Parties:
| Complainant | Respondent |
Parties | Niamh Daly | Nestle (Ireland) Ltd |
Representatives | Self-represented | A&L Goodbody Solicitors |
Complaints:
Act | Complaint 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-00040934-001 | 11/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00044421-001 | 31/05/2021 |
Date of Adjudication Hearing: 20/08/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 11th November 2020 and the 31st May 2021, the complainant referred complaints to the Workplace Relations Commission. The complaints were scheduled for adjudication on the 20th August 2021, and this was held remotely.
The complainant represented herself. The respondent was represented by Michael Doyle and Tara Smyth of A&L Goodbody Solicitors. Two witnesses attended for the respondent: Patricia Malone and Andrew Burke Hannon.
In accordance with section 41 of the Workplace Relations Act, 2015 and section 79 of the Employment Equality Acts, 1998 - 2021following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant worked for the respondent from May 2011 to the 4th August 2020. She was paid €2,800 per month. The complainant asserts that she was not informed of changes to her contract and that she had been discriminated on grounds of gender and family status. The respondent denies the claims. |
Summary of Complainant’s Case:
The complainant outlined that her contract of employment was terminated on the 4th August 2020. The complainant was not disputing the termination. She was paid six weeks of notice pay and 24 weeks of sick pay, but she was entitled to six months of notice pay and 42 weeks of sick pay. This was stated in the contract of employment she signed in May 2011. The complainant outlined that her maternity leave commenced on the 10th December 2018, and she had been due to return to work on the 10th June 2019. She was not fit to work at this stage so went on sick leave. The complainant had been in touch with HR and occupational health about whether she could return. She did not avail of additional maternity leave. The complainant’s first maternity leave ended in December 2014. On the 28th April 2016, her then manager, Nuala Barry approached the complainant to say that she had not signed a new contract of employment. The complainant was told to sign a new contract, which she was told provided increased annual leave and increased daily working time. The complainant said that she signed a one-page document, which stated that she would receive a letter setting out all the changes. The complainant said that she never received this letter and only saw the correspondence on foot of her GDPR request after her dismissal. The complainant confirmed that she did not receive the letter dated the 28th April 2016 and had only seen the single page in the 2016 contract. The complainant outlined that she went on a second maternity leave in 2017, returning in January 2018. The complainant outlined that in September 2019, Patricia Malone, HR Business Partner mentioned that termination was on the cards. The complainant was still receiving treatment at this stage. In February 2020, occupational health had asked for her GP file, and she agreed to this. In June 2020, Ms Malone said that she had given it a year and that the respondent wanted to hold a medical hearing. The complainant appreciated that the respondent had given someone else a rolling contract to cover her absence. The complainant said that in September 2019, she received a letter from Andrew Burke Hannon, line manager to say that her sick pay entitlement was ending. She rang HR and emailed an ‘askHR’ email address to challenge this. She received an automated response. The complainant supplied a copy of this email, dated the 3rd September 2019. She stated in the email that she was entitled to 42 weeks of sick pay. She later said that she did not have access to the work system as she was on sick leave. She sent this first email on the 3rd September and emailed on the 12th September to say that she did not have access to the work system. The complainant said that her sick pay ceased on the 24th September 2019, and she went onto Illness Benefit. The complainant outlined that the termination letter said that she must respond within 5 days. She emailed the respondent on the 8th July 2020 to raise the notice and sick pay issues and relied on her contract of employment. The complainant said that Andrew Burke Hannon sent her the contract they had on file for her, which was the 2016 contract, and which referred to 2014 as her start date. She had not seen the full document before. In cross-examination, the complainant confirmed that she had seen a solicitor in September 2020 but completed the complaint form herself. She confirmed that she had lodged a complaint pursuant to the Terms of Employment (Information) Act but said that she was also claiming notice pay and sick pay. It was put to the complainant that the only initial complaint she had made had been pursuant to the Terms of Employment (Information) Act. It was put to the complainant that she had cited the following in the complaint form: ‘Therefore my complaint falls under the title of the terms and conditions of employment. I was not notified in writing of a change to my terms of employment under the terms of information act 1994.’ The complainant accepted that this was a claim but that she was also claiming notice pay and sick pay. The complainant accepted that she had not referred to either a Payment of Wages claim or a Minimum Notice & Terms of Employment claim. It was put to the complainant that in correspondence she had said that the date she signed the document was the 24th April, but she was now saying that it was now the 28th April, and this showed that her recollection was not 100%. She replied that she was 100% sure. It was put to the complainant that she had met Patricia Malone rather than Nuala Barry on signing the document; she replied that she clearly remembered signing the document and that she could not remember meeting Ms Malone at the signing of the document. Commenting on the internal HR emails, the complainant said that they were not evidence of Ms Malone contacting her. It was put to the complainant that the emails were corroborative evidence of Ms Malone dealing with the new contract; the complainant replied that the emails did not disprove her recollection. The complainant said that she was made feel that it was her fault that she had not signed the document and she was anxious to sign it. She signed the document at Nuala Barry’s desk. It was put to the complainant that the entire contract was sent to the UK; she replied that it was on receiving the personnel file that she received the full contract. It was put to the complainant that it was clear from the signature block that this was part of a wider contract, and it was put to the complainant that there was no reference in the last page to annual leave, so why could she think that it was all about annual leave. The complainant accepted that annual leave was not mentioned on the page that she signed, and she had trusted the respondent that this was all about annual leave. The complainant said that she did not read the document before she signed it and was told that this was aligning with the UK and increasing her annual leave to 25 days. It was put to the complainant that it was not credible that she had not read the document, especially as it was not all about annual leave, for example the reference to intellectual property rights. It was put to the complainant that her entitlement to sick pay exhausted on the 24th September 2019. The complainant said that she had challenged this at the time. The complainant accepted that she had made no allegation against the line manager that he had discriminated and harassed her during the capability process in 2020. She said that her allegations related to 2018. In closing, the complainant outlined that both pay issues arose from her contract of employment and this was why she pursued a complaint pursuant to her contract and the Terms of Employment (Information) Act. She said that the letter should have addressed changes to the contract. She had wanted the respondent to accept that her 2011 contract still stood. She said that all her encounters with HR occurred in a meeting room and not at a desk. She said that she would have accrued annual leave entitlements during a notice period and kept private health insurance cover. |
Summary of Respondent’s Case:
In submissions, the respondent denied that there had been a contravention of the Terms of Employment (Information) Act. It outlined that the complainant was provided written particulars of her employment on the 9th May 2011. The respondent later introduced a level framework whereby employees were assigned a job grade within the framework and corresponding terms and conditions. This required changes to numerous employment contracts, including the complainant’s, aligning terms and conditions of employment. The revised document was supplied to the complainant on the 28th April 2016. The respondent submitted that the complaint pursuant to the Terms of Employment (Information) Act was out of time as it was not made within six months of the date of contravention. It was submitted that the entire revised contract was provided to the complainant by Ms Malone and not by Ms Barry, and the complainant had signed the document. The respondent submitted that the terms of the new contract were implemented prior to the termination of the complainant’s employment in 2020. The complainant was on constructive notice of the change to her contractual terms by the capping of her sick pay. The complainant availed of sick pay in 2018 and 2019 and in line with the revised contract, this was capped at 24 weeks, while the 2011 contract provided for 42 weeks of sick pay entitlement. The complainant had not queried or pushed back at the limit placed on her sick pay entitlement. In further submissions, the respondent outlined that the complainant’s query via the AskHR service was replied to, and she was asked to call the service directly. It was submitted that her failure to do so and her failure to follow up with Ms Malone on the sick pay issue indicated her de facto acceptance of the revised terms. In submissions in relation to the equality complaint, the respondent outlined that the complainant had cited October 2018 as the last incident of discrimination, so any claim had to be lodged by the 3rd October 2019. It submitted that the complaint was manifestly out of time and no grounds for reasonable cause had been advanced. Evidence of Patricia Malone Ms Malone outlined that she commenced employment with the respondent in 2015 on a part-time basis. She described the office as having pods of desks. She sat three rows away from the complainant and Ms Barry sat very close to her and in her pod. She outlined that the change in contracts came in 2014 as part of an audit process so she had to check that all staff had proper documentation. There had been 5 or 6 people who did not have contracts on file and the complainant was one of them. She said that her practice is to give two hard copy contracts, one for the employee to sign and return and the second for the employee to keep. Ms Malone outlined that she was not aware that the complainant had raised an issue about her entitlement to sick pay and she was not aware of the September 2019 AskHR correspondence. They had based her entitlement to sick leave on the last signed contract. In the July 2020 capability meeting, they calculated the complainant’s notice pay entitlement as six weeks and the