ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00053522
Parties:
| Complainant | Respondent |
Parties | Noel Cosgrove | Beechfield Manor Nursing Home Ltd Immac Capital (Ireland) Ltd / Beechfield Care Group |
Representatives | Trish Kelly, Independent Consultant | David Colgan BL instructed by company management. |
Complaint(s):
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-00064643-001 | 08/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00064643-003 | 08/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00064643-004 | 08/07/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00064643-005 | 08/07/2024 |
Date of Adjudication Hearing: 08/01/2025
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant is employed as a maintenance operative working a 39-hour week with the respondent Nursing Home since 28th April 2004. This complaint was received by the Workplace Relations Commission on 23rd October 2024. |
Summary of Complainant’s Case:
CA – 00064643 – 001 – a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. The Complainant contends that he was not issued with a new contract of employment protecting his terms and conditions from his previous employer when the transfer of undertaking took place. CA – 00064643 – 003 - a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. The Complainant contends that the compassionate leave he was entitled to in the unfortunate event of the death of an immediate family member was reduced from 5 days to 3 days. This reduction was done without any consultation with the complainant. CA – 00064643 – 004 - a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. The complainant stated that on Wednesday 24th February 2024 he was informed (by telephone) that he would no longer have the use of a company vehicle for personal journeys and that this was coming into effect from Monday 19th February 2024. The complainant stated that he had the use of a company vehicle for 17 plus years and it was common practice and well known within the company. The complainant had received written confirmation of this fact from the previous Chief Operating Officer. This statement confirmed that the vehicle could be used for business and personal use. CA – 00064643 – 005 - a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. The complainant contends that he was not notified in writing of a change to his terms and conditions of employment. |
Summary of Respondent’s Case:
BACKGROUND Noel Cosgrove (the complainant) is employed as a maintenance operative working a 39-hour week with Glengara Park Nursing Home since 28th April 2004. The Glengara Park Nursing Home was owned by the Beechfield Nursing Home Group. The Beechfield Nursing Home Group was reorganised in 2017 with the ownership of the Glengara Park Nursing Home being owned by the Beechfield Manor Nursing Home Limited which was part of the Group. In November 2017 there was a share sale of the Beechfield Manor Nursing Home Limited to Immac Capital/Beechfield Care Group. There was no transfer of ownership of the Glengara Park Nursing Home as the Nursing Home remained in the ownership of Beechfield Manor Nursing Home Limited and the Complainant remained employed with the same entity Beechfield Manor Nursing Home Limited after the sale. COMPLAINTS CA-00064643-001 The Complainant complains of a breach of S7 of the Terms of Employment (Information) Act 1994. He claims there was a transfer of undertakings on 20th November 2017, and he was not issued with a new contract of employment protecting his terms and conditions. PRELIMINARY APPLICATION TO DISMISS COMPLAINT The Complainant’s complaint of a breach of S7 of the Act was received by the Workplace Relations Commission on 8th July 2024. S41 of the Workplace Relations Act 2015 provides that an employee may present a complaint to the Director General of the Workplace Relations Commission of contravention of the Act and any such complaint should be presented before the expiration of six months beginning on the date of contravention to which the complaint relates. The time period for lodging the complaint may be extended pursuant to S41 (8) of the Act to a twelve-month period, where the failure to present the complaint was due to reasonable cause. However, it is submitted that the complaint is wholly statute-barred as it is presented over six years after the alleged breach occurred and should be dismissed. Without prejudice to the above, the Respondent denies there was any transfer of ownership of the Nursing Home and says the complaint is misconceived. There was a share sale of Beechfield Manor Nursing Home Limited which owned the Glengara Nursing Home the employer of the Complainant in November 2017. There was no transfer of ownership, and the Complainant remained employed with the same entity Beechfield Manor Nursing Home Limited after the share sale. Revised contracts of employment were not issued to staff of the Glengara Nursing Home. CA-00064643-003 The Complainant alleges a breach of S7 of the Terms of Information (Employment) Act 1994 that he was not informed about a change to his terms whereby in the event of the death of a spouse or child compassionate leave days were reduced in January 2024 from 5 days to 3 days. The Complainant’s complaint of a breach of S7 of the Act was received by the Workplace Relations Commission on 8th July 2024. The benefit contained in the Employee Handbook of compassionate leave is not a statutory benefit it is a non-contractual benefit for staff of the group. All staff of the Nursing Home were notified of the non-contractual changes to the staff handbook on 31st January 2024 by email when the updated Employee Handbook was published and the updated terms were circulated to staff. S5 (1) of the Terms of Employment (Information) Act 1994 “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 maybe thereafter, but not later than- (a)the day on which the change takes effect” No objection was received at the time to this change from the Complainant. On 11th March 2024, the Complainant lodged a grievance in relation to this this matter. The grievance was investigated thoroughly by the Respondent and no grounds for complaint were found in accordance with its grievance procedure. Non-contractual terms can be varied by the Employer and this change was notified to all staff of the Nursing Home. The grievance outcome was that the Respondent may approve longer or extended leave depending on the circumstances, and it may be extended on a discretionary basis. The Complainant also exercised his right of appeal. We submit the complaint should be dismissed as the Complainant was notified in writing of the change to his terms and conditions on 31st January 2024, prior to the change taking place. CA-00064643-004 The Complainant alleges