Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

Representatives

Self

Anne Lyne Hayes solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035973-001

01/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00035973-002

01/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00035973-003

01/05/2020

CA 35973 -001

The Complainant commenced employment with the respondent on a fixed term contract on the 21 January, 2019. The complainant was led to believe, following a conversation with his employment agency that he would be made permanent. When he attended for interview with the respondent, he asked if the contract would be permanent. He was assured that it would be and that “we won’t let a good man go”.

The Complainant accepts that he was given an extension to the end of February to cover holidays. The complainant is at a loss to know why he was not made permanent. He knows there was lots of work to do and that others were employed after he left.

CA 35973 – 002

The Complainant applied for the position of Supply Chain Analysis. His contract of employment was based on that role. His titled was changed and as a result the role. He was not provided with new terms and conditions of employment to reflect the change.

CA 35973 -003

The Complainant was carrying out his duties in relation to his new role. Any mistakes he made resulted in him being reprimanded in front of all of the other employees who worked in his open plan office. Nobody else was treated like that. He did not witness anyone else being given out to in the office. He raised a grievance, by way of email, in relation to the treatment he was being subjected to. He did expect that the e-mail would be treated as a formal written grievance, but it was not. The complainant would like a recommendation directing the Respondent to treat all e-mails containing grievances or complaints as a notice of a formal grievance.

CA 35973 -001

The Complainant was first employed by the Respondent under a fixed-term contract of employment provided to the Complainant by letter dated 11 January 2019. The Complainant accepted the offer of employment on 14 January 2019. The Temporary (Fixed Term) Statement of Terms and Conditions of Employment states that the employment commencement date was 21 January 2019 and end date was 21 January 2020. A copy of the Statement of Terms of Employment signed by the Complainant.

By letter dated 10 January 2020, the Respondent wrote to the Complainant, confirming that it was extending his contract of employment to 28 February 2020. The contract extension was due to a temporary increase in workload due to holiday cover. It was further stated that it was not possible to offer the Complainant a permanent post at that time.

The Complainant was due to work until the 28 February, 2020 but he left his employment on the 14 February, 2020 and he never returned. He was paid up until the 28 February, 2020.

Section 2(2)(b) of the UD Act provides that the Act shall not apply in relation to a “dismissal where

the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”

The complaint is not well founded and should be dismissed.

CA 35973 – 002

The Complainant alleges that he was not notified of changes to his terms and conditions of employment when his role title changed from Supply Chain Analyst to End-to-End Supply Chain Planning Officer. The letter from the Respondent to the Complainant dated 17 January 2020 summarised the position and states that this change occurred owing to a change to the structure of the organisation. Furthermore, it should be noted that Clause 25 of the fixed-term contract allowed the Respondent to make reasonable changes to any of the Complainant’s terms and conditions of employment. At no time did the Complainant object to this change. In fact, the Complainant requested an increase in his salary from €45,000 to €50,000 per annum for the remainder of the contract duration, which was approved by the Company.

The Respondent denies that it failed to provide the Complainant with updated terms and conditions of employment in respect of the change. Firstly, it is submitted by the Complainant that he “never received an updated contract or terms and conditions”. The Respondent was under no obligation to provide a new contract to the Complainant. Section 5(2) of the TOEI Act provides that “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.” Therefore, the Respondent was only under an obligation to notify the Complainant of the change in writing, which it did so by email dated 4 February 2019, enclosing the Complainant’s Job Description.

The Respondent therefore respectfully submits that the Complainant’s complaint brought under the TOEI Act is not well founded and should be dismissed.

CA 35973 -003

The Complainant submits in his WRC complaint form that he was “constantly being berated by my manager in the open plan office in full View of my colleagues”. The allegations made by the complainant are strenuously denied. It should be noted that the complainant first expressed his opinion about being berated during a meeting on the 20th of January 2020.

Following the meeting the Complainant’s line manager sent an email to the Complainant including a link to the company's employee handbook, notifying the Complainant of the company's grievance policy and procedures. A second email was sent to the Complainant in relation to the issue 27 January 2020. The Complainant replied to the email on the 29 January, stating that he would not be availing of the internal grievance procedure. He further stated that he would be raising a complaint with the WRC in relation to several issues.

