ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00037805

Parties:

Anonymised Parties

A Traffic Warden

A County Council

Complaint(s):

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-00049185-001	11/03/2022

Date of Adjudication Hearing: 21/04/2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed. Post Hearing Submissions and correspondence took place. I have decided to use my discretion under the Workplace Relations Act, 2015 to anonymise the names of the Parties due to the existence of an Industrial Relations Recommendation concerning the same Parties heard at the same time. The Recommendation in the other dispute (which is anonymised) contains sensitive personal information in relation to the Complainant in this complaint and publishing the names of the parties in this Decision would open the possibility of the parties in that Recommendation being able to be identified through this decision.

Background:

The Complainant commenced employment as a Traffic Warden in November 2019. On July 12th 2019 the Labour Court ruled in a dispute between SIPTU and the Respondent with regard to Traffic Wardens in the Complainants employment and recommended the post be aligned with the Refuse Collector Grade resulting in an increase of 14% backdated to March 31st 2017. This was consistent with National norms across all Councils. The Complainant is not a member of SIPTU and alleged that the Respondent was making a unilateral change to his terms of employment and that he was not notified of the change. The increase had been implemented by the Respondent in his case and he wanted the increase reversed as he did not agree with it in principle. The Complainant was given a form to reverse this improvement in his pay and the Complainant refused to sign the form. He sought a decision that he had “not received any written notification of the change”.

Summary of Complainant’s Case:

The complaint CA-00049185-001 is stated as:

“I was not notified in writing to a change to my Terms of Employment. (Terms of Employment 1994). My pay rate was changed after a ballot of SIPTU members took place at the end of last year. I had no vote on the issue as I am not a union member. I was made aware of these changes after refusing to allow my contract of employment to be changed without my consent. I received an email from the Administrative Officer HR Dept. on 1st February 2022. The change took place on the 17th December 2021 and to date I have not received any written notification of the change.”

The Complainant argued the changes were imposed by the Respondent on his contract of employment unilaterally and without his consent. He advised he never received written notification from the Respondent confirming these changes. He was asked by the HR department to sign a letter of undertaking stating his non acceptance of the pay agreement. Following legal advice he did not sign this document. The Complainant requested that the Adjudicator uphold his complaint in relation to the breach under section 7 of the 1994 Terms of Employment (Information) Act by the Respondent.

Summary of Respondent’s Case:

Section 3 of the Terms of Employment (Information) Act, 1994 provides: “3.—(1) An Respondent shall, not later than 2 months after the commencement of an Complainant's employment with the Respondent, give or cause to be given to the Complainant a statement in writing containing the following particulars of the terms of the Complainant's employment, that is to say—

(g) the rate or method of calculation of the Complainant's remuneration,

(m) a reference to any collective agreements which directly affect the terms and conditions of the Complainant's employment including, where the Respondent is not a party to such agreements, particulars of the bodies or institutions by whom they were made. “

The Complainant was employed with the Council on 20th January 2020 as a Traffic Warden as per his contract of employment which provided information in compliance with section 3 of the Act, including information on remuneration. Section 5 of the Terms of Employment (Information) Act, 1994 provides: “—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an Respondent under section 3 , 4 or 6 , the Respondent shall notify the Complainant in writing of the nature and date of the change as soon as may be thereafter, but not later than 1 month after the change takes effect… and 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 . “

Traffic Wardens have historically been aligned to the General Operative for pay purposes. Arising from a claim brought by SIPTU on behalf Traffic Wardens, Labour Court decision CD/19/37 of 12th July, 2019 and subsequent clarification letter provided that the Traffic Wardens pay scale should be aligned with that of Refuse Collector, backdated to 31st March, 2017.

In accordance with the above Labour Court decision the pay scale applicable to the Wardens was determined to be that of Refuse Collector. In implementing the decision of the Court, the Council has applied this decision to the grade of Traffic Warden including the Complainant.

