Complainant

Respondent

Anonymised Parties

A Worker

Telecommunications Provider

Representatives

  The claimant represented himself

Legal Department

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-00036600-002

10/06/2020

The claimant commenced employment as a Technical Support Agent with the respondent on the 11th.Feb. 2019 and contended that the respondent was in breach of the Act for failing to notify him of a change to his terms of employment - specifically in relation to attendance times.

The claimant represented himself and presented the following written submission

1.    May 19th I was told there was an error in the contract and it needed to be amended following this there was a group meeting/discussion on the 17th of July 2019 about the change in contract I pointed out that each contract is individual and asked if we did not sign the update what would be the outcome as I would not be signing as it did not suit me to work these hours I was told that this was a discussion for another day as they were having a group discussion on that particular day. Following that discussion no one from the company contacted me by email or in person about the matter even though I had expressed the fact that I did not wish to work until 10pm.

2.       On the 14th of Oct 2019 I discovered through app for work schedule that I was scheduled to work until 10 pm from the 4th of November. I immediately emailed Ms.K  (Manager) with regard to having the hours changed on this schedule as I had not signed amendment to my works contract and I did not wish to work until 10pm. The day past by and I got neither acknowledgement or answer to my email, so I emailed again asking if she had an answer to my question with regarding my working hours being changed without my agreement or without notifying me in advance of the change in my hours.  I then received a reply from Ms.K  stating the schedule had been changed to accommodate company operational hours and if did not suit me to work until 10pm she could arrange a meeting with me to have me transferred to customer care.

3.       Meeting on 18th of October 2019            Time: 12 noon

4.       Present:    Ms K    manager  Ms M     HR  Mr DB   CWU union rep

Ms.K addressed the meeting stating it was a follow on meeting from the previous meetings we had about the change of operational hours. I corrected her and wished it to be put on record this was the first one to one meeting we had about a major change in my work contract.

5.       I asked: Why was I given my present contract with 8.00 am to 8.30 pm operational hours and asked to sign it? No one would answer that question.

6.       I asked: When was the contract discovered to be wrong neither of the representatives from present company were able to answer me that. Mr DB said sometime in May he was made aware of it.

7.       I said: I have asked at the group discussion and also at meetings what would be the outcome if I did not sign an update to my contract to accommodate this major change in my contract and to date, I still have not got an answer a statement keeps getting repeated “it is essential for business needs that my operational hours change”.

8.        I said: I left full time gainful employment to accept the position of Tech support agent as it was offered to me in my present contract with the operational hours 8.00 am to 8.30 pm. I suggested it was not legal for one party to change a contract with agreement of the other party. Ms.M said she was not able to say if this was true and she would have to get clarification from the legal team on this matter.

9.       Ms.M said: If it did not suit me to work until 10pm they could transfer me to customer care dept. I pointed as well as my contract stating my operational hours it also stated my position as (Tech support agent) I have worked all my life as a technician/engineer and for the past 44 years as a telecommunication engineer, I was not skilled and had no knowledge of billing accounts or the type of work they did in customer care. If I knew these were the hours or that I would be moved from a technical role to customer care I would never have signed the contract or would I have resigned from my previous employment to take up this employment with the respondent

10.   The meeting ended at: 12.36pm

11.   This caused me a lot of stress since it was announced that the company were going to change my contract, I left work early that evening with a severe headache. All that weekend I did not sleep well with stressing over this. On Monday morning early I went to my doctor asking her if I could get some medication to help me with sleeping. On her examination of me she deemed that what I was suffering from was anxiety brought on by something that was outside my control and she certified me unfit for work due to work related stress.

12.   I sent a doctors cert into work the same day via email to my Team Leader: Mr.W certifying me unfit for work due to work related stress. Three days later I got a phone call from Mr.W from a mobile phone not the company landline (the company  landline has all calls recorder as it is a call centre)  The call was warning me that if I was off sick from work much longer I would be brought before a CMO. I answered that I had no problem going before a CMO, but I would accept my own doctor’s advice above anyone else.

