ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051008
Parties:
| Complainant | Respondent |
Parties | Rafael Andrade Jorge | Centric Mental Health |
Representatives | Self | HR Manager |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by an Adjudication Officer under s27 of the Work life Balance and Miscellaneous Provisions Act 2023 | CA-00062654-001 | 08/04/2024 |
Date of Adjudication Hearing: 13/06/2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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(s). The parties were also provided with an opportunity to make further final statements. That process concluded on the 30th of August 2024.
Background:
The Complainant stated that when he was offered another job with a different employer, to retain him he was offered a fully remote working contract of employment, which he accepted.
On the 4th of August 2022, an amendment was made to the Complainant’s contract:
AMENDMENT TO STATEMENT OF MAIN TERMS OF EMPLOYMENT To: Rafael Jorge From: Spectrum Mental Health Date: 04.08.2022 RE: Contract amendment Dear Rafael, Following your recent conversation with Claire McGoldrick, this letter is to confirm your place of work will be fully remote from September 1st 2022. Please note that all other terms and conditions will remain the same. All service accrued since your original start date will be counted as continuous service with the Company. As these changes result in a variation and amendment to your contract of employment. I would request that you sign the enclosed copy of this letter and return it to me within 3 working days. This will signify your acceptance of the changes to your contract of employment. I would like to thank you for your continued service and I am sure you will be as successful as you have been thus far, if you have any questions relating to this amendment or any queries please do not hesitate to contact me. Yours sincerely, Sue Carroll HR Generalist -------------------------------------------------------------------------------------------------------------- I have read, understood and agree to the changes to my contract of employment as set out in this letter. Signed…………………………………. Date…………………………
On the 11th of January 2024 the Company wrote to the Complainant and stated the following:
11th January 2024 Dear Rafael Following on from our recent conversation on the 14th December 2023, this letter is to confirm that you are required to attend RSA House, Floor 7, Dundrum Town Centre, Sandyford Road, D16FC92, a minimum of 2 days per week.
We acknowledge that you received a letter from a former HR colleague, however, as discussed, the needs of the business have changed, and we require all support service staff to attend the office a minimum of 2 days per week. I understand that this is a significant change to your work schedule and for that reason, this change will be effective from the 5th of February 2024, giving you an opportunity to make necessary arrangements. Please note that all other terms and conditions of your employment will remain the same. All service accrued since your original start date will be counted as continuous service with the Company. As these changes result in a variation and amendment to your contract of employment. I wouldrequest that you sign the enclosed copy of this letter and return it to me within 5 working days. This will signify your acceptance of the changes to your contract of employment. If you have any questions relating to this amendment or any queries please do not hesitate to contact me. Kind regards, ________________ Rebecca Power HR Generalist Email: rebecca.power@centrichealth.ie
Jane Maguire ___________________ Jane Maguire Managing Director I accept above terms as outlined:
_____________________ _____________ Rafael Jorge Date Complainant subs ADJ-51008 Communication for RJ 1101202
The Complainant did not agree to a variation in his contract terms.
The final position of the Company and after the internal grievance procedure was finalised was the following:
Mr. Jorge responded on 29th January 2024 acknowledging the fact that the contract permits alteration, however, he raised a grievance on 9th February 2024 in regard to same.
On completion of the grievance procedure, which followed best practice, Mr. Jorge wrote to the HR Director on 27th February 2024 stating that he was appealing the requirement of attending the office once a month, however in the instance that it would be implemented he asked for the following: • An increase in wage • Lunch allowance • Travel expenses
In the response to his appeal, the business offered both lunch allowance and travel expenses to Mr. Jorge. He has been asked to attend the office twelve times in a year, this is not an unreasonable request, and this situation was activated in December 2023.