Consequent to the above, the Complainant’s rate of pay was aligned to that of Refuse Collector with effect from 25th November, 2021. He was notified by correspondence dated 22nd December 2021 that the pay scales for Traffic Wardens had been revised and were now linked to the post of Refuse Collector. This was further confirmed to him on 31st January 2021. Following queries from the Complainant in January 2022, he was provided with a copy of the Labour Court decision and subsequent Labour Court clarification and the information has since been provided to him on a number of occasions.

The Complainant was provided with information in accordance with the Act at the time of his employment. The rate of pay changed following a Labour Court Decision and this was notified to the Complainant and applied to him. The council sought that the Adjudicator dismiss the complaint under the Terms of Employment (Information) Act where it has at all times complied with the requirement of the Act.

Findings and Conclusions:

The Complainant lodged a complaint that the Respondent breached the Act by not notifying him in writing of a change in pay within a month of the change taking effect.

The Complaint is taken under Section 7 of the Act and a breach of Section 5 of the Act must have taken place for the complaint to be successful. I set out below the full relevant section of the Act regarding 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 , 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 .”

I will now set out my Findings on the complaint under both Section 5.1 and Section 5.2.

The Labour Court ruled on July 12th 2019 under the Industrial Relations Act concerning the Complainants specific employment category in the Respondent that the position of Traffic Warden should be paid at Grade 3. The effective date of this change was backdated to March 31st 2017 for incumbents and would apply to the Complainant from his start date in November 2019. This back dating was confirmed to the involved parties by the Labour Court in correspondence dated October 13th 2021. The Complainant was notified by the Respondent, within general correspondence dated 22nd December 2021, that the pay scales for Traffic Wardens had been revised and were now linked to the post of Refuse Collector. The Act requires under Section 5.1 that a Respondent must notify within a month the nature and date of the change within a month of the change taking effect. I note this correspondence of 22nd December 2021 does not state the date of the change but does state the nature of the change. The Complainant challenged this change by email dated January 24th 2022. This communication took place within a month after the change took take effect and the Respondent partially complied with Section 5 (1) a of the Act as the correspondence complied with one of the two requirements under Section 5.1. i.e. stating the nature of the change.

The Act provides under Section 5 (2) for the Employer not to notify changes within a month. The Section states” (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 .”

The Respondent provided a copy of an ITGWU document dated October 31st 1996 which stated “Following representation by the Group of Unions an examination has been carried out on a National grading structure in respect of Traffic Wardens. This grade had not been placed formally in the National Pay structure and, as a consequence, a wide variety of grades apply in different Local Authorities. We have now received confirmation from the Department of the Environment that the appropriate grade for Traffic Wardens in the national scale is Grade 3 (equivalent to Refuse Collector. Those below the grade will be assimilated to their corresponding incremental point on the grade with effect from 1st October, 1986 “. This agreement only came into effect in November 2021 for the Respondent due to the Labour Court decision. I consider this change by the Department of the Environment in 1986 to be a national “administrative provision”. The Complainants contract contained the following clause “the position is subject to national agreements”.

It would be nigh on impossible for a contract of employment to specify all the laws and statues that govern the contract and to keep the contract updated with any legal changes to laws and statues. Many contracts just state the contact will be governed by the Laws of Ireland. Of importance too in this considering this Decision is the fact that the Complainant was given the opportunity to reverse the increase which he declined. In effect then he consented to the increase being implemented. This This gives the impression to the Adjudicator that the complaint is one of “principle” rather than a practical one.

I find that because of the inclusion of the term in the contract of employment that “the position is governed by national agreements” and that the change in pay of the post was a result of a national administrative provision that the change is covered under Section 5.2. of the Act. Because of this, under the exemption in Section 5.2, the requirement to be notified in writing, within a month, was not required.

I find that the Respondent has not breached Section 5 of the Act by implementing the change in pay in the manner which it was implemented and they were entitled to implement the change in pay without the written consent of the Complainant and to not notify the Complainant within one month of the effective date of the change.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint is not well founded.

Dated: 24-07-2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Terms of Employment