TED237

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00031718 CA-00042208-001

BACKGROUND:

2.This is an appeal under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 25 April 2023. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Sheila Bolger (‘the Complainant’) of a decision of an Adjudication Officer (ADJ-000031718, dated 13 October 2022) under the Terms of Employment (Information) Act 1994 (‘the Act’). The Adjudication Officer held that the complaint was well founded and awarded the sum of €500, which the Adjudication Officer found to be a just and equitable award having regard to the circumstances of the case.A Notice of Appeal was received by the Court on 21 November 2022. The Court heard the appeal in Dublin on 25 April 2023.

The Complainant was employed with Tusla Child and Family Agency (‘the Respondent’) as a Clerical Officer from 16 November 2020 to 26 January 2021.

Position of the Complainant

The Complainant submits that she was not notified of a change to her terms and conditions of employment as required by Section 5 of the Act. On 3 November 2022 she signed a contract of employment that stated at Section 4 - Location:

• “You will be employed initially in the South Region. Your initial assignment will be to Hillsfield Community Building, Belmont Road, Ferrybank, Waterford. You may be required to work in any service within the vicinity as the need arises”.

Position of the Respondent

The Respondent rejects that any breach of the Act occurred. It submits that the Complainant was assigned to the Cork Road offices on a temporary basis due to staffing difficulties in that location. Her contract of employment provides for such changes to her work location.

The Relevant law

The relevant sections of the Act provide as follows:

• 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—

  (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,…

• “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, other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4”.
  
  

Deliberations

Section 5(1)(a) of the Act requires an employer to give written notification of a change to an employee’s terms and conditions within one month of the change taking effect.

The Complainant submits that the Respondent’s failure to notify her of a change to her contract of employment is a breach of section 5 of the Act. She asserts that her contract of employment expressly states that her initial assignment“will”be to Hillsfield Community Building, Belmont Road, Ferrybank, Waterford. She was not assigned to the Hillsfield Community Building, Belmont Road and asserts that this a breach of her contract of employment. The Complainant submits that a breach of the Act occurred as she should have been notified of the change to her contract in writing, as required under section 5 of the Act.

The Court has considered the submissions made by both parties.

The Act at Section 3(1)(c) requires an employer to give an employee, particulars in writing in relation to his or her 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.

In this case, the Complainant’s contract of employment specifies at section 4 that she will be employed initially in the South Region. Notwithstanding the clause stating that the Complainant “will” be assigned initially to one specific location, the contract specifies that the Complainant may be required to work in any service within the vicinity as the need arises. It is clear that under the terms of the Complainant’s contract of employment, the Respondent has the right to direct the Complainant to work at any other work location in the vicinity. In this case, the Respondent instructed the Complainant to attend for work on a temporary basis at the Cork Road offices.

The Court finds that in circumstances where no material change was made to the Complainant’s terms and conditions of employment, there was no requirement for the employer to notify the Complainant of a change to her terms and conditions of employment.

Decision

The Court determines that the Respondent discharged its obligations required under the Act and that the complaint, as a result, is not well founded.

The decision of the Adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
4 May 2023	______________________
CO'R	Deputy Chairman