ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00032104

Parties:

	Complainant	Respondent
Parties	Stephen Quinn	Beaumont Hospital

Representatives

Self represented

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-00042634-001	23/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00042634-002	23/02/2021

Date of Adjudication Hearing: 12/05/2022

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act 1994 and Section 6 of the Payment of Wages Act 1991, following 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 was appointed to a new role and contends that he did not receive written terms of the appointment and that he was not paid back wages due from the date of his appointment.

Summary of Complainant’s Case:

The Complainant stated that he started in the employment in 2014. He was given a new role on 15th September 2020. On 21st January 2021 he was sent new written terms of employment with start date of 9th November 2020. He had sought the new contract but was told it was sent in the post. He did not receive it. Then following his queries he received the new contract on 21st January 2021. He had been told that he was starting on 15th September 2020. He queried his start date and date from which new rate would be paid. He did not receive a satisfactory response. He put his grievance through procedures but was not upheld. In summary, he was told he was starting in the particular section on 15th September, he was not advised it was redeployment and he contends that by not paying him the applicable new rate from that date the Respondent is in breach of the Payment of Wages Act. Further, by not sending him his written contract outlining the new conditions within 2 months, the Respondent was in breach of the Terms of Conditions (Information) Act 1994.

Summary of Respondent’s Case:

The Respondent outlined the chronology as it is relevant to the issues in contention. The Complainant commenced employment with the Respondent on 10th March 2014 as a Porter. He took up a position as Audiology Assistant on 4th January 2016. In March 2020, in response to the Pandemic, and in line with redeployment policy, the Complainant was redeployed to a number of roles. While in redeployment, the Complainant applied for a Clerical Officer Grade 3 position in N Section. He was interviewed on 2nd September 2020 and came second on the panel. He was advised of this on 9th September 2020. On 14th September 2020, he was redeployed in N Section. On 20th October, employee A vacated a position at C.O. 3 level. The Complainant was advised on 21st October, that he would be placed in that position, subject to satisfactory recruitment clearance, and reference. The process was signed off on 3rd November 2020, the Complainant was set up on the relevant Clerical Flexi clock and the new contract issued to the Complainant on 17th November 2020 citing the start date as 9th November 2020. The Complainant processed a grievance through procedures which was not upheld. The Respondent did try to resolve the matter on a without prejudice offer but the Complainant declined and issued his complaint to the WRC. It is argued that the Complainant cannot succeed in his complaints as (a) the date of effect of his appointment was 9th November 2020 and (b) his revised written contract was sent to him on 17th November 2020.

Findings and Conclusions:

CA-00042634-001 Terms of Employment (Information) Act 1994.

Section 5 of the Act provides:

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, 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.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of

statutes or instruments made under statute, [other than a registered employment

agreement or employment regulation order,] or of any other laws or of any

administrative provisions or collective agreements referred to in the statement given

under section 3 or 4.

In this instant case, the Complainant was promoted to a Clerical position effective from 9th November 2020. I accept the evidence that a new contract was issued to him on 17th November 2020. I do not find his complaint to be well founded.

CA-00042634-002 Payment of Wages Act 1991

In this case, I note the dispute between the parties regarding the start date of the new position. I note the attempt by the Respondent to have the matter settled on a without prejudice basis. As the complaint was referred under the Payment of Wages Act, it is to that Act I must refer in my decision.

Section 6 of the Act provides:

(6) Where—

( a ) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

( b ) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

I must therefore decide if wages “properly payable” were not paid to the Complainant. The Complainant insists his start date in the new grade was 15th September 2020. The Respondent outlined the chronology of events which led on from the employee vacating the position to which the Complainant was appointed. The position was not vacated until 20th October 2020 and the recruitment paperwork completed on 3rd November 2020, with new contract citing start date as 9th November 2020. While the Complainant clearly believed he was in position since 15th September 2020, the Respondent has demonstrated that the position was not vacated until 20th October 2020 and the processing of the Complainant’s promotion began immediately thereafter. I find that the Respondent has not acted in breach of the Act and the complaint is not well founded.

Decision:

CA-00042634-001 Terms of Employment (Information) Act 1994.

Based on the evidence and reasonings above, I have decided the complaint is not well founded.

CA-00042634-002 Payment of Wages Act 1991

Based on the evidence and reasonings above, I have decided the complaint is not well founded.

Dated: 7th July 2022

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Key Words:

Terms of employment, revised terms, not well founded

Payment of Wages, wages properly payable, not well founded.