Complainant

Respondent

Anonymised Parties

A Health & Safety Officer

A Construction Company

Representatives

Peter Dunlea Peninsula Business Services

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-00067655-001

25/11/2024

The Complainant was employed as a Health & Safety Officer with the Respondent from 13 January 2020 to 23 August 2024 when he resigned his employment.  He alleged that the Respondent consistently changed his duties without providing him with written notification of the changes in accordance with the Act.

The Respondent is a family run construction firm.  It was the Respondent’s position that the Complainant was merely asked to show the normal flexibility that would operate in a small company.

In his complaint form, the Complainant outlined that he was employed by the Respondent as a Health and Safety Officer but was instructed on several occasions over the years to carry out roles and duties not in his job description; and roles and duties for which he had no formal training or experience.

He outlined that on 27 May 2024 he was instructed by Mr A to go to the premises of a named person and to act as a Security Guard while the funeral of that individual took place.  He stated that the individual was the father-in-law of Mr. B.  The Complainant stated that he had no formal training as a Security Guard, nor did he or the Respondent have a PSA licence.  He stated that he understood that both of these were a legal requirement. 

The Complainant stated that the Respondent instructed or asked no other member of staff to act as a Security Guard and that he was the only member of staff so instructed.  He stated that this instruction left him feeling embarrassed, humiliated and feeling like he had no worth in the Respondent firm.  He stated that he was the subject of jokes and ridicule from other employees and that he received phone calls asking if he was available for weekend security.  He stated that he was introduced to a sub-contractor on site as the Respondent’s Security Officer and then the person said, “oh no, I made a mistake, he’s our Safety Officer”.  The Complainant stated that this ridicule occurred on a daily basis, sometimes face to face and sometimes by text messages and phone calls. 

Witness evidence – the Complainant:

At hearing the Complainant confirmed that he was hired by the Respondent as their Health and Safety Office and that he was not allowed to fulfil that role.  He gave evidence that on 27 May 2024, he was given an instruction by Mr A to act as a Security Guard at a premises during the funeral of Mr. B’s father-in-law.  He stated that he turned up on the day at the premises at approximately 1pm and that it was adjacent to two other properties.  He stated that these were pointed out to him, and he was advised that he needed to keep an eye on those properties as well.  He stated that this was the last straw in a series of inappropriate duties assigned to him. 

The Complainant gave evidence that there were several other incidents over the years and that he had raised these matters both informally and by email with the Respondent.  He stated that he was assured it would not continue but that there was no change.  He stated that he sent a second email and had an in-person meeting with the Respondent and that he was assured that he would be allowed to fulfil his role. 

The Complainant confirmed that he spent approximately 10-15 hours per week out of his 40- hour working week, on alternative duties and that these included site management, cleaning offices, dropping people and materials to various sites and delivering vans to the DOE Centre.  He stated that he was humiliated by the assignment of these duties and that he was subject to jeering from colleagues. 

The Complainant confirmed that his time sheets would show that he was being assigned other duties and he specifically referred to a time sheet of 27 May which showed that he was at the family home doing security, that on 29 May he had to pick up silicone in Clondalkin and that he then had to attend a premises in Mullingar to pick up a laptop.   

Cross examination of the Complainant:

Under cross examination the Complainant gave evidence that he was not asked to go to the house where the funeral was taking place, but that he was in fact instructed.  He stated that he was told “I want you to come to (Mr B’s) father-in law’s house to keep the house secure while we are all at the funeral”.  The Complainant confirmed that he said “okay”.  He confirmed that he had previously given his condolences to Mr. B on the phone but he was adamant that he wasn’t asked to protect the house, that he was instructed. 

He confirmed that the distance from work to the location of the house was 3-4km.  In response to the question “were you asked to work as a Security Guard?”, the Complainant stated that he was not asked, he was instructed by Mr A to work as a Security Guard.  In response to a query in relation to another person taking over the “security work”, he confirmed that Mr. A came back from the funeral to relieve him later in the day.  He stated that the role he was assigned was to keep the premises secure.  It was put to the Complainant that he was asked to watch the premises in circumstances where somebody else had let the family down, and he was asked if he had been advised accordingly and he confirmed that there was no mention to him of anyone letting them down.  He further confirmed that from early on in his employment he was asked to take on additional duties, as he was often asked to attend meetings regarding site management. 