complainant did not question this. The complainant did not appeal, and Ms Malone only became aware of this as an issue in September 2020. In respect of the day that the document was signed, Ms Malone said that while line managers may have done contracts in the past, she would not have seen the need to go through a line manager. She would have printed off two contracts and given them to the employee. On the day in question, Ms Barry had been tied up in meetings. Ms Malone said that she had been trying to get to know people as the HR business partner. She said that to the best of her recollection, she had given the contracts to the complainant. It was her recollection that she had also given the letter to the complainant. In cross-examination, it was put to Ms Malone that she had said she wanted to get to know people, but she had left an envelope at the complainant’s desk. It was put to Ms Malone that all the complainant’s meetings with HR had occurred in a meeting room. Ms Malone replied that she had taken ownership of the process and had handed out the contracts. Ms Malone said that she had not known that the respondent had changed the complainant’s sick pay and notice entitlements in the revised document. She said that the complainant should have read the document. She was not aware of the 2011 contract. Closing and supplemental submissions In closing submissions, the respondent emphasised the contents of complaint form. It outlined that there was only an initial complaint pursuant to the Terms of Employment (Information) Act and there was no complaint pursuant to the Payment of Wages Act. The complainant had claimed that the respondent did not update the particulars of her employment. If this had occurred, this occurred in April 2016 and the complaint was only made in 2020. It submitted that the complainant had been provided with the updated contract. It submitted that the complainant had raised the sick pay issue in September 2019 and had six months to pursue a claim for its non-payment once the sick pay stopped. The respondent outlined that as of June 2020 the complainant was on sick leave so any notice pay would have also been unpaid. In post-hearing submissions, the respondent exhibits the unredacted version of internal email correspondence from the 28th April 2016, which showed that the contract was signed by the complainant within a couple of hours of the original message. The respondent outlined that the internal HR system incorrectly stated the complainant’s notice entitlement as being six weeks per quarter and that the contractual entitlement was six weeks. In supplemental submissions, the respondent addressed the points of law that arose in the hearing, namely the existence and extent of an adjudication officer’s duty to ‘identify the issue which it is tasked with deciding and to make available to the parties the means whereby they may address that issue.’ It also cited the extent of an adjudication officer’s statutory power to interpret a complaint form with a view to making a decision in relation to the complaint lodged under the relevant statute and the WRC’s jurisdiction to consider contractual disputes between employees and employers. In addressing these questions, the respondent referred to the duty to inquire per section 41(5)(a)(i) as clearly limiting the inquiry to the complaint actually lodged with the WRC. It submitted that this duty does not extend to determining whether other complaints could or should have been lodged by a complainant. It accepted that while there were certain limited circumstances where the adjudication officer was not limited to the issues raised by selecting certain drop-down boxes, regard had to be had to the statute selected by the complainant in lodging the claim. It submitted that the adjudication officer did not have the statutory power to take the facts disclosed by a complainant and to introduce an entirely new statutory claim which the complainant had not sought. It submitted that the jurisdiction of an adjudication officer is limited by reference to the provisions of the Workplace Relations Act, which does not repose the statutory power to consider a pure contractual dispute between an employee and an employer. The respondent addressed Galway Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210, emphasising the following in paragraph 24: ‘a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it.’ The respondent submitted that the complainant did not refer a complaint pursuant to the Payment of Wages Act and confirmed in evidence that she was not seeking to advance such a claim. She affirmed in cross-examination that she was only advancing the terms of information and the equality claims, and that her claim was that the respondent had not informed her of the fact that her sick pay and notice entitlements had changed in 2016. The respondent submitted that while the WRC complaint form was not a statutory form, the WRC did not have the jurisdiction to determine what complaint a complainant could have or should have brought. It submitted that regard had to be had to the complaint form as a whole. County Louth VEC v Equality Tribunal [2009] IEHC 370 was authority that the WRC could disregard patently incorrect references to particular statutes and that it could purposively interpret the content of a complaint form to identify the actual claim being pursued. This authority did not, however, support the proposition that the WRC could identify, of its own volition, a statutory claim that could or should have been brought on the evidence and determine the merits of the claim even when not requested to do so by a complainant. It submitted that this was what the Employment Appeals Tribunal had done, leading to the High Court quashing its determination in Galway Mayo Institute of Technology v