ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002613

Complaints for Resolution:

Date of Adjudication Hearing: 08/06/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act 1994, as amended, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant commenced work as a company accountant on 15 March 2012. He had received a handwritten note recording his start terms on 6 March 2012. (Document 1)

These referred to:

• Super Bonus
• Mileage
• Staff Discount
• Probation
• Full review in April 2013

The company contribution on pension was to be confirmed.

The complainant worked at the company without receiving a further written statement of his terms of employment In November , 2013, he found a copy of a document in the company office which was titled “ Statement of main terms of employment” this purported to cover the requirements of the Act , but nobody discussed this with the complainant. It was unsigned and undated. (Document 2)

In July 2014, he commenced sick leave and returned to work mornings only in September, 2014, returning to full time from October, 2014.

In July, 2015, the Chief Financial Officer, Ms R, gave the complainant another unsigned and undated document containing a statement of terms of employment. She stated that this needed to be discussed between them. This never happened as the complainant left the company due to “oppressive working conditions” in February 2016. (Document 3)

The complainant also submitted that his pre-existing bonus structure had not been paid by the company and his bonus for the year 2015 remained unpaid, this constituted a further breach of the Act.

The complainant sought the maximum award in compensation under the Act. The complaint under the Industrial Relation Act was withdrawn at the hearing.

The Complainants’ response to supplementary submission:

The complainant drew the distinction between the three documents produced at the hearing which were related to terms of employment:

1 He referred to Document number 4, which issued from the company on June 2016 following the hearing

(1)    The documents differed on trading names.

(2)    The documents differed on job titles

(3)    The documents differed on duties attached to the job

(4)    The documents differed on bonus. Document 3 had the bonus paragraph, which was omitted in document 4.

Respondent’s Submission and Presentation:

The respondent accepted that the complainant did not receive a document in strict adherence to the Act within 8 weeks of commencement of employment. However, they submitted that this could be explained by reviewing the company experience.

At the time the complainant was hired in 2012, the company was in its infancy. He worked as the sole company accountant until the appointment of the Chief Financial Officer. The number of shops grew from 5 in 2012 to 13 in 2015. Each shop was a limited company and the complainant’s bonus structure was commensurate with the shop profitability ratings. The complainant was paid a defined bonus for the years 2012-2014 in arrears.

The respondent disputed that the complainant’s terms of employment had been altered. There was an old” bonus system” and a “new bonus system” and while the then Financial Controller , Mr R sought to engage the complainant in agreeing terms and conditions incorporating the bonus in 2015, the complainant did not engage .

The respondent submitted that the company was growing and the bonus system became more sophisticated. There was a changeover at Chief Financial Officer Level which was now replaced by a Director of Finance for the company.

It was the respondent’s case that the complainant chose not to sign the pro offered terms of employment. The respondent undertook to furnish the Adjudicator with supplementary details of whether the bonus due to be paid to the complainant in arrears for 2015 had been paid. This information was furnished on 22 June 2016 and commented on by the complainant.

Supplementary Information:

The respondent disputed the relevance of the “Bonus” to the claim at hand. They submitted that the complainant directed that payments be made to him on the terms of the new bonus system during 2015.

This involved a salary adjustment to € 45,000 with two weeks retrospection

A once off bonus of €3,500

Mileage and Pension €5,100

This constituted proof that while the complainant had not signed revised terms of employment that he had in fact actioned the new terms, regardless.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 7 of the Terms of Employment (Information) Act, 1994, as amended.

Issues for Decision:

I must decide if the claims as submitted by the complainant constitute a breach of the presiding legislation.

Legislation involved and requirements of legislation:

Section 3 of the Act sets down the obligations of an employer in relation to a written statement of terms of employment: S.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,

A reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) The rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(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) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(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 a reasonable opportunity 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) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

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) 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.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

…….

Complaint to Adjudication officer

Section 7

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely—

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

(b) Either—

(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,

(d) order the employer to pay the employee compensation (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under S.17 of the Unfair Dismissals Act ,1977.

Decision:

I have carefully considered the submissions made by the parties. I have also reviewed the supplementary information received from the parties. It is clear to me that the complainant holds a very high level of dissatisfaction at his work experience at the respondent company. However, the claim before me is focussed on the complainant’s terms of employment. There are two aspects of the complaint.

1 Furnishing of a written statement

2 Notification of change

1 Section 3.

The respondent accepted that there were shortcomings on Document 1 which did not comply with the broad requirements of the Act. They asked that I take account of the correct context and background of the embryonic trading circumstances that prevailed. I have done this, but find that I am persuaded by the evidence of the complainant in this regard and in particular the contents of document 1. I find that the section 3 has been breached by not complying with the statutory requirements within the 8 week limitation period. I award 3 weeks salary in compensation, mindful that the complainant no longer works for the respondent. This amounts to Euro 2,596.00.

2 Sections 5.

This requires that proposed change is notified within aprescribed period of time. I have reviewed Document 3 and I find that this document, despite the vagaries around who handled the documents, complies with the requirements of section 5 of the Act. The complainant did not furnish a comment back on the submission by the respondent, where the operationalisation of the new bonus system was mentioned. I must therefore interpret this as his acceptance of the submission. I am struck by the senior role held by the complainant in the company and while, I appreciate that the period covered by the claim was marked by business expansion and changed personnel, there should have been an identified period where both parties were able to engage as Accountant and Manager. There is no evidence before me of this engagement. I do not accept that the latter day presentation of document 4 had any helpful status . It just served to add to the confusion in the case . I also note that pension contributions were a standard feature of the almost four year employment period, yet, pension was only mentioned as “ to be confirmed” on document 1. This demonstrated a semblance of a system of change notification , albeit on an ad hoc basis .

I find, therefore that this aspect of the claim is not well founded.

Conclusion; I award the complainant the sum of Euro 2596.00 in compensation for the breach of section 3 of the Act.

Patsy Doyle, Adjudicator.

Dated:   18^th August 2016