TED1719

The complaints arise under the Terms of Employment Act 1994, the Organisation of Working Time Act 1997 and the Redundancy Payments Acts 1967.

Team Obair Limited (the Respondent) operates an employment agency providing staff to various client companies. The Appellant was employed by the Respondent as a warehouse operative commencing on 23 September 2013. His employment terminated on 13 June 2016.

Complaints under the Terms of Employment Act 1994.

The Complainant submitted the following complaints ref numbers CA-5163 002/003/005/006/007/008/009/010/011/012/013 under this Act. They, in turn refer to infringements of section 3 of the Act. For ease of reference s3 states

• 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 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 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, undersection 23of 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 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) (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.

  (7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

He also complained that the requirements of s(4) of the Act had not been complied with.

Finally he complained that the requirements of s.i. 49/1998 had not been complied with.

Findings and Decision of the Adjudication Officer

The Adjudication Officer decided as follows

• Findings

  1) Sec 3 (b) CA 5163 - 002/003

  Address of Respondent

  I note that a document given to the Complainant and supplied at the hearing shows the address of 10a Grattan Crescent, Inchicore, Dublin 8.

  I find that this part of the complaint fails.

  2) Sec 3 (c) CA 5163 - 005 /012

  Place of work

  I note that the Respondent produced a document showing the place of work. I note that the Complainant was unsure whether he received it or not. I find that the Respondent has produced evidence to support their position; therefore on the balance of probability I find that the Complainant was given this information. This part of the complaint fails.

  3) Sec 3 (d) CA 5163 - 006/012

  Job Title

  I find that the contract of employment lists the title of Warehouse Operative. I find that this part of the complaint fails.

  4) Sec 3 (e) CA 5163 - 007/012

  Date of commencement

  I note that the document used by the Respondent to support the previous complaint does not have the commencement date. I note the conflict of evidence. On the balance of probability I find that there was no evidence to prove the Respondent’s position. Therefore I find that they have breached this sub section of Section 3.

  5) Sec 3 (f) CA 5163 - 008/012

  Temporary worker

  I note that the Respondent has accepted that they did not comply with this part of the Act. Therefore I find that they have breached this sub section of Section 3.

  6) Sec 3 (ga) CA 5163 - 009/012

  Reference to National Minimum Wage act

  I find that the Respondent has not complied with subsection. Therefore I find that they have breached this sub section of Section 3.

  7) Sec 3 gaa) CA 5163 - 010/012

  Reference to pay reference period when requesting details of pay as per the National Minimum Wage Act.

  I find that the Respondent has not complied with the subsection. Therefore I find that they have breached this sub section of Section 3.

  8) Sec 3 (h) CA 5163 - 013

  Pay periods

  I note that it was accepted that this subsection was complied with. This part of the claim fails.

  9) Sec 3 (i) CA 5163 – 013

  Hours of work

  I find that the Respondent did not state in writing the hours of work. Therefore I find that they have breached this sub section of Section 3.

  10) Sec 3 (j) CA 5163 – 013

  Holiday entitlements

  I find that the Complainant was not advised in writing of his holiday entitlements. I find that referring to the Act is not sufficient information. Therefore I find that they have breached this sub section of Section 3.

  11) Sec 3 (k) CA 5163 – 013

  Sick pay / pensions

  I find that this information was not provided in writing. . Therefore I find that they have breached this sub section of Section 3.

  12) Sec 3 (L) CA 5163 – 013

  Minimum Notice

  I find that this information was not provided in writing. Therefore I find that they have breached this sub section of Section 3.

  13) Sec 3(4) CA 5163 – 013

  Contract signed by Employer

  I find that the contract was not signed by the employer. Therefore I find that they have breached this sub section of Section 3.

  14) CA 5163 – 013

  S.I.49/98 Break entitlements

  I find that the Respondent has breached this subsection of Sec 3.

  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.

  I have decided that the Respondent has breached Sec 3 in part as set out in the findings.

  I note that Sec 7 (2) (d) of the Terms of Employment (Information) Act states, ”compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”.

  I have decided that some of the subsections of this Act were breached and that this amounts to one breach of the Act in its totality. Therefore the maximum compensation that may be awarded under this Act is four weeks wages.

  I have decided that the Respondent should pay the Complainant €1,000 (2.3 weeks wages) in compensation for the breach of this Act.

  This is to be paid within six weeks of the date below.

When the matter came before the Court the Complainant repeated his complaints under sections 3(b), (c), €, (f), (g), (ga), (i), (j), (k),(i) and (ii), (l) and s(4) and S.I. 49/1998.

The Respondent acknowledged that the contract of employment was deficient in many respects but made the following submissions in respect of each section below

3 ( b)which requires an employer to provide an employee with written details of

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),

The Complainant submits this was not provided to him. The Respondent submits that it was not contained in the contract of employment but was otherwise available to him through related documents and emails.

Finding

The Court finds that the information contrary to s3(b) was not set out in the contract of employment.

