TE77/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                              CASE NO.

Marian Power             -appellant

                                                                                                                         TE77/2014

against the recommendation of the Rights Commissioner in the case of:

Frank Heffernan & Paul Foskin T/A Heffernan Foskin Solicitors   -respondents

under

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. D. Donovan B.L.

Members:     Mr. J. Browne

Ms. S. Kelly

heard this appeal at Waterford on 3rd September 2015

Representation:

Appellant:             Ms. Ger Malone, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondents:       In person

Background:

This matter comes before the Tribunal by way of an employee (the appellant) appealing against the Recommendation of a Rights Commissioner (reference: r-138485-te-13/EH).

The appellant, who is still employed by the respondents, commenced her employment with the respondents on 8^th June 2004. She was recruited through Premier Recruitment and was furnished with a letter from Premier Recruitment dated 18^th May 2004 which set out some of the essential terms of her employment such as the names of the parties, the appellant’s work location, salary and job title.

It was the appellant’s evidence that she was not furnished with a written contract of employment.   It was put to her in cross-examination that when the respondents wrote to her on 26^th February 2009 referring to her “Contract of Employment” and the need to reduce her hours of work that she did not tell them that she did not have a contract of employment.   The appellant said that of course she had a contract of employment and that she knew of the terms of it through custom and practice of her service with the respondents. The appellant was adamant that she did not see the written contract of employment, dated 4^th June 2004, until the hearing at the Rights Commissioner.

The respondents put to the appellant that if she had requested a contract in writing from the respondents did she believe she would have been furnished with one and she said “probably not”.

It was the appellant’s case that she was prejudiced by the failure to have her contract in writing because she was unaware until she first saw the contract at the Rights Commissioner hearing that her job title was “secretarial/reception” and that this would have assisted her in making her case against the reduction of her hours in 2010.   The appellant accepted that her job title on the letter from Premier Recruitment was that of book-keeper and that in fact her role consisted mainly of that of book-keeper.

Determination:

Having considered the direct evidence of the appellant adduced at the hearing and the evidence in cross-examination the Tribunal finds as follows:-

1. That the appellant was not furnished with a written contract of employment.

2. That the appellant had been furnished with some of her essential terms in writing prior to the commencement of her employment with the respondents by Premier Recruitment.

3. That the respondents believed the appellant had been furnished with a contract of employment. That the respondents so believed is supported by their letter to the appellant dated 18^th January 2010.

4. That there was no basis for the appellant believing that the respondents would not have furnished her with a contract of employment had she requested one.

5. That the appellant was not prejudiced by the failure to have her contract of employment in writing in that she had some of the terms in writing and if she did payroll as part of her duties she would be in possession of the rate or method of calculation of her remuneration and the pay reference period, the length of the intervals between the times at which remuneration is paid, whether over-time is paid or time off in lieu, whether sick leave is paid leave or otherwise and deductions for pensions.

6. That despite the variance between her job title on her letter of recruitment and the contract her job nonetheless was that of book-keeper and despite her lack of knowledge about the job title on the contract it appears she did make the case for hours doing other work when she was resisting the reduction in her hours.

Section 7(2) of the Terms of Information Act 1994 provides that in the case of a breach of section 3 of the Act the Tribunal shall do one or more of the following:-

(a)       declare that the complaint was or, as the case may be, was not well founded,

(b)       (i)        confirm all or any of the particulars contained or referred to in any    

            statement furnished by the employer under section 3, 4, 5 or 6, or

(ii)       alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c)       require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

(d)       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

The Tribunal determines that whereas the complaint is well founded the appropriate remedy is to require the respondents to give or cause to be given to the appellant a written statement containing such particulars as are required by section 3 of the Act.

Taking into account all the circumstances of the case the Tribunal does not believe it is an appropriate case for the Tribunal to exercise its jurisdiction to award compensation particularly as the Tribunal finds that the appellant was not unduly or at all prejudiced by the failure. See Archbold v CMC (Ireland) Ltd TE05/2003 where the EAT held that the Tribunal was entitled to determine what payment was just and equitable in all the circumstances (not exceeding four weeks remuneration) including whether the appellant was "unduly prejudiced" by the failure of the employer to provide the written statement of terms and conditions of employment.

Accordingly, the Recommendation of the Rights Commissioner (reference: r-138485-te-13/EH) is upset.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)