Mr Dunlea asked the Complainant if he had done site set up as the Health and Safety Officer and he confirmed that he gave a hand with it until it got too much.  He was asked if the title of his job had ever changed and he confirmed that no, it had not.  He was also asked if he was asked to assist or help out on occasions, to which the Complainant responded that he was not asked, that he was instructed and that this was a frequent occurrence.  Mr Dunlea put it to the Complainant that 75% of his time was spent working on his core job description and he confirmed that yes, that was the case, but that he was frequently asked to do other things and he stated that he wasn’t employed as a van driver or a labourer.  Mr Dunlea put it to him that it seemed strange that he had such concern about being asked to keep the house secure and he replied that it was a change to his core terms and conditions and that he was the only person asked to take on that duty.

Closing Remarks:

In his closing remarks the Complainant stated that if he had been allowed to carry out his duties, he would never have submitted this complaint.  He stated that if the Respondent had ever kept the agreements they reached, that there would be no labouring, no scaffolding etc, he wouldn’t have taken this complaint, but, he said, the Respondent did not keep to the agreements reached.  He said they didn’t follow procedures in relation to addressing grievances and that many issues were never addressed at all.  He stated that the time sheets submitted showed the instructions received.  He said the evidence was that the Respondent simply did not remember when it did not suit them.  He confirmed that the Respondent was good to work for but that they were not reasonable in allowing him to do his job.  He confirmed again that if they had been, he would not be here as he would not have taken this case.  He stated that it was not a pleasant experience and the reaction of his colleagues to him being assigned the security duty, had had a very significant impact on his mental health. 

The Respondent confirmed that the Complainant was employed by the Respondent from 13 January 2020 until his resignation on 23 August 2024.  The Respondent wholly denied the claim and submitted instead that at no point were the Complainant’s duties or terms of employment modified from his original contract.   Furthermore, the Respondent denied that the Complainant was requested to act as a security guard.

The Respondent submitted that on the date in question the Complainant arrived at the home of Mr. B’s father-in-law who had passed away and that before the removal of the body the Complainant was asked to mind the house while the body was removed as the individual who was originally going to do so was unavailable.  The Respondent submitted that this was not an assignment of new duties but merely a request for assistance and that another family member, then offered to mind the house instead but that the Complainant stated he didn’t mind doing it.  The Respondent submitted that at no point was there any change to the Complainant’s duties or terms and conditions of employment.

In relation to changes to the Complainant’s terms of employment the Respondent submitted that there was no change to the Complainant’s terms and conditions of employment.   

The Respondent further submitted that notwithstanding this if there was found to be a change to the Complainant’s terms and conditions of employment consideration needed to be given to the decision of the Employment Appeals Tribunal in Udalous -v- Southeast Vegetable Producers Limited (TE224/2012) in which the EAT determined as follows: “The Tribunal notes the case of Archbold v CMC (Ireland) Ltd TE05/2003 where a division of the Tribunal held that money payable under the Act did not "equate to loss of remuneration" but was "in the nature of compensation" and accordingly, the Tribunal was entitled to determine what payment was just and equitable in all the circumstances (not exceeding four weeks remuneration) including whether a claimant was "unduly prejudiced" by the failure of the Respondent to provide the written statement of terms and conditions of employment… “…the Tribunal finds that Respondent complied with the spirit of the Terms of Employment (Information) Act 1994 to such an extent that it would be unjust for the Tribunal to exercise its jurisdiction ordering the Respondent to award compensation to the employee…”

The Respondent submitted that the above excerpt was equally applicable to the present proceedings.

The Respondent noted that there was well-established precedent of the Labour Court and the EAT, and indeed the High Court, that where any breach of the 1994 Act was technical or minor in nature that the dictates of fairness or equity could not justify an award of compensation to the claimant. The Respondent submitted that this position applied equally to the current proceedings.

