Complainant

Respondent

Parties

Nicolle  Garibaldi Sartori

CPL Solutions Ltd t/a Covalen

Representatives

 IBEC

Act

Complaint 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-00067261-001

08/11/2024

The respondent raised a preliminary matter as to whether the complaint was within jurisdiction and its case was heard first on this point.

The complaint by Ms Nicolle Garibaldi Sartori against her employer, Cpl Solutions Ltd. t/a Covalen (the Respondent) is brought under the Terms of Employment, (Information) Act 1994.

In her complaint form, the complainant says that.

 ’My employer has not provided me with a reasoned reply to my request for employment with more predictable and secure working conditions within one month of my request’’

The respondent disputes this claim in its entirety.

Preliminary Matter

The Transparent and Predictable Working regulations, amended the Terms of Employment (Information) Act and provided at section 6F,

‘Subject to subsection (2), an employee who has been in the continuous service of an employer for not less than 6 months and who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply from his or her employer.

An employee may, once in any 12-month period, request a form of employment in accordance with subsection (1)

An employer shall provide the reasoned written reply referred to in subsection (1) to an employee within one month of the request by the employee.

An employer may provide an oral reply where a subsequent similar request is submitted by the same worker where the situation of the worker remains unchanged.’

The legislation clearly states a requirement for the employee to have been in the continuous service of an employer for not less than 6 months and who has completed his or her probationary period to make a request for more predictable and secure working conditions.

The complainant commenced employment on May 20th, 2024, with a six-month probationary period, ending November 20th, 2024, as per the contract of employment.

She submitted her complaint to the WRC on November 8th, 2024, thus 12 days short of the service requirement set out in the legislation.

The claim is without merit, and she has no entitlement to make such a request as she does not meet the service requirement, thus has no locus standi to seek relief under the Act.

The complainant gave evidence on affirmation and confirmed the date on which the commenced her employment.

There was an application from the respondent that the hearing be heard in private and the parties anonymised. There is provision to do this where there are ‘special circumstances’, defined as follows in WRC Guidelines.

‘May include circumstances where a party has a disability or medical condition, which they do not wish to be revealed; cases involving issues of a sensitive nature such as sexual harassment; cases involving a protected disclosure; or cases which could result in a risk of harm to a party if the hearing is held in public, or if the parties are named in the decision.

 It should be noted that the fact that the parties both consider that there are ‘special circumstances’ or that an individual’s reputation might be impacted by having an employment or equality complaint ventilated in public does not automatically constitute a reason for the hearing to be heard in private. Ultimately, it is a matter for the Adjudication Officer to decide based on the facts of the case in accordance with the law and fair procedure.’

The principle of ‘open justice’ is an important one, especially as the requirement for open WRC hearings followed the Supreme Court decision in Zalewski and subsequent amending legislation.

The nature of the ‘special circumstances’ and the range of possible considerations and standard illustrated above is not met by a party simply wishing to avoid the perceived embarrassment of being involved in the WRC processes. This application does not fall within the principles set out above.

Accordingly, the request was denied.

The details regarding the date on which the complainant commenced her employment and on which the complaint was received were not in dispute.

The qualifying criteria to bring a complaint under this legislation is set out in the respondent’s submission above on the preliminary matter, and that is not in dispute either. It is essentially that a person may not initiate the process until they have completed six months in their employment.

For the convenience of the reader, it is set out again. The Transparent and Predictable Working regulations, is a relatively new piece of legislation (December 2022) and amended the Terms of Employment (Information) Act 1994 to provide as follows at section 6F,

‘Subject to subsection (2), an employee who has been in the continuous service of an employer for not less than 6 months and who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply from his or her employer.

As will be clear from this, the issue is not only one of when it would be ‘in time’ to refer the matter to the WRC, but, when a complainant would be eligible to trigger the process at all, even at the level of the workplace.

The section above makes it clear that a person must both have completed the probationary process and passed the six month service requirement before doing that.

Therefore, it appears that there was no compliance by the complainant with either of these requirements of the Regulation.

The change which caused the complainant difficulty was initiated by the respondent and was followed by a number of meetings with the respondent.

The complainant referred on the complaint form to this as her having been notified of a shift change (she was given thirty days’ notice) and then refers to making ‘requests for support surrounding this adjustment’ and these being unanswered for over a month.

The respondent describes consultation meetings and correspondence with the complainant.

This describes quite a different process to that envisaged in the Regulations.

Due to the uncontested nature of the time limits issue at the hearing and as set out above detailed evidence was not taken from the complainant on that sequence of events, but it does not appear from the written record (including the WRC complaint form) that the complainant ever requested ‘a form of employment with more predictable and secure working conditions where available’.

On the contrary, it appears as if she is seeking to avail of this legislation simply to mount an attack on the respondent’s management of the change process as set out in its submission, and the fact that it did not provide her with the form of employment she wanted.

Potential future complainants should note that they will have to meet all the requirements of the legislation; both completing the eligibility period, making a complaint and allowing an employer the permitted time to give its reasoned response before referring a complaint to the WRC.

The complaint is not well founded.

For the reasons set out above Complaint CA-000067261-001 is not well founded.

Time limits,