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-00020358-001

02/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00020112-001

01/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00020112-002

01/07/2018

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

CA-00020924-001

01/08/2018

The complainant was employed by the respondent from 7th February 2018 until 27th May 2018. The complainant did not receive a contract of employment but confirmed that he worked seven hours per day, three days per week and was paid €9.55 gross per hour. The complaint relates to breaches of the Terms of Employment (Information) Act, 1994, the Payment of Wages Act, 1991 and the Employment Equality Act, 1998.

The complainant confirmed that he had omitted to include “Limited” in relation to the name of the entity in his complaint. As the WRC complaint form is not a statutory form, the amendment was noted and is reflected in the original Decision that issues to both parties.

The complainant stated that he did not receive a written copy of his terms and conditions of employment while employed by the respondent.

The respondent did not attend the adjudication hearing and was not represented.

It is regrettable that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint.

The Applicable Law

Section 3 of the Terms of Employment 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 23of 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.

Section 7 of the Terms of Employment, (Information) Act, 1994 states as follows:

7(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                                                                                                                                                                  

Based on the uncontested evidence of the complainant, I am satisfied that the complainant did not receive written terms and conditions of his employment in compliances with the legislation. Accordingly, I declare that the complaint is well founded. The respondent is directed to pay the complainant compensation in the amount of €401.10 (Two week’s gross pay) in respect of the breach of the legislation.

The complainant stated that he is currently owed approximately €1300.00 in respect of unpaid wages.

The respondent did not attend the adjudication hearing and was not represented.

The subject matter of this complaint has already been adjudicated upon in Adjudication Decision No: ADJ-00015032.

On the basis that this matter has already been decided in Adjudication Decision No: ADJ-00015032, I declare that this complaint is not well founded.

The complainant stated that he was discriminated against on grounds of his race, age and in relation to his conditions of employment. The complainant also stated that he was victimised for informing the respondent that he would submit a complaint to the Workplace Relations Commission and had no option but to leave the employment as a result of the respondent’s treatment of him. The complaint also relates to Constructive Discriminatory Dismissal.

The respondent did not attend the adjudication hearing and was not represented.

It is regrettable that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint.

The Applicable Law

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

85A (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Burden of Proof Case Law

In the case of Green Line Pallets Ltd v Whyte EDA1225 the Labour Court refers to its Determination in Southern Health Board v Mitchell [2001] ELR 201 where it determined that:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”

In Queally Pig Slaughtering Limited T/A Dawn Pork and Bacon V Tkac EDA1618 the Labour Court also deals with proving facts from which an inference of discrimination can be drawn. It cites Cork County Council v McCarthy EDA21/2008 which provides that:

“it is for the Court to decide from the facts proved whether the inference or presumption contended for can be properly drawn from those facts.”

The cases referred to above set out the requirements to shift the burden of proof from the complainant to the Respondent. The Labour Court has also determined in Melbury Developments v Valpeters [2010] ELR 64 that:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

In relation to the specifics of this complaint, I note that it was agreed between the respondent and the complainant that there would be a delay to his payments while he awaited his PPS Number. The complainant confirmed that others had also been subject to delays in receiving salary payments but not to the same extent as him.

Accordingly, I do not find that the respondent discriminated against the complainant on the basis of his nationality or age. The complainant has made assertions in relation to his complaints but, in my view, has not established sufficient facts from which an inference of discrimination can be drawn.  

Having considered the submission of the complainant, I find that the complainant has not established a prima facie case of discrimination. The complainant has therefore failed to discharge the burden of proof in relation to his complaints. Accordingly, I declare that the complaints are not well founded.

The complainant stated that he did not receive a written copy of his terms and conditions of employment.

The respondent did not attend the adjudication hearing and was not represented

It is regrettable that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint.

This complaint is a duplicate of Complaint Application No CA-00020358-001. The decision in that complaint (listed above) found in favour of the complainant.

As this matter has already been adjudicated upon in Complaint Application No CA-00020358-001, I declare that this complaint is not well founded.

Written Terms and Conditions of Employment, Discrimination, Victimisation, Constructive Discriminatory Dismissal