Complainant

Respondent

Anonymised Parties

Customer service assistant.

Online merchants

Representatives

Self-represented

Matheson Solicitors. Mr. Kevin Bell, B. L

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-00030146-001

09/08/2019

The complainant commenced employment in 11 December 2017 as a Merchant Success Guru which is a customer service role for the respondent’s clients.

She worked 40 hours a week and was paid €2067 per fortnight.

She states that the respondent breached section 3(1)(f) of the Act of 1994.

She submitted her complaint to the WRC on 9 August 2019.

Preliminary points.

Preliminary point number 1

Incorrect respondent.

The complainant states that as an American she is unfamiliar with the laws of Ireland. She made a genuine error in naming the respondent incorrectly and asks to have the respondent’s name amended. The name of the respondent used by her (SI) is the name that appears on internal company emails. She omitted the words International Limited.

On being notified of the incorrect name, the complainant immediately submitted a request to amend the respondent’s name, 7 days before the hearing.

Preliminary point number 2.

The complaint is time- barred.

She states she believes that the breach occurred in April 2019

She states she is unaware of the time limits within which she must bring a complaint. The complainant is unrepresented.

Substantive Complaint.

The complainant states that the respondent breached the Terms of Employment (Information) Act, 1994 in not providing her with a fixed- term or temporary contract with an end date. Section 3(1) (f), of The Terms of Employment (Information) Act, 1994 states 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, 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.”

The complainant maintains that she was employed on a de- facto fixed term or temporary contract without having been provided with a copy of same in accordance with section 3(1)(f).

When the respondent appointed her in in December 2017, they knew that she was on the Stamp 1G postgraduate visa scheme, which was due to expire on September 15th, 2019. Without a valid work permit, it was not possible to remain employed with the respondent and move beyond the finite, 2-year IG permit into a general employment permit, a critical skills employment permit or a research hosting agreement without the employer’s cooperation. The co-operation and intervention   needed to extend her employment with the respondent required an application by the respondent to the IDA who in turn could apply to the Department of Business, Enterprise and Innovation to have her job exempt from the “ labour market needs test”- a competition confined to Irish and EU nationals .The respondent refused to do this .This is the basis for her case that she should have been offered a written fixed term contract with an end date which in this case coincides with the expiration of a her Stamp 1G visa. There is no system by which an American Citizen, hired on a Stamp 1G postgraduate visa, can continue to work for the respondent after the Stamp 1G postgraduate visa has expired without cooperation from the respondent in the form of sponsoring her visa or applying for the job to be exempt from the “labour market needs test”.

The respondent knew when they appointed the complainant that they did not assist employees with permits so hence they knew that, of necessity, her ability to remain with the respondent lasted for 2 years only and no more unless the respondent intervened.

The respondent declined to request the IDA to take these steps knowing that failure to set this process in motion would eliminate her chances of a valid work permit thus rendering her unemployable with them. They should have been more open with her.

The complainant believes that the respondent did sign visa paperwork for an American citizen who does not hold an Irish Passport or have Irish Citizenship and who held the Guru role. Given this fact, it cannot be the case that it is the respondent’s policy that they do not “labour market needs test” the ‘Guru Role’, or “sponsor” visas for the Guru role in any way. The fact that they have done it for others and are refusing to engage with her would suggest possible discrimination.

The complainant asserts that the respondent is in breach of Section 3(1)(m), of The Terms of Employment (Information) Act, 1994 which states 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 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”.

The complainant maintains that the respondent’s policy on the “labour market needs test “for the Guru Role, or their policy of not sponsoring visas for the Guru role constitutes a collective agreement which directly affects the terms and conditions of the complainant’s employment. The respondent has, some formal or some informal agreement with the IDA or the INIs. The respondent failed to provide her with a copy of this agreement.

Preliminary Points.

Preliminary point number 1.

Incorrect respondent.

The respondent argues that as the complaint has been brought against an entity that does not exist, the complaint must be dismissed. In support of this proposition they cite Travelodge Management Limited -v- Sylwia Wach EDA1511. The respondent argues that as in Wach, should the request to amend the respondent’s name be granted, the claim would be statute barred., They also draw on ADJ -0012478 which rejected the complainant’s application to amend the name where the complainant had committed an inadvertent error.

The correct name of the respondent was on the contract and on the pay slips. Discretion to amend does not exist when the complaint is time barred as in the instant case.

Preliminary point number 2

The complaint is time- barred.

The respondent argues that this complaint is time barred by operation of section 41(6) of the Workplace Relations Act,2015 which requires a complaint to be lodged within 6 months of the commencement of her employment on 11 December 2017.The written terms of employment were offered to the complainant on 21 November 2017, yet the complaint was not lodged until 9 August 2019. They cite ADJ -00011565 which declined jurisdiction in respect of a complaint lodged 4 years after that complainant had received his terms of employment.

