TED2121

FULL RECOMMENDATION

SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014

PARTIES :

MAYO COUNTY COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY)

- AND -

MR LORCAN CRIBBEN
(REPRESENTED BY GILVARRY & ASSOCIATES, SOLICITORS)

DIVISION :

SUBJECT:

1.Appeal of Adjudication Officer Decision No’s: ADJ-00009096 CA-00011919-001.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 27 June 2019. A Labour Court hearing took place on 31 August 2021. The following is the Court's Determination.


DETERMINATION:

This is an appeal by Mayo County Council against Adjudication Officer’s Decision ADJ-00009096 given under the Terms of Employment (information) Acts, 1994 to 2012(the Acts). The Adjudication Officer upheld the complaint and awarded €2,500 for the breach of the Act.

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Lorcan Cribbin, is referred to as the Complainant and Mayo County Council is referred to as the Respondent. The Complainant lodged his complaint with the WRC on the 14/06/2017.

Complainant’s position

It is the Complainant’s submission that his contract which he signed on the 4^thOctober 1998 did not contain a retirement age and therefore is a breach of section 3(1) (k)(ii) requiring that an employee be given information in respect of any terms or conditions relating to pensions and pension schemes.

In the alternative, it is the Complainant’s submission that if as alleged by the Respondent he was supplied with details of the pension scheme at the time he signed his contract, then the Respondent was in breach of section 5 of the Act when they changed the retirement form age from 65 to 66 and did not notify him in writing of the change.

It is the Complainant’s submission that the letter dated 13^thMarch 2017 from the Respondent advising that they could not facilitates his request to work beyond his 66^thbirthday and the letter of the 12^thApril 2017 advising him that his last day of service was the 3^rdAugust 2017 were both breaches of the Act.

Respondent’s position

The Respondent’s submission is that there is no breach of the Act within the cognisable period. The letters were just confirming what the Complainant knew as evidenced by his letter of the 3^rdMarch 2017 requesting continuation of his employment beyond his 66^thbirthday.

The Complainant was supplied with terms and conditions of employment when he signed his contract which set out his retirement age, he also attended a Superannuation Information talk in 2014. No changes were made either to his contract or his retirement age during the cognisable period and therefore his complaint must fail.

The Law

Section 3 Written statement of terms of employment

(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) […]
(b) […]
(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) […]
[(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]
[(g) […]],
(ga) that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,]
(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—
(i) incapacity for work due to sickness or injury and paid sick leave, and
(ii) pensions and pension schemes,
(l) 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,
(m) a reference to any collective agreements which directly affect the terms and conditions of the 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.
[(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 theCompanies Act 2014);
(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;
(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of theNational Minimum Wage Act 2000;
(e) the number of hours which the employer reasonably expects the employee to work—
(i) per normal working day, and
(ii) per normal working week.

Section 5 of the Act states as follows:

(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.

Discussion

The Court notes that the Complainants complaint is that his original contract did not contain a retirement age and that he was not notified when his retirement age was changed.

The Respondent submitted that the Complainant’s retirement age was not changed and was always 66 in support of that they provided a copy of his particulars of employment which referenced 66 as his retirement age.

The Respondent submitted that the Complainant when he signed his contract was provided with additional documentation including details of his pension and retirement age. The Respondent also submitted that the Act does not require that the retirement age has to be set out in the contract. The Court based on the documentation before it determines that the Complainant has not identified a breach of the Act.

Decision

The Court determines that there was no breach of the Act either under section 3 or section 5 of the Act. The Decision of the Adjudication Officer is overturned, the appeal is upheld

The Court so determines.

NOTE

Enquiries concerning this Determination should be addressed to Cathal Nurney, Court Secretary.