Complainant

Respondent

Parties

Michael  Guerin

Department  Of  Transport

Complainant

Respondent

Anonymised Parties

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Representatives

  Self – Representative

MP Guinness BL instructed by The Chief State Solicitor’s 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-00064838-001

11/07/2024

The Complainant submitted a Complaint Form to the Workplace Relations Commission which was received on 11 July 2024. Detailed submissions were also filed on the same day. The Complainant swore an Affirmation. He was support by his colleagues at the hearing.

The Respondent was represented at the hearing and also provide legal submission s.

The Complainant was the General Manager of Shannon Airport until his retirement on 31 January 1995.

It was the Complainant’s evidence that he commenced employment with the civil service in 1946. In 1969, he transferred from the Department of Transport and Power to the Aer Rianta Teo. It was his evidence that he did not voluntary nor was he called upon to resign from the civil service. No written resignation was never submitted by the Complainant.

The Complainant gave evidence that he accepted the assignment on the basis his terms and conditions would not worsen which includes his pension. Evidence of an Office Notice 4/68 was referred which gave assurances to the staff which were not followed by the Department. He further relied on Finance 33/91.

It was submitted that those employees who did not transfer, retained their civil service pension.

The Complainant produced several Dáil debates from November 1972, July 1973 and December 2020 along with correspondence sent to the Minister for State on his behalf. It was his submission that the Circular 4/68 and the Minister’s statement in the Dáil amounted to a contract.

Response toPreliminary Application

The Complainant submitted that this complaint was ongoing contravention where he continued to suffer financial loss in his pension.

Preliminary Application

The Respondent relied on Section 41 of the Workplace Relations Act 2015 which sets out that a complaint must be  lodged within 6 months from the date of the contravention to which the complaint relates.

While it was accepted it was unclear as to when the contravention occurred, it was submitted that where the Complainant retired in January 1995 the period of contraventions is between 31 January 1995 and 30 July 1995. Therefore, the Complainant is out of time. Furthermore, he was not an employee of the

It was further submitted that the Complainant was his employment was with Aer Rianta and not the Department of Transport.  

Section 41 (6) of the Workplace Relations Act 2015 provides:-

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The Act allows for an extension of time up to 12 months where the Complainant can demonstrate “reasonable cause”.

Considering the Complainant’s argument that the contravention is ongoing, it is necessary to look at the complaint before me. The Complaint Form states that the Complainant was not notified in writing of a change to his terms of employment pursuant to the Terms of Employment (Information) Act 1994. The 1994 Act repealed Section 9 and 10 relating to statement of terms of employment contained in the Minimum Notice and Terms of Employment Act 1973.

Section 5 of the 1994 Act provides: 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.”

Section 5 commenced in 1994 with Section 5 (1) (a) commencing in 2022. The Complainant entered into a contract of employment with Aer Rianta Teo on 1 December 1973. Where the Complainant’s contract was terminated by reason of retirement on 31 January 1995, I find, at latest, the period of contravention for the notification of changes to the contract of employment was between 31 January 1995 and 30 July 1995. Where the Complainant did not submit the Complaint Form until 11 July 2024, I find this to be outside the 6 months beginning on the date of contravention.

The Complainant made a clear and compelling argument in both written submission and at the hearing. However, the statute is clear in terms of the 6-month time limits for complaints relating to the notification of changes of particulars to statements furnished by employers.

Consequently, I have no jurisdiction to progress the complaint.

I find the compliant is not well founded for this reason.

I have no jurisdiction to progress the complaint.

I find the compliant is not well founded for this reason.

Terms of Employment – Notification in Writing