Complainant

Respondent

Parties

Sarah  Corcoran

Blackhall Properties Limited T/A Village Vets

Representatives

 N/A

 Tiernan Lowey BL

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-00034830-001

24/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00034830-002

24/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00034830-004

24/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00034830-007

24/02/2020

The Complainant was employed as a Veterinary Nurse with the Respondent. Further to a transfer of undertaking that took place on 31 March 2019, she claimed that she was not adequately consulted with by the Respondent, that there were changes made by the Respondent to her terms and conditions of employment, that she was not made aware in writing of these and that she should have received a redundancy payment. 

The Complainant stated that her employment was the subject of a transfer of undertaking on 31 March 2019 further to which her employment transferred to the Respondent where she was employed as Head Veterinary Nurse. Her immediate supervisor was the Clinic Manager, who left shortly after the transfer. Further to this departure, she asserted that the Respondent attempted to make her position redundant and move her to the vacant Clinic Manager role. She stated that she was not trained for this position, believed that she was being set up for failure and was being forced out of a position she had loved.

The Complainant also stated that she was expected to take on the role of Clinic Manager with no increased remuneration where there should have been a significant difference in the rate of pay. In addition, she highlighted that she has a long term illness which is aggravated by stress and that she could not therefore take on the new role. She also said that the proposed new change caused her huge stress which led to her resigning her role with the Respondent.

The Respondent disputed that the Complainant was dismissed or that a redundancy situation ever arose. It was also asserted that there were no changes made to her terms and conditions of employment or that any such changes were even attempted.

THE LAW

CA-00038430-001:

Section 3 of the Terms of Employment (Information) Act 1994, sets out the basic terms of employment which the employer must provide to the employee.

(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 –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

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

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

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

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

FINDINGS

While I note the Complainant’s assertion that she was not informed in writing of a change to her terms and conditions of employment, the Respondent’s representative, while denying that any such attempt was made, highlighted that the Complainant had only complained of an attempt by the Respondent to change her terms and conditions of employment. Specifically, I note that while the Complainant alleged that the Respondent attempted to change her job title and duties from Head Nurse to that of Clinic Manager, the Complainant herself accepted that this proposed change, which was denied by the Respondent, was only attempted and proposed and was not finalised or completed.

Accordingly, this complaint is not well founded. 

CA 00038430-002:

Section 15 of the Redundancy Payments Acts 1967 to 2014 provides as follows:

(1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if –

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

FINDINGS:

I note in the instant case that the Complainant was not dismissed and that a redundancy situation did not arise. Specifically, even if I accept her evidence that she was offered the role of Clinic Manager and that her role was being changed from that of Head Nurse, there was no evidence presented to suggest that a redundancy situation arose or that she was dismissed by the Respondent given her failure to accept the role of Clinic Manager.

I therefore find that this complaint is not well founded.

CA 00038430-004:

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) 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.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS:

I note that the transfer date of the Complainant’s employment was 31 March 2019 and that the complaint was referred to the WRC on 24 February 2020. In the absence of any reasonable cause having been presented to me to explain why the complaint was not referred within the six month period beginning on the date of the contravention, namely 4 March 2019, which was the date on which the Complainant said she received the letter, I find that I do not have jurisdiction to hear this complaint.

CA 00038430-007:

The Law

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I.131 of 2003) provides as follows:

4. Rights and obligations

(1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.(3) Subject to paragraph (4), this Regulation shall not apply in relation to employees' rights to old-age, invalidity or survivors' benefits under supplementary company or inter-company pension schemes that do not fall within the Social Welfare Acts.(4)(a) The interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018] are protected under those Acts.(b) The transferee shall ensure that the interests of employees and of persons no longer employed in the transferor's business at the time of the transfer in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors' benefits, under a supplementary company pension scheme, other than a supplementary pension scheme that is an occupational pension scheme within the meaning of the Pensions Acts 1990 to [2018], are protected

FINDINGS:

While I note the Complainant’s assertion that the Respondent attempted to change her terms and conditions of employment, which she asserted was contrary to the Regulations outlined above, the Respondent’s representative, while denying that any such attempt was made, highlighted that the Complainant herself had only complained of an attempt by the Respondent to change her terms and conditions of employment. Specifically, I note that while the Complainant alleged that the Respondent attempted to change her job title and duties from Head Nurse to that of Clinic Manager, the Complainant herself accepted that this proposed change, which was denied by the Respondent, was only attempted and proposed and was not finalised or completed.

Accordingly, this complaint is not well founded. 

CA-00038430-001:

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

CA-00038430-002:

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

CA-00038430-004:

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.

CA-00038430-007:

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