Complaint under s3(c)

Section 3(c) requires an employer to provide an employee with written details of

( 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,

The complainant submits these details were not contained in the contract of employment. The respondent submits that they were otherwise notified to the Complainant at that time.

Findings

The Court finds that the required details were not set out in the contract of employment as required by s3(c)of the Act.

Complaint under s(3)(d)

Section 3(e) requires an employer to provide an employee with written details of

(e) the date of commencement of the employee’s contract of employment,

The respondent concedes that this detail is omitted from the contract of employment.

Finding

• The required details were not set out in the contract of employment as required by s3(e) of the Act.

Section 3(f) requires an employer to provide an employee with written details in a contract of employment of

(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,

The Respondent admits that this information is not contained in the Complainant’s contract of employment.

Findings

The Court finds that the Complainant’s contract of employment does not contain the information required by s3(f) of the Act.

Section 3(g) complaint

Section 3 (g)requires and employer to provide to the Complainant in his contract of employment the following information

(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,

The Respondent admits that this information is not contained in the Complainant’s contract of employment. It submits however that the rate of pay complied with the terms of the Minimum Wage Act 2000 and this is not in dispute between the parties.

Findings

The Court finds that the contract of employment did not contain the required information.

Complaint under section 3(g)(a)

This section requires an employer to provide the following information in a contract of employment (ga) that the employee may, undersection 23of 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,

It is common case this information was not provided to the Complainant in his contract of employment.

Findings

This information was not provided to the Complainant in his contract of employment.

Complaint under section 3(i)

This section requires an employer to provide the following information in a contract of employment

Any terms or conditions relating to hours of work (including overtime)

It is common case that this information was not provided to the Complainant in his contract of employment.

Findings

The Court finds that this information was not provided to the Complainant in his contract of employment.

Complaint under Section 3(j)

Section 3(j) requires an employer to provide the following information to an employee in a contract of employment

any terms or conditions relating to paid leave (other than paid sick leave),

Findings

It is common case that this information was not provided to the Complainant.

Complaint under section (k) any terms or conditions relating to—

Section k provides that a contract of employment shall contain any terms and conditions relating

• (i) incapacity for work due to sickness or injury and paid sick leave, and

  (ii) pensions and pension schemes,

Findings

The Court finds that as there was no sick pay scheme there was no requirement to reflect this in the contract of employment.

The Court notes that the Respondent operates a PRSA scheme but provided no information regarding the scheme in the contract of employment. Accordingly the Court finds that information was not referenced in the Complainant’s contract of employment.

Complaint under section (l)

Section (l) requires that employer provide the following information in a contract of employment

(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,

The respondent concedes that such information was contained in the contract of employment.

Findings

This information was not included in the Complainant’s contract of employment.

Section 4 of the Act requires that the statement furnished by an employer to an employee under section (1) of the Act shall be signed and dated by or on behalf of the employer.

A cursory examination of the contract of employment discloses that this section was not complied with.

Discussion

Section 3 of the Act places an obligation on an employer to provide to an employee certain basic information in a contract of employment. That information is listed in the subsections of section 3 of the Act.

It is clear that the Respondent has failed to meet its obligations in this regard. The contract issued to the Complainant was deficient under a number of headings.

The Complainant seeks to rely on each of those shortcomings as an individual cause of action.

The Court does not accept that view. The requirement on an employer is to fully comply with section 3 of the Act and issue an employee with a contract of employment that meets all of the requirements of the section. Where it fails to do so, it infringes the Act.

In this case the Respondent failed in a number of respects. However it did not fail to issue the Complaint with 9 contracts of employment. It failed to provide him with one contract of employment that was deficient in respect of 9 requirements of the Act.

The Court is entitled to take that level of deficiency into account when considering the appropriate remedy in this case.

However the Court must also take other matters into consideration when arriving at such decisions. It must be mindful of its obligations to ensure that its decision is effective and efficient in the provision of legal protection to a complainant and also dissuasive in respect of the employer’s propensity to infringe the provisions of the Act to the detriment of a worker.

In this regard the Court was told of other infringements of the Act that had been perpetrated by the Respondent and asked to take these into consideration when deciding on a remedy.

On the other hand the Court was told that the Respondent had commissioned a full review of its contract of employment and this review was close to conclusion.

The Court has taken these submissions into account in this case.

The Court must also take into consideration the effect of the infringements on the worker concerned. In this regard the Complainant’s representative told the Court that he suffered no detriment as a consequence of these deficiencies other than the infringement of his statutory rights.

The Act provides that the Court may award compensation in the sum of up to 4 weeks pay in respect of an infringement of a provision of the Act. The Court considers that the provisions of s3 of the Act have been infringed and to a considerable degree. However the Complainant suffered no additional detriment. While the Respondent was on notice that the contract of employment was deficient and has delayed in bringing it into line with the statute.

In those circumstances the Court orders the Respondent to pay the Complainant compensation of 3.4 weeks’ pay for the infringements involved.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
JD______________________
15 August 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.