TE/23/35
DECISIONNo. TED2317
SECTION 44, WORKPLACE RELATIONS ACT 2015
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014
PARTIES:
DEPARTMENT OF JUSTICE AN GARDA SIOCHANA
(REPRESENTED BY MR. CONOR QUINN B.L.
INSTRUCTED BY CHIEF STATE SOLICITORS OFFICE)
AND
EVE DOHERTY
DIVISION
Chairman: Ms O'Donnell
Employer Member:Ms Doyle
Worker Member: Mr Bell
SUBJECT
Appeal of Adjudication Officer Decision No's: ADJ-00019471 (CA-00025433-004)
BACKGROUND
The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 18 April 2023 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014.
A Labour Court hearing took place on 9 November 2023. The following is the Decision of the Court:-
DECISION
This is an appeal by Ms Eve Doherty (the Complainant) against Adjudication officer's Decision ADJ-00019471, CA- 00025433-004 given under the Terms of Employment (Information) Acts 1994 to 2014 (the Acts) in a claim that her employer during the relevant period, (An Garda Siochana), breached the Acts by not providing her with information in respect of changes to her terms and conditions of employment. The Adjudication Officer did not uphold this complaint.
The complaint was lodged with the WRC on the 30th of January 2019 and therefore the cognisable period as defined by the Act is the 31st July 2018 to 30th January 2019. This case is linked to CJ/23/1.
Background
The Complainant was employed as a member of An Garda Siochana. During the relevant period she was on unpaid suspension as she was serving a 20-month prison sentence. In a linked case ADJ- 00019471 CA 00025433-003 the Adjudication officer upheld her complaint in respect of not receiving a statement of terms and conditions of employment and awarded compensation and that the complaint was not appealed.
The complaint before the Court is in respect of not receiving notification of changes to her terms of employment contrary to section 5 of the Act during the cognisable period set out above. At the commencement of the hearing the Complainant indicated her preference was to proceed by way of submission and not sworn evidence.
Summary of Complainant's submission
The Complainant submitted that changes had occurred to her terms and conditions of employment during the relevant period and that she had not been notified of same. The Complainant stated that the following changes occurred: changes to her rates of pay, circulars in respect of acceptance of gifts, hospitality, sponsorship, and notification of a course in fraud and e-Crime. The Complainant confirmed that she was not notified of any of these changes. It was also her understanding that an important HQ directive issued in early 2019 in respect of pensions and the buying back of six months service and Sunday allowance, the cycle to work scheme and a Batchelor of science course. The Complainant submitted that these were all changes to her terms and conditions of employment and the Respondent was obliged to notify her of same.
Summary of Respondent's submission
Mr Quinn BL for the Respondent submitted that the complaint is without merit as the Complainant has failed to provide evidence of any relevant changes to her terms and conditions of employment during the cognisable period. The only relevant circulars that issued during that period were circular s dated 13/12/2018 and 25/9/2018. Both these circulars were in respect of pay increases which arose from a collective agreement and therefore in accordance with section 5 (2) of the Act do not come within the remit of section 5 (1).
Mr Quinn BL submitted that the Complainant has failed to identify any breach of the Act within the cognisable period, and therefore her complaint must fail.
The applicable law as it was at the relevant time
Section 3 of the Act titled written statement of terms of employment states:
(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) 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 the Companies Act, 1963 ),
(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) 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,
(g) the rate or method of calculation of the employee's remuneration,
(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.
(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.
(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.
(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.
(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.
(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.
(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.
(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.
Section 5 of the Act titled notification of changes states
(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 or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4 .
Discussion
It is clear from the legislation that changes referred to must in this case be related to the areas set out in section 3 of the Acts. Based on the submissions before the Court the only changes during the cognisable period were in respect of pay increases arising from a collective agreement, which in any case the Complainant did not benefit from at the time as she was on unpaid suspension. Payments under collective agreements are excluded from the requirements of section 5(1) of the Acts. In relation to the list of alleged breaches in the Complainants submissions she was unable to confirm that they occurred during the cognisable period, or what element of section 3 of the Act they fell under. The Complainant did not dispute the Respondent's submission that the only relevant circulars that issued during the period were in respect of pay increases which she could not benefit from as she was on unpaid suspension.
Decision
The Court determines that there was no breach of the Act during the cognisable period. The appeal fails.
The decision of the Adjudication Officer is upheld.
Signed on behalf of the Labour Court
| TH | Louise O'Donnell |
| 23 November 2023 | _________________________ Deputy Chairman |
NOTE
Enquiries concerning this Decision should be in writing and addressed to Therese Hickey, Court Secretary.