ADJ-00031718

Complainant

Respondent

Parties

Sheila  Bolger

Tusla Child and Family Agency

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-00042208-001

29/01/2021

The complainant states that she expressed interest for a role (Clerical Officer) with the respondent on 7 September 2020 which resulted in her exclusion from any further suitable job opportunities on that panel. She states that the location of job was never advertised for the Cork road office, but it was for the office in Ferrybank in Waterford. The complainant states that if it was for a job offer at the Cork road office, she would never have applied for it due to her previous employment based in Waterford and dealing with traffic congestion. The complainant submits that as she expressed her  interest for the role at the office based in Ferrybank, this resulted in her losing her place on the panel for other suitable job opportunities. The complainant states that two days before she was due to start, she received a call from the respondent requesting her to provide cover and that her initial assessment would be out at the Cork rd. office for a week or two. The complainant states that she agreed to the request but stated that she could only do it for a week or two because of her past experience with traffic in Waterford at rush hour.

The complainant states that her first day at the office in Ferrybank was not until 7/12/2020 and her second day was not until a month later which was on 07/01/2021. She states that the first rota was for January 2021 which required her to work 73% of her time at the Cork road office which was contrary to the terms of her contract. The complainant maintains that she was advised by the respondent that she only had to work on a temporary basis at the Cork road office. The complainant states that subsequently her employment was terminated by her not fulfilling a contract that was null and void from her commencement with the respondent organisation.

The complainant states that she could not continue to drive from her home in Wexford to the office on the Cork road from a monetary and time point of view. The complainant states that she continually communicated to the respondent that she could not continue to work at the Cork road office and that it was on this basis her employment was terminated.    

The complainant submits that the respondent is in breach of the Terms of Employment (Information) Act 1994.

The respondent states that in September 2020, the complainant expressed an interest in a Clerical Officer post with Waterford/Wexford based service. It states that this post was advertised with a base at the office located in Ferrybank, Waterford. The complainant was offered and subsequently accepted this post. The respondent asserts that candidates were strongly advised to contact the Service Manager to discuss specific details of any post prior to acceptance. The respondent states that in this regard, there is no evidence that the complainant attempted to make any prior contact with management in advance of accepting the post.

The respondent states that the complainant commenced as a Clerical Officer with it on 16 November 2020. It states that she signed the contract which clearly stated: “Your initial assignment will be to Hillsfield Community Building, Belmont Road, Ferrybank, Waterford. You may be required to work in any service area within the vicinity as the need arises”. The respondent states that this is standard in all contracts of employment as management reserve the right to assign staff within their services as required.

The respondent asserts that the complainant was advised, in advance of her commencement, that due to unforeseen circumstances, she would be required to provide temporary cover in a different location which was 4 km from the location of her initial assignment set out in her contract of employment. The respondent submits that numerous correspondence and meetings took place during the period from the complainant’s commencement and termination with the respondent; at each point it was reiterated that the requirement to work from the Cork road office was a temporary measure due to staffing issues. The respondent states that supports such as the payment of mileage to the complainant were also put in place to facilitate this assignment.

The respondent asserts that management reserves the right to assign staff as the service needs dictate which is clearly set out in the Public Service Agreements. The respondent reiterates that this reassignment was temporary in nature and was 4 km from the location of the complainant’s initial assignment.

The respondent submits that there is no basis for the complainant’s claim under the Terms of Employment (Information) Act 1994 on the basis of the contract of employment which she signed.

Section 5(1) of the Act provides that, “…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..”   

Having considered the matter, I note that the complainant signed a contract stating: “Your initial assignment will be to Hillsfield Community Building, Belmont Road, Ferrybank, Waterford. You may be required to work in any service area within the vicinity as the need arises”.

The complainant stated that she commenced employment on 16 November 2020, her first day at the Ferrybank Office was not until 7 December and her second day there was not until one month later on 7 January 2021. The complainant further states that the first rota devised was for January 2021 which required her to work 73% of her time at the Cork Road Office which she states was contrary to the terms of her contract.

Having considered the evidence adduced in the within matter, I am satisfied that the complainant, based on the contract, was of the view that she would be initially based at the Ferrybank office, however this did not occur and she was placed at the Cork road office; on the basis of section 5 outlined above, I am satisfied that the complainant was not provided with a written statement reflecting an amendment to her terms and conditions within one month of such amendment. In the circumstances I find that the respondent has contravened the Act and I find that the complainant’s claim is well-founded.

I find that the within complaint under the Terms of Employment (Information) Act 1994 is well-founded. I order the respondent to pay the complainant compensation in the amount €500 for said breach of the Act.  

Terms and conditions of employment