Complainant

Respondent

Anonymised Parties

An Employee

A Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016483-001

21/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016483-002

21/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016483-003

21/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016483-004

21/12/2017

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

CA-00016483-005

21/12/2017

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

CA-00016483-006

21/12/2017

The complainant withdrew complaints CA 16483 -003, 004 and 006.

The complainant commenced his employment with the respondent in August, 2017. There was an issue from the start with his salary. He was offered €10 per hour. He requested €11 per hour as he had 20 years experience, and was a qualified ADR driver. He was also known to the respondent company having worked there in the past. The operations manager, who interviewed him, said he would reduce the probationary period to 3 months from 6 months, after which time he would have the same rate and bonuses etc as all the other drivers. After the 3 month period had expired, the complainant went to talk to the operations manager about the increase in salary etc. The operations manager said he would look into it. A few days later he said he would increase his rate to €10.85 per hour and that all of the perks would be applicable to him from that date forward. He also confirmed that from that point onwards the complainant would be deemed a full-time employee of the respondent. The complainant was told that the operations manager would sort out his contract however he didn't receive a copy of this contract until the 30th of June, 2017.

During the month of June, 2017 there had been many discussions with the company in relation to the working time directive. The company had made proposals to increase the driver’s wages, to make up for the lack of overtime. That proposal was agreed by the vast majority of the drivers but a number of them refuse to accept the new terms and conditions. The complainant was one of those individuals. However, the complainant was given his contract on the 30th of June 2017 and he signed it.

On the 14th of June the complainant commenced work at 6 a.m. Later that day he received a call from the transport manager asking him to do two more deliveries on top of the seven that he already had. These additional pickups placed him under pressure. When he arrived at company Y, he asked for the shutters to be opened so that he could unload the pallets from his truck. He placed all three palettes on the tail lift and when he went to lower it, it collapsed causing all 3 pallets to fall to the ground. The complainant reported the matter to his superiors, as did the operations manager at company Y. The operations manager at company Y accepted the complainant's apology but stated that he was unable to assess if any of the batteries contained in the pallet were damaged. On Friday the 16th when he was out doing deliveries he was asked to come back to the depot for a meeting with his supervisor and the finance director. When he arrived back at the depot he was met by his supervisor who asked him to come up to the meeting room for a disciplinary hearing in relation to the issue on the 14th. He was informed that he could bring someone with him to that meeting. During the meeting he was asked to ‘give an explanation’ for what happened on the 14th. He told the parties present his version of the story and accepted full responsibility for the damage done to the truck. As a gesture of goodwill to the respondent company, he said that he would relinquish all outstanding holidays which amounted to approximately 18 days and that he would forego any bonus payments due to him. He confirmed that he was happy to pay for the damage to the truck. At the end of that meeting the finance director told him that he was being charged with gross misconduct which was is sackable offence however due to his previous good record with the respondent, the finance director decided that he would only issue a final written warning. The complainant left that meeting in a state of shock. He wasn't given any prior written notice of meeting. He wasn't given any documentation or any statements that were taken by third parties in relation to the incident. Two days later he received written confirmation of the final written warning and noted that he was given a right of appeal. He did not know how to go about appealing the matter as he had not been given his contract of employment nor did he have a company handbook.

On the 29 June, 2017 the complainant received an e-mail setting out the financial penalties being apportioned to him. They were

· No holiday pay 2015/2016, €1500/€1600

· Forego his back pay from May & June 2017, €932.

. Not eligible to participate in the quarterly incentive scheme for the remainder of 2017.

The complainant then sought legal advice in relation to the issue. Upon receipt of legal advice, he decided not to sign the letter consenting to the reductions being made.

In July 2017 his solicitor made contact with the respondent stating that the meeting that was had on the 19th of June was unlawful and therefore the sanction of a final written warning should be lifted immediately.

As a result of this letter the company decided to set up a de novo appeal for August 2017. The complainant’s solicitor objected to that course of action being taken and notified the respondent of same in writing.

The complainant repeatedly asked for correspondence be sent to his solicitor and not to him directly however despite such requests the respondent continued to send documentation to him personally.

In August and September 2017 there were two incidents where other employees made references to the issue he was having with the respondent company to him. He was both surprised and disappointed with this as he felt it was a breach of trust and confidentiality. He did not raise a formal grievance about these issues.

