Complainant

Respondent

Parties

Lee  Smith

Abbot Ireland Limmited

Representatives

Terry MacNamara                             Ibec North West

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-00066992-001

28/10/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. 

Pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there was a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may have been be required to be administered to any person giving evidence before me. It is noted that the giving of false statement or evidence is an offence.

The Complainant was not represented and made his own case. The Complainant set out his complaint in the workplace relations complaint form as follows:-

To Whom It May Concern, I wish to specify that this investigation request is regarding the unlawful change to my contract of employment without my consent by Ed Hearne. The "complaint details" drop down options does not provide this option.

I have briefly outlined my complaint below and attached a full description of events.

In Dec 2022 or Jan/Feb 2023, I was invited to monthly projects update meeting by the packing team project manager. I wasn’t aware why I had received this invite as I had never attended this meeting previously. I thought there may be some input required from myself as an SME in the flexible packing area. I was then introduced as the Project Manager for an upcoming capital project. This shocked me as this was not discussed with me and my skills are not in project management. There were project managers in attendance all of whom are on a higher grade and pay level as project managers. This role was above my current grading structure and pay structure. Project management was not the career path that I wanted to pursue and I was very confused at this point as at my recent 1:1 with my manager (prior to this project meeting), Set up to discuss my career path in Abbott. I had outlined this and made him aware of my skill set. I also mentioned that I was happy to support projects in any way that I could, and I explained my reasons for not wanting to be a PM. He was aligned that my skills were in problem solving and continuous improvement tasks given the successes that I had achieved on the packing lines in previous years that led to many recognitions from Abbott managers and led to a nomination for the site “Keystone award”. Project management was not something I had done previously in my 7+ years in Abbott, Cootehill. There is a lot of responsibility involved in managing a project of this scale, people, budgets and the responsibility lies with the project manager for all aspects of the project. So, if the project is unsuccessful, the project manager is fully accountable. I have had no exposure to project management, and I did not want that responsibility especially without the training, project team and a grade increase in line with other site project managers. If this role had been discussed with me prior to this announcement and all queries addressed it would have gone a long way in convincing me to take this particular role.

On 10/03/2023 I was handed a “contract change document” from my manager (SR) stating my contract was changed to Project manager. I said that I was shocked and that this couldn't be done without my consent. He claimed not to know much about it and that he was asked to give me the letter by EH. He also stated that my change of contract was completed on Workday (Abbott HR/employee system).

In addition to the foregoing the Complainant provide me with a significant updated submission as of the 20th of March 2025. No issue was made in connection with the timing of this submission, nor with any of the documents contained therein.

The Complainant alleges that he was not notified in writing of changes that were being made to the terms of his employment,

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full legal representation at this hearing. The Respondent entity was represented by a number of witnesses including a Senior Manufacturing Manager and a Human Resource manager.  The Respondent was also represented by the business representative group known as IBEC.

The Respondent provided me with a comprehensive written submissions dated 13th of March 2020. No objection was raised in connection with any of the documentary evidence to be relied upon.

At the outset the Respondent asked that I would consider a preliminary issue concerning timing as this was, they contended, an issue which went to my jurisdiction to proceed to the substantive matter. The Respondent Submission read:-

3.1 In the body of his complaint form the complainant states that the alleged breach under Section 7 of the Act took place in "Dec 2022 or Jan/Feb 2023" And that on " 10/03/2023 1 was handed a contract change document from my manager"

3.2 Section 41 (6) of the Workplace Regations Act 2015 as amended states

"Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section ifit 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".

                3.3          Section 41 (8) of the Workplace Relations Act 2015 as amended states

"An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director Genera/ after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. "

3.4 This issue of time limits of referral of a complaint under the Terms of Employment (Information) Act, 1994 was dealt with by the WRC in the case of ADJ-00030153 Denise Ryan and Smart School Accounting Limited TIA Smart School Accounting where the Adjudication officer determined that: -

"The Terms of Employment (Information) Act, as amended by the Workplace Relations Act provides that a contravention of Section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement. The contravention of Section 3 of the Act is a subsisting and a continuing contravention as long as after the initial two-month period the employee remains an employee not in possession of a statement. If no statement was provided at any stage during the employment relationship, and this came to an end, the employee could refer a complaint within six months from the last day of their employment. However, once a statement was provided during the period of employment, the time limit for submitting of the complaint is determined from the day the statement was issued to the employee. "

Copy attached at Appendix 5.

3.5 According to the complainant submission the critical event relating to this complaint took place on 10 March 2023. The complainant did not make his complaint to the WRC until

28 October 2024, some 18 months later.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The substantive issue before me concerned a seemingly unilateral change in the Complainant’s proposed title and function in circumstances where this was neither solicited nor sought.

The Complainant commenced his employment in an engineering capacity in 2017. In 2023 the Complainant was handed a contract change document which was intended to promote the Complainant into a project management role. The Complainant was not happy to take on this role which he says was unexpectedly foisted on him. The Complainant vociferously objected to the role change being proposed, and I understand that by the 23rd of June 2023 the Respondent opted to allow the Complainant revert back to his previous role wherein he has continued to this date.

The Complainant is deeply annoyed at the upset and stress and anxiety experienced by him during this period of time. The Complainant feels he is owed a formal apology from his Manager and, as  is his right, has raised the issue by way of the formal Grievance process. This was triggered July of 2024

There can be no doubt that this process was not completed as expeditiously as it might have been hoped. Unfortunately, when the Grievance outcome was delivered in and around the 2nd of October 2024 the Complainant was not happy.

On the 28th of October 2024 the Complainant lodged his workplace relations complaint form with the WRC alleging a contravention of the Terms of Employment (Information) Act, 1994.

In the first instance, the Respondent rejects the allegation that it has contravened the Act in any way. The Respondent has further invited me, without prejudice to the Respondent’s position on the substantive issue, to consider the question of whether the Complaint must fail for being out of time.

The 2015 Act provides for a time limit for commencing claims under the different employment rights Acts. It must be understood that limiting the time frame within which a complaint can be made serves several important legal purposes including the need to provide legal certainty, encouraging timely resolution, preventing the bringing of stale claims and generally encouraging efficiencies in the dispute resolution process. There is a requirement that Complainants come forward quickly, while memories are fresh and to avoid uncertainty.

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

(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.

As explained to the Complainant in the course of the hearing, his cause of action accrued to him on the date that the contravention of the Terms of Employment (Information) Act, 1994 occurred. The Complainant himself has confirmed that this date was the 10th of March 2023. To my mind, the Complainant had six months to bring a complaint before the WRC from that date.

Even if I take the Complainant’s best case scenario of accepting that the contravention accrued every day up to the 23rd of June 2023 – being the date that the Employer agreed (on the face of it) to reverse the proposed changes to the Contract of Employment – the Complainant would still have to have issued his Complaint  within six months of that date i.e. up to December of 2023. The Complaint herein issued a complaint ten months later - in October of 2024.

I appreciate that the Complainant truly felt that the fact of his delay came from the fact that the Grievance process was taking so long. On this point I must disagree with him. The Complainant was not ever precluded from bringing a Statutory complaint to the attention of the WRC within the time limit provided.  The fact that he was working his way through an in-house Grievance process is not relevant to the WRC which cannot be expected to discount the passage of time to allow parties engage with their own processes.

Where a contravention has occurred, it behoves the victim of said contravention to raise the issue in as timely a manner as might be practicable. Waiting eighteen months brings the Complainant out of time and I do not have the jurisdiction to proceed.

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

CA-00066992-001   - The complaint is out of time and I do not have the Jurisdiction to consider same.