Complainant

Respondent

Parties

Anthony  O'Sullivan

Bidvest Noonan (ROI) Limited

Representatives

Self

Tina Ochelle Deasy IBEC

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-00063574-001

16/05/2024

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

CA-00063574-002

16/05/2024

The Complainant made claims pursuant to Section 7 of the Terms of Employment (Information) Act 1994 (as amended) (hereafter referred to as “The Act”).

The Complainant made detailed submissions regarding certain issues that had arisen in his employment prior to the initiation of the present claims.

In 2015, the Complainant was employed by an entity called O.C.S. and was deployed to a location where he provided services. He contended that his job had always been that of a concierge or caretaker at that location.

Following a transfer of undertaking in 2023, the Respondent became the employer of the Complainant, and he continued to be deployed to the same location as before. Issues arose in the Complainant’s employment with the Respondent which ultimately led to the initiation by the Complainant of an internal grievance. One of the issues raised in that grievance was the alleged unilateral alteration by the Respondent of the Complainant’s job title terms and conditions of employment which the Complainant contended were at odds with the contract of employment which he had with O.C.S. which then transferred to the Respondent and in respect of which the Respondent was bound.

The Respondent provided detailed submissions in response to the issues raised by the Complainant prior to the initiation of the present claims. The Respondent denied that it was guilty of the alleged or any breaches of the Act.

Section 3(1) of the Act (as amended) provides as follows:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”

Section 3 A (as inserted by reg.6 of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (S.I. No. 686 of 2022)) provides that

“A statement furnished by an employer under section 3,4, 5,6, 6E or 6F shall be—

(a) signed and dated by or on behalf of the employer,

(b) in writing, and

(c) transmitted on paper or, provided that the information is accessible to the employee, that it can be stored and printed, and that the employer retains proof of transmission or receipt, in electronic form.”

Section 5 of the Act [where relevant] provides:

“(1) … 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 7 (2) of the Act provides as follows:

“(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of [section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G] shall do one or more of the following namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under [section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G], or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

Both parties have made detailed submissions regarding the history of the issues which culminated in the Grievance Outcome letter of the 6th of June 2024. An issue arose in that grievance procedure which led to the Grievance Outcome as to whether the terms and conditions of the Complainant’s existing contract with the Respondent had been or are being altered and if so whether the Respondent was or is entitled to implement such alterations. For the reasons discussed below, I will make no ruling on those issues.

The fundamental purpose of the Terms of Employment (Information) Act 1994 (as amended), is to secure the provision to an employee of a statement in writing of the “particulars of the terms of the employee’s employment” in accordance with Sections (3) – (6) inclusive and to notify the employee of any changes to those particulars at the latest, before they take effect. Where no statement in writing is provided, the adjudicator can direct the employer to provide it. Where such statement as has been provided does not comply fully with the provisions of Sections 3 – 6 inclusive, the adjudicator can direct the employer to provide a statement “containing such particulars as may be specified by the adjudication officer”. However, where such orders are made the adjudicator does not draft the wording of the written particulars but directs the employer to do so such that they comply with Sections (3 ) – (6 ) inclusive.

There is a limited power to correct inaccuracies or omissions in a statement under Section 7 (2) (b) (ii) but the Labour Court has clarified that this provision does not extend to imposing a term upon parties which is not agreed between them.

In Commissioner of An Garda Siochana v. McDonnell, TED2117 the Labour Court, in considering an application pursuant to the Act made the following statement:

“In the view of the Court, a plain reading of section 7(2)(b)(ii) of the Act leads to a clear conclusion that the jurisdiction of the Court is confined to alteration or addition to the written statement issued by the Respondent to the Appellant under sections 3, 4, 5, 6 or 6C of the Act for the purpose of correcting any inaccuracy or omission in the statement.

The Court finds no basis in the submission of the Appellant’s representative to conclude that this section of the Act permits the Court to impose upon parties a term of employment which is not agreed between them.”

Section 7 (2) paragraphs (d) and (e) confer on an adjudicator the power to award compensation for breaches of the Act.

No jurisdiction is conferred by the Act in relation to a complaint by an employee that the employer is in breach of a contract of employment. 