On the 30th of September 2017 the company was organising an anniversary party. He did not receive the email invitation. He felt excluded. A few days before the event he received an email from customer service asking him if he was going to attend the event. That was the first he heard about it. He did not raise a formal grievance about this issue.  

On the 29th of November he needed one hour off to attend an appointment. This had never been an issue in the past however on this occasion he was asked to bring his truck back to the depot and leave it there while he was at his appointment. He found this a bit weird. He did not raise a formal grievance about this issue.

At that point he had lost confidence with the respondent company and he decided to start looking for alternative employment.

In February an employer approach him while he was in the yard and asked him about his quarterly bonus being stopped he told him that it had been stopped due to the instant with the tailgate of the lorry being damaged. He then told him that his issue in relation to the bonus had been brought up at this particular employees disciplinary meeting. The complainant was shocked about that. He handed in his notice in March 2017 as he said he couldn't stand working there anymore. He did not raise a formal grievance about this issue.

The complainant had already secured employment prior to handing in his notice .He commenced his new job on the 20th of March 2018. His salary with his new employer exceeds his previous salary with the respondent.

The respondent is a cargo haulage firm. The complainant was employed as driver for the respondent from 17 August 2015 (not 17 August 2017 as asserted by the complainant in his complaint form CA-16483). The complainant resigned by letter dated 8 March 2018 without having invoked any grievance procedure. By letter dated 9 March 2018 the respondent gave the complainant the opportunity to withdraw his resignation and to avail of the grievance procedure. By letter dated 12 March the complaint declined to withdraw his resignation and he confirmed his resignation.

The complainant refers in his complaint forms to an incident that happened nine months prior to his resignation. The facts of that incident are as follows:

On 14 June 2017, when making a scheduled delivery to one of the respondent’s clients, the complainant loaded:

(a)          3 pallets of batteries with an aggregate gross weight of 2,490 kgs

(b)          plus a pallet truck

(c)           plus himself

onto a lorry tail-lift that had a maximum capacity of 2,000 kgs. 2,000 kgs capacity is the maximum capacity only at the point closest to the rear of the vehicle. Capacity reduces the further out one goes on the tail-lift. The complainant had grossly overloaded the tail-lift. Because of the gross over loading, an incident occurred at the premises of one of the respondent’s client’s. All three pallets of batteries toppled from the tail-lift onto the ground below. The lorry’s tail-lift broke during the incident.

The primary issue of concern arising from this event was a very serious health and safety risk posed to the complainant and to other people arising from the complainant’s negligence. The secondary issue that arose from the fact that the tail-lift had to be replaced at a cost to the respondent of €3600 plus VAT.

The complainant’s actions led to the respondent conducting a disciplinary process. A disciplinary meeting with the complainant on 16 June 2017 was convened and conducted by Ms N and also attended by the Finance Director, to investigate the circumstances of the collapse of the tail-lift. Ms N verbally informed him that the meeting was to be a disciplinary meeting and that he could bring a representative to the meeting. Ms N offered to hold the meeting at a time convenient to the complainant and the complainant nominated a time 15 minutes later. The meeting proceeded at the time nominated by the complainant.

The complainant in his complaint forms to the WRC has misrepresented the meeting in several respects. For example, the finance director never said the words attributed to him by the complainant, namely that the company could dismiss him and “any court in the land would side with them”.  

At the disciplinary meeting, the complainant volunteered that he would make a contribution to the company in respect of the damage he had caused.   The cost of repairing the tail-lift was not yet known on the date of the meeting. The complainant said that he had not taken all of his annual leave during previous years (2015 and 2016) and he would forego that leave. He also acknowledged that because of the incident he was unlikely to qualify for an incentive scheme available to the staff known as the Quarterly Incentive Scheme.

                The complainant’s repayments in respect of the damage he had done

It subsequently became clear that the cost of repairing the tail-lift would be €3,600 plus VAT. The finance director and the complainant had a further discussion on 29 June 2017 in which the complainant asked the details of what the finance director proposed in respect of the repayment. The finance director sent the complainant the following email on 29 June 2017.

“Hi Complainant,

In response to your request, the cost of replacing the taillift on NET12/142D3298 was €3600 (+ VAT). This matter was discussed at our disciplinary meeting on Friday 16/06/17 (although the full cost was unconfirmed at the time our meeting took place).

