FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : SIBLINGS LTD TRADING AS SIBLINGS - AND - PHILIP DUGGAN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No: ADJ-00002585.
BACKGROUND:
2. This is an appeal under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2102. A Labour Court Hearing took place on the 14th of December 2016. The following is the Courts Determination;-
DETERMINATION:
This is an appeal by Mr Philip Duggan against the Adjudication Officer’s Decision ADJ-00002585 which rejected his claim under the Terms of Employment (Information) Act 1994 (“the Act”). Mr Duggan had complained that his former employer Siblings Limited t/a Siblings had breached Section 3 of the Act by not providing him with a statement in writing containing details of his terms of employment.
The parties are referred to in this Determination as they were at first instance. Hence, Mr Philip Duggan is referred to as “the Complainant” and Siblings Limited t/a Siblings is referred to as “the Respondent”.
The Complainant referred his complaint under the Act to the Workplace Relations Commission on 1stApril 2016.
In a Decision 18thOctober 2016 the Adjudication Officer held that based on the evidence provided the Respondent had not breached the Act. The Adjudication Officer found that the Respondent had provided the Complainant with a contract of employment in or around 16thJune 2015 i.e. within two months of the commencement of his employment.
The Complainant appealed against this Decision.
Background
Neither the Complainant not the Respondent provided a written statement outlining details of the background to the case. However, such details were reported in the Adjudication Officer’s Decision. At the hearing before the Court the Complainant gave oral evidence including an account of his employment history with the Respondent. Mr Michael Buckley, Managing Director, and Ms Elaine Richardson, Finance Director, gave evidence on behalf of the Respondent. As the Adjudication Officer’s account of the details reported has not been disputed, the Court relies on the Adjudication Officer’s Decision to summarise the background details.
The Company is in the catering business. The Complainant joined the Respondent as a self-employed Consultant on 12 May 2015 to assist the business to become more saleable. On 25 May 2015 his status changed and he became an employee of the Respondent with the title ‘Business Manager’ on a 40 hour week. He was paid €608.82 per week. From 1 November 2015 his status changed again and he became a Partner in the Company and he reverted to a self-employed status. He finally left the business on 10 March 2016. The Company was sold on 5June 2016.
Summary of the Complainant’s Evidence to the Court
The Complainant contended that the Respondent was in breach of the Act as he did not receive a written statement of his terms and conditions of employment. He outlined for the Court details of his work experience over his career and in particular his expertise in the retail and catering industries. He said that having run his own business for many years he had certain expertise and he was brought into the Respondent’s Company to improve its business with the intention of making it more saleable.
He said that on 24 February 2016 a representative of the Respondent informed him that he would no longer be in receipt of a weekly wage and from then on he was only afforded a few hours’ work per week.
He disputed the Respondent’s contention that he was furnished with a copy of his contract of employment at an in-house staff training session on 16thJune 2015. He told the Court that, having been brought into the Respondent’s business as a Consultant, he proceeded to identify numerous deficiencies and accordingly organised the staff training session which was held on 16June 2015. He advised Management on improvements that needed to be made relating to staff matters. He said that he was the one who was instrumental and not Mr Buckley in putting together the information for the staff training session with a view to instructing and training the team. He said that the Managing Director was invited to address the meeting.
In his evidence in answer to questions from the Court he said that he had taken the case under the Act as he believed he had been wronged by the Respondent’s actions which led to the termination of his relationship with the respondent.
Summary of the Respondent’s Position
Mr Martin Buckley, Managing Director, gave evidence to the Court. He said that on 18May 2015 a contract was drawn up for the Complainant and was furnished to him at the end of the staff training meeting on 16 June 2015. He stated that the Complainant signed a document on that day stating that he had received copies of all information discussed at the training session.
Mr Buckley stated that it was known that the Complainant did not want to work with the Respondent on a long term basis.
Mr Buckley told the Court that as a result of a scheduled meeting with NERA in May 2015 and having been advised by them, it revised a number of its work practices to comply with its obligations as an employer. On 16 June 2015 a staff training day was organised at which a number of issues were discussed and all staff who attended were given copies of information on the topics covered. The topics covered were Human Resources (HR); Business Guidelines – Staff Training Manual; Washroom Hygiene; and Allergen Information.
Included under the topic ‘HR Update’ was the following:-
- •Organisation of Working Time Act, 1997,
•Industrial Relations Act 1946,
•Protection of Young Persons Act 1996,
•Employment Permits Act 2006,
•Payment of Wages Act 1991,
•Timesheets/Rota/Payroll,
•Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (Respect & Dignity Policy).
The Law
The Section 3 of the Act, as amended, provides: -
- Written statement of terms of employment
(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 theCompanies 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 of 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,
(fa)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 purpose 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,
- (i) incapacity for work due to sickness or injury and paid sick leave, and
(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.
- (a) the full names of the employer and the employee,
- (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.
- (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.
Conclusions of the Court
A document was put in evidence purporting to be the contract of employment furnished to the Complainant dated 25 May 2015. This document included the Managing Director’s signature but not the Complainant’s signature. Mr Buckley told the Court that he believed that the Complainant had received a copy of this contract of employment in conjunction with the documents given to him at the end of the training day on 16 June 2015. The Complainant said that he had all the documents from the training day as he was instrumental in drawing them together, however, he denied ever receiving a copy of the contract of employment.
Having considered the evidence given, the Court notes that there is no evidence to confirm that the Complainant actually received a statement of the terms of his employment in accordance with section 3 of the Act. Accordingly he is entitled to succeed.
Redress
The Court notes that in his role as Consultant/Business Manager the Complainant was engaged to advise the Respondent on business practices and matters which included HR matters and, while he professed not to be an expert in HR, he told the Court that he had given the Respondent advice on the matters included in the HR Update presented at the training day on 16 June 2015.
It is clear to the Court from an email dated 18 May 2015 from the Managing Director to another member of Management that such a contract was at the very least in contemplation. The Complainant gave no indication that there was any dispute about his terms of employment and made no reference to any adverse consequences of not receiving these details in writing. Ms Richardson gave evidence to the Court that, while the Complainant has been contracted to do 37 ½ hours per week, when it was noticed that he was actually working longer hours it had no hesitation in paying him for 40 hours per week.
When questioned on his reasons for bringing the complaint under the Act, the Complainant made reference to matters which were entirely unrelated to the failure to receive his written terms of employment. It appeared to the Court that the Complainant was more intent on seeking retribution from the Respondent due to the actions which led to the termination of his relationship with the respondent and were entirely unrelated to any impact resulting from the breach of the Act.
The Court holds the view that the requirement to supply a statement within two months of commencement of employment is an important one which provides the basis for an employee to have clarity as required by the Act regarding his or her terms of employment.
In this case the Court notes that the Complainant was in a consultancy role advising the Respondent on issues related to terms of employment and was instrumental in ensuring that it complied with its statutory obligations in that regard. In all the circumstances of this case the Court determines that the Complainant should be paid the sum of €100 in respect of the Respondent’s breach of the Act.
The Court is satisfied that the award meets the standards of fairness or equity required by the CJEU in the C-14/83Von Colson and Karmann v Land Nordrhein-Westfahlen[1986] C.M.L.R 430.
Determination
The Court overturns the Decision of the Adjudication Officer and upholds the Complainant’s appeal. It is the Determination of the Court that the Respondent pay to the Complainant compensation in the amount of €100 in respect of the breach of the Act.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
JD______________________
20 December 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.