Act

Complaint/Dispute 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-00023425-008

14/11/2018

The Complainant was employed as a part-time barista with the Respondent from 6th January 2018 at an hourly rate of pay of €10 per hour, he worked 11 hours per week.

On 22nd July 2018 the Complainant sustained an injury at work the resulted in an absence of several weeks. The Complainant did not return to work when his period of sick leave expired.

The Complainant resigned from his position in person on 18th September 2018.

The Complainant alleges that he did not receive a written statement of the particulars of his employment from the Respondent.

This complaint was received by the Workplace Relations Commission on 14th November 2018.

The Complainant did not receive a written statement of the particulars of his employment in compliance with the Terms of Employment (Information) Act, 1994.

It was submitted by the Respondent that even though the Complainant did not receive a contract of employment as alleged, the Complainant was not prejudiced as a result of not receiving a contract of employment, not did the Complainant ever ask for one.

It was submitted that the Complainant alleging a breach of the Act must not only demonstrate the breach but also demonstrate how he suffered a prejudice as a result of not receiving a statement of the terms and conditions of employment.

In this respect the Respondent refers to the Employment Appeals Tribunal case of Sergejus Udalous -v- South-eastern Vegetable Producers Limited TE 22/2012 where the Tribunal, citing with approval the case of Archbold v CMC (Ireland) Ltd. TE 05/2003 held that awards under this Act are not equal to “loss of earnings” but are “in the nature of compensation”. Accordingly, the Tribunal was entitled “to determine what payment was just and equitable in the circumstances including whether a claimant was “unduly prejudiced” in respect of an alleged breach.

It was submitted that in the present case that the Complainant was not prejudiced as a result and therefore any breach that could be considered to be merely technical in nature should not attract a monetary award as per the Labour Court decision of Philmic Ltd. t/a Premier Linen Services v Petralis (TED1616).

Section 3 of the Terms of Employment (Information) Act, 1994 dictates that every employee must be issued with a statement of the particulars of employment within the first two months of employment.

It is accepted this did not happen in the instant case.

Section 7 of the Act reads:

7 – (1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3, 4, 5 or 6 in relation to him or her and, if he or she does so, the commissioner will give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.

7 – (2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

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

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all 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.

I find that this complaint is well founded and award the Complainant 1 weeks’ pay i.e. €110.

This amount should be paid within the period of 42 days from the date of this decision.

As outlined above.

Terms of Employment (Information) Act. 1994.