We have agreed as follows:

You will decline outstanding holidays relating to the 2015 and 2016 (Value €1500/€1600)

You will forego back money   relating to May and June 2017: Value €932

You agree that you will not be eligible to participate in the Quarterly Incentive Scheme for the remainder of 2017

Subject to satisfactory performance for the remainder of this year, the Company will look favourably on reinstating the Quarterly Incentive Scheme for you in 2018.

Please confirm your agreement to the above.”

The finance director's proposal was generous to the complainant. It gave the complainant credit for annual leave that he had not taken in 2015 and 2016. The company did not have to do that. The complainant had already been repeatedly warned during those years by his manager, that if he did not use his annual leave he would lose it. In June 2017 the finance director was not obliged to accept that the company had any outstanding liability in respect of 2015 or 2016 but he allowed the complainant to be credited with the cash value of that untaken leave for the purposes of writing down the amount that he would have to repay the company for his negligence.

The complainant did not reply to the finance director's email. Over the following 6.5 months the respondent implemented the terms of the email.

The following email of 24 January 2018 from the finance director to the complainant sets out the means by which the complainant repaid the respondent for the damage he had done.

“Hi Complainant,

I refer to my email of 29/06/17 (below) and can confirm that the cost to the Company of the taillift damage (€3600) has now been cleared, as follows:

Holidays declined 2015                                              601

Holidays declined 2016                                             922

Back pay foregone                                                       932

Quarter 2 2017 incentive not awarded                  287

Quarter 3 2017 incentive not awarded                   287

Quarter 4 2017 incentive not awarded                 570

Total €                                                                       3603

Complaint CA-16483-001 – pay – section 27 Organisation of Working Time Act 1997 as amended (“the Act of 1997")

Under this complaint the complainant has alleged that “I did not receive my paid holiday/annual leave entitlements”. The complainant has not provided particulars of the leave year in which he alleges he did not receive annual leave entitlements.

Further to section 41 and Schedule 5 of the Workplace Relations Act 2015 as amended (“the Act of 2015”) a person may present to the Director General of the WRC a complaint of (inter alia) an alleged breach of the annual leave provisions in the Act of 1997. Section 41(6) and 41(8) of the Act of 2015 provide as follows.

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

This complaint was received by the WRC on 21 December 2017. Therefore, it may only relate to alleged contraventions of the Act of 1997 that occurred in the period from 22 June 2017 to 21 December 2017. The provisions of section 41(8) do not apply in this case.

The Act of 1997 defines a “leave year” as “a year beginning on any 1st day of April;’

In respect of the leave year beginning on 1 April 2015 and ending on 31 March 2016 the period for bringing a complaint expired on 30 September 2016. The complaint was filed on the 21 December 2017, 14.5 months out of time.

In respect of the leave year beginning on 1 April 2016 and ending on 31 March 2017 the period for bringing a complaint expired on 30 September 2017. The complaint was filed 21 December, 2017, 2.5 months out of time.

In respect of the leave year beginning on 1 April 2017 the complainant lodged his complaint prior to the expiry of that leave year. He had already been granted 17 days’ leave as at the date of his complaint (21 December 2017). The complainant received more that his statutory leave entitlement in that leave year despite the fact that he resigned during that leave year.

In all of the circumstances, the complaint fails.

Complaint CA-16483-002 – pay – section 27 of the Act of 1997

Under this complaint the complainant has alleged that “I have not received my public holiday entitlements”. The complainant in his claim form or when given evidence did not provided particulars of the public holidays in respect of which he alleges he did not receive entitlements.

There were only two public holidays that occurred during the period encompassed by the complaint (the period from 22 June 2017 to 21 December 2017) Monday 7 August 2017 and Monday 30 October 2017. In respect of both days the complainant did receive a paid day off.

In all of the circumstances the complaint fails.

Complaint CA-16483-005 – terms and conditions of employment – section 7 of the Terms of Employment Act 1994 as amended (“the Act of 1994”)

Under this complaint the complainant has alleged that “I did not receive a statement in writing of my terms of employment”. The complainant acknowledges that he has received such a statement on 30 June 2017.  

The respondent routinely issues contracts of employment, containing statements of the statutory terms of employment, to all employees. As far as the respondent can establish the complainant did not receive a statement of the terms of his employment during the required statutory period, namely the period of two months from the commencement of his employment. This was an oversight. The oversight arose because the complainant was initially recruited on a temporary basis by his manager Mr Derek Byrne. It was understood between Mr Byrne and the complainant that the complainant’s employment was expected to develop into a permanent employment. Mr Byrne envisaged that a permanent contract would be issued to the complainant but the matter slipped his mind.  

