Complainant

Respondent

Parties

James  Kelly

Garda Síochána Ombudsman Commission (Gsoc)

Complainant

Respondent

Anonymised Parties

James Kelly

Garda Síochána Ombudsman Commission (Gsoc)

Representatives

  n/a

n/a

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-00043793-001

28/04/2021

The Complainant began his employment in the Civil Service in 2001. Following a selection process, he was successful in attaining a position with the Respondent. He commenced in his new role on 8th April 2019 but was not provided with a signed statement of his terms and conditions of employment in accordance with Section 3 of the Act.

The Complainant stated that as he is an officer of the Respondent, he is deemed to be a Civil Servant employed by the State and as such the Respondent is his employer for the purposes of the Act.

He asserted that his previous service in the Civil Service as an officer for other employers is irrelevant for the purposes of the Act and that when he started his new employment with the Respondent, they had two months to issue him with a signed statement of his terms and conditions of employment in accordance with section 3 of the Act.

He stated that they failed to do this however and asserted that they are therefore in breach of the Act.

1.      Complaint is out of time

The Respondent stated that the complaint has been submitted out of time and that therefore the Workplace Relations Commission does not have jurisdiction to hear the complaint. Specifically, it was highlighted that the Complainant received a written probationary contract comprising a statement of the terms of his employment on 8 April 2019.

It was also asserted that as the complaint alleged deficiencies related to a statement contained in this contract of 8 April 2019, then the date of any alleged contravention is 8 April 2019 and that the complaint is therefore out of time in this regard given that it was not received by the WRC until 28th April 2021, more than 24 months after the date of alleged contravention.

The Respondent also stated that this complaint is fundamentally different to one in which no statement of terms of employment has been provided by the employer. Specifically, it was alleged that where no statement has been provided to an employee, then the failure to provide a statement is a continuing contravention and the 6-month period for bringing a complaint only commences when a statement is provided or the employment terminates. However, where a statement has been provided, the time for bringing a complaint in respect of any alleged inadequacy of such a statement must run from the date of the statement.

2.      Complainant relies on the incorrect provisions of the Terms of Employment (Information) Act 1994 as amended ("the Act of 1994)

The Respondent stated that the Complainant's reliance on section 3 of the Act of 1994 is misplaced because he has been a civil servant employed by the State since 2001. Specifically, it was asserted that for the purposes of the Act, his employment commenced when he became a civil servant in 2001 and that the provisions of section 3 of the Act of 1994, which place certain obligations on employers to provide information to employees shortly after starting employment, did not apply when he transferred to the Respondent in April 2019.

It was also highlighted that the obligations of the Respondent in this case were limited to the obligations placed by section 5 of the Act of 1994 and that unlike a notification provided under section 3, a notification issued under section 5 does not need to be signed by or on behalf of the employer and must only be provided in writing not later than 1 month from the date of change.

The Respondent also stated that most of the Complainant's terms of employment did not change when he took up his current role. Specifically, most of his terms of employment are generally terms that apply to all civil servants or that apply to Higher Executive Officers in the civil service and that these applied to him both before and after his transfer. Insofar as the complainant's transfer to the Respondent occasioned changes to his terms of employment, these were notified to him in writing not later than 1 month after he commenced working in the organisation. In accordance with Section 5 of the Act.

Preliminary Issue

As the Respondent firstly asserted that this complaint is out of time, I must consider this point in the first instance.

I note that Section 3 of the Act stipulates that the Complainant must be provided with a signed contract of employment. Despite extensive probing of the Respondent’s witnesses in relation to this and following considerable obfuscation on their behalf, I find that no evidence was presented to suggest that the contract issued to the Complainant on 8 April 2019 was signed by the Respondent as required under Section 3 of the Act.

In the absence of such evidence, I find that the complaint is in time and that I have jurisdiction to consider the matter.

Findings

While I note from the Complainant’s written submission his acknowledgement that he is “an officer of GSOC and thereby deemed to be a Civil Servant employed by the State”, he also asserts that GSOC is his “employer for the purposes of the Act and that his “previous service in the Civil Service as an officer for other employers is irrelevant”.

On the other hand, I note the Respondent’s assertion that as the Complainant has been employed a civil servant since 2001, his employer is the State for the purposes of the Act and the provisions of section 3 did not therefore apply in April 2019.

Having heard these conflicting arguments, I must decide whether or not the provisions of section 3 of the Act of 1994, which place certain obligations on employers to provide information shortly after the commencement of an employment, should have applied to the Respondent in April 2019. I am confining my findings to the alleged breach of Section 3 of the Act given that the Complainant did not make any allegations in respect of breaches of any other Section.

I note firstly that the Act states that an "employee" is “a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Siochana or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be..."

I am satisfied from an examination of the above that a “civil servant” is an “employee” for the purposes of the Act.

I must also consider the definition of a “civil servant” in the Civil Service Regulation Act 1956 and note from this that a “civil servant” means “a person holding a position in the Civil Service” and that the “Civil Service” means the “Civil Service of the Government and the Civil Service of the State.”

I must also have regard to the Garda Síochána Act 2005 which, while notably not presented me by the Respondent, is the principal Act governing the activities of the Garda Ombudsman and by which the organisation was established.

Specifically, I note that Section 71 of this Act, in relevant part, states:

(1)   The Ombudsman Commission may appoint such numbers of persons as its officers as may be approved by the Minister with the consent of the Minister for Finance.

(2)   The Ombudsman Commission shall determine the grades of its officers and the numbers of officers in each grade, as may be approved by the Minister with the consent of the Minister for Finance.

(3)   Officers of the Ombudsman Commission are civil servants in the Civil Service of the State

This legislation clearly provides that the Minister has the power to appoint staff to the body, and to determine their terms and conditions. Given that such Ministerial approval is stipulated in respect of appointments and pay grades, I am satisfied that the legislation envisages that the Respondent is subsumed within the parent Department as presided over by the Minister.  

Bearing all of the above in mind, I am satisfied that the Complainant’s employer is the State and find that the provisions of section 3 of the Act of 1994 do not apply to the Respondent given that the Complainant has been employed by the State since 2001.

The complaint is not well founded for the reasons set out above.

Civil servant; employee