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Preliminary Matter:
This complaint referred under section 27 of the Act which states the following:
Decision under section 41 or 44 of Act of 2015
- (1) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first-mentioned decision in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 21 (1) may—
(a) direct that the employer comply with paragraph (a) of section 21 (1),
(b) direct that the employer comply with any of the requirements of paragraph (b) of section 21 (1) as if the reference in that subsection to the date that is 4 weeks after the receipt of the employee’s request under section 20 was a reference to such date as may be specified in the direction,
(c) award compensation in favour of the employee concerned to be paid by the employer concerned, or
(d) specify both a direction referred to in paragraph (a) or (b), or both, and an award referred to in paragraph (c).
This complaint was lodged on 8th of April 2024.
The remote working contract term entered into with the employee was the 4th of August 2022.
The Work life Balance and Miscellaneous Provisions Act 2023 was enacted on the 4th of April 2023.
The right to request remote working commenced on the 7th of March 2024.
The agreement made between the parties preceded the Act.
A question then arises is this matter properly before me?
Section 17 of the Act states the following:
- (1) A provision in any agreement shall be void in so far as it purports to exclude or limit the application of any provision of this Part or is inconsistent with any provision of this Part.
(2) A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by this Part shall be deemed to be so modified as to be not less favourable.
(3) Nothing in this Part shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision in this Part.
(4) References in this section to an agreement are to any agreement, whether a contract of employment or not and whether made before or after the coming into operation of this section.
The term in dispute was agreed between the parties prior to the enactment of the Act and the right to request remote working having regard to the relevant code of practice.
The original contract of employment was agreed on 13th of May 2020:
AMENDMENTS TO TERMS AND CONDITIONS OF EMPLOYMENT
We reserve the right to amend your terms and conditions of employment, following consultation with you, taking into account the requirements of the business and legislation governing your employment.
For and on behalf of the Employer I acknowledge receipt of this statement.
............................................................... ....................................................(Employee)
.......................................... (Date) .......................................... (Date
It is well settled law that no term in a contract is unfettered:
In Devlin v Electricity Supply Board PW 550/2011 the tribunal noted that:
However, a discretion, although it may seem absolute, is not unfettered and must be exercised reasonably and in good faith Horkaluk v Cantor Fitzgerald [2004] 1 ICR 697 and Lichters & Hass v Depfa [2012] IEHC 10.
Hedigan J in Lichters affirmed that a discretion is not unfettered:
In Clarke v Nomura International [2000] IRLR 766 the Court of Appeal for England and Wales considering this type of situation observed: -
"An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute, will be in breach of contract if no reasonable employer would have exercised the discretion in that way."
He went on say that:
10 6.9 Whether in the context of a contract in restraint of trade if that is the case, or to determine the proper exercise by the defendant of its discretion as an employer, the question for the court is as to whether it can be considered that in the circumstances of this case no reasonable employer would have acted as the defendant company did
The Complainant summarises his dispute as follows:
My employer started asking me to come to the office at least once a month since January 2024. My contract is fully remote and I live in Tralee co. Kerry thus making it impossible for me to come. I have stated to them numerous times of my impossibility to come, but they are still insisting. I have also reiterated with them of my contract being fully remote, but they are just ignoring it and still insisting for me to come. If you could please instruct me what can be done in this situation.
On the facts the request and right to change a term based on reasonable consultation has been fulfilled by the Employer. The original requirement to attend 2 days a week was changed to 1 day a month and this change in the employment terms is a reasonable change to the contract.
The code of practice states:
An employer who receives a request for RW must consider the request,
having regard to:
their own needs, i.e. the business needs; and
the employee’s needs, i.e. their reasons for requesting RW; and
the requirements of this Code of Practice in relation to considering a
request.
An employer should consider a request for RW in an objective, fair and reasonable
manner. An employer may consider both the suitability of the role for RW as well
as the employee’s suitability to work remotely. In reviewing whether a role or an
individual employee is suitable for RW, it is important that both are reviewed in an
objective, fair and reasonable manner
The right to request full remote working at home effectively commenced when the internal grievance procedure was initiated. That concluded in early 2024 internally and then was referred to the Commission in early April 2024. To advance this matter before me I make the following findings:
- The Company acted reasonably in changing the terms of the contract requiring attendance 1 day a month at the office which was effective when the matter was lodged with the Commission in April 2024.
