Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Supermarket

Act

Complaint 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-00023725-001

03/12/2018

The Complainant was employed by the Respondent as a Shop Assistant from 13 September, 2018 until 5 December, 2018. The Complainant claims that the Respondent failed to provide her with a written statement of her terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994 during her period of employment. The Respondent disputes the complaint and contends that it complied with its obligations under Section 3 of the Act to provide the Complainant with a written statement of her terms and conditions of employment.

The Complainant commenced employment with the Respondent on 13 September, 2018 as a Shop Assistant. The Complainant was informed by the Store Manager on the commencement of her employment that she would be initially employed on a part-time basis working eight hours per week and would be made permanent if she performed well. The Complainant stated that she worked an average of 32 hours per week and was paid €9.55 per hour during her period of employment.

The Complainant stated that she was not afforded any hours on the rota for a week in early December, 2018. When the Complainant sought clarification on this matter the Store Manager informed her that the Respondent didn’t need her and that she would only be allocated hours on an ad hoc basis as and when there was work available. The Complainant was requested by the Store Manager to attend a meeting at short notice on 3 December, 2018 but was not available to do so as she had prior commitments. The Complainant informed the Respondent on 5 December, 2018 that she was resigning from her position.

The Complainant submits that she was not provided with a written statement of her terms of employment despite requesting same from the Store Manager on a number of occasions during her period of employment.

The Complainant disputes the Respondent’s contention (as set out in its written submission) that she was provided with a written statement of her terms and conditions of employment on two separate occasions during her period of employment.

The Respondent’s representative attended the hearing on 28 February, 2019 and indicated that the Respondent was not in a position to attend because of a prior commitment. The Respondent’s representative did not seek a postponement of the hearing and confirmed that the Respondent would not be presenting any witnesses to provide oral evidence in relation to the complaint. The Respondent’s representative submitted a written submission on behalf of the Respondent at the hearing in response to the complaint (which is summarised hereunder).  

The Complainant was employed on 13 September, 2018 after applying for a job via Facebook. On 17 September, 2018 the Respondent gave the Complainant a letter enclosing a copy of her contract of employment. The Respondent advised the Complainant to make herself familiar with the company handbook and sign both copies of the contract, returning one to the office. On 18 October, 2018 the Respondent gave the Complainant another letter enclosing a copy of her contract as had advised the Respondent that she had misplaced same. The Respondent again asked the Complainant to sign the documents and advised her that a copy of the handbook was available to take from work.

On 24 September, 2018 the Complainant messaged the Respondent advising that she was getting anxiety over the prospect of working in the deli. The Complainant asked if she could work on the floor/till/clean and the Respondent assured her that this would not be a problem. The next day the Respondent met the Complainant and spoke to her briefly about the conversation. The Respondent’s Manager told the Complainant that she would do her best to keep her off deli shifts but that it would limit how many hours she could give her as if she was short staffed in the deli the Complainant wouldn’t work there then the shift would have to go to someone else.

On 1 December, 2018 the Complainant queried as to why she was not given any shifts the week of the Christmas party. At this time the Respondent had hired another ad hoc staff member who was working in the deli. The Respondent replied advising the Complainant that “given that you don’t ever want to work in the deli I am limited in the amount of hours that I can give you. I need staff trained in various departments in order to have back up cover at all times. It’s not personal, you’re as hoc staff and so you’ll be called in if I need you”. The Complainant then sent a number of long text messages arguing that she was told at the interview that she would be on an eight-hour contract and then asking the Respondent if that’s what they actually said. The Respondent asked the Complainant to meet her on Monday, 3 December, 2018, to discuss the issue. The Complainant refused to meet on the Monday and indicated that she would meet on Wednesday, 5 December, 2018.

On 5 December, 2018 the Respondent sent a text the Complainant at 1:30 pm asking her if she would be in for her shift. At 1:33 pm the Complainant resigned from her employment via text message.

Submissions  

The Respondent submits that the Complainant did receive her contract of employment on not one, but two occasions. The Complainant was on an ad hoc contract and the Respondent had staff on sick leave and needed short term cover for that with a view to it becoming a part-time contract as a vacancy arose. The Complainant was issued with a contract of employment on both 17 September, 2018 and 16 October, 2018. The Respondent has a grievance procedure in place and at no stage did the Complainant seek to exhaust these procedures in order to address concerns she may have had in respect of her terms and conditions of employment. Alongside this, the Respondent had specifically come in to meet the Complainant regarding this and she resigned before the conversation was had. The Respondent submits that it should not be prejudiced with an award in a situation where the Complainant was furnished with a contract of employment twice and when she was offered a meeting to discuss said terms but did not show up.

The Respondent submits, that without prejudice to the foregoing, and in the alternative that the Adjudication Officer should find that the Complainant did not receive her contract of employment, which is denied, that the Complainant was not prejudiced by not receiving a contract of employment.

The Respondent submitted that there is well established precedent from the Labour Court and EAT, and indeed the High Court, that where any breach of the Act is technical or minor in nature that the dictates of fairness or equity could not justify an award of compensation to the Complainant. The Respondent submits that this position applies equally to the instant proceedings.

The Respondent relied upon the following cases in support of its position in relation to the complaint, namely: Philmic Limited t/a Premier Linen Services -v- Petratis (TED1616), Petratis -v- Philmic Limited t/a Premier Linen Services (2016 No. 253 MCA), Grant Engineering (Ireland) -v- Delaney (TED1728), Irish Water -v- Hall (TED161) and Udalous -v- Southeast Vegetable Producers Limited (TE224/2012).

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3(1) of the Act.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “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 …… “.

The Complainant adduced evidence that she was not provided with a written statement of her terms and conditions of employment from the Respondent during her period of employment. The Complainant disputed the Respondent’s contention as set out in its written submissions to the WRC that she had been provided with a written contract of employment on two separate occasions during her employment. The Respondent did not attend the oral hearing to present any evidence to contradict the evidence adduced by the Complainant in relation to this matter.

I have found the Complainant to be a credible witness and I accept her evidence that she did not receive a written statement of her terms and conditions of employment from the Respondent during her period of employment. In the circumstances, I am satisfied that the Complainant has suffered a detriment as a result of the contravention of the Act.

Having regard to the uncontested evidence of the Complainant, I find that the Complainant was not provided with a written statement of her terms and conditions of employment during her period of employment. Accordingly, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €916.80   being the equivalent of three weeks’ pay in respect of the contravention.

Terms of Employment (Information) Act 1994 – Section 3 – Failure to provide written statement of terms and conditions – complaint well founded – compensation awarded.