13.   I was called to a meeting with the CMO Dr D O’ C on 29th of Nov 2019. After this assessment by Dr O’ C he agreed that my Dr was correct in her diagnosis and treatment. He deemed I was unfit for work until the issues that was causing me stress was resolved.

14.   I received a letter from Ms.M on the 9th of Jan 2020 stating the company are within their rights under the contract to the effect that regardless of whether I sign a letter of amendment or not. She referred to clause 6 “Please note that your working pattern may change from time to time to meet the needs of the business” and clause 22“The company reserves the right to amend any of these terms and conditions of employment following reasonable discussion and individual consultation. All changes will be subject to reasonable notice and will be confirmed in writing.”

15.   I was invited to a meeting with the company on 24th of Jan 2020 time11.00am

Present:    Mr. W team leader  Ms. M   company HR   Mr.DB CWU union rep

16.   Ms.M addressed the meeting and said after the CMO report they invited me here to see what was causing me the stress that was keeping me off work. To which I replied the fact the company was trying to change my contract without my agreement was what was causing me the stress. I acknowledged her letter in which she stated Company is within their rights under the contract to effect the changes in my contract regardless of whether I sign a letter of amendment or not. I disputed this saying I had gone to my solicitor (Mr.D) - an  expert in employment law to get clarification on this matter. Mr D said this was completely wrong that a clause cannot be written into a contract that nullifies the contract. Ms.M said once again that she could not discuss legal matters with me, but she said she would furnish me with contact details for their legal advisor. As the matters that concerned me and caused me stress could not be discussed at this meeting, I said there was no point in continuing with the meeting and the meeting ended.

17.   I wrote to Ms.H , Solicitor, Company Legal Department, which Ms.M  mailed me as Company legal team contact. I wrote to Ms H requesting legal clarification on changing my contract. Ms H replied to my letter stating I was furnished with her to pass them to my legal advisor and not to get legal clarification from her office.

18.   I was called to another meeting with the CMO on 28th February 2020. Dr O’ C accessed that there was nothing physical causing me unfit for work, but the stress brought on by the unresolved issues He deemed I was unfit for work until the issues that was causing me stress was resolved.                                                                      

19.   The situation remained the same and the company never attempted to discuss or resolve the issues that were causing me stress.  The respondent invited me to another CMO assessment on 10/7/2020 this assessment was over the phone as was the previous one I told Dr O'C there was no change in the situation at work as when I met with the management team, they would not discuss this as it was a legal matter. I said I had since lodged a complaint with the WRC and was awaiting news on a date for an adjudication. Dr O’ C once again accessed that there was nothing physical causing me unfit for work, but the stress brought on by the unresolved issues He deemed I was unfit for work until the issues that was causing me stress was resolved.  He further said the issues would most likely be resolved at a forthcoming meeting with a WRC adjudicator                   

20.   On the 20/7/20 I attended my own GP Dr L for a general medical examination, and she took blood samples to be sent to the lab for tests. When the results came back, I was told I had developed type 2 diabetes. My blood sugar was alarming high, and an emergency appointment was made for me to attend Sligo general hospital. I spent a full day there and they told me they are surprised I did not have a stroke or seizure with a blood sugar of 21 when it should have been 5. They also found damaged around my heart after a scan. All this in my view was related and triggered by the stress I was going through at the time.

21.   I received an email from Ms.M saying that Dr O'C had deemed me fit for work and she invited to a meeting to discuss my return-to-work plan

22.   I was so surprised by this as that is not what Dr O'C said to me on the day of the assessment, so I phoned Dr O'C for clarification on this. Dr O’C told me he did not say I was fit to return to work. He said a person Ms.EF from the company phoned him about his report and for clarification on whether if the issues that I was having were medical. He emailed her back clarify this. I told Dr O'C a few days after he assessed me, I had full medical examination by my own GP, and she found my health had deteriorated considerately. He sounded quite alarmed by this and said he would contact company to tell them I am certainly not fit to return to work.