The complainant brought his lack of a contract to the attention of Ms Nulty and Mr Herity at the disciplinary meeting on 16 June 2017.   The oversight was remedied within two weeks of being brought to the respondent’s attention, with the issuance of a contract on 30 June 2017.

The complainant is out of time to bring a complaint in respect of this oversight.

The Act of 2015 considerably reduced the period in which a complaint under the Act of 1994 may be brought. Prior to the commencement of the Act of 2015, section 7(3) of the Act of 1994 provided as follows:

“(3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned.”

However section 7 of the Act of 1994 was replaced in its entirety by section 52 and Schedule 7 of the Act of 2015.

Section 41 and Schedule 5 of the Act of 2015 provides a standardised period for complaints, including complaints of alleged breaches of section 3, 4, 5 or 6 of the Act of 1994. Section 41(6) provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

(emphasis added).

Neither the new section 7 nor the Act of 2015 includes any provision equivalent to the former section 7(3).

The date of the contravention to which this complaint relates was two months from the date of commencement of the complainant’s employment.

Date of commencement of employment:   17 August 2015

Date of contravention:                                     17 October 2015

Last date for bringing a complaint:               16 October 2016

In the alternative, and without prejudice to the foregoing, we make the following further submission. Even if you find that there was a contravention within the period of 6 months prior to the making of the complaint, then the fact that the complainant received a full statement of the terms of his employment on 30 June 2017 would make it just and equitable for him to receive a nil award under section 7 of the Act of 1994.

Section 7(2) of the Act of 1994 provides as follows.

“(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”.

(emphasis added).

The expression “if any” gives you jurisdiction to you to make a nil award where it would not be just and equitable to make an award. We respectfully submit that this is a case in which it would not be just and equitable to make any award. We refer to the decision of the Labour Court in the case of Irish Water v Hall TE/15/6 in which the Court made clear that where the dictates of fairness or equity could not justify an award of compensation then no award of compensation should be made.

Complaint CA-16483-001 – pay – section 27 Organisation of Working Time Act 1997 as amended (“the Act of 1997")

Under this complaint the complainant has alleged that “I did not receive my paid holiday/annual leave entitlements”. I accept the respondent’s submissions that the complainant has not provided particulars of the leave year in which he alleges he did not receive annual leave entitlements. During the hearing of the matter the complainant did not particularise his claim in any detail.

Further to section 41 and Schedule 5 of the Workplace Relations Act 2015 as amended (“the Act of 2015”) a person may present to the Director General of the WRC a complaint of (inter alia) an alleged breach of the annual leave provisions in the Act of 1997. The time limits of 6 months from the date of contravention as set out in Section 41(6) apply. No reasons were proffered in relation to a possible extension of time pursuant to Section 41 (8).

This complaint was received by the WRC on 21 December 2017. Therefore, it may only relate to alleged contraventions of the Act of 1997 that occurred in the period from 22 June 2017 to 21 December 2017.

The Act of 1997 defines a “leave year” as follows.

“ ‘leave year’ means a year beginning on any 1st day of April;’

I accept the respondent’s submissions when it argues as follows

“ In respect of the leave year beginning on 1 April 2015 and ending on 31 March 2016 the period for bringing a complaint expired on 30 September 2016. The complainant was 14.5 months out of time.

In respect of the leave year beginning on 1 April 2016 and ending on 31 March 2017 the period for bringing a complaint expired on 30 September 2017. The complainant was 2.5 months out of time.

I find that the complaint in relation to leave entitlements of the leave year 1 April, 2015 to 31 March 2016 and 1 April, 2016 to 31 March, 2017 are statute barred.

Complaint CA-16483-002 – pay – section 27 of the Act of 1997

Under this complaint the complainant has alleged that “I have not received my public holiday entitlements”.

The complainant has not provided particulars in his claim form or whilst giving evidence of the public holidays in respect of which he alleges he did not receive entitlements.

The only public holidays that occurred during the period encompassed by the complaint (the period from 22 June 2017 to 21 December 2017) are Monday 7 August 2017, and Monday 30 October 2017,

The respondent gave evidence which the complainant did not refute that the complainant received   a paid day off on the day for both days.