Furthermore, the Respondent referred to Labour Court decision in Philmic Limited T/A Premier Linen Services -v- Petraitis (TED1616) where the Court determined that in spite of the Respondent having been in breach of the 1994 Act: “The Court measures the compensation amount which is just and equitable having regard to all of the circumstances of this case as being nil.”

The Respondent noted that the claimant in the above Philmic case (TED1616) appealed the above conclusion of the Labour Court on a point of law to the High Court in Petraitis -v Philmic Limited T/A Premier Linen Services [2016 No. 253 MCA] and the High Court held that the Labour Court had not erred in law.   In these circumstances the Respondent submitted that the High Court decision in Petraitis -v- Philmic Limited T/A Premier Linen Services [2016 No. 253 MCA] is authority for the proposition that a Claimant can be awarded zero compensation notwithstanding a finding that there was a breach of the 1994 Act.

The Respondent further submitted that notwithstanding the above, should the Adjudication Officer consider the breach is one that is not technical or minor in nature, the award to the Complainant must be proportionate to the harm suffered as per the principles laid out in von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891.

In conclusion the Respondent requested that the appropriate weight be attached to these alleged allegations in light of unsubstantiated claims. In that regard the Respondent cited the decision in the case of  Giblin v Bank of Ireland Asset Management Ltd. (DEC-E/2011-161), where the Equality Officer held in dismissing the claim, “The issue for decision by me is whether or not this complaint should be dismissed as frivolous and vexatious in accordance with Section 77A of the …Acts…It is clear therefore that when deciding whether or not to dismiss a complaint…I must be satisfied that the Complainant has no reasonable chance of succeeding in his complaint.”

The Respondent submitted that in light of the above and evidence to be heard at the hearing, that the claims had no sound evidentiary basis to them in accordance with the Giblin decision and so the Respondent asked the Adjudication Officer to find the claims were not well-founded and should fail.

Representations on behalf of the Respondent at hearing

Mr Dunlea outlined the Respondent position, that there were no changes to the Complainant’s terms of employment.  He outlined that the incident where the Complainant was asked to mind a house during a funeral, did not constitute a change to his terms and conditions of employment.  He stated that the Complainant had worked for the Respondent for a number of years and that they had a close working relationship.  He stated that in the circumstances where another person who had planned to look after the house, had decided they would like to attend the funeral, somebody was needed at short notice to “keep an eye on the house”.  He stated that in the circumstances of a long established and close and friendly working relationship, that the Complainant was asked if he would mind the house during the funeral time.

Witness evidence – Mr A:

Mr A confirmed that the funeral took place on the 27 May 2024 and his recollection of the conversation he had with the Complainant, was that he referred to the funeral of Mr B’s father-in-law.  He stated that the family home was up the road from the business and that the Complainant was working on that day.  He stated that the Complainant was going to a job, and he asked him as he was not planning to attend the funeral, if he could help out on the day.  He stated that a neighbour was meant to look after the house but changed their mind and wished to go to the funeral and that in those circumstances he asked the Complainant if he would mind the house for a few hours.  He stated that he was with his wife and two nephews at the time and he stated that the Complainant said he had no problem, that he would sit in the van and do some work and that he would change over when the two nephews returned from the funeral to take over from him. 

Mr A confirmed that he had not instructed the Complainant to mind the house, but rather he had asked him if he would mind helping out.  He confirmed again that the Complainant had said he had no problem doing so.  He stated he was of the view that he was just asking for a personal favour.

Mr A confirmed that he had not made any other changes to the Complainant’s terms and conditions of employment and that the conversation he had with him was at the house when the funeral was leaving.