a breach of S7 of the Terms of Employment (Information) Act 1994 that a statement of his terms and conditions was not provided. Following a costs review by the Nursing Home, the Complainant was notified on 14th February 2024 by Paul Hanna Group Operations & Procurement Manager that he would no longer have personal use of the company van from 19th February 2024 onwards. There are eight Nursing Homes in the Beechfield Care Group and none of the maintenance operatives employed in the other seven Nursing Homes have company vans. In the Beechfield Manor Nursing Home, two vans were leased by the Nursing Home for two maintenance operatives, one of whom is the Complainant. Both maintenance operatives were informed that the company vehicles are a discretionary benefit. There was no contractual obligation to provide the vehicles. The company has the right to modify or withdraw use of the vehicles, especially if such a change is necessary for budgetary reasons. Both maintenance operatives were informed that they could no longer use the company vans for personal use from 19th February 2024. The Complainant was invited to a meeting with the Group Head of HR to discuss the issue on 20th February 2024. The Complainant lodged a grievance in relation to this issue on 11th March 2024. While the grievance process was ongoing the Respondent allowed the Complainant to use the company vehicle for personal use. A grievance hearing took place on 28th March 2024. The grievance outcome took into account there are no other Group nursing homes with company vans and taking into account that the Complainant’s job description does not require that he operates a vehicle, that the company has no alternative from a financial and budgetary perspective due to increased costs but to remove the company vans and return them to the leasing company by 31st July 2024. This provided five months’ notice of removal of the van for personal and work purposes to the Complainant. The Complainant seeks compensation for travel time to work following removal of the benefit which is unreasonable and is not payable to staff. The Complainant is seeking replacement cost of the vehicle, tax and insurance which is wholly unreasonable as the company van was leased. S5 (1) of the Terms of Employment (Information) Act 1994 “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 maybe thereafter, but not later than- (a)the day on which the change takes effect” ........... The Complainant accepts in his own submissions that he was notified about the restriction of the company van for personal use in advance of the change to use of the company van on 14th February 2024. The Respondent has complied with its notification obligations under S5 of the Act and the complaint should be dismissed. |
Findings and Conclusions:
The Terms of Employment (Information) Act, 1994 is: An Act to provide for the implementation of Directive No. 91/533/EEC of 14th October 1991 of the Council of the European Communities on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, to amend the Minimum Notice and Terms of Employment Act 1973, and to provide for related matters. [5th April 1994] In the instant complaints the complainant has lodged 5 complaints as follows: CA – 00064643 – 001 – a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. The Complainant contends that he was not issued with a new contract of employment protecting his terms and conditions from his previous employer when the transfer of undertaking took place. CA – 00064643 – 003 - a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. The Complainant contends that the compassionate leave he was entitled to in the unfortunate event of the death of an immediate family member was reduced from 5 days to 3 days. This reduction was done without any consultation with the complainant. CA – 00064643 – 004 - a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. The complainant stated that on Wednesday 24th February 2024 he was informed (by telephone) that he would no longer have the use of a company vehicle for personal journeys and that this was coming into effect from Monday 19th February 2024. The complainant stated that he had the use of a company vehicle for 17 plus years and it was common practice and well known within the company. The complainant had received written confirmation of this fact from the previous Chief Operating Officer. This statement confirmed that the vehicle could be used for business and personal use. CA – 00064643 – 005 - a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. The complainant contends that he was not notified in writing of a change to his terms and conditions of employment. Having fully considered the complaints as presented my findings and conclusions are as follows: CA – 00064643 – 001 – a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. As stated by the Respondent there was no transfer of ownership of the nursing home. A share sale does not constitute a transfer of undertaking. As presented, I am unable to find in favour of the complainant. This complaint is not well found. CA – 00064643 – 003 - a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. This complaint relates to the reduction of the number of days of compassionate leave. In a contract of employment dated 24th April 2012 and signed by the complainant on 2nd May 2012 there is no mention of compassionate leave. There is no jurisdiction to hear this complaint as submitted under section 7 of the Terms of Employment (Information) Act 1994. CA – 00064643 – 004 - a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. The complainant stated that on Wednesday 24th February 2024 he was informed (by telephone) that he would no longer have the use of a company vehicle for personal journeys and that this was coming into effect from Monday 19th February 2024. The complainant stated that he had the use of a company vehicle for 17 plus years and it was common practice and well known within the company. The complainant had received written confirmation of this fact from the previous Chief Operating Officer. This statement confirmed that the vehicle could be used for business and personal use. There is no jurisdiction to hear this complaint under the Terms of Employment (Information) Act, 1994. CA – 00064643 – 005 - a complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. This complaint appears to be the same complaint as the previous one. There is no jurisdiction to hear this complaint under the Terms of Employment (Information) Act, 1994.
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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.
Please see above. |
Dated: 13-08-2025
Workplace Relations Commission Adjudication Officer: Jim Dolan
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