Complainant

Respondent

Anonymised Parties

Shop Assistant

Shop owner

Representatives

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-00030380-001

20/08/2019

The issue in contention concerns the alleged breach of Section 3.–(1A) of the Terms of Employment (Information) Act 1994 which requires that:

“(1 A) Without prejudice to subsection (1), an employer shall not later than 5 days 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 2014);

(c) 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;

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the Minimum Wages Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work–

              (i) per normal working day, and

              (ii) per normal working week.”

The complainant commenced work with the Shop as a Sales Assistant on the 18th June 2019 on a fixed term contract to end on the 19th December 2019. However, his employment was terminated on the 4th July 2019. He hadn’t received his statement in writing of the above, as detailed in Section 3(1A) of the Terms of Employment (Information) Act 1994, at the time of leaving on the 4th July. At his request on or about the 8th July 2019 he requested his contract and statement setting out that as required under the 1994 Act as amended; however, he didn’t receive a statement until the 29th July 2019.

The employer stated that they did issue the employee’s contract containing particulars of employment on the 8th July 2019- and when requested to do so again, as it wasn’t received, resent it on or about the 29th July 2019. The delays that occurred were caused by the complainant’s Shop not returning the ‘new employee form’ to Payroll on time. This form was received by payroll on the 26th June 2019 and the contract was then issued; although, the complainant states he didn’t receive the first statement sent on the 8th July 2019. He did receive the second statement sent on or about the 29th July 2019. The company states that it has now amended its procedures, where all new employees receive a statement of their terms of employment direct to their home address. It accepts the complainant was entitled to a statement not later than 5 days and apologised for not issuing the statement containing that as detailed at Section 3(1A) not later than five days after the commencement of the complainant’s employment with the shop.

Section 2.–(1) of the Terms of Employment (Information) Act 1994 states:

“(1) This Act, other than section 3(1A), shall not apply to employment in which the employee has been in the continuous service of the employer for less than 1 month”

The complainant commenced employment with the shop on the 18th June 2019 and his employment ended on the 4th July 2019, this is less than 1 month of continuous service; however, he states in his submission:

“In my experience an employee would not work on the shop floor without a contract or the appropriate training. By law I am entitlement to a full contract accepting the terms and conditions between myself and the company within 5 working days, if not a partial contract.”

The complainant both in his written statement and at the hearing referred to the statement as set out at 3(1A) that an employee should receive not later than 5 days after the commencement of an employee’s employment.   The Act as amended states at Section 2(1):”This Act other than section 3(1A), shall not apply to employment in which the employee has been in the continuous service of the employer for less than 1 month”. Therefore Section 3(1A) of the Act does apply to the claimant even though he does not have 1 month’s continuous service with his employer.

The employer did issue a statement; however, not within the time prescribed which is not later than 5 days after the commencement of the complainants’ employment that began on the 16th June 2019 nor in accordance with that as detailed at 3(1A) of the Act required to be in the statement:

1. The address of the employer or alternative employer details as specified at 3(1A) (b) were not given.

2. The pay reference period for the purposes of the National Minimum Wage Act 2000 was not given as specified at 3(1A) (d).

3. The number of hours which the employer reasonably expects the employee to work as specified at 3(1A)(e) were not given:

              (i) per normal working day, and

              (ii) per normal working week.

Section 7 of 1994 Act as amended states:

“7(1A)an employee shall not be entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of Section 3(1A)–

(a) unless the employee has been in the continuous service of the employer for more than 1 month, or

(b) if the employer concerned has been prosecuted for an offence under this Act in relation to the same contravention.”

As the complainant has not been in the continuous service of the employer for more than 1 month and no evidence was presented relating to a prosecution under this Act, the complainant as detailed at 7(1A) is not entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of Section 3(1A)–.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment(Information) Act 1994 as amended requires that I determine if a claim is well founded or not:

F19[7.—(1) An employee shall not be entitled to present a complaint under section

41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4,

5 or 6, if the employer concerned has—

(a) complied with a direction under section 6A given in relation to the contravention

F20[before, on or after the commencement of section 8 of the Workplace

Relations Act 2015], or

(b) been given a direction under that section in relation to the contravention and

the period specified in the direction within which he or she is required to

comply with the direction has not yet expired.

F21[(1A) An employee shall not be entitled to present a complaint under Part 4 of

the Workplace Relations Act 2015 in respect of a contravention of section 3(1A)—

(a) unless the employee has been in the continuous service of the employer for

more than 1 month, or

(b) if the employer concerned has been prosecuted for an offence under this Act

in relation to the same contravention.]

(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 F22[sections 3, 4, 5, 6 or 6C]

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,

As detailed at Section 7(1A) the complainant is not entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of Section 3(1A)– as he does not meet the continuous service requirement of more than 1 month and no evidence of a prosecution for an offence under this Act in relation to the same contravention, has been presented at the hearing or in the complainant’s submission. I determine that the case is no well founded.