Employment Appeals Tribunal. The respondent submitted that whether or not the complainant was contractually entitled to six months of notice pay was a contractual dispute and not one within the jurisdiction of the WRC pursuant to the Payment of Wages Act. It cited paragraph 116 of O’Donnell C.J.’s judgment in Zalewski v Workplace Relations Commission [2021] IESC 24: ‘there are a number of ways in which the functions and powers of the W.R.C. can be said to be “limited”. First, and most obviously, it is limited by subject matter to those areas of employment law specifically identified in the Act. It has no inherent jurisdiction, and no jurisdiction under, or in relation to, common law. Furthermore, it does not have jurisdiction to deal with any other type of dispute. This, in itself, is, in normal language, a significant limitation and, moreover, something that distinguishes such a body from courts established under the Constitution having general jurisdiction.’ The respondent submitted that the evidence was that the complainant received the full 2016 contract and not just the signature page. |
Findings and Conclusions:
CA-00040934-001 This is a complaint pursuant to the Terms of Employment (Information) Act. The complainant outlined that she was not informed of substantial changes to the terms of her employment in 2016. The respondent outlined that the complainant was notified of the changes in April 2016 or ought to have been aware of them. Section 5 of the Terms of Employment (Information) Act requires an employer to notify the employee in writing of the nature and the date of a change to any of the particulars furnished by the employer under section 3 of the Act. Section 5 requires that this notification of change be communicated to the employee not later than one month after the change has effect. Section 3(1)(k) requires that a section 3 statement inform the employee of terms and conditions related to paid sick leave. Section 3(1)(l) relates to the period of notice the employee is entitled to receive under statute or their contract of employment. It is clear that the terms and conditions cited by the complainant fall within the ambit of section 3 and therefore, any change to these particulars must be notified to the employee in accordance with section 5. The complainant’s initial contract of May 2011 provided that she was entitled to a notice period of six months and an entitlement to sick pay of 42 weeks (for an employee with 6 – 10 years’ service). The document of the 28th April 2016 alters these particulars, reducing the entitlement to sick pay and notice. The letter of the 28th April 2016 does not refer to either change. The parties provided different accounts of the events of the 28th April 2016. The complainant outlined that she only saw the last page of the seven-page document, which she signed at the desk of a named colleague. She said that she was not provided with the full document. Her evidence was that she was not notified of the changes to her sick pay entitlement and her notice pay. She submitted that this was corroborated by her challenge in September 2019 to her entitlement to sick pay ending, where she raised her contractual entitlement to 42 weeks of sick pay. When her employment was to terminate in July and August 2020, she challenged the decision to pay her six weeks of notice pay and not the six months provided for in the 2011 contract. The respondent’s account was that the complainant was provided with the full document on the 28th April 2016 and ought to have read it. It referred to internal email correspondence as corroborating this evidence. The complainant had not followed up on the 2019 correspondence with AskHR and ought to have done so. The complainant also did not appeal the outcome of the capability process and the termination of her employment. Having considered the evidence adduced at the hearing, I find that the complainant’s account of the 28th April 2016 is accurate. What the respondent witness said happened related to general practice and not what occurred on this occasion. I base this finding on the cogency and preciseness of the complainant’s evidence; she was clear that she had seen a single page of the document and about where she had signed it. The account of the respondent witness was more cautious and general in nature. This finding is supported by the complainant’s corroborating evidence. I note that the complainant challenged the ending of her sick pay by asserting her contractual entitlement to 42 weeks of sick pay. She did so in the email of the 3rd September 2019. The respondent did not provide any substantive reply to this message, as the automated system could not deal with a non-work email address and the complainant did not, of course, have access to her work email. It was clear that the complainant believed that the 2011 contract was still in place. The respondent never stated that sick pay was ending in September 2019 on foot of the 2016 contract, just that it was to end. Given that she had raised this entitlement and was on sick leave, the complainant cannot be criticised in her efforts to have this issue addressed. The complainant’s evidence was corroborated by her raising the notice pay issue following the notice of the termination of her employment. The complainant accepted that she was not fit to work and the outcome of the capability process (the letter of the 23rd June 2020). Her entitlement to notice pay later became an issue and the complainant challenged this in the email of the 8th July 2020. It was then that she saw the 2016 contract. The letter of the 23rd June 2020 gave five days to appeal the finding and this time limit had already expired. There was also no basis for her to challenge the substantive finding that her employment should end (as she accepted this). The