The Respondent submits that the complaint should be dismissed on the basis that the complainant chose not to submit a grievance and did not exhaust the internal procedures available to him. The respondent relies on A Maintenance Operative v A Service Provider ADJ 20841 in this regard.

CA 35973 – 001.

The Complainant was employed by the Respondent under a fixed term contract of employment with a commencement date of 21 January 2019 and an end date 21 January 2020. I am satisfied based on the documentary evidence produced at the hearing that the dates in relation to the contract are correct and that the Complainant accepted the Respondent’s offer of employment on 14 January 2019.

By letter dated 10 January 2020, which was submitted, the Respondent informed the Complainant that they were extending his contract to 28 February 2020 stating that the extension was necessary to cover an increase in workload due to holiday cover. The Complainant accepted the respondent’s evidence in this regard but stated that he was led to believe by his employment agency and by the Respondent’s interviewer, that his position would be made permanent. The respondent categorically denies that it told the Complainant that his position would be made permanent. I note that the Complainant left his employment on the 14th of February and did not return. He was paid up until 28 February when his contract was due to come to a natural end.

S2 (2) b) of the Act states:

“dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid”

I am satisfied that the Complainant was employed under a fixed term contract and that contract expired on 28 February 2020. Furthermore, I am satisfied that the Complainant’s contract came to a natural end on that date in line with his fixed term contract and the termination of his employment was for no other reason.

I find that the complaint is not well founded and accordingly fails.

CA35973 002

The Complainant applied for the position of Supply Chain Analyst and his contract of employment reflects that. His title changed to End-to-End Supply Chain Planning Officer. The Complainant’s complaint is based on the fact that he did not receive new terms and conditions of employment when his title changed. The Respondent furnished the complainant with a letter dated 17 January 2020. That was submitted during the hearing. It summarised the position and stated that the change occurred owing to a change to the structure of the organisation. I note that clause 25 of the Complainant’s contract did allow the respondent to make reasonable changes to the Complainant’s terms and conditions of employment. I also note that the Complainant accepted his €5,000 increase in salary and made no issue in relation to the change at the time.

Section 5(1) 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.

I am satisfied that the Respondent has complied with their legal obligations and therefore I find that the complaint is not well founded and accordingly fails.

CA35973-003

The Complainant alleges in this complaint that he was constantly being berated by his manager in an open plan office in full view of his colleagues. The Complainant states that he sent an email to his line manager setting out his difficulty with the behaviour he was in receipt of. The Respondent states that the Complainant never actually filed a formal grievance, despite the fact that his line manager sent him a copy of the employee handbook and followed it up with a second email in relation to the issue. The Complainant specifically stated in his reply email on 29th January that he would not be availing of the internal grievance procedure, instead he would file claims with the WRC.

The complainant requested that I make a recommendation, that the respondent treat all emails containing complaints or grievances as a formal grievance notification.

The respondent relied on A Maintenance Operative -v- A Service Provider [ADJ-00022841], wherein the Adjudication Officer stated:

“For many reasons, complaints under the Industrial Relations Act cannot be entertained when workplace level procedures have not been fully exhausted, or as in this case, are still engaged. To do so would contradict an important value of the WRC which is to support and encourage the resolution of disputes at the earliest and most effective level possible in line with good industrial relations practice, and in any event that is where they properly belong.

A point may be reached where the services of the WRC will be of assistance to parties but only when all efforts to resolve a matter at local level have been fully exhausted and have failed. The parties accepted this at the hearing and accordingly this complaint is dismissed.”

The Respondent informed the Complainant how he should go about making a formal grievance and when he failed to do so they engaged with him a second time. The Complainant clearly stated in correspondence that he had no intention of engaging with the Respondent in relation to his grievance instead opting to file claims with the WRC. I note that the recommendation the complainant’s is seeking has no bearing on his situation at all. The complainant was given two opportunities to invoke the Respondent’s grievance procedure and he intentionally failed to do so. On that basis I find that it would be inappropriate to make any recommendation.

CA 35973-001 The complaint fails

CA 35973-002 The complaint fails

CA 35973-003 The complaint fails.

Fixed Term Contract, Unfair Dismissal, Changes in Terms of Employment, Industrial Relations, Exhaust internal process.