ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00017014

Parties:

	Complainant	Respondent
Anonymised Parties	A contract cleaner	A facility services company.

Complaint(s):

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-00021948-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021948-002	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021948-003	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021948-004	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021948-005	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021948-006	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00021948-007	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00021948-008	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00021948-009	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00021948-010	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021948-011	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021948-012	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021948-013	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021948-014	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021948-015	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00021948-016	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00021948-017	18/09/2018

Date of Adjudication Hearing: 06/03/2019

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant is a contract cleaner who commenced employment on 23rd July 2015, her employment transferred to the Respondent on 3rd April 2018.

The Complainant works 25 hours per week and is paid €10.40 per hour.

This complaint was received by the Workplace Relations Commission on 18th September 2018.

Summary of Complainant’s Case:

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994.

The employee in this case commenced employment on 23rd July 2015 which transferred to the Respondent on 3rd April 2018.

The employment is continuing.

By Notice of Particulars dated 13th September 2018 the employee through her solicitor requested a copy of the Contract of Employment of particulars under Section 3 or 5. The provisions of Section 3 specify the particulars of the Terms of Employment which an employer must give in writing to an employee. The information must be given not later than two months after the date of commencement of employment.

Pursuant to the Terms of Employment (Additional Information) Order 1998 Statutory Instrument number 49 of 1998 article 3 (1) an employer must give or cause to be given within two months of the commencement of employment a statement in writing containing particulars of the terms and duration of rest and break periods referred to in sections 11, 12 and 13 of the Organisation of Working Time Act that are being allowed to the employee and any other Terms and Conditions relating to these periods and breaks.

The Section also requires that a written statement be signed and dated by or on behalf of the employer and that it must be retained for one year after the employee’s employment has ceased. We would also point out that clause 3.3 of the Industrial Relations Act, 1990 (Code of Practice and Grievance and Disciplinary Procedures) (Declaration) Order 2000. Statutory Instrument number 146 of 2000 provides that a copy of the grievance and disciplinary procedure should be given to all employees “at the commencement of employment”. A document was furnished. It does not comply with SI 548 of 2016. The document gives a name of an entity which is not a legal entity. In addition, Section 3 not complied with as regards Annual Leave year, Section 3 (g) and (ga), SI 491 of 1998 as regards Section 11 and 13 Organisation of Working Time Act, 1998. The employee did not receive a document in line with Section 3 or Section 5. The document from the new employer is grossly misleading giving a non-existent name. The document does not comply with SI 548 of 2016.

The employee in this case is a foreign national. We would contend that in the case of a foreign national it is of paramount importance that they be furnished with a contract of employment. A foreign national is less likely to know of their employment law rights. The purpose of a contract of employment which complies with Section 3 is to alert the employee as to their rights. Failure to furnish a written contract of employment, in our respectful contention is a serious breach of Employment Law and we are seeking compensation.

ORGANISATION OF WORKING TIME ACT,1997

By notices for Particulars dated the 13th September 2018 the employee requested particulars to all

1. Working Time Records

2. Particulars of all breaks and rest periods

3. Particulars of all notifications of overtime

4. Particulars of contractual starts and finishing times

5. Particulars of the hours worked on a weekly basis since the employee commenced employment with the employer.

6. Particulars of all holiday pay paid and how same was calculated

1. The employee was due 26 hours holiday pay from the transferee which the transferor refused to pay.

2. The employee in the leave year to 31st March did not receive her full entitlements – 2 sections.

3. The employee did not receive holiday pay in advance either in the year to 31st March 2018 or when going on holidays this leave year – 2 separate claims.

PUBLIC HOLIDAYS / ANNUAL LEAVE

The claimant is claiming that he did not receive appropriate holidays nor was paid for same.