complainant’s actions in respect of notice are those of someone who has recently learnt that the respondent had determined her notice entitlement on something other than what she thought was the salient document, i.e. the 2011 contract. The complainant’s actions throughout corroborate her account of the 28th April 2016. I find that the internal emails of the 28th April 2016 submitted by the respondent do not corroborate its position. The email of 14.45 hours simply attaches a signed contract and does not say anything about how it was signed. In conclusion, I find that on the 28th April 2016, the complainant was provided with the last page of the 2016 document, which she signed. The complainant was informed of the change to annual leave but not informed or notified in writing of the significant changes to sick pay and notice. Per section 5 of the Terms of Employment (Information) Act, this notification should have occurred within one month of the change coming into effect (i.e. one month from the 28th April 2016). I find that the complainant was notified and became aware of the revised terms on the 8th July 2020 and referred this complaint on the 11th November 2020. For the reasoning below, I find that the complaint pursuant to the Terms of Employment (Information) Act was made within time. The failure to notify a change in the complainant’s terms and conditions is a subsisting breach of section 5 that continues throughout the complainant’s employment until the complainant is notified in accordance with the section or the ending of the employment. The complainant challenged the failure to comply with section 5 when she became aware of the change in her terms and conditions. To measure time in respect of a contravention of section 5 other than as a subsisting breach would completely undermine the protection provided by section 5 and the underlying Directive. All an employer would have to do is implement the change and not notify the employee and then wait seven months for the one month provided in section 5 and the six months provided in section 41 of the Workplace Relations Act to expire to leave the employee without any redress. This would completely undermine the protection provided by section 5 as well as Article 5 of the Written Terms Directive (91/533/EEC and Article 6 of Directive 2019/1152). To treat it other than a subsisting breach is to hold that there is a breach on a single day only, i.e. the day after the one month expires. This was not the effect of the amendment made to the Terms of Employment (Information) Act by the Workplace Relations Act. The reasoning set out in ADJ-00009820 in respect of section 3 is equally applicable to the interpretation of section 5 in this case. First, it should be recalled that the original section 7(3) of the Terms of Employment (Information) Act permitted a complaint of a contravention of sections 3, 5 etc to be referred up to six months after the termination of the claimant’s employment. The Act was amended by incorporating the standardised limitation period of six months from the ‘date of contravention’ provided by section 41(6) of the Workplace Relations Act. The question here is what constitutes a contravention of section 5, 3 etc of the Terms of Employment (Information) Act? Second, for the complaint to have been out of time on the 11th November 2020 requires that there be a single day of contravention in respect of section 5. This would be the day after the one month-period expired, in this case the 29th May 2016. The argument is that the complainant had six months from this date to refer her claim to the Workplace Relations Commission. It would be absurd if Article 5 of the Directive and section 5 of the Act only provided protection for one single day in an employment relationship that could last years. Nothing in the Oireachtas materials suggests that such a radical amendment of the Terms of Employment (Information) Act was intended in 2015 and there is a statutory presumption against radical amendment (see the discussion by Bolger J. in DPP v Davitt [2022] IEHC 320.) Third, there is no wording in the statute that could lead to a conclusion that a contravention of, say, section 5 is a contravention that occurs on a single day. In this case, there was a contravention on the 29th May 2016 (the day after the one-month period ended) as there was on the 7th July 2020 (the day before the complainant was notified of the changes). There was a contravention on both dates, and a subsisting contravention between those dates. Fourth, as noted in ADJ-00009820, section 7(1) of the Terms of Employment (Information) Act would be superfluous if a contravention of the Act only occurred on a single day. Section 7(1) addresses what happens when a fresh complaint is made in circumstances where a WRC inspector or adjudication officer has made a direction in respect of a statement, which the employer has complied with or is within the designated time period to comply with. If a contravention could only occur on a single day, section 7(1) would not be necessary as the further complaint would already have been heard (and be res judicata) or be out of time. Fifth, section 7(2) allows for a multiplicity of forms of redress where a complaint of a contravention is well-founded. Subsection 2(b) allows an adjudication officer to confirm the particulars of a statement or to ‘alter or add’ to the statement. Subsection 2(c) provides that the adjudication officer can require the employer to provide a statement to the employee. Subsection 2(d) provides that an order of compensation can be made. It cannot be the case that the Act provides for such a multiplicity of interventions over time if the contravention only arises on one day. The Oireachtas would have made clear that the multiplicity of interventions allowed by section 