In the present case the primary complaint made by the Complainant relates to alleged changes to his terms and conditions of employment including his job description and duties. In setting out his case the Complainant referred to the contract of employment which he had with O.C.S., the entity which employed him prior to the transfer of his employment from that entity to the Respondent in 2023. He contends that his contract terms as they stood at the point of transfer in 2023, are still applicable and that they govern his present employment with the Respondent and cannot be altered without providing him with written notice which he contends he has not received.

The Respondent contended that the Complainant was provided with a document which clearly describes him as a “Cleaning Operative”. The Complainant signed this document. Accordingly, the Respondent contended that there was no change to his terms of employment. In the alternative, the Respondent contended that if there was any change to these terms then any such change was notified to the Complainant in compliance with Section (5).

The parties are in agreement that a transfer of undertaking took pace in 2023 and that the Complainant’s terms of employment as they stood at that time transferred to the Respondent. The Complainant also asserted that the Respondent has not furnished him with a written statement of particulars of the terms of his employment. The Respondent accepted that the only document relating to his terms of employment with the Respondent which the Complainant saw was the Respondents standardised “Personal Details Form”. The Complainant accepted that he signed this form and that it described his Job Title as “Cleaner Operative”. The Respondent accepted that this form was not sufficient to constitute a statement in writing of the  particulars of the terms of the Complainant’s employment such as to comply with Sections 3 – 6 inclusive of the Act. However the Respondent also advised that at the time when the transfer from O.C,S. to the Respondent was in train, contractual documentation for the Complainant was requested from O.C.S. but was not received, and this remains the case. The Complainant did not challenge the Respondent on this issue, and I accept that it is correct.  For his part the Complainant advised that he was not in possession of any contractual documentation between himself and O.C.S. either. He contended that he never got any such documentation from O.C.S. and the Respondent did not challenge this contention.

Whilst not wishing in any way to cast doubt on the Complainant’s contention that he never received a contract from O.C.S. I do note that he does not appear to have taken any steps to secure his data from that entity and had he done so and he would have been in a position to support his contention that he was never issued with a contract or statement of particulars of his employment by O.C.S. As between the two parties to the present dispute, the Complainant was and remains in a stronger position than the Respondent to secure any relevant contractual documentation from O.C.S. and whereas the Respondent requested the same from O.C.S., there is no evidence that the Complaint did so himself.

It is evident that the issue as to whether a statement of particulars was ever furnished to the Complainant is critical to any meaningful or fair finding which I can make on foot of the present claims.  If a contract was issued to the Complainant by O.C.S. at any time prior to the transfer of his employment from that entity to the Respondent, it may follow that the Complainant did receive a statement in writing of the particulars of the terms of his employment from that entity.  If that is so, the present respondent cannot be accused of not providing any statement of particulars although it may still be the case that any such statement (or documents constituting a statement) is not, or is not fully, in compliance with Sections 3 – 6 inclusive or that any changes to the agreed terms were not notified to the Complainant before they took effect. If on the other hand there is definitive evidence from which a finding of fact can be made, that no contract or other document or documents constituting a statement of particulars was ever issued to the Complainant by O.C.S., then this allows the Complainant to make a claim against the Respondent who is his present employer, that the Respondent is and continues to be in breach of the Act. 

Having considered this issue very carefully I find on the balance of probability that in the absence of sufficient evidence to establish that O.C.S. is not in possession of any documentation which might constitute a statement of particulars of the Complainant’s employment with that entity, I cannot uphold the Complainant’s claim against the Respondent as it is presently constituted and presented. Accordingly, I find that the present claim made by the Complainant is not well founded. I would add that even if the Complaint had been upheld in whole or in part, the jurisdiction conferred upon me by the Act would not have extended to adjudicating on the issues raised regarding the lawfulness or otherwise of the alleged changes to the Complainant’s contract. These are issues which will need to dealt with by the parties by other means. 

The complaints are not well-founded. 

Terms of Employment (Information) Acts 1994-2014 – Sections (3) (5) and (7) - An Garda Siochana v. McDonnell, TED2117 – Extent of jurisdiction conferred on adjudicator