Complainant

Respondent

Parties

  Carlos Pereira De Souza Silva

GXO Logistics UK II Limited

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Ms Grace O'Malley IBEC

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-00061153-001

23/01/2024

This matter came before the Workplace Relations Commission dated 23/01/2024.  The Complainant alleges a contravention by the Respondent of provisions of the above listed statute in relation to his employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 11/07/2024.   

The Complainant commenced employment with the Respondent on 09/02/2020 as a Warehouse Administrator.  The Complainant resigned from the Respondent company on 11/01/2024 with such resignation taking effect on 09/02/2024. 

The Respondent is an American global contract logistics company that manages outsourced supply chains, warehousing and reverse logistics for blue-chip customers in over thirty countries. 

The Complainant worked 40 hours per week for which he received €3787.50 gross per month. 

The Complainant submits he has not received a job description or documentation regarding updates to his terms and conditions of employment.  The Respondent is unable to dispute or confirm this. 

CA-00061153-001

Overview from written submission

On October 28, 2021, the Complainant submits he was transferred to the Rosemount Site.   The Complainant submits his work hours were changed from 0900 to 1700 to 0900 to 1730.

The Complainant submits on June 1, 2022, he was promoted to System Analyst.  The Complainant submits that additionally, he was requested to work as a Stock Manager starting on February 1.

The Complainant submits he had to perform both duties until August 2023.  The Complainant submits it is stated in the Contract of Employment dated February 2020 that “you will be expected to work additional shifts, in respect of these the company reserves the right to grant time off in lieu or based on the frequency and number of shifts worked, to make a payment based on the equivalent of basic salary on your hourly rate of pay.”  

The Complainant stated the Respondent requested documented evidence of days worked on a non-scheduled day, or a bank holiday and the Complainant submits he provided evidence of 21 days worked.  The Complainant submits the Respondent failed to adhere to the agreed-upon final pay date, resulting in a one-week delay.

The Complainant submits he has not received a job description or any documentation regarding updates to his terms and conditions of employment.  The Complainant submits that he has not been compensated for the additional time worked on a daily basis or for non-scheduled days.

CA-00061153-001

Overview from written submission

The Respondent submits the Complainant was promoted to System Analyst in July 2022 and has stated in his complaint that he never received a job description or any documentation to update the changes to his terms and conditions of employment.

The Respondent submits the Complainant stated he requested paperwork on several occasions but never received it.  The Complainant started working as a System Analyst from June 2022 until he resigned in February 2024.

The Respondent submits the Complainant commenced employment on the 9th of February 2020 on the Clonshaugh site as a Warehouse Administrator and was issued a contract of employment detailing the terms of employment (copy of contract exhibited).

The Complainant was promoted to an Administrator Team Leader on the 3rd of October 2020 and remained on the Clonshaugh site.  He was also issued a new contract of employment to reflect this change (copy of contract exhibited).  The Respondent submits that on the 28th of October 2021, the Complainant transferred to the Rosemount Site and was subsequently promoted to System Analyst on the 1st of June 2022.

The Respondent submits the Complainant continued to work in this position until his resignation from the company on the 9th of February 2024.

Background to the issue and Respondent’s Position 

The Respondent submits the Complainant accepted the new salary and terms and conditions of employment when he was offered the promotion in June 2022.   The Respondent submits the Complainant did not raise any issues regarding his terms and conditions of employment until September 2023.

The Respondent submits that due to a change of staff in the HR Department from 2020 and 2023, Ms Harnett, current HR Business Partner tried to verbally work to resolve the issue with the Complainant however this was proven difficult.

The Respondent submits in January 2024, Ms Harnett asked the Complainant’s manager to engage in conversation with him to determine the details of his role, to create an up-to-date job description to ensure it was reflective of what he was currently doing daily.   The Respondent submits this was met with resistance from the Complainant and unfortunately, this process never got concluded and he resigned in February 2024.

The Respondent submits on the 5th of January 2024, the Claimant emailed Ms. Harnett requesting a copy of his role profile that was provided to him when he was offered the job.   The Respondent submits this was following a request from his manager to provide him with a full list of tasks that he performs onsite, this was to assist HR in drafting the relevant documentation.

Ms. Harnett advised the Claimant that she reviewed his personal file and could not locate a copy of his job description.  Ms Harnett asked the Complainant to notify her if he finds the copy of the document that was previously sent to him, and she will place it on his file.