24.I attended the on line meeting with the company on the 1/10/2020 Present were Mr.W team leader,  Ms.M  (HR) and JMcD  (union rep). I said at this meeting that they had misinterpreted what Dr O'C said in his report as I had phoned Dr O'C to confirm this. They told me I should not have contacted Dr O'C as he was working for the company. I told them My health had deteriorated considerately and I would not be going back to work I did not know when I would be fit to go back to work and also, I did not know if I would ever be fit to return. I left the meeting then

23.   I received an email from Ms.M requesting that I attend an assessment by Professor G on the 29/10/20 this meeting did not go ahead I was told about this 4days later by Ms.M when she emailed me to reschedule

24.   At this stage I was getting more and more annoyed my health was getting worse. It would appear to me the company seemed more concerned about getting some official person to deem me fit for work as opposed to engaging with me to sort out the issues with my contract that were causing me stress. So, I made the decision for the good of my health to tender my resignation and I feel this to be constructive dismissal. I know this is not on the original complaint, but it is where the original complaint has left me.

At the hearing the claimant set out his recollection of the chronology of meetings and exchanges with him – he stated that while the company had admitted to an error, they were insistent they were going to change his contract anyway. He said that the proposal to redeploy him to customer care was not an option as he was a technical support engineer. The claimant stated that he had been advised by his solicitor that the company would have to obtain his agreement if they wanted to make any changes to his contract. The claimant accepted that he never ended up working until 10.00p.m. but indicated that he was not reassured by the company’s reference to operational hours being restricted to 8-8.30 as it was qualified by the clause “for the time being”.

The claimant asserted that there were several disingenuous statements contained in the respondent’s submission and challenged the amendments provision set out in paragraph 21 of his contract. He disputed that the company complied with the provision contained therein in relation to “reasonable discussions and individual consultation”. He questioned whether he had to accept the company’s mistake and asserted that he had been misled. He asserted that the contract did not affect the principle “that you and your employer must consent to the changes”. The claimant asserted that the company had a meeting with him 12 weeks after he was notified of the proposed change – he asserted that he was asked to sign up to the amendments before individual consultation took place. He asserted that when he challenged the companies’ actions, they would not discuss it. He asserted that the statement that he refused to engage were not true. The claimant submitted that the individual meeting only took place after the second group meeting on August 22nd.2019 – he asked the question what would happen if he didn’t sign the contract and got no answer.

The claimant remained adamant that Section 5 protected him from any unilateral amendments to his contract and contended that the proposed changes to his attendance requirements – which were never in fact implemented – constituted a breach of Section 5.

As the claimant was unrepresented at the hearing and did not comment on the out of time references contained in the respondent’s submission, he was invited to offer submissions on this point following the hearing.

The claimant in reply submitted that this was not a one-off event and did not cease on the dates the respondent presented in their statement. ”This was an ongoing event as the respondent continually insisted they had every right to unilaterally vary my works contract without my consent”.He submitted that correspondences from the respondent dated the 9th.Jan. 2020 and the 5th.Feb. 2020 were within the cognisable period.He asserted that he expressed his concerns to the respondent in October 2019 but was not furnished with a reply until 9th.Jan2020 at which point he was invited to a meeting on the 24th.Jan.The claimant submitted that the complaint was not out of time “ as these matters were still ongoing”.

The respondent’s representative submitted as follows:

1. The complainant’s complaint form was received by the Workplace Relations Commission on 10 June 2020.

2. Section 41(6) of the Workplace Relations Act 2015 states that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

3. The complaint form states that the complainant was told that there was an error in his contract and that it needed to be amended in May 2019. It also states that a group meeting was held on 17 July 2019 in relation to the change to the contract. The complainant goes on to state that on 14 October 2019 he discovered that he was scheduled to work until 10pm from 4 November

2019. Each of the matters complained of occurred more than six months prior to the filing of the complaint.

B. GENERAL BACKGROUND: -

1. The respondent company is Ireland’s national telecommunications services provider and currently employs approximately 3,000 employees across Ireland.