Cross examination of Mr A:

The Complainant put it to Mr A that on the morning of the funeral he called him and said he needed him to go to the house, and he asked him if he had requested time off to go to the funeral.  Mr A confirmed that no, he had not requested time off.  He then asked Mr A if he had put it in writing that he wanted time off for other funerals and why would he not have done it on this occasion and Mr A confirmed that no, there was no request.  Mr A confirmed that in the past sometimes there was a written request but there was not always written permission for attendance at a funeral.  Mr A confirmed that when he spoke to the Complainant earlier that morning, he talked about what work he was doing and whether or not he was attending the funeral and, in that context, he asked if he would be able to help and he recalled that the Complainant had said that yes he would.  The Complainant disputed that fact. 

The Complainant asked Mr A if he had offered his sympathies to any member of the family and Mr A said he didn’t know.  The Complainant then asked Mr A what happened when he arrived, and Mr A said that when he arrived, he asked him if he would mind the house because the neighbour was going to the funeral.  The Complainant put it to Mr A that he had stated that the Complainant was a friend of the family and that he was not a friend of the family.  He asked Mr. A why he would say that and that he had asked permission to go to the funeral when he had no intention of attending such a funeral.  Mr A said he didn’t know. 

The Complainant asked Mr A if any other of his colleagues attended and Mr A said he was not sure about that day, but that over the course of the funeral, yes, a number of people had attended.  The Complainant asked if those people attended, was it on their time sheet and Mr A said he did not remember whether it was or not.  The Complainant stated that the funeral had taken place approximately a year ago and he found it unusual that Mr A did not know, given that he had a very vivid recollection of the conversation.  Mr A responded that he recalled the conversation clearly because he had been preparing for this hearing. 

The Complainant asked Mr A why he had asked him and nobody else to act as a Security Guard.  Mr A responded that he didn’t ask anybody to act as a Security Guard.  The Complainant put it to Mr A that he was now saying he didn’t ask anybody to act as a Security Guard, and Mr A clarified that he had asked the Complainant to mind the house but did not specifically ask him to act as a Security Guard. 

The Complainant then asked him why he was the one selected and Mr A responded that he had spoken to him earlier and that he had asked if he needed any help and that in that context, he felt that it was appropriate to ask.  He stated that he trusted him and that they had a good working relationship and that was why he asked him.  The Complainant put it to Mr A that he had instructed him to look after the house and Mr A responded that he did not instruct him.  The Complainant put it to Mr A that it wasn’t just the house of the family member who was being buried, but it was the three houses in the location and Mr A confirmed that no, it was only the house of the family where the funeral was taking place.

The Complainant put it to Mr A that he had made a phone call during the funeral and instructed him to check the two other houses and Mr A responded that he did not recall making the call in relation to looking after the other two houses, but he did recall making the phone call to make sure that everything was okay. 

In relation to other duties assigned, Mr A confirmed that he did receive an email on 5 August 2022 in relation to the role and that while he did not specifically recall the detail of that email, it was worth noting that most of the roles that the Complainant was raising concern about, fell within the overall role of a Health and Safety Officer.  Mr A acknowledged that there are times when everybody in the company was asked to do additional duties such as bringing things to a site from Head Office if they were going in that direction anyway and there would be nothing unusual about this.  He confirmed that he did not recall specifically how the email from 2022 had been dealt with.  The Complainant confirmed that nobody had actually responded to that email. 

The Complainant put it to Mr A that he had continued to raise issues verbally in relation to his role and that he had again emailed the company in October 2023.  Mr A advised that that question needed to be put to Mr B as he understood Mr B had dealt with it.  The Complainant stated, “I’m asking you, not Mr B and I’m asking you how did you reply to that email from 10 October 2023”.  Mr A confirmed that he did not recall what had occurred after it and that he felt the question would be more appropriately addressed by Mr B. 

The Complainant entered into evidence a number of documents where instruction was sent to him in relation to site set up etc and Mr A confirmed that in his view, this work was entirely appropriate to a Health and Safety Officer.  He stated that the site safety plan would have to go through the Health and Safety Officer before it would be signed off.  He confirmed that the Complainant’s Health and Safety plan would have to be done prior to the site set up and that then he would hand over to the Project Manager.  Mr A confirmed that he believed the Complainant was allowed to do his job and to carry out his role unhindered. 