TRANSFER OF UNDERTAKING REGULATIONS

The employee was not advised of the information which she is required to be furnished under the Transfer of Undertaking Regulations by XXXX Limited. The documentation which was furnished advised that the employee would be moving to an entity XXXXX Group. There is no legal entity called XXXXXX Group. There is not even an entity called XXXXX Limited. There is an entity called YYYYY Limited. The employee contends that the current employer is responsible for this breach by the previous employer as there was a transfer under the Regulations.

The employer did not advise the employee of all her rights under the Transfer of Undertaking Regulations. The document furnished gives a name of xxxxxx Services and sets out a name of xxxx Limited. No entity exists.

SI 458 OF 2016 (CONTRACT CLEANING – EMPLOYMENT REGULATION ORDER).

The employee did not get a document which complied with SI 548 of 2016.

In addition, the employee subsequently made a request for the said document and that was not furnished within 2 months contrary to Part 3 of the Statutory Instrument.

The document originally given to the employee did not set out the information as regards the personal details of the employee as regards date of birth, PPS. The name of the company and the address of the company was not set out as no existing company name was set out.

Particulars as regards Public Holiday entitlements including Good Friday were not set out.

Sick Pay Scheme as per the Employment Regulation Order was not set out.

The employee was not advised of the Annual Leave entitlements as the incorrect Annual Leave year was set out.

The employee was not advised of the name of the Trade Union to include a name of a recognised Trade Union with representation and/or negotiation rights in the company where appropriate.

PAYMENT OF WAGES ACT

The employee was not paid holiday pay for 26 hours at a rate of €10.40 per hour. The employee accepts that she cannot run a claim under both the Organisation of Working Time and the Payment of Wages in respect of these sums but can run a claim for payment of wages for the economic loss and the Organisation of Working Time Act for the breach of the Organisation of Working Time Provisions. In the alternative the matter will be dealt with under the Organisation of Working Time Act as regards the unpaid holiday pay and the fact that it was not paid in the Annual Leave year or not paid at all.

CONCLUSION

The employee in this case would contend that there has been an egregious breach of Employment Law. It is quite staggering that documentation would be sent out in the name of a non-existent company. It is quite staggering that somebody would put in place a document that gives a business name and then puts the word “Limited” after it on the contract which is not even signed by or on behalf of the employer. It is reasonable to assume that this has been done to mislead. The Labour Court in the case of Merchants Arch Restaurant Company has held that with a degree of simple attention to detail all the relevant rights can be set out in the contract. We would contend that the same reasoning would apply to advising people of their rights under the Transfer of Undertaking Regulations.

In relation to the Transfer of Undertaking Regulations, again, there is an egregious breach of the rights as, again, documentation is in the wrong name and what is particularly relevant is that the employer in this case has completely sought to avoid given a significant amount of details as required by the relevant Statutory Instrument, has not referred to the relevant Representation which is the requirement under the relevant Statutory Instrument. If Union representation had been given to a recognised Trade Union, this matter would probably not have had to come here. It has come here because of the actions of the employer. In a case such as this, under the provisions of Section 45A compensation of up to 2 years for each breach of the relevant Statutory Instrument can be awarded. We are contending that this is such an egregious breach that we would look for the maximum. The failure to give all the relevant information cannot be excused on the basis that it was an oversight or for any other reason. The Employment Regulation Order has been set out. Bits of it have been included in documentation given by the employer but some of the more important ones are missing. We are contending that these breaches cannot be excused away and are so serious as to require a clear and definitive ruling that is unacceptable.

In relation to the Transfer of Undertaking Regulations we would say that the failure to give a proper name is an extremely serious issue.

We are seeking significant compensation. The employee in this case has had to use the services of a Solicitor and attend at the Inspector of Taxes Offices to get a P21 to clarify who the proper employer was. If the relevant searches have not been undertaken and instead have gone on the basis of documentation furnishes, which did have a non-existent company name, the employer in this case would have been able to defend the case or simply not turn up on the basis that it was against a non-existent entity and completely avoid a claim. This is a case where the employee required assistance from a Solicitor to be able to bring a valid claim and we therefore claim that the principles in Von Colson and Kamann apply in these cases and that in setting compensation it should be set at a level persuasive of the employer going forward.

