ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00039389
Parties:
| Complainant | Respondent |
Parties | Martin Murray | Textile Recycling Limited |
Representatives | Self-represented | ESA Consultants |
Complaints:
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-00051047-001 | 07/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00051047-002 | 07/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00051047-003 | 07/06/2022 |
Date of Adjudication Hearing: 14/03/2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 7th June 2022, the complainant referred matters to the Workplace Relations Commission. They were scheduled for adjudication on the 14th March 2023.
The complainant attended in person and was accompanied by Catherine Murray. The respondent was represented by Ana Rosa Raso, ESA Consultants. Leonard Hegarty and Shane Buckley attended as witnesses for the respondent.
In accordance with section 41 of the Workplace Relations Act, 2015 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 asserts that he was not permitted to return to his contracted role at the respondent and the respondent denies that there has been a contravention.
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Summary of Complainant’s Case:
The complainant outlined that he tried to go back to the job after Covid and was told that the job of driver assistant ceased in 2015. This role involved going out with different drivers to clothing banks. He commenced working for the respondent in 2008 and did this role and other duties, for example loading trailers and running bailors and packing clothes. He went out on PUP from March 2020. He sought to return in March 2022. The respondent offered him a different role on the same rate of pay. He has since started a new job in November 2022. In March 2022, the complainant wanted to go back to the job he had always done but the respondent informed him that it had ceased. The respondent breached his contract of employment because his designated role was driver assistant. He did not ask the employer for a statement of core terms. The complainant said that he had not seen the letter of the 7th January 2021 and did not receive the letter of 12th January 2021. There were phone calls with Mr Hegarty in 2022 and not 2021. He returned to work in June 2020 and went on lay off again in October 2020. He made a decision not to go to work because the level increased to Level 5. He was looking after his father. In 2022, the pandemic was over, and Mr Hegarty made the first phone call. The complainant said he was heading back as driver assistant and was told that the job ceased in 2015. In 2020 it was too dangerous to share a cab and prior to that some people did not have an assistant. It was up to the yard man to determine whether there was an assistant. The complainant was looking for the return of everything. The complainant did not go back as he had been told that the role had ceased and that he would no longer be out on the road. Prior to the pandemic, he was out on the road for about 35% of the time. There was no discussion regarding hours of work or pay. He never communicated by email with the respondent and the 2022 letters came by post. |
Summary of Respondent’s Case:
The respondent submitted that the complainant received a contract of employment. During the pandemic, the complainant was doing warehouse duties. Mr Hegarty said that the respondent was an essential service and there were employees who did not come in. The complainant returned in June 2020 and was working in the yards. He was responsible for collecting clothing. He had been doing this role for several years and they did not have helpers in vans anymore. The complainant’s employment ended in 2022. The complainant’s contract of employment provided for flexibility. The driver assistant role could not be safely carried out in the pandemic. In the letter of the 1st March 2022, HR offered to mediate. The complainant had been supplied with the grievance procedure. |
Findings and Conclusions:
The complainant referred three complaints pursuant to the Terms of Employment (Information) Act, specifically pursuant to sections 3, 5 and 6. The complainant’s employment commenced on the 22nd February 2007 and ended in 2022. Section 3 sets out the obligation of the employer to provide a statement of terms of employment. The complainant was provided with a contract which entitled his role as ‘Driver Assistant’ and that this could change over time. There was a flexibility clause. In 2011, the employer amended the working hours of Driver Helpers. I find that the respondent provided the complainant with a statement of terms as required by section 3. Section 5 sets out the obligation of the employer to notify the employee of a change to their terms of employment. At the time of this employment, this notification had to be given within one month of the change. The 2022 Regulations amend the Act so that this notification must be given on the day of the change. I accept that the complainant’s role evolved to warehouse operative, in particular during the pandemic as two employees could not share the cab of a vehicle. The purpose of section 5 is to inform employees of key parts of their employment. The issue here is job title. The employer was clear that the driver assistant role had ceased, while the complainant was of the view that it was not. Section 5 does not prevent the employer from making such a change; it does require the employer to notify the employee of the change. There was no such notification in this case, and therefore a contravention of section 5 occurred. The lack of notification is the contravention and incurs loss. The complainant does not need to show further consequential loss to merit any claim for compensation. In this case, I assess compensation of €500 as being proportionate, effective and dissuasive. The third complaint relates to provision of core terms of employment. Section 6 addresses existing employees and applies to those who were in employment prior to the enactment of sections 3 and 3(1A). The complainant’s employment began before the 4th March 2019, so he was entitled to ask the employer for a statement of core terms after that date. The employer would have had two months to provide the statement of core terms. The failure to do so is a contravention of section 6. This is predicated on the employee’s request and there was no such request in this case. There is, therefore, no contravention. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00051407-001 I decide that this complaint of a contravention of the Terms of Employment (Information) Act is not well-founded. CA-00051407-002 I decide that this complaint of a contravention of the Terms of Employment (Information) Act is well-founded, and the respondent shall pay to the complainant compensation of €500. CA-00051407-003 I decide that this complaint of a contravention of the Terms of Employment (Information) Act is not well-founded. |
Dated: 21st June 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Terms of Employment (Information) Act / section 5 |