He confirmed that at any given time the company was carrying 3-4 projects and that they tended to be commercial contracts.  He confirmed that they had a total of 35 employees and that the busy nature of the Health and Safety role would fluctuate depending on the projects being undertaken.  He accepted that at times the Complainant was asked to carry out tasks that were not specifically listed in his job description, but he confirmed his view that this was nothing like 10-15 hours per week.  He stated that they were a small company and that they always did their best to look after their staff.  He stated that they never received any complaints from staff in relation to assignment of duties.  He acknowledged that there had been “chats with the Complainant” but that he would have expected to have been able to ask him to do things to help out, given that it was a small company.  He stated that this didn’t happen all the time, but that in general colleagues help each other out.

Witness evidence – Mr B:

Mr B confirmed that he had no involvement in relation to the arrangements for the funeral and he confirmed that the funeral was that of his father-in-law.  He confirmed that he did speak to the Complainant on the day of the funeral, they shook hands and the Complainant sympathised with him.  He stated that this took place at the family private home which was in the country.  He stated that when he got back from the funeral his nephews were there minding the house and that they advised him that the Complainant had been there. 

Mr B confirmed that over the years he had received two or three emails in the course of approximately four years from the Complainant in relation to his role.  He stated that these were the kind of issues that “everybody dealt with in the room” and they were sorted out by a handshake.  He stated that he had addressed the concerns raised by the Complainant on two occasions, that he had given him a pay rise and that he had changed his hours.  He stated that he himself was on site at all times and visited the various sites regularly.  He stated that he did discuss some tasks being outside of the Health and Safety Officer role with the Complainant and that they had reached an amicable agreement.  He stated that there were no malicious issues but that eventually on the last occasion, the Complainant handed in his notice. 

Mr B confirmed that now and again he did ask the Complainant to assist.  He stated that there were six or seven caddy vans and commercial vehicles owned by the company and that when somebody was leaving the office, they would be asked to bring products/equipment to a site if they were already going in that direction. 

Cross examination – Mr B:

The Complainant drew attention to the company grievance procedure and the fact that he had raised grievances via email, and he asked if Mr B had ever provided a formal written response.  Mr B confirmed that the only time the Respondent had provided a written response was when they were advised to do so by Peninsula in relation to the instant case.  He stated that he had met with the Complainant, usually within a day or two of those emails being received and had sought to iron out any issues.

He stated that he felt that the Complainant got on well with everybody and was not aware that there were underlying issues of concern continuing on.  He stated that the last time he spoke to the Complainant in November 2023 in relation to grievances raised, the Complainant had advised him that he had another job offer at that time.  He stated that they reached an agreement in relation to duties and pay and that as a consequence the Complainant had stayed with the company.  He stated that on each occasion when such a meeting took place, an agreement was reached and the meeting concluded with a handshake.  He stated that the last meeting took place in Malahide and that agreement had been reached that it had been a very busy year and that he had agreed with the Complainant that he would not be asked to undertake any more scaffolding or labouring duties.

The Complainant put it to him that despite having reached that agreement he had found himself taking on additional duties to which Mr B responded “that’s in your own nature, since then you have not been instructed to carry out duties” other than on one occasion when he asked to pick up a plough part on his way to work. 

The Complainant put it to Mr B that he was instructed by Ms A to impersonate him on a CIS training programme.  Mr B confirmed that she was not instructed to do so by him and that the matter had been the subject of disciplinary procedure.  Mr B confirmed that he did ask the Complainant to pick up a part in a nearby town.  The Complainant also asked Mr B if he had sent him to Mullingar for paint for the gable of his house.  Mr B confirmed that he had asked him to go to Mullingar for paint but that the paint had been used for three jobs that the company was engaged in.  The Complainant asked Mr B if he had sent him to Kells for machinery parts and Mr B confirmed that he had already answered that question. 

The Complainant then asked Mr B if he had been asked to drop off vodka to a named person.  Mr B advised that he had not been asked to make such a delivery.  He stated that the Respondent would visit each site before Christmas and provide customers with a hamper, and he said he would not have asked the Complainant to do that when he was going there himself.  The Complainant put it to Mr B that the vodka was not from himself but from another company who had dropped it into the office and Mr B said he did not recall the incident. 

