TED162

This is an appeal by MAS / HR Ltd (hereafter referred to as the Appellant) against the Recommendation of a Rights Commissioner made in accordance with Section 7(2) of the Terms of Employment (Information) Acts 1994 to 2012 (hereafter referred to as the Act). Mr Joseph Daney (hereafter referred to as the Claimant) had complained that the Appellant had breached Section 3 of the Act and specifically had not provided him with a statement in writing containing the details of his Terms of Employment.

In a Recommendation dated 11^thNovember 2015 the Rights Commissioner found that there was no evidence that the Appellant had complied with Sections 3(1) and 3(4) of the Act and awarded compensation of €500.00 to the Claimant.

Background

The Claimant was employed by the Appellant from April 2015 until the employment was terminated in June 2015.

Position of the Parties

The Appellant and the Claimant confirmed to the Court at the hearing that the Claimant had been provided with a written statement of his Terms of Employment.

Position of the Appellant

The appellant in its written submission confirmed to the Court that it had not retained a signed copy of the written statement of Terms of Employment which had been provided to the Claimant. The Appellant requested the Court, on the balance of probabilities, to consider that the Appellant had discharged its obligations under the Act.

Position of the Claimant

The Claimant confirmed to the Court that he had been provided with a written statement of his Terms of Employment. He maintained that he should have been facilitated with the opportunity to engage with the Appellant in relation to the content of the written statement.

Conclusions

Section 3 of the Act provides 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) 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 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.

The Appellant, in contravention of Section 3(5) of the Act, has not retained a copy of the statement provided to the Claimant. For that reason the Court has not been provided with evidence by which it could establish that the written statement of Terms of Employment provided to the Claimant contained all of the detail required by the Act.

Determination

The Court finds that the Appellant has contravened Section 3 of the Act. The Court determines that the Appellant should, within six weeks of the date of this Determination, pay compensation to the Claimant in the amount of €250.00. The Recommendation of the Rights Commissioner is varied accordingly.