EMPLOYMENT EQUALITY ACTS

The employee did not get a document in a language likely to be understood by her. The employee did not get a document which set out all her statutory rights. The employee in this case is in a vulnerable position. She is a non-Irish National. She has limited English. She does not have the support of others. The employer has sought in putting in documentation to do so in such a way as is misleading. Whether that was on purpose or by oversight or design is irrelevant as ignorance of the law cannot be a defence to this and, where you have a vulnerable individual, failure to give the proper information, we would contend, amounts to racial discrimination on the basis that an Irish National would be in a position to more readily understand and research their rights and be more readily able to obtain information such as representation from a Union and the appropriate family supports and otherwise which are not there for a non-Irish National.

Summary of Respondent’s Case:

TERMS OF EMPLOYMENT INFORMATION ACT

CA-00021948-001

Terms and Conditions of Employment s. 7 Terms of Employment Information Act, 1994

CA-00021948-002

Terms and Conditions of Employment s. 7 Terms of Employment Information Act 1994

The transfer took place on 3rd April and the contract was discussed and modified at the request of the employee on 29th May i.e. within two months of commencement of employment with the Respondent.

a) the full names of the employer and the employee

The name given in the contract is “XXXXXX “which is a registered business name of xxxxxxx Limited. The notice of 13th September 2018 from the Claimant’s representative wrongly accused the Respondent of naming “XXXX” as the employer. This was explained to the employee in the reply from the Respondent to the notice of particulars. To ensure that there were no doubts about the matter the company sent the following memo to all employees in February 2019.

“Clarification: The registered name and address of the employer is xxxxxxxx which trades as xxxxxxx and whose registered address is xxxxx County Kildare. All contracts and communications from the employer should be interpreted accordingly”.

It is submitted there is no breach.

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)

The business address given is xxxxx Co Kildare.

It is submitted there is no breach.

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

The Claimant has only worked on the xxxxx site and was transferred over on the basis that she worked there.

(d) the title of the job or nature of the work for which the employee is employed

The contract refers to the claimant as a “cleaner”. It is submitted there is no breach.

(e) the date of commencement of the employee’s contract of employment

The commencement date of the claimant’s original contract and the commencement of the contract with the respondent are stated in the contract.

It is submitted no breach has occurred.

(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,

The contract is not a temporary or term contract, it is submitted no breach occurred.

F5[(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,]

The claimant received a copy of the employment regulation order in response to her request for particulars

F6[(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,

The rate of pay and fortnightly pay reference period were stated in the contract. It is submitted that there was no breach

(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,]

This provision was complied with at paragraph 6 of the contract. It is submitted no breach occurred.

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

Complied with a paragraph 6 of the contract. It is submitted no breach occurred.

(i) any terms or conditions relating to hours of work (including overtime),

Complied with at paragraphs 9 and 10. It is submitted no breach occurred. Daily rest period s 11 and weekly rest period s. 13 are not expressly mentioned but implicit in the stated working hours Monday to Friday 4 – 9. The Claimant has never been asked to work any other hours. The Claimant has never been asked to work overtime. The position has been clarified company-wide in a new draft welcome pack for all employees. It is submitted that the Claimant has not suffered any detriment accordingly.

(j) any terms or conditions relating to paid leave (other than paid sick leave),

Complied with a paragraph 11 and under the sections on “benefits” (p6) and “policies” (p9) in the handbook. It is submitted no breach occurred.

(k) any terms or conditions relating to –

(i) incapacity for work due to sickness or injury and paid sick leave, and

Complied with at paragraphs 17, 18 and 21. It is submitted that no breach occurred.

(ii) pensions and pension schemes,

Complied with in paragraph 19. It is submitted no breach occurred.

(i) 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,

Complied with at paragraph 31. It is submitted no breach occurred.

(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.

The contract was signed and dated by the employer.

Section 5: there is no express reference to SI No 418 of 2015. However, the ERO has been provided to the Claimant.

