Complainant

Respondent

Parties

Jordan Mckeever

Ups

Representatives

Barry Crushell, Crushell & Co. Solicitor

Conor O'Gorman IBEC

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-00044279-001

24/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00044279-002

24/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00044279-003

24/05/2021

The Complainant was employed by the Respondent from November 2019 to May 2021. 

The claimant wrote to the respondent on May 11, 2021, resigning his position effective May 27, 2021.   On Friday May 14, 2021, an incident occurred in the workplace which ended with the claimant being sent home.  The complainant did not return to the workplace and submitted a claim for unfair dismissal on 24th of May 2021.    The Respondent has rejected this claim and advised that the claimant resigned his employment and was paid for his notice period.

The complainant has also lodged a claim under section 7 of the Terms of Employment (Information) Act, 1994 in respect of an alleged failure to notify him in writing of changes to his role and contract.

A claim was also lodged under section 13 of the Industrial Relations Act, 1969 but was later withdrawn.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044279-001

24/05/2021

The complainant was employed by the respondent initially as a part-time employee, since November 2019, becoming a full-time employee in February 2021, as a brokerage administrator.   The complainant was not given a contract of employment to reflect the change in his terms and conditions of employment with effect from February 2021.

The complainant submits that he ordinarily worked part time from 20:30 hours until 01:00 hours but began working from 12:00 hours until 20:00 hours, when he became a full-time employee. His pay was previously €11.50 per hour, on a part time basis, but he was due to be paid at an equivalent, based on €25,780 per annum, when he progressed to full time.

The respondent submits that owing to human error the claimant was not provided with a letter confirming the change to his role in February 2021. The respondent acknowledges and apologises for this oversight.  The respondent submits that it was open to the claimant to raise this or any other matter with the respondent while he was an employee.   The respondent submits that there was an occasion when the claimant raised an issue in respect of his pay and the matter was resolved within 2 hours.

The claimant was promoted in February 2021. Owing to error his salary was not adjusted at that time to reflect his promotion.  On 14 April of 2021 the claimant wrote to the respondent querying his salary.  Later that same day the claimant was formally advised that his salary was adjusted and was being back dated. The email from the respondent HR confirmed the claimant’s promotion and new salary and apologised for any inconvenience caused.

The respondent accepts that the Act has been breached but it is the position of the respondent that no compensation is warranted for what amounts to a technical breach of the Act for which the claimant suffered no detriment.

Section 5 of the Act addresses the requirement for changes to be notified in any of the particulars furnished by the employer.

Notification of changes.

5.— (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, 4or 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.

Both parties at the hearing agreed that the complainant had commenced work as a part-time employee in November 2019, becoming a full-time employee in February 2021, as a brokerage administrator.  Both parties at the hearing also agreed that the complainant did not receive a letter or notice in writing to reflect the change in his role which took place in February 2021.

I note that the respondent submits that this matter was rectified in April 2021 after it was raised by the complainant.   I also note that the respondent having admitted to the omission submits that there was no detriment caused to the complainant by its failure to notify him in writing of changes to his contract.  

The requirement in Section 5 (1) of the Act provides that wherever a change is made 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 one month after the change takes effect.

The Respondent in this case concedes that it failed to provide the complainant with notification in writing of the changes to his contract following his promotion by submits that this was an oversight which once raised with them by the complainant was immediately rectified.   The respondent submits that this was a technical breach as a result of an oversight rather than a deliberate and conscious breach.   The respondent further submits that the breach is of a trivial nature in that it did not cause harm, loss, or any other prejudice to the Complainant.

The complainant advised the hearing that his role changed from part time to full time in February 2021 and with that his hours of work and salary also changed.   The complainant advised the hearing that he did not receive anything in writing to reflect these changes to his contract and also that he did not receive his salary increase despite moving to longer hours and a different role.   The complainant advised the hearing that he raised the salary issue with HR in April 2021 stating that he had been working more hours for less pay for the previous two months and that he was struggling financially because of this.     I note that the respondent replied to the complainant once this issue was raised and notified him that this was an error which would be rectified and following which the complainant’s salary was adjusted and back pay to cover the underpayment was included in his next monthly payment.  