The complainant fails.

Complaint CA-16483-005 – terms and conditions of employment – section 7 of the Terms of Employment Act 1994 as amended (“the Act of 1994”)

The complainant commenced his employment 17 August 2015. The respondent argues therefore that the date of contravention was the 17 October 2015 which makes last date for bringing a complaint 16 October 2016.

It is necessary to consider whether the complaint was made within the limitation period provided by the Workplace Relations Act and the Terms of Employment (Information) Act.

Prior to amendment by the Workplace Relations Act, section 7(3) of the Terms of Employment (Information) Act stated: “A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned.” Under this provision, it is clear that the complaint could proceed.

The question here is whether section 41(6) of the Workplace Relations Act has restricted the limitation period for breaches of section 3 of the Terms of Employment (Information) Act.

Section 41(6) of the Workplace Relations Act provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 3(1) of the Terms of Employment (Information) Act 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”. In this case, I have found as fact that a statement was provided to the complainant albeit far in excess of the two months required by the act. The essence of the respondent’s submission is that a contravention of section 3(1) occurs when the two-month period expires and no statement is provided. The contravention is the first day after the initial two-month period of employment, where no statement is provided. The argument appears to also submit that there is no subsisting contravention on the second day after the end of the two-month period or on later days. The respondent submits that the complaint must be referred to the Workplace Relations Commission within six months of this single day of contravention.

Section 3(5) of the Terms of Employment (Information) Act provides for the following ongoing obligation: “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.”

Section 7 of the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, reads:

“(1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4, 5or 6, if the employer concerned has—

(a) complied with a direction under section 6Agiven in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015, or

(b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

(2) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5or 6shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act.

Section 7 covers contraventions of sections 3, 4, 5 and 6 that occur during the employment relationship. Subsection 1 addresses situations where a WRC inspector or adjudicator have given directions regarding compliance with the Act, to which the employer has subsequently complied with. Subsection 2(b) allows an adjudication officer to confirm particulars of a statement, or to alter or add to the statement. Subsection 2(c) allows the adjudicator to require an employer to provide the employee with a statement. If the respondent’s submission is correct, this multiplicity of interventions in respect of a breach of section 3 could only be exercised in the limitation period following the single day of contravention at the end of the initial two-month period of employment.

The Terms of Employment (Information) Act transposes Directive 91/533/EC, the ‘Written Statement’ Directive. It recites Article 117 of the Treaty and point 9 of the Community Charter of Fundamental Social Rights of Workers. Article 2 provides that an employer shall notify the employee of certain essential aspects of the employment relationship. Article 3 provides for the means of information and that the information stated in Article 2 may be given to the employee in certain forms, for example a written contract or letter of engagement. Article 3 refers to this information being provided not later than two months from the commencement of employment. Article 8 requires member states to introduce measures to allow employees to pursue claims via a judicial process. In Kampelmann and Others v Landschaftsverband Westfalen-Lippe (C-253/96 to C-256/96), the Court of Justice of the European Union held that Article 2 is directly effective as against the State and against bodies and authorities under the control of the State.

If the respondent is correct, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, has curtailed the obligations provided in Article 2 of the Directive to a contravention arising on the first day after the end of the two-month period.

In Seclusion Properties Ltd v O’Donovan (DWT14114), the Labour Court held as follows:

“It is clear that the obligation on domestic courts and tribunals to interpret national law in conformity with a Directive applies ‘as far as possible’. That is to say, it cannot serve as a basis for an interpretation of national law contra legem. As was pointed out by the CJEU in Dominguez v Centre Informatique du Centre Ouest Atlantique, a conforming interpretation can only be arrived at by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the Directive in question is fully effective and that an outcome consistent with the objective pursued by the Directive is achieved.”

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship. Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress. The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.

If the respondent’s submission is correct, section 7(1) is superfluous. This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.

While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law. First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period. Applying a conforming interpretation to sections 3 does not, therefore, require an impermissible contra legem interpretation of the section. Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship. Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.

For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement. The contravention of section 3 is a subsisting contravention. If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment. If, as in this case the employee is given a statement they have six months from the day the contravention ends i.e. the date the statement is furnished.

In the circumstances of this case, I award the complainant redress that is just and equitable, in the circumstances I make an award of two weeks, amounting to € 1200.00