It is submitted that the Respondent has incorporated the terms of the ERO in the contract and has complied with all payments and conditions in the ERO Company wide. All employees have received pay in line with the ERO at the appropriate time and have been notified of same via their payslips. Entitlement to pay for Good Friday has also been notified and paid to all employees via payslips. Overtime, sick pay and death in service benefit provisions complaint with the ERO have been included in the contract.

The company has taken steps to update all employees on the Employment Regulation Order SI 548 2016 through a memorandum making explicit reference to same.

2. S 27 ORGANISATION OF WORKING TIME ACT 1997

CA-00021948-003

CA-00021948-004

CA-00021948-005

CA-00021948-006

a) The Claimant asserts that she was not paid 26 hours due from the transferor. The Respondent refutes this and will produce evidence of same. The Claimant failed to follow the procedure for claiming annual leave and left before submitting a claim. Her supervisor was on holiday at the time of the request and there was a query as to whether she had been paid for the leave already as she had signed a document saying that she had received the due pay from the previous employer. The newly appointed HR Manager investigated the matter and ascertained that she had not been paid by XXXX as she previously stated and authorised the payment. A full explanation was given to the Claimant by letter on 2nd October 2018. It is submitted that there was no breach of OWTR as the Claimant was required to follow the normal procedures, the company was not notified of her intentions in good time, she gave incorrect information in writing which caused the legitimate query of the company and the matter was resolved to her satisfaction through the internal grievance procedure.

b) The employee has received all holiday entitlements she has applied for.

c) The Claimant has not been denied holiday pay in advance when she has applied for it in the proscribed manner.

d) The Claimant has received her weekly and daily rest periods in accordance with the working time regulations and they are implicit in her stated hours of work.

3. TRANSFER OF UNDERTAKING

CA-00021948-007

CA-00021948-008

CA-00021948-009

CA-00021948-010

a) The Claimant has submitted that the Respondent is responsible for the transferor not informing the Claimant of the correct company to which the Claimant was transferred. The Respondent submits that they gave the correct name on the employment contract and have since clarified the matter with the employee. It is submitted that there is no substantive breach and it has been rectified.

b) The complaint that the Respondent did not give the correct name by referring to XXXX is a repetition of the claim under the Terms of Employment Information Acts which has been refuted above. The Claimant cannot redress under two statutes for the same perceived breach.

c) The Claimant signed a document to confirm that she had a TUPE consultation with SC under the TUPE regulations on 7th March 2018 and had no grievances to be addressed. Her contract indicates a further consultation took place with her supervisor on 29th May 2018 regarding her terms of employment and the probation period erroneously inserted was removed at her request.

d) SC will give evidence as to the nature and content of the discussions he had with the Claimant on the matter.

4. TERMS & CONDITIONS EMPLOYMENT s.45A INDUSTRIAL RELATIONS ACT 1946

CA-00021948-011

CA-00021948-012

CA-00021948-013

CA-00021948-014

CA-00021948-015

CA-00021948-016

a) The Claimant has submitted that she requested a copy of SI 458 of 2016 and that it was not provided within 2 months. It is submitted that the terms of SI 458 were provided to her in the contract, have been fully honoured. The Claimant made a notice of particulars/grievance request on 13th September 2018 and that she was sent a copy on 19th October 2018. The assertion that the information was not provided is refuted.

b) The date of birth and PPS number of the employee may not have been provided by the transferor, but the information was given by the Respondent on the payslips.

c) The Claimant has received her Good Friday entitlement in accordance with the ERO. The Good Friday entitlement is available in the ISO folder on site under version 3 of the Employee Handbook which the Claimant was informed about and to which she has access every day.

d) The sick pay scheme under the ERO was set out in the employment contract. The accusation is refuted.

e) The annual leave year is stated as 1st January to 31st December. It is correct that the OWTA s.21 defines the year as 1st April to 31st March but this does not preclude employees making applications to carry over leave into another year. The Claimant has not been denied any holiday applications and has been paid in full.

f) There is no recognised trade union for the Respondent company so there was no obligation to inform the Claimant of this.

