Complainant

Respondent

Parties

Jamie  Whelan

St Vincents Healthcare Group

Representatives

  Sef-represented

Andrea Tancred 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-00068503-001

08/01/2025

The Complainant commenced employment with the Respondent on 6th November 2023 as an Apprentice Electrician   On 8th January 2025, the Complainant filed the claim to the WRC under the Terms of Employment (Information) Act, 1994 alleging errors in his contract.

The complainant submits that

He is an apprentice employed by Saint Vincents Healthcare Group and has been incorrectly classified as working under an "if and when required" contract.

 This classification is inconsistent with his actual working conditions, as he consistently works a set schedule of 39 hours per week, plus an additional 5 hours of overtime.

He submits that he has been employed in this capacity for a year and 2 months and that this contract misclassification has led to significant discrepancies in his entitlements, including: Overtime Pay:  He submits that due to contract classification, he has been unable to receive average overtime pay.

He submits that it has also had an effect on his Holiday Entitlements as his  holiday pay is calculated based on a casual worker classification, not considering the regular hours worked which  is inconsistent with the legal requirements for apprentices, who should receive full entitlements, including paid annual leave, under the Organisation of Working Time Act 1997.

The complainant submits that he has attempted to resolve this issue internally by contacting both HR and his manager but despite numerous communications to HR and his manager . there has been no satisfactory response or resolution to date.

The complainant submits that his contract should be amended  to reflect a fixed-term agreement suitable for his apprenticeship, ensuring all rights and entitlements are fully observed including that overtime and holiday pay entitlements are properly calculated and paid.

The Complainant commenced employment with the Respondent on 6th November 2023 as an Apprentice Electrician, for the duration of his Apprenticeship.

 The Complainant was issued with this contract on 11th November 2023 that stated the following regarding his normal working hours:

“Hours as assigned. You work roster and starting/finishing times will be notified to you by your Head of Department/Line Manager. Your working days and times may change to reflect service requirements”.

At the time of issuing the contract, the Respondent’s HR Department believed it to be the appropriate contract to issue apprentices hired due to the fact that they would spend blocks of time offsite during their classroom-based training throughout the four-year apprenticeship. It is unfortunate that the hiring manager did not consult with HR for guidance on the matter at the time, but their decision was made in good faith and believed it to be appropriate.

In or around 30th August 2024 the Complainant emailed the Recruitment team seeking clarification of the type of contract he had been issued. The Complainant asked if his contract of employment was permanent or temporary in nature. Ms. K, HR Representative, responded to the Complainant’s query to advise her records showed that he was on the “if and when” contract.

The Complainant mentioned the reason for his query was due to him applying for a car loan and he was unable to obtain one due to his contract. On review of the email correspondence between the Complainant and Ms. K, there appears to be some confusion. The Complainant asked if his contract could be changed and Ms. K replied to the Complainant and advised that his contract could not be amended to a permanent contract,  that a permanent contract would have to be applied for though the appropriate channels.

Ms. K offered to provide the Complaint with a letter to support his loan application which stated his current salary, his working hours and the nature of the contract that he was employed on regarding his apprenticeship duration.

The Complainant made a formal request to HR to amend his contract type on 16th December 2024.

The Complainant emailed Mr. J, Senior HR Representative, on 18th December 2024 with a list of concerns regarding his current contract and requested if his contract could be reviewed and amended to reflect his regular working hours and apprenticeship status. The Complainant also requested to be placed on a fixed-term contract on completion of his apprenticeship.

On the same day, the Complainant sent a further email to Mr Nick Andrews, Head of Estates Operations, and Ms. L , HR Representative. In this email the Complainant outlined the same concerns as set out in the email to Mr. J and the Complainant asserted that if he did “not receive a clear response and resolution by Friday, December 22nd”, in four days’ time, he would have no choice but to escalate the matter to the WRC.

On 8th January 2025, the Complainant filed the claim to the WRC. On 30th January 2025, the Complainant escalated his query to HR and emailed  Ms. N, Former HR Business Partner, requesting an update on his contract status and cited various employment legislation that his current contract may be in breach of.

Ms. N acknowledged that there appeared to be an error from what the Complainant had relayed to her and now that she had been put on notice of the issue, began to review the situation to establish what had happened and what needed to be done to rectify it.

In the following weeks, Ms. N reverted to the Complainant to advise that there had been an error in the contract type that he was issued. She noted that in a previous conversation that the Complainant had mentioned being in possession of a template apprentice contract.