7(2) were only available in respect of a contravention occurring on a single day. The better interpretation is that the contravention is a subsisting breach of the Act, and the multiplicity of interventions are available to reflect the subsisting nature of the obligation. Sixth, in my opinion, the Terms of Employment (Information) Act is clear that a contravention of section 5 is a subsisting breach. If this was held not to be the case and as set out in ADJ-00009820, this would be an appropriate case for a conforming interpretation of the Act in light of the underpinning Directive. This is especially the case as Article 6 of Directive 2019/1152 (transposition date 2nd August 2022) requires that notification of a change be made on the day of the change and not within a month of it having effect. If this is held to be a once-off contravention, Article 6 will be regressive as the employee will have less time to challenge a contravention. Nothing in Directive 2019/1152 suggests that this is the case. The complainant was notified of the changes in her sick pay and notice pay entitlements on the 8th July 2020 and referred a complaint on the 11th November 2020. The complaint was, therefore, submitted within six months of the date of contravention and the contravention is the failure to notify the employee of the changes to the particulars of her employment within one month of those changes coming into effect, a subsisting breach which occurred on the 7th July 2020. In accordance with section 7 of the Act, I declare that the complaint is well-founded, and I direct that the respondent pays to the complainant compensation that is just and equitable of €2,800 (the maximum compensation available). CA-00044421-001 This is a complaint pursuant to the Employment Equality Act on grounds of gender and family status. The complaint form cites the 4th October 2018 as the latest date of discrimination. The complainant’s account charts events from the 10th January 2018 (her return from maternity leave) until being signed off on sick leave on the 5th October 2018. The complaint was referred to the Workplace Relations Commission on the 31st May 2021. I appreciate that the complainant wished to ventilate the issues from 2018 when she saw the respondent submissions to the Terms of Employment (Information) claim and the reference to the person who was her line manager in 2018. As we discussed at the adjudication, there is a six-month period from the date of contravention to refer a complaint to the Workplace Relations Commission, extendable to 12 months with reasonable cause. In anti-discrimination law, there are particular considerations in calculating the date of contravention where there is a continuum of discrimination or discriminatory regime, rule or practice. The complainant confirmed at the hearing that all the matters raised in her complaint of discrimination date from 2018. She dealt with the line manager in 2020 and had no complaint arising from these dealings. The matters from 2018, even if I found that they occurred, could not constitute a continuum of discrimination or a discriminatory regime, rule or practice that continued into 2020. Even if they occurred as stated by the complainant, they were standalone events, for which the statutory limitation period commenced on the 5th October 2018, at the latest. The complaint pursuant to the Employment Equality Act was not made within 12 months of the latest stated date of discrimination, so I must find that the complaint was made out of time, and I do not have jurisdiction to determine it. Notice pay / Payment of Wages claim? As reflected in the account of the parties’ evidence and submissions, there was discussion during the adjudication and submissions afterwards about whether the initial complaint included a complaint pursuant to the Payment of Wages Act for notice pay per the 2011 contract. I raised this as an issue as the opening sentences of the narrative part of the complaint form discuss notice. I asked the parties about this close to the end of the complainant’s evidence at the adjudication hearing. This gave the complainant the opportunity to address the issue and the respondent the opportunity to cross-examine on the question and to adduce their own evidence. I cited authorities such as Galway-Mayo Institute of Technology v Employment Appeals Tribunal. I invited the parties to make submissions on the question. The respondent made post-hearing submissions and had sent them to the complainant. In advance of the completion of this decision, the WRC followed up with the complainant to ensure that she was aware of her right to reply to the submissions. The complainant sent two emails on the 18th July 2022 around the circumstances of signing the 2016 document without seeing the full document and made no particular submission regarding the Payment of Wages issue or the respondent submissions on the question. Given that the complaint form was clear that this was a Terms of Employment (Information) claim, and this was confirmed in cross-examination, I have dealt with this matter as only a Terms of Employment (Information) claim and not also per the Payment of Wages Act. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2021 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00040934-001 I decide that the complaint pursuant to section 5 of the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant compensation of €2,800. CA-00044421-001 I decide that the complaint pursuant to the Employment Equality Act was referred more than 12 months from the latest date of discrimination and I, therefore, do not have jurisdiction to decide the complaint. |
Dated: 17-08-22
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Terms of Employment (Information) Act / Written Terms Directive / notification of change |