Complainant

Respondent

Anonymised Parties

A General Manager

A Family Business

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-00019582-001

05/06/2018

This claim centres on an absence of written terms of employment and is disputed by the Respondent

The Complainant submitted a claim under the above Act on 5 June 2018. He outlined that he had worked at the Family business since he was very young and detailed two periods of employment initially from 1995 to 2014 when he left for a 20-week period to gain experience in another business.  He returned to work at the Family business later in 2014 and has worked continuously since. He submitted an extensive record of PRSI records in support of this. He submitted that he earned €680 plus commission per week for a 51-hour week.

The Complainant submitted that he had not been notified in writing of a change in his terms of employment and he had not been furnished with a statement of terms of employment.

He gave evidence that he had been presented with a contract of employment on May 17, 2018 and asked to sign it within a narrow window of time. The company was during a WRC inspection and the Complainant would not sign this contract which caused disharmony with his Father, the managing Director of the company.

The Complainant took issue with the contract offered which portrayed him as a Salesman/General Operative and not his properly held title of General Manager pending Managing Director.

The Complainant submitted that his working life was made very difficult by the lack of a mutual understanding and respect for his role. While he had engaged in Succession Planning at the Workplace, he stated that he felt overwhelmed at work, feared his exclusion and familial replacement.

During the processing of his complaint, the complainant had reported an episode of disharmony at work directly to the WRC, where he took issue with instructions issued by a Company Director, his Uncle.

The Complainant sought redress under the Act.

The Respondent is a Family Car business.  The Respondent Director told the hearing that they operated a car business and up to 2016 had not issued contracts of employment to staff. This changed in 2016 and the Respondent have since issued contracts for all staff to sign. The Complainant was the sole objector as all other staff signed their contracts. The Respondent contended that the business was compliant with the requirements of the Act as the Complainant was properly employed as a Car Salesman and had been issued a signed Statement of his terms and conditions.

The Respondent introduced a P45 dated April 4, 2014 which signalled the complainants 20-week relocation to another car business where he returned to work with the respondent on 25 September 2014. The Respondent confirmed that there were two separate and distinct periods of employment.

Both Company Representatives gave an account of ongoing tensions in the workplace involving the complainant and expressed a difficulty in securing his co-operation with the work schedule and span of duties.

I have considered the case before me. Both parties presented   orally and submitted additional documents post hearing, none of which elicited a response from the other side.  I am satisfied that there two periods of employment in the case. One period commenced in 1995 and the second in September 2014.  I am satisfied that employment has been continuous since then. This is the period of employment that I will address in my decision.

The Complainant made a zealous presentation on the high-tension work environment he found himself in and his apprehension of being edged out. His main issue was centred on his Job Title and he disputed that he was ever held the job title of Salesman /general Operative as outlined in the 2018 terms of employment. He argued that the Respondent breached the Act when his condition of job title was changed against his will.

The Respondent readily admitted that it had approached the provision of written terms of employment in a tardy fashion but submitted that the company was now fully complaint. The Respondent stood over the Job title of salesman/. General Operative inserted on the May 2018 terms of employment and reaffirmed the ongoing difficulties with the complainant’s pattern of attendance.

For my part, I found a profound fault line in the staff relations at the company. I explained to the parties that my role was to adjudicate on the claim under the Act. However, it was clear to me that this was an extended family entrenched in unresolved conflicts and I urged the parties to reflect individually on their roles in that conflict and to seek to find   an opportunity to address it both for the good of the business and the family. I found it regrettable that the parties had not engaged in the issues at the centre of the claim via the pro offered job description dated 2016 or indeed during May this year. This issue is best addressed through the company procedures prior to referral to the WRC.

I found no evidence that the Complainant had interviewed for any role at the company and this went some way to explaining the ambiguity associated with his job title. I have inquired into this case and commenced with the mandatory requirements attributed to the Respondent within 2 months of employment outlined below.

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 (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,

 ( 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,

F6 [ (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.

(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.

I have established that the Respondent is in continuous breach of the Act by not providing a signed statement by the Respondent within the first 2 months of employment . In this case this centres on the period of November 2014. I have reviewed the document submitted by the Respondent dated 17 May 2018 which purports to fulfil the requirements of Section 3 of the Act and I note the following shortfalls.

1         The title of the job is disputed by the parties. (Section 3(1) d)

2         There is insufficient detail on the parameters of the working day and break times

3         The Complainants tenure is not recorded as a Contract of Indefinite Duration (Permanent)

4         I found that the Complainant has paid insufficient regard to his 20-week absence from the company and its impact on continuity of employment.

5         I could not establish a reference to the mechanism for deciding payment of bonus.

The Complainant submitted that the Respondent is further in breach of Section 5 of the Act. I found that aspect of the claim to be not well founded. The Respondent had not issued a statement of terms prior to 2018, therefore this complaint refers to an anticipatory breach in terms of job title, not an actual breach.

I have found the claim in respect of a contravention of S.3(1) (f) and (I) to be well founded. As in the Labour Court case of Irish Water V Patrick Hall TED 161, these are technical breaches which do not justify an award of compensation.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in accordance with Section 3 of the Act.

I have established a continuous breach of Section 3 of the Act. I accept that the Respondent has inserted a job title disputed by the Complainant. This is a matter to be taken up via the company grievance procedure or a re-energised Succession Planning exercise. I cannot order an alteration here.

In accordance with my powers under Section 7(2) (c) of the Act, I require the Employer to give or cause to be given to the employee concerned a written statement containing the following omissions from the first draft of May 2018.

1 Information on the complainants expected duration of tenure if temporary of fixed term in accordance with Section 3(1) f)

2 The rate and calculation of the complainant’s annual bonus. Section 3 (1) g)

3 Specific terms or conditions relating to hours of work, start time 08.00hrs, break time, finish time 18:00hrs, Section 3(1) (I)

Let this document become the foundation document of employment from where issues of conflict must be channelled through the Company Disputes resolution procedures of Grievance procedure or external mediation. I urge the parties to act on this approach within 4 weeks of the date of this Decision and move forward together for the benefit of the business and the family.

Written Statement of Terms of Employment