Complainant

Respondent

Anonymised Parties

A General Operative

A Windscreen Manufacturer

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-00022967-001

31/10/2018

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

CA-00022967-002

31/10/2018

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

CA-00022968-001 DUPLICATE

31/10/2018

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

CA-00022968-002 DUPLICATE

31/10/2018

The complainant is employed by the respondent as a General Operative since 1st November 2013. Complaint Application CA-00022967-001 relates to an alleged breach of the Terms of Employment Information Act, 1994. Complaint application CA-00022967-002 relates to an alleged breach of the Organisation of Working Time Act, 1997. The complaints were submitted to the Workplace Relations Commission (WRC) on 31st October 2018. The cognisable period of the complaint is 1st May 2018 to 31st October 2018.

Complaint application Numbers CA-00022968-001 and CA-00022968-002 are duplicate complaints and are therefore dismissed.

CA-00022967-001 – Terms of Employment Information Act, 1994

The complainant stated that he has not received a written statement of his terms and conditions of employment. The complainant contends that he received an incomplete contract which referred to other documents such as a “company manual” which he has also never received. The complainant is seeking that he be furnished with a complete written statement of his terms and conditions of employment as well as a copy of the staff handbook/company manual.

CA-00022967-002 – Organisation of Working Time Act, 1997

The complainant contends that for well over a year, he has worked 50-60 hours per week and is not paid overtime for this additional work. The complainant also contends that it is in breach of the legislation to work in excess of 48 hours per week.

CA-00022967-001 – Terms of Employment Information Act, 1994

The respondent contends that the complainant was provided with a statement of his terms and conditions of employment in February 2017 and despite meeting with the respondent to discuss changes to the statement, the complainant ultimately refused to sign the revised document.

The respondent submits that it is for the complainant to establish that the respondent has breached the legislation and on what basis he is entitled to be compensated.

The respondent cited the case of Philmic Ltd t/a Premier Linen Services v Petraitis (TED1616) in support of its contention that the complainant did not suffer any detriment and that the payment of compensation is inappropriate.

CA-00022967-002 – Organisation of Working Time Act, 1997

The respondent accepts that the complainant worked on average in excess of 52 hours per week over an 18-week reference period.

CA-00022967-001 – Terms of Employment Information Act, 1994

The Applicable Law

Section 3 of the Terms of Employment, (Information) Act, 1994 states as follows:

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,

(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.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

S.I. 49 of 1998, Terms of Employment (Additional Information) Order 1998, provides, at Regulation 3(1) as follows: -

3. (1) In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

At the adjudication hearing, it became clear that there were a number of omissions in the complainant’s contract of employment that constitute a breach of Section 3 of the legislation. While the respondent has argued that the complainant failed to sign his revised contract and has suffered no detriment as a result of the omissions, the complainant was already in the employment of the respondent for a number of years when he was first provided with a written statement of his terms and condition of employment. Having considered the matter, I find that the respondent has breached the legislation on the basis of not providing the statement within the required timeframe and on the basis that the complainant’s contract of employment did not include the specific details required by Section 3 (b), (g), (ga), (h) and (i) of the legislation.

CA-00022967-002 – Organisation of Working Time Act, 1997 (Weekly working hours)

The Applicable Law

Section 15 of the Organisation of Working Time Act, 1997 provides as follows:

15.(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

(aa) any period during which the employee was absent from work while on parental leave, force majeureleave or carer’s leave within the meaning of the Carer’s Leave Act, 2001,  

(b) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or

(c) any sick leave taken by the employee concerned.

(5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))—

(a) the weekly working hours of which vary on a seasonal basis, or

(b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).

I note that the respondent accepted that it has breached the legislation with regard to the complainant’s weekly hours of work.

CA-00022967-001 – Terms of Employment Information Act, 1994

Having considered the submissions of both parties, I find that the complaint is well founded. The respondent is directed to pay the complainant €500 in compensation.

CA-00022967-002 – Organisation of Working Time Act, 1997

Having considered the submissions of both parties, I find that the complaint is well founded. The respondent is directed to pay the complainant €1,000 in compensation for the infringement of his rights under the legislation.

Written contract of employment, Weekly working hours