Complainant

Respondent

Anonymised Parties

A Childcare Worker

A Childcare Provider

Representatives

  Appeared In Person

Theresa Connolly Real HR Solutions

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-00065328-001

11/08/2024

On August 11, 2024, the Complainant, A Child Practitioner and Lay Litigant submitted a request for information to the WRC.

She outlined that she was currently on sick leave and contended that she was placed under pressure to declare a return-to-work date. In addition, she was met with a request to undertake a specific work-related course. She believed this to be unfair treatment.

The Complainant ended her online query with:

“The purpose of this email is to firstly log the situation with yourselves and possibly get some advice as to what my next steps are. “

On 15 August 2024, the WRC acknowledged the complaint wished to make a complaint under Section 5 of the Terms of Employment (Information) Act 1994 and notified the Respondent.

On 18 August 2024, the Complainant re submitted the text in her online query of a week earlier.

On 19 August 2024, the Respondent rejected the claim.

On 26 September 2024, both Parties were invited to an Adjudication hearing set for 21 October 2024 on the Remote Platform.

On October 2, 2024, the Respondent represented by Theresa Connolly at Real HR Solutions submitted a written submission, inclusive of a Statutory Regulatory Framework operational in the Child Care sphere.

The Parties attended the hearing on the Remote Platform on 21 October 2024 as permitted in accordance with:

Section 31 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, as amended by section 91 Courts and Civil Law (Miscellaneous Provisions) Act 2023.

The Complainant and the Respondent both availed of the affirmation to accompany their evidence.

At the end of the hearing, I was concerned that the parties had not engaged in any real depth prior to, during or post submission of the complaint at the centre of this dispute.

I offered the Parties a period of 4 weeks for both parties to consider any possible resolution to this matter on a face-to-face basis with the option of securing a guiding medical opinion. I offered this without prejudice to completion of my decision during the week of November 25, 2024.

 Both Parties reflected on these options and confirmed that they would try the first option and if they made progress, they would update the WRC on or before November 18, 2024.

As I write this background, neither Party has updated the WRC and therefore, I press on with my statutory obligation to provide a decision in this case.

Section 41(14 (b) of the Workplace Relations Act 2015 permits me a discretion in the face of special circumstance to place an anonymisation of the Parties in my decision.

b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.

In this case, I found a background of active illness which has placed the Complainant in a very vulnerable situation.

I wish to exercise my own discretion in anonymising both Parties as a result of those special circumstances in my Decision.

The Complainant commenced work as a Child Practitioner on 20 June 2022 with the Respondent Childcare business. She is a full-time employee, and her salary stands at €530.00 gross per week.

The Complainant has been on sick leave since 27 March 2024. This sick leave arose on the advice of the Respondent and pay ceased shortly afterwards. The Complainant outlined that she was uncertain about the continuity in her wages and delayed activating a claim for illness benefit from the Dept of Social Protection.

She outlined that she was being supported in her recovery and intended on resuming work. However, she now feels pressurised to declare a return date.

The Respondent had also sought that she attends a specific work-related course which they deemed essential to her continuing employment.

The Complainant took advice from an Advisory service and contended that this was unfair treatment.

Evidence of the Complainant:

The Complainant outlined that she has been off work to address her mental health condition since March 2024. She did not have a pronounced sick leave record prior to this.

The Complainant submitted that the Respondent had placed her under pressure to return to work and to complete a childcare course QQI, Level 5 as part of that return.

The Complainant submitted that on foot of advice from an external advisory service, she was informed that changes to her work were not permitted during sick leave.

She confirmed that as her wages had been reduced in sick leave, she could not afford medical certificates but did submit social welfare certs to the Respondent.

The Complainant submitted that she was uncomfortable when details of her sick leave were placed on the group chat, and she was removed from this in July 2024.

When requested to outline how her terms of employment had changed? the complainant outlined that no changes had occurred.

The Complainant contended that she had been unfairly treated but had not actioned an internal grievance. She concluded by saying that her intention had been to log her concerns with the WRC to obtain advice.

Ms Connolly did not avail of cross examination.

The Respondent operates a childcare business and has rejected the claim made under Section 5 of the Terms of Employment (Information) Act 1994.

It is common case that the Complainant commenced her childcare position on 22 June 2022. She is living adjacent to the Respondent.

The Respondent outlined that the Complainants health deteriorated from early 2024. Staff had expressed concerns for her welfare and Ms A called on the Complainants parents to make an intervention. The Complainant has remained on sick leave.

The Respondent had tried to work with her to populate their work force plan in returning to work.

At the commencement of employment in June 2022, the Complainant presented a “Component Certificate “rather than the required QQI level 5. The Respondent employed the Complainant on her assurance of having the QQI Level 5.

The Complainant failed to submit proof of qualification. The omission was remarked on during a visit from the Regulator in April 2023.

This prompted a follow up between the Parties to source an official certificate. None appeared.

