Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00007709-001

19/10/2016

The   complainant is a Polish national who   lodged a complaint before the WRC on   19 October 2016 that he had not received a signed contract of employment from   his employer.

The complainant submitted that he had been employed   initially in 2005 as a part time worker and he left in February 2006 He   presented a statement of terms of employment recorded by his own signature   dated 28 October 2005.He stated that his Manager had not signed the statement   .He returned to work on 28 November 2008 and worked there until he commenced   sick leave. He stated that he did not receive a contract within the eight   week period.

He recalled signing the statement produced, but understood   that this was to signal a change of address. He referred to the one page   signed statement as an “Information card” and not a contract of employment.

The complainant stated that he was currently in receipt of   an Invalidity pension. He did not have pay slips available.

The respondent operates a contract cleaning/facilities   management company employing over 1400 workers in Ireland .The complainant   joined the company on 28 October 2005 and was assigned to a particular   location when he signed a contract of employment on 28 October 2005.This   outlined the terms of his employment and guaranteed a minimum of 5 hours work   per week at a rate of €9.50 per hour. The complainant was given a copy of the   employee handbook and signed for it on 21 April, 2009. The complainant has   been absent from work on extended sick leave since October 2014.

On 23 October 2015, the complainant wrote to the company   requesting a contract of employment. A copy of the contract presented at the   hearing was sent to him with a copy of the employee handbook. The complainant   did not accept this and wrote again on November 26, 2015 seeking a written   statement of his terms and conditions.

On 2 December, 2015 the Respondent wrote a letter to the   complainant and informed him that his contract of employment was made up of :

1 2005 signed contract

2 Employee handbook

3 The Terms of the Cleaning Joint Labour   Committee/Employment Regulation Order outlining a revised pay rate of €9.75   per hour.

The respondent forwarded a letter of confirmation of   employment and wage rate for the attention of the complainant again on July   1, 2016.

The respondent submitted that the complainant had been   provided with a contract of employment in line with the Terms of Employment   (Information) Act 1994 and sought that the complaint be dismissed as unfounded.

I have listened carefully to both parties submissions in   this case. I have considered the evidence submitted. I note that the   complainant has had two periods of employment with the respondent, commencing   in October 2005 .I took some time to consider the document referred to as   having been signed by the complainant on 28 October 2005 and modified when he   returned to work on 24 November, 2008 by a change of employee number and   address.

I also considered   the Employee handbook submitted by the respondent and noted that it sets out   the requirement for a signed contract of employment in advance of employment.   I did not have sight of that document .

I have, therefore considered the provisions of Section 3 of   the Act.

Written statement of terms of   employment.

3

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.

( 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,

( 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 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 reasonable opportunities of reading during   the course of the employee’s employment or which are reasonably accessible to   the employee in some other way.

I accept that provision of the information   required under statute may be made available in different formats . I accept   that the Employee Handbook and Information on the JLC/ERO goes some way to   explaining the terms of employment, however statutory obligations were not   upheld by the respondent within the statutory time limit of 8 weeks .I was   not given any reason why the complainant took so long to raise this   submission .I accept the matter is very important to the complainant at this time.

The complainant sought a compensatory award for   the breaches submitted. However, I did not hear how these omissions affected   him or caused him to suffer a detriment. I accept that the statement of   employment presented by the parties was deficient in the some of the suite of subheadings in accordance with   Section 3 of the Act.

I have, therefore established that the respondent   breached Section 3 of the Act on a continuous basis from the period of the   second employment, 24 November, 2008.

Decision:

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

I have established that a   continuous breach of the Act occurred. I find that the only just and   equitable remedy should lie in my recommending that the Respondent issues a   composite signed document to the   complainant reflective of all the   components of Section 3 of the Act within 4 weeks of the date of this decision   .

Dated:     02/06/2017

Workplace Relations   Commission Adjudication Officer: Patsy Doyle

Key Words:

Statement of Terms Of Employment