The Respondent submits Ms. Harnett tried to explain to the Complainant that there were changes in the HR Department from when he started the new role as System Analyst and that unfortunately a copy of the job description and updated amendment letter was not retained on his file.  The Respondent submits this response was also met with resistance and the matter was unresolved.  The Respondent submits it made every effort to resolve the issue by requesting a detail of his duties before creating a job description for him.  The Respondent wanted to ensure that the document accurately reflected his daily duties. The Respondent made every effort to resolve this complaint and to prevent it from proceeding to an adjudication hearing.

The Respondent received notification of the WRC complaint in January 2024 stating, “I was not notified in writing of a change to my terms and conditions of employment”.  The Respondent cannot dispute or confirm this as there was no amendment letter on file from when the Complainant changed role to Systems Analyst.  The Respondent can confirm that the Complainant continued to work in the new role for over a year, from June 2022 to September 2023 without raising any concerns or grievances.  When the Respondent was made aware of the issue, every effort was made to engage with the Complainant to resolve the matter before he resigned in February 2024.

CA-00061153-001

At the outset of hearing I clarified with the parties that there was one claim properly before me for adjudication and that was a claim submitted by the Complainant under section 7 of the Terms of Employment (Information) Act, 1994.  The Complainant’s attention was drawn to correspondence from the WRC acknowledging receipt of his complaint and requesting that the Complainant check that the complaint generated reflects all the issues he wishes to raise with the WRC and to please alert the WRC if there issues he has raised but for which a specific complaint had not been generated.  The Complainant stated he did not recall receiving this correspondence and he was shown a copy of same which was issued to him by email on 26 January 2024 and which provided as follows:

“You will see from this letter that the WRC has generated specific complaints from the contents of the selections made in your submitted complaint form.  Please check that the specific complaints stated above reflect all the issues you wish to raise with the WRC.  Please alert the WRC if there are issues you have raised but for which a specific complaint has not been generated.” 

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

I note there is no dispute as to the background narrative to this complaint.  The Complainant submits when he was promoted in July 2022, he did not receive a job description or any documentation to update the changes to his term and conditions.  The Respondent neither confirms nor denies this.    

I note the Complainant averred at hearing that he realised when he was thinking of moving on from his employment with the Respondent company and preparing his CV that he had nothing to prove that he actually worked in such a role or nothing to show that he was in fact a Systems Analyst. 

I note his most recent contract dated October 2020 from the Respondent company designated the title of Team Leader to the Complainant.  I note when he was provided with the contract in 2020, he was also provided with a job description for that role.

The Relevant Law

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.

I note that it is sufficient to provide written confirmation of changes and the employer is not required to issue a new contract every time a change occurs. 

It is common case the Complainant’s job title and salary were amended together with his duties and responsibilities. I note section 3(1)(d) of the Terms of Employment (Information) Act, 1994 provides that an employee should be provided with a written statement of “the title of the job or nature of the work for which the employee is employed” and by operation of section 5(1) it will be a breach of the Act if an employee is not provided with a written statement reflecting an amendment within one month of such amendment. 

Having carefully considered the totality of the evidence adduced, I am satisfied on balance that nothing at all issued to the Complainant in 2022 when he was promoted.  I have come to this conclusion on the basis that it is likely if something in writing had been provided to the Complainant it would have been held on file by the Respondent in the same manner as contracts dated 9th February 2020 and 3rd October 2020 exhibited in the submissions were held on file. 

Moreover, if the Complainant had been provided with something in writing I am of the view he would have recognised the significance and importance of same and he would have filed it or saved it for future reference should the need arise.    

For the reasons set out above I find on the Complainant did not receive a written statement reflecting what I consider to be significant amendments to his contract of employment when he assumed his new position in 2022. 

Accordingly, I find this complaint to be well-founded and I order the Respondent to pay the Complainant the sum of €1,893.75 (equivalent to two weeks’ pay) which I consider to be just and equitable having regard to all of the circumstances. 

This sum is ordered as compensation for a breach of a statutory right and is not subject to statutory deductions.   

CA-00061153-001

For the reasons stated above I decide the complaint of a contravention of the Terms of Employment (Information) Act, 1994 is well-founded and I order the Respondent to pay to the Complainant the sum of €1,893.75 in compensation. 

Promotion; new role; nothing in writing;