5. DISCRIMINATION / EQUALITY / EQUAL STATUS s.77 EMPLOYMENT EQUALITY ACT

CA-00021948-017

a) The employee modified her contract in English in her own writing and accordingly demonstrated a clear understanding of the document she was reviewing. Her correspondence with the Company is in perfect English and there is no indication that she has experienced any difficulty in understanding any matter under discussion.

b) The Claimant utterly refutes the assertion that it sought to mislead the Claimant in any way and submits that no detriment whatsoever to her has been identified in the current submissions as she has received all holiday entitlements, correct pay, hours of work and rest periods in accordance with all statutory provisions and the ERO.

c) We refute the assertion that the Claimant is unsupported or more vulnerable than anyone on the basis of her race. She has not been deprived of any rights, has received her full entitlements and has not been disadvantaged in any way to any comparator employee. The dispute about holiday pay was a bona fide issue which the company was entitled to raise with the Claimant in light of her failure to follow the required notification procedures, her signed communication indicating that she had already been paid and the need of the company to investigate legitimate queries regarding the pay out of monies as they would with any employee.

CONCLUSION

The Respondent refutes the claim that the employee has suffered any detriment or discrimination in relation to either terms or conditions of employment or treatment by the Respondent. The claim relates entirely to detriments their representative speculates could possibly occur rather than have actually occurred. The presence of the Respondent at the hearing, for example in response to the above claims, is sufficient proof that, notwithstanding any accusation that the company name was incorrect (which is refuted) the Respondent has not attempted to use any perceived confusion on that point to avoid taking responsibility. It is submitted that the claim that the Respondent has acted in an “egregious” manner is frivolous as the Claimant has been given all her entitlements equally with all other staff and in accordance with any statutory and ERO stipulations. The Company submits that it has acted in good faith at all times and has substantively complied with all regulations in terms of payments and conditions given. However, where the Adjudicator advises that contracts or terms require clarification the Company is more than willing to take on board any orders mandated. In light of the fact that no loss has occurred and that the Company has already rectified companywide most of the issues identified by the Claimant without prompting, and has rectified them directly with the Claimant herself, it is respectfully submitted that rectification orders rather than fines are an appropriate response to any perceived shortcomings in Company communications with staff. We are however respectfully at the discretion of the Adjudicator on these matters.

Findings and Conclusions:

CA – 00021948 – 001.

The Complainant transferred to the Respondent under Transfer of Undertakings regulations on 03/04/2018 and was issued with a contract of employment on 29th May 2018. This contract of employment does not make any reference to the following information that is stipulated in the Act:

(a) The full names of the employer and employee

The employee name is provided, and the employer name is wrong, a business name is provided however this is not the name of the registered employer.

(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 at various places.

There is no reference to the place of work. The address of the company’s office is named however this is not the location where she works.

Technically this is a breach of section 3 of the Act. I declare that the complaint is well founded and order the Respondent to pay compensation in the sum of €200.

CA – 00021948 – 002

The Complainant is alleging that she did not receive a statement which complied with section 5 of the Act.

Section 5 of the Act relates to changes to any of the particulars provided in section 3. Between the transfer date and the lodging, the complaint to the WRC no changes took place. This complaint is not well founded.

CA- 00021948 – 003.

The Complainant alleges that she did not receive her statutory right to 4 weeks annual leave.

There was some confusion over 26 hours of annual leave at the time of the transfer, this was rectified.

On 7th March 2018 the Complainant signed a declaration that she had no grievance with her current employer.

This complaint is not well founded and fails.

CA -00021948 – 004.

This complaint was withdrawn at hearing.

CA -00021948 – 005.

The Complainant alleges that she was not paid in advance of annual leave under section 20 (2) (a) of the Organisation of Working Time Act, 1997.

On 7th March 2018 the Complainant signed a declaration that she had no grievances with her employer.