Complainant

Respondent

Parties

Sean  Cosgrove

Beechfield Nursing Homes Group Limited

Representatives

Self-Represented

Paul Tarbey of Beechfield Care Group

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-00067049-001

23/10/2024

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

CA-00067049-002

23/10/2024

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

CA-00067049-003

23/10/2024

The issues in contention concern a Maintenance Worker and a Nursing Home Group. The Worker began employment with the Group in August 2012. He remains employed there. On his first recruitment it was a Family run business. However, in November 2017 there was a Share Sale, and the Group moved to a new ownership arrangement.

The Complainant alleged that three issues were in contention, firstly, A statement of his Terms and Conditions had not been provided, Bereavement Leave had gone from 5 to three days and finally the outside hours use of a Company Van had been withdrawn from him.

The Complainant was Self Represented but gave a detailed Oral testimony supported by a comprehensive and detailed Complaint form.

1:1   Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067049-001

The Complainant maintained that he had never received any details of his Terms and Conditions of Employment. He alleged that this breach occurred at the time of the change in Ownership arrangements is 2017.

1:2    Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067049-002

Bereavement Leave had been reduced from 5 days to 3 days without any consultation with Employees.

1:3    Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067049-003

The Complainant had enjoyed the use of a Company supplied Van since 2012 both for use during the working day and to provide personal transport to and from his place of work. This had been withdrawn by the Respondent employer in early 2024.

The van had been provided by the original Owner of the Company in 2012 as part of the Complainant Terms and Conditions. He paid BIK on the Van for his personal use, and it was clearly part of his overall remuneration package. The Respondent employer did not have the legal right to remove it and if removed, substantial compensation should be paid to him as he would now have to buy, tax and Insure a private vehicle for himself.

The Respondent was represented by P Tarbey assisted by Mr Colgan, both Group Managers. A written submission was provided.

2:1   Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067049-001

The Respondent made an opening Legal Point that the Complaint was “out of time” as it should have been lodged withing six months of the date of “Contravention” which the Complainant stated to have been 2017 -six years ago.

None the less, the case has no grounds as the Complainant has a signed Contract & Terms and Conditions dating from 2012.

On a pure legal point, the change in Ownership arrangements in 2017 were by means of a share sale. It was not TUPE transfer. The employees were not directly impacted. No new T &Cs or Contacts were legally required.

2:2     Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067049-002

The granting of Bereavement Leave is not a statutory requirement and can be deemed discretionary by an Employer. The Respondent, in this case, reduced the leave from 5 to 3 days in 2024.

All staff were properly notified as per Section 5(1) of the Terms of Employment (Information) Act, 1994. The Company policy is now that any bereavement that may require extended Bereavement Leave in excess of 3 days will be examined on a case-by-case basis.

There is no case to answer. In addition, the complaints were the subject of an Internal grievance Hearing which was also Appealed. The Grievance was not upheld.

2:3    Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067049-003

The Respondent recognised that the Complainant had the use of a Company van for some years. However, it was a discretionary Benefit which the Respondent had decided to withdraw for good financial cost saving reasons. The initial decision was communicated to the Complainant in February 2024 but arising from illness on the Complainant’s part and general good will the use of the van was not actually ended until the end of September.

It was the Company view that the van was not a business need for the Nursing home. It was a sensible business economy to make for a high overheads business.

Section 5(1) of the Terms of Employment (Information) Act was gain referred to. Proper notification had been given to the employee concerned.

An offer of some € 2,000 was made to the Complainant in compensation for the loss of the use of the van.

3:1   Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067049-001

Legally the Respondent is technically correct here. There can be no basis for an award to the Complainant.

The Complaint has to be legally Deemed Not Well Founded.

3:2     Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067049-002.

The issue of Bereavement Leave is non statutory. The Respondent was legally able to reduce it from 5 to 3 days once the proper procedures as outlined in Section 5(1) of the Terms of Employment (Information) Act were complied with. Evidence indicated that they were.

Realistically there can be no case to answer here.

The Complaint has to be legally Deemed Not Well Founded.

The Complaint has to be dismissed.

3:3    Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067049-003

This is the case of the Company Van. Sincere and detailed Oral testimony was provided by all Parties.

The Van had been provided to the Complainant by the Owner / Md of the original Owners. It appeared that there had been a good employment relationship between both individuals. The Complainant had been approached, according to the Complainant, by the Original owner, who was not present to give evidence, to take on the Maintenance role for the Group across a number of Nursing Homes.

The maximum award that can legally be made under the Terms of Employment (Information) Act, 1994 is as per Section 7 (d)

(d) in relation to a complaint of a contravention under change [section 3, 4, 5, 6, 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.

Underlining by Adjudication Officer

However, there was no actual legal breach of the Terms of Employment (Information) Act, 1994 and as such, no award can be made.

The Complaint has to be legally Deemed Not Well Founded.

(However, on balance and taking good Industrial Relations practice into account it is the non-statutory view of the Adjudicator that the Compensation Offer already made should be increased to a figure of € 5,000.  (inclusive of the €2,000 already offered). This is outside the terms of the Act and is a voluntary suggestion only.)

Terms and conditions of Employment, Information.