14^thOctober, 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. Section 3 of the Act specifies the particulars which must be set out in writing to an employee.

Section 5 of the Act provides that whenever a change occurs to the particulars which had been provided to the employee in satisfaction of the employer’s statutory obligation under Section 3 of the Act, that change must be notified in writing to the employee as soon as may be but no later than one month after the change has taken effect.

It is clear from the terms of the Act that a failure to notify the Complainant by 15^thOctober 2019 of a change which occurred on 1^stOctober 2019 to the interval between the times her remuneration was paid to her could not, by operation of the law, have constituted a breach of the statutory obligation resting upon the Appellant to notify her of that change within one month of the change taking effect.

Against that background it is not necessary for this Court to make findings to resolve the dispute between the parties as to whether a change to the written statement of the terms of the Complainant’s employment as required by the Act at Section 3(1)(h) occurred on 1st October.

Alleged breach of Section 5 in that Complainant was not notified of a change to particulars referred to at Section 3(1)(k) of the Act

The Complainant submitted that her complaint, made to the WRC on 15th October 2019, was that the written statement of the terms of her employment provided to her by the Appellant specified that the company operated a contributory pension scheme of which she was eligible to become a member. She submitted that this had been changed on the 1^stof October 2019 in that she no longer was provided with access to the contributory pension scheme with effect from that date. She submitted that she was not notified of that change as required by the Act at Section 5.

The Appellant submitted that the scheme specified in her written statement of her terms of employment was closed in 2013 and that she was notified of that change in writing in 2013. Separately, the Complainant was a member of a Director’s pension scheme and, consequent on her removal as a Director on 1^stOctober 2019, she was excluded from that scheme with effect from that date.

The Appellant submitted that because the Director’s scheme was not a term of her employment, no breach of the Act had occurred on 1^stOctober 2019.

The Court notes that Section 5 of the Act requires that any terms or conditions relating to pensions and pension schemes must be notified to the employee in writing as soon as may be after the change is made, but not later than one month after the change takes effect. The Complainant alleges that a change did occur at the beginning of October 2019 and she complained to the WRC on 15th October 2019 that she had, by that date, not been notified of the change.

The Act 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. Section 3 of the Act specifies the particulars which must be set out in writing to an employee.

Section 5 of the Act provides that whenever a change occurs to the particulars which had been provided to the employee in satisfaction of the employer’s statutory obligation under Section 3 of the Act, that change must be notified in writing to the employee as soon as may be but no later than one month after the change has taken effect.

It is clear from the terms of the Act that a failure to notify the Complainant by 15th October 2019 of a change which occurred on 1st October 2019 to the terms or conditions of her pensions or pension scheme could not, by operation of the law, have constituted a breach of the statutory obligation resting upon the Appellant to notify her of that change within one month of the change taking effect.

Against that background it is not necessary for this Court to make findings to resolve the dispute between that parties as to whether a change to the written statement of the terms of the Complainant’s employment as required by the Act at Section 3(1)(k) occurred on 1^stOctober.

Alleged breach of Section 5 in that Complainant was not notified of a change to particulars referred to at Section 3(1A)(e) of the Act

The Complainant submitted that, at an unspecified point in time, the number of hours which the Appellant expected her to work was changed from the 37.5 hours per week specified in the written statement of the terms of her employment provided to her by the Appellant, to a requirement that she work only ten to fifteen hours per week. She confirmed that at all material times the Appellant paid her in respect of 37.5 hours work per week.

The Appellant submitted that it had not at any time changed the hours it expected the Appellant to work each week.

The Court notes that it is common case that the Appellant at all material times paid the Complainant in respect of 37.5 hours work each week. The Court concludes, on the balance of probabilities, taking into account the fact that no change occurred to the number of hours work for which the Complainant was paid each week, that the Appellant did not change the number of hours it expected the Complainant to work each week.

Conclusions

For the reasons set out above the Court concludes that the complaint of the Complainant of breaches of the Act under Section 5 in respect of changes to particulars provided to her under Sections 3(1)(d), (h), (k) and (1A)(e) of the Act are not well founded.

Decision

The Court determines that the complaints of the Complainant are not well founded.

The decision of the Adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Kevin Foley
CO'R	______________________
21 April 2021	Chairman