FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES : MR JUSTIN O'ROURKE - AND - MS CARMEL O'BRIEN DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision ADJ-00017253
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of anAdjudication Officer's Decision ADJ-00017253. A Labour Court hearing took place on 26th July, 2019. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Mr Justin O’Rourke (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00017353, dated 9 May 2019) under the Terms of Employment (Information) Act 1994 (‘the Act’). The Adjudication Officer decided that Ms Carmel O’Brien’s (‘the Complainant’) complaint that she had not been furnished with a written statement of her terms of employment by the Respondent was well-founded. The Adjudication Officer, therefore, awarded the Complainant compensation of €1,600.00, being the equivalent of four weeks’ remuneration.
The Respondent was not present at the hearing before the Adjudication Officer. He appealed the decision and his Notice of Appeal was received by the Court on 24 May 2019. The Court heard the appeal in Dublin on 26 July 2019.
The Factual Matrix
There appears to be a degree of disagreement between the Parties in relation to the date on which the Complainant’s employment with the Respondent commenced and terminated. However, the P45 issued by the Respondent to the Complainant on the cessation of her employment states that she was employed by him between 7 August 2018 and 28 September 2018 i.e. for a period of some seven weeks.
Submissions
The Complainant’s case is that she did not, at any stage, receive a written statement from the Respondent setting out her terms and conditions of employment in accordance with section 3 of the Act. The Respondent’s submission is that the Complainant had been employed by him for a period of less than two months. Accordingly, he says, he was not obliged to issue the Complainant with a written statement of terms and conditions.
The Law
Prior to its amendment by the Employment (Miscellaneous Provisions) Act 2018, the relevant subsections of section 3 of the Act provided:
- “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 …
(3) …
(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.
(6) ..”
It appears to the Court that the Respondent is relying on section 3(1) of the Act in isolation from the other subsections of section quoted above. It is abundantly clear from a plain reading of section 3(2), that the Oireachtas expressly provided that than an employee within the meaning of the Act was entitled to receive a written statement of their terms and conditions of employment pursuant to section 3 even in circumstances where their employment terminated, for whatever, reason before they had accrued two months’ service with the relevant employer.
Accordingly, the Court finds that the appeal fails and the decision of the Adjudication Officer is affirmed. For the avoidance of doubt, the Court confirms that the quantum of compensation payable to the Complainant is €1,600.00.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
26th July 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.