I note that the respondent concedes that the complainants changes to his contract had not been provided to him in writing prior to this but claims that this was not of any detriment to the complainant and that it amounts to a technical breach.    I note that the outstanding wages were paid to the complainant and the contractual changes notified to him in writing albeit almost three months after such changes took place.

Having investigated this claim I am not satisfied that this amounts to “a merely technical breach attracting no detriment” especially given that the complainant did not receive the increase in salary associated with his promotion for almost three months after his promotion despite working increased hours and that this was only rectified after he raised the issue himself.   It is also apparent from the email sent by the complainant raising the salary issue that the complainant was not aware of what exactly his salary should be and that he had at that stage formed the opinion that the promotion was ‘not worth it’ based on the fact that he had been working double the hours for almost the same pay.  

It is clear that, had the complainant received notice in writing of the changes to his contract, as required under the Act he would have been aware of the associated salary increase immediately and thus would have had a basis for raising the salary underpayment issue sooner and would also have been in receipt of his higher salary sooner.

I am thus satisfied that this claim is well founded, and I order the respondent to pay the complainant a compensatory sum of €1,135 in compensation for this breach.

I find that the Complaint is well founded for the reasons outlined above and I order the Respondent to pay the Complainant a compensatory sum of € 1,135.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00044279-002

24/05/2021

This claim was withdrawn.    Accordingly, I make no recommendation in respect of this matter.

This claim was withdrawn; accordingly, I make no recommendation in respect of this matter.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00044279-003

24/05/2021

The complainant handed in his notice on 11th of May 2021 and was due to finish work on the 27th of May 2021.      On Friday 14 May 2021, he was involved in an altercation which resulted in a manager making serious complaints and allegations against him. This later resulted in the complainant being sent home and escorted off the premises.   The complainant did not return to the workplace following this incident and submits that this amounted to a dismissal for which he received no process or paperwork.

The claimant wrote to the respondent on May 11, 2021, resigning his position effective May 27, 2021.

On May 13, 2021, the claimant left work early without explanation or informing his manager. The following day, Friday May 14, 2021, an incident occurred in the workplace.

When the claimant was asked why he had left work early the previous day an argument ensued which ended with the claimant being sent home.

On the morning of May 24, 2021, while still an employee of the respondent, the claimant lodged the instant claim.  The claimant’s employment ended on 27 May 2021 with the expiration of his notice period.   All outstanding monies were paid to the claimant. 

The respondent advised the hearing that the complainant had submitted his resignation by letter dated May 11, 2021, resigning his position effective May 27th, 2021.   The respondent submits that the complainant advised that he had already secured alternative employment.  The respondent advised the hearing that the complainant had left work early on the 13th of May 2021 and that when he was confronted about this on the 14th of May 2021 an altercation took place following which he was sent home.   The complainant did not return to work after that date and was paid his notice period in accordance with his resignation.     

The complainant advised the hearing that he had resigned from his employment with the respondent on by letter dated 11th of May 2021 with an effective date of 27th of May 2021.  The complainant stated that he was then involved in an incident on the 14th of May which resulted in him being told to go home and being escorted off the premises.    The complainant did not return to work after this date.   The complainant submits that this amounts to a dismissal.  

I note that the complainant in this case resigned from his position by letter dated 11th of May 2021 with an effective finishing date of 27th of May 2021.  I note that he did not attempt to revoke that resignation nor was there any indication that the had changed his mind about resigning and so that resignation stands.  The complainant at the hearing did not seek to assert that he had changed his mind or that he had intended to revoke that resignation.   The complainant advised the hearing that he commenced in his new employment at the start of June.

In note that the respondent states that the complainant was paid his notice period up to 27th of May 2021 and the complainant does not dispute this.  

I am satisfied from the totality of the evidence adduced that the complainant in this case was not dismissed but rather resigned of his own volition. 

Accordingly, I find that the complainant was not unfairly dismissed, and I declare that this claim is not well founded.

I find that the complainant was not unfairly dismissed and accordingly I declare this claim to be not well founded.