Ms. N asked the Complainant if he could provide her with a copy. It is unfortunate that the Complainant was unwilling to provide the template at this, as it added to the delay in resolving the issue.

A contract was drafted to reflect the Complainant’s apprenticeship role, and this was issued to him on the 30th of April 2025.

Preliminary Issue - Time limits

The respondent submits that the Complainant's employment started on the 6th of November 2023, and the claim was filed on 8th January 2025 and so falls outside the maximum 12-month extension permitted by law, the respondent submits that the WRC does not have jurisdiction to hear this complaint.

The Complainant alleges he was issued with a contract that does not accurately reflect his actual hours worked on a consistent basis.

The question here is whether section 41(6) of the Workplace Relations Act has restricted the limitation period for breaches of section 3 of the Terms of Employment (Information) Act.

Section 41(6) of the Workplace Relations Act provides: “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.”

Section 3(1) of the Terms of Employment (Information) Act provides

“An employer shall, not later than 1 month 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, …..

The respondent submits that the claim is out of time .  

The Complainant asserts that he was provided with a contact that did not accurately reflect his working hours.   This  is not disputed by the Respondent.   The complainant advised the hearing that this was a continuing breach as  the error in the contract continued up to April 2025 despite him having raised the issue with the respondent in in December 2024.

The complainant advised the hearing that this is an ongoing contravention and one which continued as long as the error in the contract continued and was not rectified.

I am satisfied from the evidence adduced and having regard to the circumstances of this case that the contravention of section 3 is a subsisting and ongoing contravention and that the claim has not been submitted outside of the time limits provided for in the Acts.

The complainant advised the hearing that he commenced employment with the Respondent on 6th November 2023 as an Apprentice Electrician.

The complainant stated that he was issued with a contract by the respondent which erroneously classified him as working under an "if and when required" contract.   

The complainant advised the hearing that this classification is inconsistent with his actual working conditions, as he consistently works a set schedule of 39 hours per week, plus an additional 5 hours of overtime.

The complainant advised the hearing that this contract misclassification has led to significant discrepancies in his entitlements, including in his entitlement to Overtime Pay and Holiday Pay.

The complainant also advised the hearing that he was denied a car loan as a result of this error , as his original employment contract was not sufficient proof of income or job security.  The complainant submits that this demonstrates the  impact of being issued an incorrect ‘if and when required’ contract during his apprenticeship.

The complainant advised the hearing that he has attempted to resolve this issue internally by contacting both HR and his manager but despite numerous communications to HR and his manager . there has been no satisfactory response or resolution to date.

The complainant submits that his contract should be amended  to reflect a fixed-term agreement suitable for his apprenticeship.

The respondent at the hearing acknowledged that there was an error in the contract type issued to the complainant.  The respondent advised the hearing that at the time of issuing the contract, the Respondent’s HR Department believed it to be the appropriate contract to issue apprentices hired due to the fact that they would spend blocks of time offsite during their classroom-based training throughout the four-year apprenticeship.

The respondent added that it is unfortunate that the hiring manager did not consult with HR for guidance on the matter at the time, but their decision was made in good faith and believed it to be appropriate.

The respondent advised the hearing that once HR became aware of the issue, they actively worked on attempting to resolve matters but that the claim was filed to the WRC before one month had lapsed since the complainants  formal request for his contract to be amended.

The respondent advised the hearing that it has engaged with the complainant in a bid to rectify the contract and that it undertook a full review of both the overtime paid and annual leave accrual to ensure both were paid correctly and with the view if it was found they paid the complainant incorrectly, that they would pay any monies owed.

Without prejudice to the foregoing, the Respondent relies on section 3 (1B) of the amended Act and respectfully submits that the wrong contract type was issued to the Complainant due to an error, but it was, without doubt, issued at the time in good faith.

The Respondent position that although an error was made in details of the contract issued to the Complainant, the Complainant has suffered no detriment or loss as a result of the error and since  commencing employment, the Complainant has consistently worked 39 basic hours per week and 5 at overtime.

The respondent advised the hearing that the complainant has since been issued with the correct contract.  The complainant acknowledged that a new contract had been issued but he stated that  there were still matters requiring amendment/clarification and which he has been engaging with the respondent.   Discussions took place at the hearing around resolving some of these issues.

Having considered the evidence adduced I am satisfied that there was a breach of the Terms Employment (Information) Act, 1994.  Accordingly, I declare this claim to be well- founded.   I award the complainant €400 in compensation for the breach.

I declare this claim to be well- founded.   I award the complainant €400 in compensation for the breach.