TED2427

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00023305 (CA-00029878-004).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 25 February 2024 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2012.  A Labour Court hearing took place on the 31 October 2024. 

The following is the Decision of the Court.

DECISION:

This is an appeal by Dainis Jirgens (“the Complainant”) against an Adjudication Officer’s Decision given under the Terms of Employment (information) Acts 1994 – 2014 (the Acts) against his former employer C&D Foods Limited (“the Respondent”). 

The Adjudication Officer held that the complaint was not well-founded.

This case is linked to EDA2455 and UDD2444 and PWD2462 and TED2428. The Complainant was assisted by a Court appointed Interpreter.

The following is the Determination of the Court.

Summary Position of the Parties

The Complainant submits that he was not provided with a written statement of the terms and conditions of his employment when he commenced employment with the Respondent.  The Complainant was provided with an Employee Handbook (in English and Latvian) at a later stage having requested a copy of that document. He was unaware of the relevant grievance and complaints procedures in place from the outset of his employment, in breach of the Act.

The Respondent submits that all staff, including the Complainant, receive a written statement of their terms and conditions at the commencement of their employment along with a copy the company handbook. The Respondent is unable to locate a copy of the contract of employment that issue to the Complainant but retained a document entitled “acceptance of conditions of employment” which was signed by the Complainant confirming receipt of a written statement two days after commencing employment.

Applicable Law

The relevant statute provisions in place at the time of the complaint to the WRC was as follows:

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.

(2) ….

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) …

(7) …

Deliberation and findings

The Respondent in this case provided the Court with a copy of document entitled “acceptance of conditions of employment” which states, “I have read and understand the Conditions of my employment with C&D Foods…” and which it asserts was signed by the Complainant.

While the Complainant’s representative acknowledged that the Complainant may have been given an opportunity to read a document relating to his conditions of employment, however, she submits that such a measure does not meet the requirement of the Act, as he was not “given” or allowed retain a written statement of his terms and conditions of employment. 

The Court notes that the requirement to provide details of the certain terms and conditions of employment, as specified in s.3(1)(g), (h), (i), (j), (k) and (l) of the Act, may be satisfied by providing an employee with reasonable access or a reasonable opportunity to read those provisions during his or her employment.  However, no such provision applies to s.3(1)(a), (b), (c), (d), (e) and (f) of the Act.

The Court further notes that the Act requires at sec.3(5) that a copy of the written statement must be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter. That did not happen in this case, and in those circumstances the employer was unable to verify that they had fully complied with the requirements of the Act.

The Act requires that an employer shall give or cause to be given to an employee a statement in writing containing specified terms of the employee’s employment.  The obligation to provide the written statement of terms of employment is an obligation, under the Act, that rests with the Respondent.

In this case, the Respondent accepts that it cannot demonstrate that it retained a copy of the employees’ contract of employment as required under s. 3(5) of the Act.  As a result, the Court finds the Respondent was in breach of the Act and the complaint is well founded.

Finding

The complaint under the Act is well founded.

Having read the submissions and listened to the oral submissions on the day the Court considers that the amount of compensation which is just and equitable having regard to all the circumstances of this case is €1085.94, which is the equivalent of two weeks’ pay.

The Decision of the Adjudication Officer, for the reasons set out above, is overturned.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
28th November 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.