- The Complainant wished for this term to change back to fully remote at the date of referral to the Commission when the right to request remote working was operative. The process followed by the Company can be considered not the merits of the decision.
- The rationale for refusing full remote working from home was set out clearly to the Complainant, that 1 day a month was not unreasonable when other colleagues would be attending for 2 days a week and that the changing demands of the business required his attendance at the office. He would also receive agreed expenses for travelling 1 day a month:
”we would ideally prefer you to attend the office 2 days per week in conjunction with all other Centric Mental Health employees, along with the change in the business operating model. As a compromise, we request for you to attend the office once a month as we strongly feel it will benefit team morale, your professional development and overall productivity. This day can be agreed by you and your manager in advance. Please note that you have the right to appeal this decision. Appeals must be made in writing to”
Summary of Complainant’s Case:
The Complainant stated that when he was offered another job with a different employer, to retain him he was offered a fully remote working contract of employment, which he accepted.
On the 4th of August 2022, an amendment was made to the Complainant’s contract:
AMENDMENT TO STATEMENT OF MAIN TERMS OF EMPLOYMENT To: Rafael Jorge From: Spectrum Mental Health Date: 04.08.2022 RE: Contract amendment Dear Rafael, Following your recent conversation with Claire McGoldrick, this letter is to confirm your place of work will be fully remote from September 1st 2022. Please note that all other terms and conditions will remain the same. All service accrued since your original start date will be counted as continuous service with the Company. As these changes result in a variation and amendment to your contract of employment. I would request that you sign the enclosed copy of this letter and return it to me within 3 working days. This will signify your acceptance of the changes to your contract of employment. I would like to thank you for your continued service and I am sure you will be as successful as you have been thus far, if you have any questions relating to this amendment or any queries please do not hesitate to contact me. Yours sincerely, Sue Carroll HR Generalist -------------------------------------------------------------------------------------------------------------- I have read, understood and agree to the changes to my contract of employment as set out in this letter. Signed…………………………………. Date…………………………
The parties are now bound to honour that term. The Complainant has moved to Tralee, and it is unreasonable for the Employer to ask him to travel to Dublin for 1 day a month. His place of work is Tralee. |
Summary of Respondent’s Case:
The request is reasonable and for sound business reasons. It makes good business sense for employees to attend the office to increase the quality of communication between colleagues and to take account of the changing circumstances of the Company. Other colleagues will be required to work 2 days a week at the office. In these circumstances the request is reasonable and fair having regard to the previous amendment made in the contract. He would be required to attend 1 day a month and be eligible to claim both lunch allowance and travel expenses. |
Findings and Conclusions:
The merit of the change is not a matter that I can consider under the Code of Practice or the Act. I have determined that the Complaint is not well founded. The Employer had the right to change the term in the contract as the new term is a proportionate amendment provided for under the contract of employment. The question then arises has the Employer followed the right process when assessing the request to revert to full remote working at home after lawfully changing the term? 27. (1) A decision of an adjudication officer under section 41 of the Act of 2015, or a decision of the Labour Court under section 44 of that Act on appeal from the first-mentioned decision in relation to a dispute between an employee and his or her employer relating to the fulfilment by the employer of his or her obligations under section 21 (1) may— (a) direct that the employer comply with paragraph (a) of section 21 (1), (b) direct that the employer comply with any of the requirements of paragraph (b) of section 21 (1) as if the reference in that subsection to the date that is 4 weeks after the receipt of the employee’s request under section 20 was a reference to such date as may be specified in the direction, (c) award compensation in favour of the employee concerned to be paid by the employer concerned, or (d) specify both a direction referred to in paragraph (a) or (b), or both, and an award referred to in paragraph (c). And section 21 states: Obligation on employer to consider request under section 20 21. (1) An employer who receives a request for a remote working arrangement submitted in accordance with section 20 (3) shall— (a) consider that request, having regard to— (i) his or her needs, (ii) the employee’s needs, and (iii) the requirements of the code of practice, and (b) as soon as reasonably practicable but, subject to subsection (2), not later than 4 weeks after receipt of the request— (i) approve the request, which approval shall include an agreement prepared and signed by the employer and employee setting out— (I) the details of the remote working arrangement, and (II) the