ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028717
Parties:
| Complainant | Respondent |
Anonymised Parties | Security Officer | Security Service Provider |
Representatives | none | Anna Rosa Raso Joe Bolger ESA Consultatns |
Complaints:
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-00035082-001 | 05/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035082-002 | 05/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035082-003 | 05/03/2020 |
Date of Adjudication Hearing: 15/01/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
In addition to the foregoing, The Employment (Miscellaneous provisions) Act of 2018 (s.7) amended Section 3 of the Terms of Employment Act 1994 so as to oblige Employer’s to provide a new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide said core details after one moth of continuous service can lead to an award of four weeks remuneration. The balance of the Terms outlined in the 1994 Act have to be detailed within the two-month period already specified.
This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms. The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
The Workplace Relations Complaint Form herein issued on the 20th of March 2020.
Background:
The Complainant has made three complaints under the Terms of Employment (Information) Act, 1994. The Complainant had been engaged as a Security Officer with the Respondent Company. |
Summary of Complainant’s Case:
The Complainant appeared in person and gave comprehensive oral evidence which was tested by the Respondent. It is clear that the Complainant was having a number of workplace issues within the workplace and was unhappy with the changes. |
Summary of Respondent’s Case:
Respondent had a number of witnesses available to give evidence. These included CMcM (Senior HR Generalist), JC (HR Trainee). The Respondent provided me with a comprehensive submission which was opened to me. The Respondent has acknowledged that there were changes in the workplace but explains that these were largely as a consequence of the building tenant requiring less security service. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant has worked in the capacity of security officer at a specific and well-known Government Agency building since 2003. In that time his employment has been subject to a number of transfer of undertakings. The last transfer was in 2013 at which time the Complainant came to be an employee with the Respondent company. As such the Complainant’s terms and conditions of employment should have transferred with him to the new Employer. The Complainant was very happy in the building and after 17 years had built up good relationships with the building clients. Things started to change for the Complainant in and around the second half of 2019. At that time the Complainant said he had been working a very set pattern which suited him very well where he was a primary carer for his father in the evenings. There were rumours that the building was being sold and that there would possibly be a reduction in hours for individual security officers (from 316 hours to 266). The Complainant was concerned at this as he relied on his set income and hours and could not afford a reduction in hours. He consulted with CMcM who was to get back to him. Then on the 7th of August 2019 (after some weeks where changes were rumoured), the Complainant noted that his rostered hours had been radically changed. Instead of working five days a week the Complainant was to work for four days operating long 12-hour shifts. He conceded that it was the same number of hours but that the proposed pattern did not suit him. He was set to refuse the change, but on chatting with one of the building clients he reluctantly accepted that it might be a temporary situation. It is noted that Ms. McM was away at that time. The Complainant operated the new 4 day working week pattern at great inconvenience to himself. Also, the Complainant noted a subtle diminution of his status as he was now being described as a Supervisor and not a Manager. The building was sold in February 2020 and the Respondent was notified that the Security requirements were to be reduced (including no requirement over the weekend). This was made known to the Complainant (though only after weeks of speculation and rumour), but he felt that as such a long-standing employee his right to work a 48-hour week should be retained. There were five Security Officers ordinarily assigned to this site. Nothing definite had been settled when the Complainant went out in consequence of the Covid Pandemic. In and around the same time the Complainant issued the Workplace Relations Complaint Form. Only three of the original five complaints are still live. These are: The Complainant says he did not receive a statement in writing of his terms and employment. The Complainant says he was not notified in writing of any change to the terms of his employment. The Complainant says he did not receive a statement of his core terms in writing under the Terms of Employment (Information) Act 1994. The Respondent has pointed out that any evidence relating to Bonuses and Allowances is extraneous to the complaints before me and in this, I accept, they are correct. The Respondent has provided me with a copy of the conditions of employment which came into force in December of 2013 and I have to agree that this document satisfies the requirement to provide a statement in writing of terms of the employment. The Respondent it is noted was not under an obligation to provide a core statement as introduced in the 2018 Act as this was already a long standing employment relationship and there was no obligation to provide a core statement. The Complainant at the time of the hearing had been assigned to an alternative site/client wherein the Respondent provides a Security Service. There is no doubt that the Complainant is not as happy in this position which he feels is more dangerous though I am advised the Complainant is in receipt of a slightly higher weekly rate. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00035082-001 - The Complaint herein is not well-founded as the Complainant did receive the appropriate Statement of his Terms. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00035082-002 The Complaint herein is not well founded as the Complainant’s Contract allows for flexibility and alteration in line with client requirements and demands. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00035082-003 The complaint herein is not well founded as the Respondent was under no obligation to provide a core Statement. |
Dated: 25th June 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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