Complainant

Respondent

Anonymised Parties

HR Officer

Housing Association

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-00017517-001

19/02/2018

The Complainant was employed by the Respondent from 4 December 2017 to 19 February 2018 as a HR Officer on an annual salary of €35,178 working 37 hours per week. He has claimed that he did not receive a statement in writing of his terms and conditions of employment.

The Respondent rejects the claim. It is the Respondent’s position that it did provide written terms and conditions of employment to the Complainant by post on 16 November 2017 prior to the commencement of his employment with the Company on 4 December 2017 in line with the provisions of the Act.

The Complainant says that he was notified by offer letter dated 19 October 2017 that he was to be appointed to the HR Officer role with the Respondent.

The Complainant submits that on 3 November 2017 he received an email from the HR Manager containing the text: “Just wondering if you have received the conditional letter of offer for the above position?”

The Complainant maintains that he responded by email on the same day. Included in his email was the following: “I understood the offer/contract would answer a few questions etc but it doesn't appear to (re terms & conditions, etc). I do think they may be answered with another conversation and hopefully they are trivial enough but I am anxious to be clear on a few points”.

The Complainant submits that on 7 November 2017 he received another email from the Respondent which included the following: “In relation of the questions you had on terms and conditions, can you outline for me what these are and hopefully I will be able to answer them. Please feel free to give me a call if that is easier”.

The Complainant submits that on 8 November 2017 he followed this up and telephoned the HR Manager. He contends that, as the HR Manager was unavailable, he left a voicemail and followed up by email too with some queries on salary scale, hours of work, date of commencement, benefits, etc.

The Complainant contends that on 13 November he emailed the Head of Care Services. In his email, he confirmed his availability to start on 27 November 2017 and he also stated that: “I understand a formal agreement/contract is being sent out, could you let me know when this may be sent?”

The Complainant submits that there was no reply to this email from the Head of Care Services and that he then sent a copy of the email to the HR Manager.

The Complainant submits that on 12 January 2018 he emailed the HR Manager to ask: “Can you send me a copy of my signed contract of employment by the organisation? I have a hard copy which was sent to me unsigned and then I returned a copy signed by me. However, I did not receive a signed copy back”.

The Complainant contends that on 6 February 2018 he sent an email to the Head of Care Services saying: “I wish to request a copy of my signed contract of employment”.

The Complainant maintains that on 17 February 2018 he emailed the HR Manager to say that: “The document I have is actually a "conditional letter of offer" and not my contract of employment …. However, I have requested my contract of employment once again from the Head of Care Services”.

The Complainant submits that, at a meeting on 19 February 2018 with the HR Manager and the Head of Care Services, he raised his concerns about the non-receipt of his contract of employment and referred to the fact that he had raised the matter a number of times previously.

The Complainant further submits that after his employment with the Respondent ceased, he emailed the Respondent a number of times seeking his contract of employment.

The Complainant contends that the non-existence of a clear statement of terms and conditions of employment proved to be difficult at times during his employment with the Respondent, particularly in relation to hours of work and paid leave.

The Respondent contends that they sent a copy of his contract to the Complainant by post on 16 November 2017 in advance of his commencement with the Respondent on 4 December 2017. They also contend that, in an e-mail sent by the Complainant to the HR Manager on 12 January 2017, the Complainant confirms that he had received a hard copy of the contract from the Respondent.

The Respondent maintains that no grievance was raised by the Complainant in relation to thismatter during his employment. Had he done so, it is the Respondent’s position that anyconcern would have been addressed.

Strictly without prejudice to their position that the Complainant did receive a copy of his terms and conditions, the Respondent contends that any breaches of the Act were technical in nature and they did not cause the Complainant to suffer any detriment.

The Respondent cited two Labour Court cases (TED 1721 Board of Management of Kilmeen National School and Joyce O’Driscoll and TED 171 Trinity Leisure Holdings Limited and Sofija Kolesnik) where the Labour Court held that breaches of the Act were technical in nature and, asthey did not cause the Complainant to suffer any detriment, no compensation wasawarded.

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“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 …”

Section 3 (4) of the Act states that: “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.

The Complainant contended that he had suffered detriment in relation to hours of work and paid leave.

Both sides agreed that there had been an issue about the Respondent’s requirement that employees should reserve a portion of their annual leave to cover the Christmas period. Both sides agreed that this issue had been resolved in favour of the Complainant.

There had also been an issue about the Complainant’s starting time where he wanted to commence slightly later than the normal starting time so that he could bring his children to school. This had been resolved locally.

The Respondent said that as HR Officer, the Complainant had sight of the Respondent’s grievance and disciplinary procedure and that, if he had concerns about his terms and conditions of employment, he should have invoked the procedure.

The Complainant agreed that he had sight of the Respondent’s grievance and disciplinary procedure but said that as a new employee he did not want to raise a grievance.

The Respondent contends that they sent a copy of the contract to the Complainant by post on 16 November 2017 in advance of his commencement with the Respondent on 4 December 2017. They contend that this is documented in the Respondent’s post log, a copy of which was submitted in evidence at the hearing. They also contend that, in an e-mail sent by the Complainant to the HR Manager on 12 January 2018 the Complainant confirms that he had a hard copy of the contract from the Respondent. A copy of the email was submitted in evidence by the Respondent at the hearing.

In that email the Complainant wrote: “Can you send me a copy of my signed contract of employment by the organisation? I have a hard copy which was sent to me unsigned and then I returned a copy signed by me. However I did not receive a signed copy back”.

In his own submission to the WRC, the Complainant referred to his email of 12 January 2018 and provided identical wording to that submitted in evidence by the Respondent.

At the hearing, the Complainant confirmed that the document he was referring to in his email was not his terms and conditions of employment but his Offer Letter.

At the hearing, the Respondent conceded that the terms and conditions of employment issued to the Complainant were unsigned.

It is clear from evidence adduced by the Complainant that he repeatedly asked to be provided with a signed copy of his terms and conditions of employment.

The Respondent stated that they were seeking clarity about whether or not the terms and conditions of employment had been emailed to the Complainant. There was also a suggestion that the Complainant had sought to revise the terms and conditions of employment that had been issued to him and that the Respondent was awaiting the revised document before issuing a signed copy.

It is notable that neither of the Labour Court cases cited by the Respondent cover the situation where the terms and conditions of employment issued to the employee was unsigned.

On the matter of whether or not the Complainant received a copy of his terms, I prefer the evidence of the Respondent, which I find is supported by the Complainant’s own submission. I find that the Complainant received a copy of his terms and conditions of employment, albeit unsigned.

The Act is very clear at Section 3(4) that an employer is obliged to sign the statement of terms which is to be issued to an employee under the Act.

I find that the Respondent breached Section 3(4) of the Act by not issuing the Complainant with a signed copy of his terms and conditions of employment and, despite repeated requests from the Complainant, did not remedy the breach.

In its Determination TED183 Noel Recruitment and Arturas Glemza, the Labour Court found that, while the Complainant did not suffer detriment, the Respondent had breached Section 3 of the Act and awarded compensation to the Complainant.

I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €1,353 being the equivalent of approximately two weeks’ pay in respect of the contravention.

Terms of Employment (Information) Act 1994 – Section 3 – Failure to provide signed statement of terms and conditions – complaint well founded – compensation awarded.