Complainant

Respondent

Parties

Aidrainne  Rogers

Nua Healthcare Services Limited

Representatives

 Tiernans Solicitors

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00058712-001

07/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00058712-002

07/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00059629-001

26/10/2023

The complaints were submitted to the Workplace Relations Commission (WRC) on 7th September 2023 and 26th October 2023 in respect of alleged breaches of the Terms of Employment (Information) Act, 1994 and the Protection of Employees (Fixed Term Work) Act, 2003. The complaint relating to alleged breaches of the Payment of Wages Act, 1991 (Complaint Application no – CA-00058712-001) was withdrawn at the adjudication hearing.

Both parties furnished written submissions in advance of the hearing. The respondent availed of the opportunity to submit supplemental submissions in respect of the complainant’s locus standi to bring a complaint under the Protection of Employees (Fixed Term Work) Act, 2003. The complainant’s representative was afforded the opportunity to respond to the supplemental submissions but chose not to submit any further response.

CA- 00058712-002 – Terms of Employment (Information Act) 1994

The complainant was legally represented at the adjudication hearing. The basis of this complaint, as referenced in the submissions was that the respondent did not notify the complainant of the changes that occurred when she commenced a fixed tern role within the organisation. The complainant’s representative outlined that the complainant did not receive notification of these changes until 25th November 2022, which is a breach of Section 5 of the Terms of Employment (Information) Act, 1994.

CA-00059629-001 – Protection of Employees (Fixed Term Work) Act, 2003

The complainant’s representative outlined that the complainant began a fixed term role within the respondent organisation in September 2022 and that this contract was due to end on 1st March 2023. The complainant stated that the contract continued beyond March 2023 and continued until August 2023. The complainant’s representative contends that this is a breach of Section 8 of the Protection of Employees (Fixed Term Work) Act, 2003.

CA- 00058712-002 – Terms of Employment (Information Act) 1994

The respondent accepts that the fixed term contract of September 2022 was not sent to the complainant within the period prescribed by the Act. Notwithstanding this, the respondent cited the cases of Grant Engineering v Denis Delaney (TED17/28) and Patrick Hall v Irish Water (TED 15/6) in support of its position that the complainant did not suffer any detriment and as such no compensation should be paid to the complainant as a result of a technical breach of the legislation.

CA-00059629-001 – Protection of Employees (Fixed Term Work) Act, 2003

The respondent’s position on this complaint is that the complainant continued in the Dual Team Leader Role after the expected expiry of the fixed term contract in relation to that role. On that basis, the respondent contends that the complainant was deemed to be a permanent employee on a contract of indefinite duration.

Supplemental Submissions

The respondent addressed the issue of the complainant’s “locus standi” to bring a complaint under the Protection of Employees (Fixed Term Work) Act, 2003 in supplemental submissions. On this point, the respondent stated that the complainant was an acting team leader on a permanent basis prior to commencing a fixed term contract in respect of the role of dual team leader. On the expiry of the fixed term contract, the complainant was expected to return to her substantive role within the organisation. The respondent acknowledged that the complainant was permanent in the role of dual team leader once the date of the expiry of the fixed terms contract had passed, and she had continued in the role. The respondent stated that the error relating to the complainant’s pay was rectified and she was reimbursed in November 2023. The respondent concluded by stating that as the complainant was on a contract of indefinite duration, she was not a fixed term worker within the meaning of the legislation and therefore does not have locus standi to bring a complaint under the act.

CA- 00058712-002 – Terms of Employment (Information Act) 1994

The Applicable Law

Section 5 of the Terms of Employment (Information) Act, 1994 states as follows:

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.

It was not disputed that a breach of the legislation had occurred in respect of the notification of changes to the complainant’s terms and conditions of employment in September 2022. I have considered the submissions of both parties and the cases cited by the respondent in support of its position on the technical breach of the legislation. Having considered the matter, I find that, while there was no detriment to the complainant in respect of the breach, a breach of the legislation did occur, and I award the complainant one week’s pay in respect of that breach.

CA-00059629-001 – Protection of Employees (Fixed Term Work) Act, 2003

The Applicable Law

Section 2 of the Protection of Employees (Fixed Term Work) Act, 2003 states as follows:

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

Having reviewed the contracts of employment submitted by the parties to this complaint, I note that the complainant commenced employment with the respondent on a permanent basis with effect from 1st October 2017. From that time until beginning a period of sick leave in August 2023, the complainant was engaged on a number of permanent contracts in different roles and two fixed term contracts where she took on additional duties as a dual team leader. Despite the complainant being on fixed term contracts on two occasions, the employment relationship did not end in line with the terms of those contracts, but rather the complainant continued in her employment as a permanent employee. On that basis, I find that the complainant is not a fixed term worker within the meaning of the legislation and therefore lacks the locus standi to bring a complaint under the act. For that reason, I find that the complaint is not well founded.

CA- 00058712-002 – Terms of Employment (Information Act) 1994.

The complaint is well founded. The respondent is directed to pay the complainant one weeks’ pay in respect of the breach of the legislation.

CA-00059629-001 – Protection of Employees (Fixed Term Work) Act, 2003

For the reasons stated above, I find that the complaint is not well founded.

Notification of changes to terms and conditions of employment, fixed term worker “locus standi”