2. The complainant was employed as a Technical Support Agent in the Northwest pursuant to a contract of employment with a commencement date of 11 February 2019 (the “Contract”) (Appendix 1).

3. The Contract states under paragraph 6, entitled “Hours of Work”, that:

“The hours of work applicable to this role are as set out in the attached Schedule and will be in accordance with the Organisation of Working Time Act 1997. This position will require that you work a shift pattern, and you comply with all policies and shift patterns implemented by the company. Please note that your working pattern may be changed from time to time to meet the needs of the business. Your Manager will advise you of your times of attendance. You must present yourself for work at the times and places notified to you.”

4. Under paragraph 21, entitled “Amendments”, the Contract states that:

“In addition to the terms of this contract you are required to comply with the notices, instructions and other directions that the Company issues from time to time.

The Company reserves the right to amend any of these Terms and Conditions of Employment following reasonable discussions and individual consultation. All changes will be subject to reasonable notice and will be confirmed in writing.”

5. The Schedule attached to the Contract stated that the complainant’s hours per week were 37.5 hours net per week and that his operating hours would be 8.00am to 8.30pm.

6. In April 2019, it came to the respondent’s attention that, due to an administrative error, the operational hours set out in the Contract were in fact the operational hours for customer care agents and not for technical support agents. The operational hours for technical support agents were 8.00am to 10.00pm, not 8.00am to 8.30pm. The company subsequently issued written letters of amendment to the complainant and seventeen other affected technical support agents from the team in order to rectify the matter.

7. On 17 July 2019, a meeting was held between the Operational Manager, Team Leaders, a HR representative and the technical support agents’ team to discuss the contract amendment. It was explained that there had been an administrative error in the original contract and that the operational hours were 8.00am to 10.00pm. The agents were requested to sign and return the contract amendments by a set date.

8. A further group meeting was held on 27 August 2019 to discuss issues which arose from the previous meeting on 17 July 2019. The time period for return of the contract amendments was also extended to allow additional time for the technical support agents to review and sign the contract amendment. The revised hours subsequently took effect in October/November 2019.

9. The complainant was the only affected agent that did not sign the contract amendment. Accordingly, on 18 October 2019, a meeting was held between the Operational Manager, HR representative, the complainant and his CWU representative to discuss the contract amendment and to determine what concerns the complainant had in relation to signing the amendment. The complainant stated that it was “unlawful” for the respondent to attempt to change his contract without his consent. It was again explained to the complainant that the amendment to the operational hours set out in the initial contract was due to an administrative error.

10. On 21 October 2019, the complainant advised the respondent that he was unable to attend work due to illness and that his General Practitioner had certified him as suffering from work related stress.

11. The complainant attended a number of appointments with an independent medical assessor, having been referred by the respondent and was determined fit to engage.

12. In or around 9 December 2019, the respondent wrote to the complainant informing him that the operational hours for the technical support team had reverted back to 8.00am to 8.30pm effective immediately and therefore his original working hours as per his employment contract had been reinstated. The complainant never worked the revised hours of 8.00am to 10.00pm.

13. By letter dated 9 January 2020, the respondent wrote to the complainant again, requesting that he engage with the Company in relation to returning to work. The company sought to try and resolve his workplace issues and enable the complainant’s return to work. The complainant attended a meeting on 24 January 2020 but did not engage with the respondent with regard to his return to work

14. Between January and November 2020, the company made consistent efforts to engage with the complainant to resolve matters including further CMO referrals, informal meetings and correspondence seeking to engage with him, but the complainant refused to engage and refused to return to work.