In April 2024, the Regulator called again, and this time placed a 10-day stipulation on production of the certificate.

Ms A, proprietor contacted the complainant during her sick leave to advise her of the seriousness of the situation. The Complainant fed back that she had received information from her college that she had failed a module on her course in 2013 and the QQI Level 5 would need to be repeated.

Ms A suggested that the Complainant undertake the course during her sick leave, but the complainant refused due to cost.

The Respondent took issue with the Complainants submission of her sick leave details being placed on the Group Chat. Ms Connolly explained that this was an “inadvertent inclusion “by the Respondent, which was spotted within one minute, removed and reported to the Data Protection Commissioner. The Respondent apologised and sought to reflect that no clinical details were set out.

The Respondent remains live to options to accommodate the Complainant back to work within the Regulatory requirements.

The Respondent denies that any changes have been made to the complainants’ terms of employment as provided for in the contract of employment exhibited.

At present, the Respondent is obliged to work with the Regulator and will require the complainant to complete QQI Level 5. However, there are a number of options open to support the Complainants return to work.

The Respondent stated an uncertainty on the resolution being sought by the complainant in the face of no changes made to her terms and conditions of employment.

The contract reflects weekly certificates.

The Respondent is willing to facilitate a rehabilitative return to work for the Complainant.

Evidence of Ms A.

Ms A outlined that she had made a number of attempts to engage with the complainant through phone and email, but did not receive an answer.

Ms A confirmed the challenges that the Lack of a valid QQI Level 5, but said these were not insurmountable to facilitating the complainant back to work. She submitted that she was obliged to work with the Regulator.

The Respondent had not made changes to her terms of employment.

The Complainant did not avail of the offer to cross examine the witness.

I have been requested to inquire into the facts of this case and arrive at decision on whether the Complainant was not notified in writing of a change in her terms of employment.

In arriving at that decision, I have had regard for the WRC complaint form, The Respondent written submission, direct evidence from the Complainant and Ms A and oral arguments made at hearing.

My jurisdiction in this case is derived from the Terms of Employment (Information) Act, 1994, in particular Section 5 of the Act. 

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) 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.

(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.

My first concern in this case, was whether the complainant actually meant to make a complaint?

The narrative on the complaint form read as a cautious attempt to log a perceived wrong and obtain advice.

While there is a separate Advisory service on offer for both Parties at WRC.

 Once, a complaint is lodged at the WRC Adjudication Service, the pathway follows through resolution through Mediation on consent or onwards through the Adjudication service.

I cannot advise either party.

The Complainant did not provide a written submission in her own case and by her own admission, she did not activate a local grievance with the respondent.

In my opinion, she may have skipped a step in not seeking to at least trial the grievance procedure outlined in her statement of terms signed by her in September 2022.  I appreciate that she may have hoped that the WRC would intervene , but she had not considered that a referral to Adjudication prompts the unfolding of both Parties accounts .

The Respondent has rejected the claim and has emphasised the operational difficulties which followed a delay in receiving medical certificates and latterly the incomplete QQI Level 5 qualification.

For my part, I reviewed the Statement of Terms of Employment issued some months after employment commenced in 2022.

While I have some reservations regarding the lack of detail in hours of work per week, I note the robust clause fourteen on changes to “Your Terms of Employment “ and permits grounds for objection to any change .

Having listened to the Complainants evidence, I am satisfied that she has not been the subject of a change in terms of employment within the 6 months prior to her complaint dated 11 August 2024, that is 12 February -11 August 2024.

 For the majority of this time, she had been on unpaid sick leave, as permitted in the Terms. The Respondent request for weekly medical certificates is embedded in the Terms document.

The Respondent has raised a concern surrounding the potential for an incompatibility between the childcare qualifications held by the complainant and the Regulators stated requirements. No change has occurred as yet, as the complainant has not been passed medically fit for a return to work.

For my part, I heard the Complainant confirm in evidence that her terms of employment have not been changed. This is a viewpoint shared by the Respondent.

I have not identified that the any change has been made or occurred in the particulars issued under Section 3 of the Act.

I now have both Parties agreeing to this point.

As a result, this claim is bound to fail as it is devoid of merit and cannot succeed.

In such circumstances, I must consider a dismissal of claim as provided for in Section 42(1) of the Workplace Relations Act, 2015

Dismissal of claim by adjudication officer

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.

(2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court.

(b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal.

(c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought.

This provision is aimed at preventing an abuse of process and the Respondent having to defend a claim, which is bound to fail.

The descriptors of frivolous and vexatious are not meant to reflect a dismissive action, but rather to reflect the futility and misconceived nature of the claim.

I dismiss the claim.

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 in accordance with the relevant redress provisions open to me.

I have relied on Section 42(1) of the Workplace Relations Act 2015 and dismiss this claim as being frivolous.

Section 5 of the Terms of Employment (Information) Act, 1994, Notification of Change.