Closing Remarks:

Mr Dunlea stated in his closing remarks that the Complainant’s core terms and conditions had not changed throughout his employment and from time to time he was asked to perform other tasks that were tangentially associated with the role. 

He stated that the incident to which the Complainant referred was a very particular set of circumstances where there was a family bereavement and the Complainant was asked to assist the family by keeping an eye on the house during the funeral.  He stated that this in no way meant that the Complainant was asked to take on the role of Security Guard.  He stated that this was an informal request and that the Respondent was very disappointed that the Complainant had raised such an issue about minding a house. 

Mr B added that he felt very humiliated and degraded that after the years of working together, the Complainant had raised such an issue in relation to an incident surrounding a family bereavement.  He stated the Complainant was never asked to work as a Security Guard, that “minding a house is simply minding a house”. 

I have considered carefully the submissions and supporting documentation provided by both parties, together with representations made and evidence given at hearing.

This was a complaint under the Terms of Employment Information Act, 1994, alleging that the Complainant was not notified in writing of a change to his terms of employment and the narrative in the complaint form related to a single occasion when he alleged he was asked to work as a Security Guard at the home of his employer during a family funeral.  The Complainant did, however, provide supplementary documentation to support his contention that he had been asked to work at other duties outside of his core duties as Health & Safety Officer.

Section 3 of the Act states: “3 - (1) 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, that is to say –

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to —

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made”.

In that context I understand the Complainant’s complaint to relate to changes to the “nature of the work for which the employee is employed” as comprehended by section 3(1) (d)and I further understand his complaint to refer to changes to the nature of the work he was employed to do as Health & Safety Officer.  The Complainant provided a copy of his original contract of employment which contained a broad outline of his duties and responsibilities and it was his contention that he spent a portion of his time each week working on duties, other than those for which he was employed, including the occasion of the funeral arrangements referred to above.

Section 5 of the act states: “5 – (1) 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 may be thereafter, but not later than -

(a) 1 month after 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”.

Based on the submissions and evidence of the Complainant I will address the changes he described under 3 headings as follows:

·         His presence at the home during the family funeral

·         General additional duties required of the Complainant

·         Specific additional duties such as scaffolding, labouring work

His presence at the home during the family funeral

At hearing there was much debate as to whether the Complainant was instructed to attend the premises or was asked to attend to assist the family.  The Complainant and Mr. A had different recollections of the events.  Likewise, the 2 individuals gave differing accounts of what was required on that occasion.  The Complainant held firm to the view that he was instructed to work as a security guard and was responsible for the security of the family home and two other properties adjacent to that home.  Mr. A was equally firm in his assertion that he asked the Complainant to remain at the home as a “presence” during the funeral to “keep an eye” on the house. There was no other witness evidence to support either position.

The question that arises here is whether this event constituted a change to the “nature of the work” for which the Complainant was employed.

I noted that the Complainant was present at the premises for between 2 -3 hours and he did not contend that he was ever assigned similar duties on any other occasion.  I also noted that he did not describe himself as having to secure the premises, check doors and windows or patrol the premises, all of which would constitute normal duties of a security officer.  Mr. A’s evidence, which was not disputed or challenged by the Complainant, was that the Complainant could do work on his laptop while sitting in the company van. 

Based on the evidence of both parties I find that on balance the Complainant was asked to assist the family during a funeral and that what he was asked to do was to be a presence at the home during that time.  I am clear that the Complainant was not assigned the duties of a security officer and that a “one off” event such as described does not constitute a change in the nature of the work for which the Complainant was employed.

General additional duties required of the Complainant

In this regard I noted the Complainant objection to being assigned duties such as collecting paint, dropping documents and other items to site, collecting or dropping other staff to various locations, leaving gifts into another business.  I noted also Mr. A’s evidence that the Respondent was a small company and that a degree of flexibility was required of all staff.  I noted further Mr. A’s acceptance that the Complainant had been asked to undertake such duties.

