Complainant

Respondent

Parties

Alex  Candon

Pelco Limited Ltd - Private Company Limited By Shares

Representatives

ESA Consultants

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-00055523-001

13/03/2023

The Complainant commenced employment with the respondent as a Sales Assistant on the 9th of August 2022 and entered a 6- month probationary period following which he was advised that he would receive a €300 tax free Allgo gift card upon completion of 6 months service in the Company.  The Complainant handed in his notice on the 28th of January 2023 and worked his last day on 9th of February 2023.  The complainant did not receive the €300 gift card which he submits amounts to a change in his terms of employment.

The Complainant has submitted that he did not receive notice with regard a change in his terms of employment.

The Complainant submits that upon commencing employment he was told that he would be entitled to a €300 tax free Allgo gift card upon completion of 6 months service in the Company.

This was highlighted to the Complainant in an email from the Company’s HR Generalist Fiona Ebbs on the 8th of August 2022.

The Complainant handed in his notice on the 28th of January 2023 advising that his last day of work would be on 10th of February 2023.  The complainant did not receive the €300 gift card and was advised that he was not entitled to it due to having submitted his resignation on 28th of January 2023 prior to completing his 6 months probationary period.

The complainant maintains that the failure to provide him with the gift card amounts to a change in his contractual terms and is thus a breach of the Terms of Employment (Information) Act 1994 as he was not notified in writing of such a change.    

The Complainant commenced employment on the 9th of August 2022 and entered a 6- month probationary period as a Sales Assistant.  The Complainant was provided with terms and conditions of employment wherein details of the Respondent’s rate of pay, hours of work, rest periods, notice terms and probation period were provided.    The Complainant was provided with an Employee Handbook wherein details of the probation period were included. 

It is submitted that the Complainant handed in his notice on the 28th of January 2023.

The Respondent accepted the Complainant’s resignation via email on the 30th of January 2023. It is further submitted that the Complainant’s final date of employment was the 9th of February 2023, which is shown in the attendance records provided.

It is not denied that the Complainant was told that he would be entitled to a €300 tax free Allgo gift card upon completion of 6 months service in the Company. This was highlighted to the Complainant in an email from the Company’s HR Generalist Fiona Ebbs on the 8th of August 2022.  It should be noted that this incentive was at all times at the discretion of Management and was never a part of the Complainant’s terms of employment, hence why it was not included in the Complainant’s Contract of Employment.  Therefore, the offer was not a contractual agreement between the parties.

The Respondent refers to a previous decision An Accountant V A Cooperative ADJ00014397 whereby an Adjudication Officer confirmed that there is no statutory obligation under S. 3(1) of the Terms of Employment (Information) Act for the employer to include the terms of the bonus scheme in the employee’s statement of employment. The claims made by the Complainant that he was not notified in writing of the changes to the terms of his employment are not factually correct. This incentive was never included in his terms of employment as previously stated. Therefore, his terms of employment were not changed and hence, he would not be entitled to written notification under the Terms of Employment (Information) Act of 1994. The Respondent contends that they were not in breach of legislation.

It should be noted that this incentive was at all times at the discretion of Management and was never a part of the Complainant’s terms of employment, hence why it was not included in the Complainant’s Contract of Employment.

Section 5 of the Act of 1994. The relevant provision, section 5, 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, 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.”

The complainant advised the hearing that he gave his notice to leave on the 28th of January 2023 and received written confirmation from his employer that his last day of work would be the 10th of February 2023.   He stated that he contacted the HR department of the company to obtain the gift card but was firstly told that he wasn't eligible for this because he had terminated his employment on the 28th of January 2023.   When he challenged this, he was then secondly informed that the gift cards were discretionary.  This incentive was never specified verbally or in writing to be discretionary, as per a documented conversation with a member of the HR staff previously. 

The respondent advised the hearing that the claim made by the Complainant that he was not notified in writing of the changes to the terms of his employment is not factually correct. The respondent stated that this incentive was never included in his terms of employment.  Therefore, his terms of employment were not changed and hence, he would not be entitled to written notification under the Terms of Employment (Information) Act of 1994. The Respondent contends that they were not in breach of the legislation.

The Respondent refers to a previous decision A Personal Lines Insurance Advisor V An Insurance Company ADJ-00022463 whereby an Adjudication Officer decided that a Respondent did not need to notify a Complainant in writing regarding the changes to their bonus structure as there was no reference to the bonus in the Complainant’s contract, and therefore there was no onus on the Respondent to advise on a change to a non-existent particular. The Adjudicator did not find this to be a breach of the Terms of Employment (Information) Act of 1994.

The respondent advised the hearing that under the terms of the Incentive Scheme, employees who satisfactorily complete their 6-month probation period and are an active employee at the time of distribution receive this incentive and that it is not provided to employees who tender their resignation within their probationary period. 

The respondent advised the hearing that the Complainant was aware that there was a requirement to successfully complete his probation period in order to receive the €300 gift card.   However, the Respondent submits that the Complainant did not successfully complete their probation period as they resigned before completion of the probation.

The respondent added that in order to successfully complete the probationary period employees must attend a formal performance review meeting, and if found to be satisfactory, the employee’s position is then confirmed. The Respondent advised the hearing that they were unable to conduct a formal performance review meeting with the Complainant. 

The complainant in response to this stated that he was not told that he was expected to have a final review meeting.   The respondent in questioning the complainant asked if the complainant’s employment had been confirmed to which he answered No and when asked if he accepted that such confirmation was required the complainant replied in the affirmative.

The respondent clarified at the hearing that the Complainant's last day of work was on the 9th of February 2023, and by that time the Complainant was no longer an active employee due to having submitted their resignation on the 28th of January 2023. Consequently, as the Complainant had already tendered their resignation, there was no necessity for Management to arrange a formal performance review.

The respondent advised the hearing that the Complainant had thus not yet successfully passed their probation period. Therefore, the Complainant did not receive the €300 gift card, as they did not meet the Respondent's criteria of satisfactorily fulfilling the probationary period and maintaining an active employment status upon reaching the 6-month milestone with the Company.  In conclusion the respondent advised the hearing that the Complainant had no contractual entitlement to the gift card.

Having considered the totality of the evidence adduced I am satisfied that there was no breach of section 5 of the Act of 1994.

Having considered the totality of the evidence adduced I am satisfied that there was no breach of section 5 of the Act of 1994.  Accordingly, I declare this claim to be not well-founded.