Substantive complaint

The complainant was provided with a written statement of her terms and conditions in strict compliance with section 3. A copy of same, dated 21/11/2017, was submitted to the hearing. The information required of each sub section of section 3 was provided to the complainant. Neither was there any change in her terms and conditions subsequent to the commencement of her employment

The respondent does not have a written policy in relation to assisting employees with acquiring or renewing work permits. Section 3(1) of the Act of 2014 does not contain a requirement for the employer to provide such a policy or information.

Neither does section 3(1) oblige a respondent to provide an employee with a fixed term contract. Even if an obligation were to lie with the respondent to provide the complainant with a fixed term contract, this would not be actionable under the Act of 1994 as amended.

Again, if the complainant has a grievance this statute is not the appropriate statute.

Findings on Preliminary points

Preliminary point number 1.

Incorrect respondent.

The respondent argues that as the complaint has been brought against an entity that does not exist; the complaint must be dismissed. In support of this proposition they cite Travelodge Management Limited -v- Sylwia Wach EDA1511. The respondent argues that as in Wach, should the request to amend the respondent’s name be granted, the claim would be statute barred., They also draw on ADJ -001278 which rejected the complainant’s application to amend the name where the complainant had committed an inadvertent error.

It is accepted that the correct name of the respondent was on the complainant’s pay slip and contract.

The Labour Court in Wach considered the authorities which could allow for a bone- fide mistake concerning the impleading of an incorrect respondent to be rectified. Central to their refusal to allow the correction of that respondent’s name is the following reasoning:

“it appears to the Court that while there are some apparently divergent decisions on this subject, the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired as against that party. It appears to the Court that even if it had a discretion analogous to that available to the Superior Courts under O.15 r13 of the Rules of the Superior Courts, (and the Court makes no such finding) it would not be appropriate to exercise that discretion in this case. The applicable statutory time-limit prescribed is that prescribed by s.77(5) of the Act”

But as will be seen in my Findings on Preliminary point number 2 I do not find that this complaint is time -barred. Therefore, this complaint is distinguishable from Wach.

The matter of correcting the respondent’s name was addressed in Auto Direct Ltd v Vasile Mateui, DWT1922. While the circumstances of the instant case differ somewhat for those pertaining in the appeal before the Labour Court what they have in common are the following elements which were set out in DWT 1922:

“The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter……. In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held

:“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)”….

“In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

The Labour Court continued

Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response “as envisaged in O’Higgins. Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’.

For the reasons cited above, I agree to correct the name of the respondent to reflect its correct legal title.

Preliminary point number 2.

The complaint is time- barred.

The respondent argues that this complaint is time- barred by operation of section 41(6) of the Workplace Relations Act,2015 which the respondent argues requires a complaint to be lodged within 6 months of the commencement of her employment on 11 December 2017, yet the complaint was not lodged until 9 August 2019. The respondent cites ADJ -00011565 in support of this argument. Therefore, it is necessary to consider whether the complaint was made within the limitation period provided by the Workplace Relations Act and the Terms of Employment (Information), Act 1994.

The Labour Court in Merchant’s Arch Restaurants Company Limited v Felix Guerrero TED 187 held that it had jurisdiction to hear a complaint and award compensation for a breach of the Acts of 1994- 2014 which involved a complainant who commenced employment on 27 March 2014 but did not submit his complaint until 1 June 2016.

The Labour Court considered that the breach continues until the Act is complied with.

ADJ 0009820, a decision concerning the time limits within a complaint must be lodged,stated

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship. Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress. The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement.”

For the reasons set out above, I find that I do have jurisdiction to hear the complaint.

Substantive Complaint.

I am required to examine if the respondent breached the two sections cited by the complainant.

Section 3(1) (f)

Concerning the alleged breach of Section 3(1)(f), the complainant’s genuine and legitimate concern about her future employment with the respondent and/or in Ireland is understandable, but section 3(1)(f) does not compel an employer to provide an employee with a fixed term or temporary contract even if all sorts of imponderables stand in the way of her continued employment.

The complainant signed a contract of indefinite duration. The complainant’s contract states that by signing this contract “you warrant and represent that you are legally entitled to work in Ireland”-

While given her work permit status it might stand to reason to provide an employee with a temporary contract, there is no obligation on the respondent to do so. If an employer elects to do so then the statutory provision requires an end date. In addition, the complainant signed a contract of in definite duration in which responsibility for eligibility to work in Ireland was laid at her door.

So, defining the decision not to provide the complainant with a fixed term or temporary contract in her particular circumstances as a breach of the Act is an additional import not found in the statute. The respondent’s choice not to do so is not a breach of section 3(1)(f)

Alleged breach of section 3(m)(1).

The fact that the respondent has a policy or disposition not to assist employees in acquiring work permits is not a collective agreement. It is not a union – management agreement.

I find no breach of this section.

So, while her concern and upset at being unsupported in her quest to remain in Ireland is understandable, a remedy does not lie within this statute for the complainant.

I find that the respondent provided the complainant with the particulars of her terms of employment as required by section 3 (1) of the Act.

I do not find a complaint to the contrary to be well founded.

I do not find this complaint to be well founded.

Alleged breach of Section 3(1)(F); incorrect respondent; alleged time- barred complaint