Complainant

Respondent

Anonymised Parties

Worker

Health Sector

Representatives

Peter D Jones Peter D Jones & Company Solicitor

 HR Specialist / Manager

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-00041182-001

22/11/2020

The Complainant stated that to establish the Primary Care Facility his role was expanded specifically at the request of his direct manager. The reason why his role was changed related to the pressing operational /project requirements to meet key deadlines as his manager could not meet the deadlines set unless he took on these extra duties.

The Respondent stated that no core terms or conditions have changed since the Complainant has commenced his employment. While elements of his job description may have changed other elements were eliminated. Any change that has occurred has taken place within the terms of the original contract and do not constitute a new role or a significant change in the nature of the role.

The Complainant stated that his role had expanded very significantly when he was transferred to the team who had to establish a new primary care centre. That change took place at the request of his line manager and he took on the additional duties in expectation of a regrading. The Complainant brings a complaint against his employer for failing to:

(Section 5 of the Act requires that:)

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

The Respondent stated that no change in core terms and conditions had taken place. As no change had taken place there was no requirement that any change should be communicated in writing within 1 month of the date of that change.

The Complainant’s previous manager stated that for several years he had performed at a higher grade level. She had primary responsibility for opening the primary care centre and could not have done so under very significant time pressures; without requiring the worker to take on more responsibilities.  These duties where required and continued.

Several emails have been opened by key clients of the centre that also corroborate that the worker is the main point of contact for operational matters.  These emails are from personnel in senior roles.

I note the Respondent’s representations that the Complainant’s job description has been revised in consultation with himself and Occupational Health. While that maybe so, what this Complaint is about is whether the nature of the role has changed significantly so that the terms and conditions of employment has changed that requires the employer to notify him of that change in writing. That is denied by the employer as no significant change in terms and conditions of employment had occurred.

This Complaint is about the nature of the role changing so that it is no longer accurate to describe it as a care- taker role.

On the balance of probabilities, the worker is performing a role much expanded than the caretaker role that he was initially recruited for. I have concluded that amounts to a change in the nature of the role amounting to a change… the particulars of the statement furnished by an employer.

The Act states that:

(2) A word or expression that is used in this Act and is also used in the Council Directive has, unless the contrary intention appears, the meaning in this Act that it has in the Council Directive.

The Complainant stated that the change to his role was a significant change to his terms and conditions and that change should have been communicated to him in writing.

The Act states:

3.—(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—

(d) the title of the job or nature of the work for which the employee is employed,

The Directive (DIRECTIVE NO. 91/533/EEC) states:

2.   The information referred to in paragraph 1 shall cover at least the following:

While the Act states the title of the job ornature of the work for which the employee is employed the Directive states the title, grade, nature…

As the Act specifically states that a word or expression that is used in this Act and is also used in the Council Directive has, unless the contrary intention appears, the meaning in this Act that it has in the Council Directive, the plain intention of the legislator was to ensure that an employee received in writing information  about his title, grade and the nature of the work for which he was employed.

On the evidence given by the previous manager of the Complainant the nature of the Complainant’s work had changed in a material way. While the change was initially small it continued to expand to a point that the role was greater than a Caretaker role, which had been previously communicated to him on his appointment to that role.  However, the significant change in the nature of his work, where his responsibilities significantly expanded to be more than a caretaker role; should have been communicated in writing to him within 1 month of the change when that change in his job was material. That breach had occurred on or about 1st of January 2019 and continued.

I find that the Respondent employer is in breach of the Act by failing to 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.

The Complaint is well founded.

On the evidence given by the previous manager of the Complainant the nature of the Complainant’s work had changed in a material way. While the change was initially small it continued to expand to a point that the role was greater than a Caretaker role, which had been previously communicated to him.  That significant change in the nature of his work should have been communicated in writing to him within 1 month of the change. That breach had occurred on or about 1st of January 2019 and continued.

I find that the Respondent employer is in breach of the Act by failing to 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.

The nature of the Complainant’s work had changed from that of Caretaker to a role that is more administrative in scope and with a level of responsibility greater than a caretaker role. That finding is based on the Complainant’s manger’s evidence that necessity demanded that she rely on the Complainant to take on more duties so that she could operate and establish the primary care facility. The intent of the legislation is for that significant change in the nature of the role to be communicated in writing to him which it was not within the statutory prescribed time frame.

Section 7(d) provides that:

[in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

And  7 (c) provides that:

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

I order the employer to pay €2500 in compensation for the breach in failing to provide a written statement of the nature of his job and the change that had occurred.

I order the employer to amend the Complainant’s job description as per the written submission made by him at this hearing as a true and accurate reflection of his role; arising from the fact that the nature of his role has changed from the tasks initially described when he was appointed as a care taker and had changed substantially on or about January 2019; where the nature of that role involves more accountability and responsibility.

Nature of Role-Change in Conditions