ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00052058

Parties:

Complaint:

Date of Adjudication Hearing:  23/09/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act 1994, 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.  The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public.  That may result in decisions no longer being anonymized.  Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.

Background:

The complaints under the Act are that the Complainant was not provided with written terms of employment and was not notified of changes to those terms in accordance with the provisions of the Act.

Summary of Complainant’s Case:

The Complainant made written and oral submissions and gave evidence on affirmation summarised as follows:

He commenced employment as a Sales Assistant with the Respondent in their Drogheda Town Centre Store on 1st February 2022.  In August 2022 he was asked by the HR Manager to go to the Ardee Store for a period of one month.  This was a verbal request.  In October 2022, he was moved to the M1 Store.  His rate of pay changed during this period, from €23,000 plus commission at the start of his employment, to €28,000 for the period he was Manager in Ardee, to €25,000 when he went to the M1 Store.  In December 2022 he was moved to Sales Assistant in Town Centre Store and in March 2023 he was on €27,000 as Assistant Manager in West St.  He was never consulted about these moves, and although he received some transport costs in the form of bus tickets he had to request these a number of times.  He also stated that when he handed in his notice he stated that he wanted to raise a complaint about bullying and harassment.

Summary of Respondent’s Case:

The respondent denies the claim. The complainant was furnished with a contract which he signed on the 7th of February 2022. The contract contained the ‘core terms’ of his employment with the respondent.

01/02/22 -Complainant commences employment.

07/02/22 -Contract signed

08/02/22 -Employee Handbook signed off.

The respondent submits that the complainant has been supplied with his ‘core terms’.

It is therefore submitted that the within complaint is not well founded and the Complainant’s allegation under Section 3 cannot prevail.

The Complainant’s written terms of employment includes a clause on mobility which states that it is a condition of the employee’s employment that he transfer for mobility.  Further, the Complainant’s was paid extra remuneration when he moved to Ardee and the Respondent paid his bus fares. 

The HR Manager gave evidence on affirmation.  He stated that there is a flexibility clause in the employee’s contract.  As the employer was flexible so was the employee.  The Complainant himself wanted to go to Ardee and he was given extra remuneration and at times, bus costs and later start times.  When he moved back to Drogheda, he was put on €24,500 not €23,000.  This was to minimise the loss involved in moving position.  The Manager was flabbergasted at the Complainant’s alleged grievances.   When he was leaving he told management he had a better offer.

Findings and Conclusions:

The complaint was submitted under Section 7 of the Terms of Employment (Information) Act 1994.

Section 3(1) of the Terms of Employment (Information) Act, 1994 as amended (the Act) requires that:

3(1) An employer shall, not later than 1 month 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—

• (a) The full names of the employer and the employee,
• (b) The address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 1963,
• (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,
• (d) The title of the job or nature of the work for which the employee is employed,
• (e) The date of commencement of the employee’s contract of employment,
• (f) In the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

…..

Section 5 of the Act provides:

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) the day on which 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…

In this instant case, the Complainant had many complaints about his time in the employment of the Respondent.  He was moved around various locations, changed positions from Sales Assistant to a brief period as Manager of one store and then reverted back to Sales Assistant in another store.                  

In the written contract of terms and conditions signed by the Complainant on 07/02/2022 it is stated:

It is an express condition of employment that you are prepared, whenever necessary, to transfer to any alternative departments or duties either on a temporary or permanent basis within our business. This flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential from our work force.

In this case, I find that the Complainant was furnished with written terms of conditions of employment and there was a contractual agreement for flexibility.

I find the complaint to be not well founded.

Decision:

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

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint under that Section of the Act.

For the reasons stated, I have decided that the complaint is not well founded.

Dated:   04th of December 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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