Complainant

Respondent

Parties

Mark  Byrne

Department of Culture Heritage Gaelteacht/ National Parks and Wildlife Service

Complainant

Respondent

Anonymised Parties

Representatives

Neil Hopkins

Mary Fay BL instructed by Emmet Hayes, Solicitor, Chief State Solicitors Office

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-00027061-001

14/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00027061-004

14/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00027061-006

14/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule  2 of the Criminal Justice Act 2011

CA-00027061-007

14/03/2019

CA-00027061-001

At the commencement of the Adjudication hearing on 1 October 2024 the Complainant advised the Adjudicator that in terms of the employment rights complaints issued, that the only complaint that the Complainant wished to pursue was CA-00027061-001, being a breach under the Terms of Employment (Information) Act 1994. He confirmed that complaints numbered:

CA-00027061-004

CA-00027061-006

CA-00027061-007 were all being withdrawn.

Therefore this decision relates only to complaint CA-00027061-001 and another complaint CA-00027061-002, brought by the Complainant under the Industrial Relations Acts, will be dealt with under a separate WRC Recommendation, which will issue to the parties at the same time as this Decision.

Under affirmation the Complainant gave the following evidence:

Complainant Evidence:

1.      The Complainant worked as a National Parks and Wildlife Service Conservation Ranger for the Respondent

2.      On his return from a period of leave on Monday 3 September 2018, the Complainant was telephoned by his manager, Ger O’Donnell who advised him that from that day on, the Complainant would be required to work from home. The Complainant (on the same day) received a letter by email from the Respondent dated 1 September 2018 confirming the same instruction.  

3.      In terms of his complaint under the Terms of Employment (Information) Act 1994 the Complainant submits that he got no prior notice of this change to his contract. He submits that changing from working outside to being confined to indoor office duties at home was a complete change to his contractual terms and that he should have been given prior notice before this change took effect.

4.      The Complainant asserts that this was a breach of section 5 of the 1994 Act in that he received no prior notification in writing of this change to his contractual terms.

Cross examination

Under cross examination the Complainant gave the following evidence:

5.      He confirmed that the date upon which the change was communicated to him in writing (by email) was Monday 3 September 2018, which was the date that the change to his contractual terms took effect.

6.      He did not deny that his original contract permitted his work location to change to other locations which included working in a home office.

7.      He accepted that for the last two years of when he worked from home ie from 18 February 2020 until he tendered his resignation in March 2022, he was placed on paid administrative leave.

The Respondent did not provide any evidence but instead relied on submissions in respect of the statutory construction of section 5 of the 1994 Act.

Background

There has been a stop-start progress to this adjudication over a six-year period. Postponements and ill health delayed the adjudicative process. Hearings were postponed due to ill health and  adjournments were granted to allow the parties discuss the case between themselves. There were unsuccessful attempts to mediate the case. The final adjudication hearing took place on 1 October 2024.

The employment rights complaints issued by the Complainant to the WRC on 14 March 2019 were originally six in number (together with two Industrial Relations complaints.) These included complaints of Health and Safety Act penalisation, Protected Disclosure penalisation complaints, a complaint under the Terms of Employment (Information) Act 1994 and the two Industrial Relations complaints.

When the complaints were first made by the Complainant in March 2019 he was still employed by the Respondent. In March 2022 the Complainant resigned his employment which meant that by the time the last adjudication hearing took place on 1 October 2024, the Complainant had not worked for the Respondent for over two and a half years.

The Complaints

The Complainant originally issued eight (ER and IR) complaints against the Respondent.

At the adjudication hearing on 5 March 2024 the six original employment rights complaints that were issued, were reduced by the Complainant to four.

At the hearing on 1 October 2024 that number was reduced again to one, namely CA-00027061-001, the complaint under the Terms of Employment (Information) Act 1994.

At the adjudication hearing on 1 October, another complaint was also pursued under the Industrial Relations Acts, which is dealt with by way of a WRC Recommendation.

I was not provided with any explanation for why the bulk of the employment rights complaints were withdrawn by the Complainant at the 1 October 2024 hearing. However, it is not my duty to inquire into this or question why it may have occurred. However, the inevitable consequence of this is that any investigation into the central complaint of the Complainant (re how he was treated and being required to work at home instead of “in the field”) was abandoned when all bar one of the employment rights complaints were withdrawn by him.

I will now turn to consider CA-00027061-001:

Finding RE: CA-00027061-001

This is a complaint brought under the Terms of Employment Information Act 1994. As explained to the parties during the hearing on 1 October 2024, the 1994 Act protects employees from having verbal-only contracts. Its purpose is to protect employees from a lack of clarity in the terms of their employment. Contracts in writing are mandatory.

In his evidence the Complainant accepted that he was informed on the phone on 1 September 2018 by his manager (on the day he returned from leave) that from then on, his work would be home/office based. He accepts that on the same day he also received an email from the Respondent confirming this.

There is no jurisdiction under the 1994 to investigate the fairness or otherwise of this decision. Relief under the 1994 Act is confined to whether written terms and conditions have been provided to an employee or where there has been a change to an employee’s terms, whether that change in terms has been provided in writing to the employee either in advance of, or at the time, that the change took place.

Under section 5 of the 1994 Act an employee is entitled to be notified by his employer of a change to his contractual terms no later than the day upon which the change takes place ([s.5 (1) (a)]

The Complainant’s evidence is that he received a notification (by way of email) in writing on the day that the change to his contract took place, namely 3 September 2018. Arising from this evidence, I find that there is nothing to support the complaint that a breach under section 5 of the 1994 Act took place.

As I have so found, it is unnecessary for me to go on to consider the Respondent’s point of whether the decision to make his work office based was within his original contractual terms. Because even I accept that moving him to work from home was a change to his contract, no breach would occur if the employee is notified in writing no later than the day that the change took place, which was exactly what the Complainant says happened to him.

For the above reason I find this complaint to be not well founded.

CA-00027061-001

This complaint is not well founded

National Parks and Wildlife Service Ranger - notification of change to terms of employment on day change took place.