TED208

1.Appeal of Adjudication Officer Decision no. ADJ-00023427.

BACKGROUND:

2.The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 30 April 2020 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 18 September 2020.

The following is the Decision of the Court:-


DETERMINATION:

This matter comes before the Court as an appeal by William O’Brien (the Claimant) against a decision of an Adjudication Officer in a complaint made by him against his former employer LLC Power Ltd Go Power (the Respondent) under the Terms of Employment (information) Act, 1994.

The Adjudication Officer found that the complaint was not well founded.

The Case

It is common case that the Claimant commenced employment with the Respondent on 8^thApril 2019 and was paid €480.77 per week. He submitted that, during the period of his employment, he had never received a written statement setting out the particulars of his employment as required by Section 3(1) and 3(1A) of the Act. He submitted that on 11th October 2019 he did receive an e-mail from his then former employer, to which was attached a document containing details of terms and conditions of employment.

He submitted that he had not received the required statements of the terms of his employment within the time limits set out in the Act. A statement under Section 3(1A) of the Act was required to be given to him not later than five days after the commencement of his employment and the statement required by Section 3 (1) not later than two months after the commencement of his employment.

The Respondent submitted that the Claimant had attended training at the commencement of his employment and that, on 8^thApril 2019, an e-mail had issued to him which contained his contract of employment. The Respondent submitted that the issuance of the e-mail on that date met the requirements of the Act. It contended that the content of the attachment to the e-mail had been drawn up by other personnel of the Respondent and forwarded by Mr Quinn to the Claimant on the 8^thApril.

The Law

The Act at Section 3 in relevant part provides as follows:

• 3.(1) 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 of the terms of the employee's employment,…

  (1A) 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:…

Discussion

The Respondent contends that the Claimant was issued with an e-mail containing his contract of employment to the e-mail address supplied to him by the Respondent on 8^thApril 2019. The parties however agreed before the Court that the Claimant was not supplied with the technology required to access the Respondent’s e-mail system until 16^thApril 2019. The parties also agreed that, as a consequence, the Claimant had no means of accessing the e-mail system of the Respondent until that date.

It is a plain fact therefore that, by the Respondent’s own account, the Appellant could not have received the e-mail until 16^thApril. In those circumstances it is clear, without prejudice to the contention of the Appellant that no e-mail issued to him on 8^thApril 2019, that the statement requiring to be issued to the Claimant no later than five days after the commencement of his employment could not, as a matter of fact, have been received by him within the time period laid down in the statute. In those circumstances the Court must find that the Respondent was in breach of the Act at Section 3(1A) in that the statement required by the Act was not given to the Claimant in the five days after the commencement of his employment.

The obligation to give or cause to be given to him, no later than two months after the commencement of his employment, a written statement of the terms of the Appellant’s employment as set out in the Act at Section 3(1) is an obligation resting solely upon the Respondent. The Respondent submitted that it had issued such a statement by e-mail to the Appellant on 8^thApril 2019.

The obligation under the Act is for one party to give or cause to be given a statement to another party. It is axiomatic that the act of one party giving a statement inherently involves the receipt of that statement by the other party. The Respondent was unable to provide the Court with a record or any acknowledgement from the Appellant that he had received the statement alleged to have been given to him on 8^thApril. The Appellant denies that any such e-mail was ever received by him prior to October 2019 following the termination of his employment.

In all of the circumstances, having regard to the burden of proof resting upon the Respondent, the Court finds, on the balance of probability, that the Respondent has failed to discharge the burden resting upon it. In those circumstances the Court concludes that the Respondent was in breach of the Act at Section 3(1) as alleged by the Appellant.

Determination

The Court determines that the Respondent was in breach of the Act at Sections 3(1) and 3(1A) and that the complaint, as a result, is well founded. The Court orders the Respondent to pay the sum of €1,980 in compensation to the Appellant, being the amount which the Court considers just and equitable having regard to all of the circumstances.

The decision of the Adjudication Officer is set aside.

	Signed on behalf of the Labour Court
	Kevin Foley
H.M.	______________________
15/10/2020	Chairman