date of the commencement and the expiration, if any, of the remote working arrangement, (ii) provide a notice in writing informing the employee that the request has been refused and of the reasons for the refusal, or The Employer has complied with the obligations as set out based on the recency of the grievance process and the section becoming legally effective. The Respondent review stands having regard to the proximity of the commencement of the relevant section and the final appeal completed under the grievance process. The assessment did consider the business needs and the employee’s needs and the outcome was a significant change to what the business would prefer based on the needs of the employee. I note that the code of practice states: Under the Act, neither an AO of the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer in relation to RW. This means that they cannot look behind the merits of the decision, they can only look at the process which led to the employer’s decision. And The AO, or the Labour Court on appeal, may direct the employer to comply with specific sections of the Act and/or award compensation to the employee, not exceeding 4 weeks’ remuneration to be paid by the employer. Having regard the circumstances of this complaint and to the proximity of finalising the grievance appeal with the commencement of the right to request full remote working, those reviews stand and continued to have force when the right to request remote working and the code of practice commenced in March 2024. The claim was lodged in April 2024. The Employer exercised the right to change a term of the employee’s contract which required him to be in the office 1 day a month. This was a reasonable change in his terms. He continues to substantially work remotely from home and only works 12 days a year at the office. The referral to the Commission by the employee is misguided as he perceives that the referral is about reverting to the prior contract term where his place of work was fully remote. The referral is not a determination about the merits of the decision to change a term in his contract. The Employer had the legal right to change the contract term. After the term changed and the grievance process concluded the matter was referred to the Commission. The internal grievance process has met all the requirements set down in the Code and the Act. The request to return to full remote working has been assessed as required under the Code and the Act. I have concluded that the Employer has complied with the process as prescribed in the Act and the Code. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the complaint is not well founded. I note that the code of practice states: Under the Act, neither an AO of the WRC nor the Labour Court have the legal power to assess the merits of any decision made by an employer in relation to RW. This means that they cannot look behind the merits of the decision, they can only look at the process which led to the employer’s decision. And The AO, or the Labour Court on appeal, may direct the employer to comply with specific sections of the Act and/or award compensation to the employee, not exceeding 4 weeks’ remuneration to be paid by the employer Having regard to the circumstances of this complaint and the proximity of finalising of the grievance procedure and the commencement of the Code and right to Request Remote working, those reviews stand. The Employee enjoyed full remote working at home previously and wanted to be fully remote and his place of work to be his home with no obligation to work at the Company’s office. While he had this as a term of employment, it was changed lawfully and was in force at the time of lodging his complaint. The task before me is to look at the process followed by the Company in refusing the request and not the merits of that decision. I have concluded that it was reviewed in compliance with the Act and the Code, and that the Employer complied with their obligations. The claim was lodged in April 2024. The sequence of events which was allowed in law was for the change in a term of the employee’s contract to occur which required him to be in the office 1 day a month. This was a reasonable change in his terms provided for under the contract of employment and a clear reason given in early 2024. “we would ideally prefer you to attend the office 2 days per week in conjunction with all other Centric Mental Health employees, along with the change in the business operating model. As a compromise, we request for you to attend the office once a month as we strongly feel it will benefit team morale, your professional development and overall productivity. This day can be agreed by you and your manager in advance. Please note that you have the right to appeal this decision. Appeals must be made in writing to” In all respects the Company has met the requirements in the Act relating to assessing business needs and the employee’s needs and communicating in writing to him about the reason for not approving full remote working at home. The Complainant’s request for restoration continued when the new code came into effect on the 7th of March 2024. However, the referral is not about the merits of the new employment term and can only be about how the decision was made to continue with the new term and communicated to him with reference to the Code and the Act. I have concluded that the Employer has complied with the process as prescribed in the Act and the Code. |
Dated: 09-10-24
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Full Remote Working |