I am of the view that common sense must be applied to the duties described here.  It is inconceivable that any employer would be required to list every single task that might be assigned to an employee in a contract or job description, and I am of the view that is not what is comprehended by Section 3(1)(d) of the Act.  The act requires an employer to provide the job title and “the nature” of the work for which the employee is employed. I consider “the nature of the work” to mean the intrinsic qualities and fundamental characteristics of the duties attaching to the role rather than an exhaustive list of tasks. 

The Complainant accepted that his job title of Health & safety Officer had never been changed, and he accepted that he continued to work at those duties for 75% to 80% of his time.  The duties assigned were of an ad hoc nature and, based on the evidence at hearing, appeared to be assigned out of convenience.  Many of the assignments related to dropping off and collecting people and equipment to or from sites, where he was attending in the normal course of his duties.  On other occasions he was asked to drive in the company vehicle to collect items purchased for use on site or to deliver a gift left for another company.  These duties did not conflict or interfere with the main duties for which the Complainant was employed and were consistent with the normal flexibilities that operate within any employment.  I noted that the Complainant had accepted that the Respondent was generally a good employer and had provided him with flexibility when required.

Based on the evidence of the parties I am clear that the duties described and the ad hoc nature of those duties do not constitute a change to the nature of the work for which the Complainant was employed.

Specific additional duties such as scaffolding, labouring work etc

The Complainant gave evidence that he was asked to undertake the above work on a regular basis, that he had raised a number of grievances in that regard but that ultimately the Respondent had continued to assign such duties to him.  He accepted that, notwithstanding those assignments, he continued to spend in excess of 75% of his time on his core duties of Health & Safety Officer.  The Respondent accepted that the Complainant was assigned those duties.

It was common case that the parties had reached amicable settlements of these issues on two separate occasions where the Complainant was provided with additional remuneration as compensation for those duties and where agreement was reached that those duties would no longer be assigned to him.  It was the Complainant evidence that this agreement was consistently broken by the Respondent and that he was required to undertake such duties.  Alternatively, the Respondent gave evidence that it was in the Complainant’s nature to take on duties when he saw a need to assist but that following the second agreement, he was never again asked to undertake those duties.

In assessing the evidence on this matter, I found the Complainant evidence compelling where he outlined various scenarios where he had attended a site and was left with no option but to undertake some of those duties, in circumstances where those responsible did not attend the site.  His evidence was that if he had left another staff member to complete the work single handed, he would have placed that staff member at risk of injury. This evidence is congruent with the Respondent evidence that “it was in his nature” to assist.

On balance I find that the Complainant was assigned duties that were outside of the “nature of work” for which he was employed and that this occurred on a regular and recurring basis.  In these circumstances I find that there was an obligation on the Respondent to notify the change to his job description as required by Section 5(1) of the Act.

Redress

Section 7(2)(d) of the Act provides that an Adjudication Officer may “order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment”

In determining what is just and equitable in the circumstances of this case I have taken into account the fact that additional remuneration was previously provided by the Respondent in relation to the assignment of additional duties and the fact that the Complainant suffered no identifiable financial loss as a result of the breach of the Act.  I noted the Complainant weekly earnings at the time of his resignation and in that context I consider the amount of €500 to be appropriate compensation for the breach of the Act.

Anonymisation of this Decision

I was aware of the concerns of the Respondent regarding the potential for distress to family members arising from the allegations regarding the presence of the Complainant at the family home during a funeral service.  In recognition of the sensitivities of the situation I advised the parties that I proposed to exercise my discretion to anonymise this decision.  This was acceptable to the parties.

I found that the Complainant was assigned duties on a regular and recurring basis that were outside of the “nature of work” for which he was employed and that there was an obligation on the Respondent to notify the change to his job description as required by Section 5(1) of the Act.

I therefore find the Complainant’s complaint to be well founded, and I direct the Respondent to pay him the amount of €500 as compensation for the breach of the Act.

Changes to terms of employment