Complainant

Respondent

Anonymised Parties

Press Brake Operator

A    Technical Company

Representatives

Conor Murphy, Murphy Healy & Company, Solicitors

Michelle Ryan, Solicitor, Ronan Daly Jermyn Solicitors.

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-00028840-002

05/06/2019

On 5 June 2019, the WRC receive two complaints on behalf of the complainant, a Press brake Operator since 1999.

1. CA -00028840-001     A Complaint under the Industrial Relations Act 1969. An objection followed from the employer and this file was closed on 22 July 2019.

2.CA -00028840 -002     Statement of Terms of Employment

The Respondent submitted a written submission on 9 September 2019. This was copied to the complainant. Both parties were legally represented at hearing, the complainant by Colm Murphy and the Respondent, Michelle Ryan.

The Respondent has rejected the single claim made.

The Complainant submitted that he had received a written warning in January 2019. This prompted him to request a copy of his contract of employment, which he maintained that he saw for the first time in April 2019. Issues arose about the applicability of an incorporated grievance procedure in the document.

In response to the Respondent rebuttal of the claim, the Complainants Solicitor relied on a written submission, which can be summarised as:

The complainant submitted that the Employment Agreement purportedly delivered in 1999 was not furnished. Neither had he received an updated version in September 2004. This omission had disadvantaged his client in the context of recent in house matters and he sought the remedy of compensation.

The Complainants Solicitor contended that the document (1999) received by the complainant did not contain the terms and conditions required by Legislation. This was not remedied by the issuing of the 2004 Agreement as by then the practice of “signing receipts “had ceased.

The Complainant accepts that he signed a receipt of a document in 1999, however, this acceptance did not cover a contract of employment for 1999 or the 2004 latterly produced. He was not a real time recipient of either document.

The Complainant told the hearing that he started work at 16 years of age with the Respondent and had worked continuously from that date in 1999. He had no recall of signing documents on his terms and conditions in 1999 and did not remember receiving supplementary documents in 2004. He referred to a Bullying Policy being placed on a Notice board. During cross examination, he re-affirmed that he had not received statement of his terms of employment in either 1999 or 2004.

In response to answers to the Adjudicator, the complainant confirmed that he had been hired in this his first job, by a named Manager.

The Complainant exhibited a letter from the Respondent dated 15 September 1999 which concluded with co signatures of the Complainant and a Manager.

“We are delighted to appoint you to the position of General Operative. Your position is temporary. Your wage will be £169 per week an expense will be paid in accordance with the company’s revenue authorisation. A copy of the current agreement is enclosed.

All work must be carried out with the safety statement and manual handling for industry documents, which will be made available to you along with the safety video.

We enclose an employment contract, which sets out the other terms and conditions attaining to your employment.

Please sign below as approval of contract and return to Finance Department. we trust you will have a long and successful career with X. Should you have any queries on the above, please do not hesitate to contact us “

The Complainants Representative restated that the complainant had not received the purported documents in 1999 or 2004 and submitted that the Respondent had failed in their obligations under the Act.

The respondent operates an after sales service on Technology products based across Europe. The Complainant initially commenced work on March 12, 1999 and in his current role as General Operator on 1 September 1999.

The Respondent practice and policy is to provide all employees with a statement of terms and conditions of employment, together with the Employment Agreement. The Respondent submitted that the complainant was issued with a copy of these terms and conditions of employment by way of a letter dated 15 September 1999. The Respondent exhibited a copy of the signed letter of acceptance and contract of employment.

The Respondent maintained that the signed acceptance of these documents was proof of receipt.

The Respondent acknowledged that the complainant was entitled to receive a copy of his terms of employment within two months of commencing work, pursuant to Section 3(1) of the 1994 Act. Any breach, if eventually detected should be judged as technical in nature in circumstances where the complainant was provided albeit following a short delay. The Respondent submitted that the Employment Agreement was available to him throughout his employment.

In relying on the 1999 and 2004 documents, the Respondent outlined the details provided to the complainant

1. Full name of Respondent

2. Employer Address and place of work.

3. Title of Job

4. Date of Commencement: 15 September 1999

5. Temporary Nature of Job

6. Rate of Pay

7 pay Determination

8 Normal Working Hours

9 Annual Leave

10 Sickness and Pension cover

11 Notice period

12 Reference to Company Agreements

The Respondent disputed any contention of breach of Section 3(1) of the 1994 Act or any breach is technical in nature.

The Complainant has not registered any request for access to this documentation prior to February 2019, when his Solicitor requested a copy on 6 February 2019.

The Respondent re-affirmed that the complainant had been provided with the updated version in 2004.

The Respondent referred to case law in this area. ADJ 6390, General Operative and General Business Company, 2017 where the Adjudicator had concluded a technical breach of the legislation had existed during 2012-2015 but was remedied by the issuing of a new contract in 2015. ADJ 5696, A Nurse Officer V A Public Body, 2017, which held that a statement of terms be issued within 4 weeks of the decision.

The respondent concluded by submitting that the complainant had not suffered any detriment in relation to this issue.

Evidence of Managing Director. Mr D

Mr D is the Managing Director of the company. he recalled returning to work in the Respondent company in 1986 and he brought the contract framework back with him. It was informed by a German Company contract. The Secretary typed it up. He submitted that all starters received the contract at that time, which was accompanied by a cover note. Updates followed as time went on. The Complainant worked alongside two of his brothers at the company.