15. In November 2020, the complainant submitted his resignation to the respondent.

C. TERMS OF EMPLOYMENT (INFORMATION) ACT 1994: -

1. The Terms of Employment (Information) Act 1994 specifically contemplates changes being made to the particulars of the terms of an employee’s employment and sets out the rules which apply to the making of any such changes.

2. Section 5(1) of the Terms of Employment (Information) Act 1994, states that:

“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.”

3. The complainant’s complaint form alleges that there has been a breach of the Act of 1994 as he was not notified in writing of a change to his terms and conditions.

4. The complainant was issued with a written contract amendment and was invited to two separate group meetings to discuss the revised operational hours several months before the change came into effect. It was also explained that the contract amendment was to reflect an administrative error which had been made in the initial Contract. Clearly, there was extensive notification and engagement with the complainant in relation to the change in his working hours (which were to rectify a mistake in the first instance).

5. The complainant in his own form, accepts that he expected to work 8.00am to 8.30pm therefore there is no reason why he continued to refuse to return to work once it was confirmed to him that the working hours had reverted back to the original.

6. In addition, the complainant’s contract of employment clearly set out that his working pattern may be changed from time to time to meet the needs of the business. The Contract also set out that the company reserved the right to amend any of the complainant’s terms and conditions of employment following reasonable discussions and individual consultation. The complainant signed and accepted this contract.

D. CONCLUSION: -

1. By providing the complainant with the written contract amendment, ample notice of the effective date of the changes and extensive meetings with the complainant to discuss the amendments, it is respectfully submitted that the company discharged its obligations under the Terms of Employment (Information) Act 1994 and acted in accordance with the Contract entered into with the complainant.

2. Accordingly, we respectfully submit that the within claim be dismissed.

The respondent’s representative set out the background to the company’s plan to change the attendance requirements – he said that the proposed change was notified to the claimant on the 19th.April 2019 – with the actual change due to come into effect in November 2019.He stated that the company had met their obligations under the Act and had given the claimant 3 weeks’ notice of the roster change. Ms.M(HR) confirmed that an individual meeting had taken place with the claimant on the 18th.October 2019.

In response to the claimant’s submissions on the complaint being out of time , the respondent reiterated  that as the complaint form was received by the WRC on the 10th.June 2020 , only events after 11th.Dec. 2019 could be considered in relation the complaint.The respondent referred to the claimant’s complaint form in which he alleged there was an error in his contract of employment that needed to be amended in May 2019 ; reference was made by him  to a meeting on the 17th.July 2019  and  the date  of 14th.October2019   when he discovered he was scheduled  for later attendances.It was submitted that each of the matters complained of arose more than 6 months prior to the filing of his complaint. It was submitted that the claimant was advised in December 2019 that the revised attendance requirements would not be implemented.

I have reviewed the evidence presented at the hearing and taken account of the respective submissions made by both parties.

Preliminary Matter of Jurisdiction and Time Limits:

I have considered the submissions of both parties on the matter of time limits and reviewed their respective chronology of events since the matter of revised attendance requirements was raised. Section 41(6) of the Workplace Relations Act 2015 states that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

In his evidence and submissions the claimant has been unclear about the date upon which he is asserting the alleged contravention took place.He has argued that this was an ongoing matter.

The claimant received written notification from the respondent on the 18th.April 2019 advising him of amendments to his terms and conditions of employment with effect from the 1st.April 2019.

Section 5 of the Act requires the respondent to notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than – 1 month after the change takes effect. I cannot accept that this should be construed as some kind of ongoing requirement – notification is a once off requirement as opposed to an ongoing requirement. In such circumstances I must conclude that the date of the alleged contravention “to which the complaint relates “is the 18th.April 2019 when he was advised of the amendments to his terms and conditions of employment – which as it happened, never took effect. The claimant’s complaint was received received by the WRC on the 10th.June 2020.Accordingly I deem the complaint is out of time and I have no jurisdiction to issue a finding on the complaint.

As the complaint is out of time, I declare the complaint is not well founded.