Complainant

Respondent

Parties

Ms Emer Keenan

Prosper Fingal CLG

T/A Prosper Fingal

[amended on consent at hearing]

Representatives

Self-Represented

Ms Zoe O'Sullivan IBEC

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-00071212-001

30/04/2025

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

CA-00071265-001 DUPLICATE CLAIM WITHDRAWN AT HEARING

02/05/2025

This matter came before the Workplace Relations Commission dated 30/04/2025 as a complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 30/10/2025. 

The Complainant’s specific complaint under the legislation impleaded is that she was not notified in writing of a change to her terms and conditions of employment.

The Respondent submits the claim is misguided in law and has no locus standi as not only was the Complainant notified in advance of the change to her terms and conditions of employment but she explicitly agreed to the change. 

The Complainant commenced employment with the Respondent on 02/07/2001.  The Complainant at all material times was employed as a Research & Development Officer and she works a 30-hour week for which she is paid €2684.53 gross fortnightly.

The Respondent is a is a not-for-profit community-based charitable organisation that provides service to adults with intellectual disability including Day Services, Residential Services, Respite Services and Clinical Services.  The Respondent is solely funded by the HSE under section 39 of the Health Act 2004. 

Both parties filed extensive written submissions prior to and up until the day before hearing on the part of the Complainant by way of her response to the submission filed by the Respondent all of which have been taken into consideration. 

CA-00071212-001

Preliminary issue – time limits

The Complainant at hearing submits that her complaint is within the statutory time limits as the breach of her terms and conditions grounding her complaint occurred arising out of a meeting with the Respondent on 30 October 2024.  The Complainant submits the clock starts running from 30 October 2024 and she submits her complaint was filed with the WRC within the 6-month statutory time limit.

Preliminary issue – jurisdiction

The Complainant submits that the AO should note she is a litigant in person and that she filed the complaint availing herself of the options available on the WRC online complaint form at that time.

Preliminary issue – non particularisation of claim

The Complainant, in submissions filed by way of a response to Respondent’s submission, states the grounds under which there has been a breach of contract in relation to her employment contract is clearly set out in the second letter from her legal representative to the Respondent dated 2 April 2025. 

Substantive Case

Summary of direct evidence of Complainant on affirmation

The Complainant submits she met with Ms Cheryl Judge (hereafter CJ) on the 30 October 2024 and during the meeting it is submitted CJ acknowledged her frustration and told her she was a valued member of staff.  The Complainant submits that CJ offered that she (the Complainant) revert back to the 35 hours and this offer was being made in strict confidence.  The Complainant submits CJ told her that there would be no back pay.  The Complaint submits she told the CJ that she would have to think about it.  The Complainant submits she emailed CJ as follows on 2 December 2024:

“Hi Cheryl,

I appreciate your request to meet with me to discuss Haddington Rd. on Wednesday October 30th 2024.  It’s been a month now and I just want to apologise for not getting back to you sooner.  It’s been busy at home and I haven’t had the space to think about the company’s offer to revert my hours to my pre-Haddington Rd. hours as a gesture of goodwill in respect of my years of loyal service and essential contribution I have made / continue to make to the company.  I just need a little more thinking time and I’ll be back to you.

Kind regards” [SIC]

The Complainant submits there was no response to this email and that indicated to her that her understanding of what was said at the meeting was not being refuted. 

The Complainant submits her understanding of the meeting on 30 October 2024 was that her hours would be restored and that back pay was non-negotiable. 

The Complainant submits she had commenced communicating with the Respondent when HRA was restored in 2022. 

The Complainant submits she wasn’t happy with the bespoke arrangement that had been discussed with her at the meeting on 30 October 2024 and she spoke to her solicitor and twin remedies were then sought by her solicitor on her behalf by correspondence to the Respondent of 20 February 2025, namely the restoration of her hours and a lump sum payment of arrears of salary. 

The Complainant submits she is very disappointed with the way she has been treated and she does not want to be here and she submits the offer was made to her at the meeting on 30 October that her hours would be restored. 

CA-00071212-001

Preliminary issue – time limits

It is submitted the Complainant submitted her claim under section 7 of the Terms of Employment (Information) Act, 1994 on 30 April 2025.  It is submitted the Complainant has not specified the date of the alleged contravention.  It is submitted the Complainant’s contractual hours were increased by singed agreement effective from 1 January 2014.  It is submitted the Workplace Relations Act, 2015 clearly stipulates that the time limit runs from the date of contravention to which the complaint relates and not from any other date and the six-month time period can only be increased to a maximum of 12 months with reasonable cause.  It is submitted the within claim has been filed over 11 years after the agreed change to the Complainant’s terms and conditions.  It is submitted there is no discretion under the legislation for an AO to further extend time past the 12-month period as confirmed by the Labour Court in Fallon and Byrne v. Kelvin Gopaul [PWD241].

Preliminary issue – jurisdiction

It is submitted that all staff including the Complainant were given the option between increasing their hours mirroring the Haddington Road Agreement (hereafter HRA) or to remain on their current working hours and take a pro-rated salary accordingly.  It is submitted the Complainant signed and agreed to a change in her terms and conditions and working hours as she selected to increase her working hours.  It is submitted that not only was the Complainant notified in advance of this change but that she had explicitly agreed to it.  It is submitted that the claim is misguided in law and has no locus standi as the Complainant was notified of the change to her terms and conditions and submits the claims should fail.