During cross examination, Mr D had no clear recall of the complainant being employed and while he remembered the contract template for that time, he did not deal with the complainant on it. He did recall the change in font from “dot matrix “in 1999 to the 12th version of the handbook/ employment agreement in 2004. he maintained that the documents were placed in envelopes and given to the

Mr D had a difficulty in accepting that the complainant didn’t know anything about these documents which were provided in good faith by the company. The Respondent confirmed that the Respondent held the original of the 1999 acceptance on file. The exhibited versions were copies of this original.

The Respondent concluded that both documents from 1999 and 2004 had been issued by the company and received by the complainant. He had been employed at the company and had benefitted from these stated terms throughout this period, inclusive of a period of compassionate leave. The Respondent disputed any claim for compensation on the evidence adduced at hearing.

I have given some thought to both oral and written submissions of the parties. During the course of the hearing , I detected  that the complainant was carrying a high level of dissatisfaction with his employment currently and I had cause to remind the parties that the complaint under Terms of Employment could not and should not be relied on as an attempt at “ dress rehearsal “ to deal with these underlying matters .I did not deduce any reciprocation of this dissatisfaction from the Respondent , who seemed keen to explain the stated   evolution and chronology of the written terms of employment .

My sole jurisdiction in this claim rests within the parameters of Section 3 of the 1994 Act, which has been revised from 4 March 2019. The period of the claim precedes this revision.

I have reviewed the documents surrounding the 1999 approval of contract and the 2004 Employment Agreement .The Complainant confirmed his signature dated 15 September 1999 but he had no recollection of receiving the stated contract or signed terms of employment at any time prior to the run up to this claim .The Respondent was unbale to exhibit a named contract for 1999 and exhibited a redacted version of “ contractor of employment “ in a faded type .The governing legislation was referred to as the Unfair Dismissals Act 1997 and Minimum Notice and Terms of Employment 1973 . There was no mention of the Terms of Employment (Information) Act 1994. It is difficult for me to link this with the complainant as it does not make a reference to his being a temporary worker, which the top copy dated 15 September 1999 reflected. In addition, while there is provision for a satisfactory Drs medical report before the end of probation, the Respondent confirmed that they had not secured or retained that report.

On the other hand, the 2004 Employment Agreement, dated September 6, 2004, was silent on the Employee name and Signature as having “read and understood the current employment Agreement”. This is a high-grade employment handbook and defers to the legal obligation to issue a written statement of key of employment. I found it implausible that the complainant remained a stranger to the terms of this document for over 14 years, such was the precision of the term’s contained there - in.

For example, personal details are to be checked yearly for date, copies of all documents are available to all employees covered by the Agreement.

Clause 39 on conditions of agreement were very informative.

The Respondent confirmed at hearing that the Complainant was not asked to sign any documents. The information require under Section 3 was made available over the 1999 and 2004 documents.

It seems that the company employs 45 employees rather than 50 employees in 1991.

I asked the complainant whether he had been reassured by the provision of his written terms of employment. I note that he was under whelmed in his response.

Given that the complainant started work in March 1999, I must accept that the Respondent has not complied with the strict terms of Section 3, where the written terms were to have been furnished no later than 2 months post commencement. Therefore, there has been a continuous breach from that date.

I must now examine whether the documents of 1999 and 2004 ameliorated this lapse.

As stated, I could not, with certainty link the complainant to the “1999” contract exhibited at hearing. However, that is not the full story. I have given regard to the presiding cover note dated 15 September 1999 and find that the complainant was given terms of employment. I found from the Complainant’s evidence that he was pleased to get a job with the respondent in 1999. I can see no reason why he would have signed a document of acceptance of such magnitude as the 15 September document without sight of the stated inclusions. Therefore, I find on the balance of probabilities, that terms were issued but I cannot reach certainty on just which terms these amounted to. I noted Mr Ds expression of pride in the transference of the document from a European counterpart. I could see this document mattered to the company. The Organisation retained a memory of it.

I have been asked to consider the sequential and cumulative effect of the 2004 Agreement as fulfilling the Respondents obligations under Section 3. This is disputed by the complainant. Taken at their height the terms in the 2004 Agreement, while laudable, still fall someway sort of the personalised terms necessary to effect compliance with Section 3 of the 1994 Act.

I was struck by the Respondents Mr Ds evidence where he told the hearing that everyone was given this document. The Organisation retained a memory of it and consistently redrafted it. It is regrettable that record of receipt from the complainant was not secured or retained.

I have concluded that the complainant did receive some written terms of employment since his commencement date of March 1999. However, there have been continuous omissions which I will cite here.

1 Date of Commencement

2 Tenure. The Complainant commenced as a temporary worker prior to the commencement of the Fixed Term Legislation. I was unclear if he had been issued with a contract of indefinite duration?

3 Reference to National Minimum Wage (section g and g(a))

I have established a continuous breach of Section 3 of the Act. The claim is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994 requires me to decide in accordance with the terms of section 3 of the Act.

I have found merit in the claim. However, the breaches as stated are technical breaches. The Complainant has worked continuously since 1999 and earns more than the minimum wage. He does deserve some personalised clarification on his tenure of employment.

Considering all I heard at hearing, I consider a remedy of compensation to be unwarranted. It seemed to me that the complainant was very keen to have stability and clarity in his working life and to that end I wish to exercise my powers under Section 7 (2) (C) of the Act on this occasion.

I require the employer to give to the complainant a written statement in total compliance with Section 3 of the Act containing the full provisions of Section 3 of the Act within 4 weeks of the date of this decision.

Statement of Terms of Employment