Preliminary issue – non particularisation of claim

It is submitted the Complainant has adduced no evidence or explanation around the allegation of a breach of the impleaded legislation.  It is submitted the burden is on a complainant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. 

Law relied upon by the Respondent:

ISS Limited v. Zhivjko Mitsov (and 3 others) [DWT1159]

Bratty v Attorney General for Northern Ireland [1963] A.C.386

Nolan Transport v. Jakonis Antanas [DWT1117]

Erac Ireland Limited v. Eddie Murphy [DWT1583]

Substantive Case

Summary of direct evidence of Respondent witness Ms Cheryl Judge on affirmation

The Respondent witness submits she sought to reach an agreement with the Complainant without reference to the HRA as she was conscious of the section 39 workers and that reversal of HRA had not taken place for them.  The witness submits that no offer was made to the Complainant in respect of restoring hours or in respect of HRA. 

CA-00071212-001

Preliminary issue – time limits

I note the Complainant, in her submission filed in response to the Respondent’s written submission on the day before hearing,  outlines that “she believes the breach of her terms and conditions of employment crystalised on 30 October by virtue of the offer made to her to revert to her 35 hours” and that she believes “the clock began running from 30 October 2024.”  I note this was further clarified by the Complainant in direct evidence at hearing.  I note the Complainant’s understanding of the meeting that took place on 30 November was that her hours would be restored.  

I note the Complainant submits “the Respondent has denied ever making that offer and furthermore has refused to make that change to my terms and conditions in writing, implement contract change or pay the arrears of salary.” [SIC]

I am satisfied the clarification provided by the Complainant at hearing resolves the preliminary issues in terms of time limits and jurisdiction.  Particularisation of her claim was provided by her in the aforesaid clarification when it was established by her that the within complaint relates to the failure of the Respondent to notify her in writing of a change to her terms of employment arising out of a meeting on 30 October 2024.  

Substantive case

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed by the Respondent.   I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I have two versions of events before me that are entirely at odds in most respects having regard to what was said at the meeting that took place on 30 October 2024 attended by the Complainant and the Respondent witness Ms Cheryl Judge.  The fact that the meeting did take place is the only fact that is not in dispute.     

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.  Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

I am satisfied that the claim as presented by the Complainant, pursuant to the Terms of Employment (Information) Act, 1994 notwithstanding the voluminous submissions and supporting documentation filed initially in advance of hearing is, in fact, a discrete issue that falls to be determined under the impleaded legislation. 

I am satisfied the complaint as presented falls to be considered by me under section 5(1) of the Terms of Employment (Information) Act, 1994.    

The Relevant Law

Notification of changes.

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) the day on which 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.

The Relevant Facts

I note the Complainant, having had legal representation / legal advice since February 2025, made the decision to run her case under the Terms of Employment (Information) Act, 1994 when she filed her complaint on 30/04/2025.

I note the Complainant alleges a contravention of the impleaded legislation occurred when an offer was made to the Complainant to restore her hours at a meeting with the Respondent on 30 October 2024 and this offer was not followed up in writing reflecting the change to her terms and conditions. 

I note the Respondent disputes the outline of events as provided by the Complainant in regard to the meeting on 30 October 2024.  I note the Respondent submits that the meeting was by way of “reaching out” to the Complainant to ascertain if she would be amenable to a bespoke arrangement without reference to HRA.

I note both parties gave evidence on affirmation in support of their version of events and contested the opposing account. There is a considerable variance between the Complainant’s and the Respondent’s respective account of events.

I am not in a position to definitively resolve the directly conflicting evidence of the parties in relation to the precise nature of the discussions that took place between the Complainant and the Respondent witness on 30 October 2024 in circumstances where there no other witnesses to the discussions apart from the two aforementioned parties.  Both parties seem to differ markedly in their interpretation and / or their recollection. 

Notwithstanding, I am of the view it is not necessary for me to resolve the conflict in evidence for the following reason. 

I am satisfied that, irrespective of the significant conflict in the evidence as adduced, what is of fundamental significance in the within case is the undisputed fact that, arising out of the meeting on 30 October 2024, no change whatsoever occurred in regard to the Complainant’s terms and conditions of employment.    

Accordingly, there was no contravention of the impleaded legislation in circumstances where there were no changes made to the Complainant’s contract after the meeting on 30 October 2024. 

When I apply the law to the facts as set out in the written submissions and orally at hearing I am unable to find a contravention of the impleaded legislation as set out above namely section 5 of the Terms of Employment (Information) Act, 1994 which provides for the notification of changes in circumstances where there were, in fact, no changes made to the Complainant’s terms of employment.  I am satisfied there has been no contravention of the Act within the cognisable time period. 

For the reasons set out above I conclude there was no contravention by the Respondent of the provisions of the legislation outlined above namely section 5(1) of the Terms of Employment (Information) Act, 1994. 

Accordingly, I find this complaint as presented under the Terms of Employment (Information) Act, 1994 to be not well-founded.   

CA-00071212-001

For the reasons set out above, I decide this complaint as presented is not well-founded. 

No change to contract;