Complainant

Respondent

Anonymised Parties

A Laboratory Technician

A Laboratory

Representatives

none 

none 

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-00038983-001

31/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00038983-002

31/07/2020

The Complainant commenced his employment with the Respondent on 14th October 2019. His employment was terminated on 14th February 2020. He was paid €423.07 gross weekly and worked 37.5 hours.

The Complainant referred his complaint to the Director General of the WRC on 31st July 2020.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

Summary of Complainant’s Case:

The Complainant submits that he did not make a claim under the Minimum Notice and Terms of Employment Act, 1973 in his WRC Complaint Form.  The Complainant submits that in the WRC Complain Form he noted that he did not receive written notice of the termination of his employment and he would like to introduce this new claim.

Summary of Respondent’s Case:

The Respondent did not object to the introduction of the new claim under the Minimum Notice and Terms of Employment Act, 1973.

Findings and Conclusions:

The Complainant did not include a specific complaint in respect of the Minimum Notice and Terms of Employment Act, 1973 in his WRC Complaint Form. However, he briefly addressed the matter in the statement relating to the Terms of Employment (Information) Act, 1994. Both parties agreed that the claim can be introduced.

In considering the introduction of a new claim I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan[2009] IEHC 370 in which McGovern J. held as follows at paragraph 6.2 :- “I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

I further note that in his judgement in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated:- “It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.”

It is clear from the jurisprudence that a complainant is not precluded from amending his or her original claim so long as the general nature of the complaint remains the same. 

In the present case, this new claim which the Complainant sought to introduce at the hearing had been referred to in advance of the hearing in the Complaint Form. I am thus satisfied that the Respondent was on notice of the claim. In addition, and for the avoidance of doubt, I am also satisfied that the Respondent did not object to the introduction of the claim.

I am satisfied, given all of the circumstances of the present case, that I do have jurisdiction to permit the introduction of a new claim.

The Complainant submits as follows:

He did not receive his contract of employment with his terms and conditions of employment before starting work with the Respondent. He enquired about this on his first day of work and was told that it was “fine”, and the HR Manager would be down next week with it. The next week the HR Manager was in the office the Complainant was located at, but he had left the contract on his desk in another location. It was not until approximately three weeks into the job that the Complainant received his terms and conditions of employment through email. The Complainant then received a follow-up email from the HR Manager to the effect of ‘it is normal practice to acknowledge an email like this once you have received it’. The Complainant replied, ‘I hereby acknowledge the eventual receipt of my contract’, showing that he had expressed his concern and requested it numerous times beforehand. He claims that he replied to the email with his contract confirming that he received his terms of employment, but he was not asked to say that he had read and accepted the terms. Prior to this email, the Complainant claims that he had not even been issued with a statement of five core terms as set out in the Employment (Miscellaneous Provisions) Act 2018. The contract was never signed and dated by either party despite verbal requests from the Complainant to do so.

The HR Manager on behalf of the Respondent conceded that the Complainant did not receive his written contract immediately. He submitted that at the commencement of his employment the Complainant was assured by his line manager that the HR Manager (who is based in the Respondent’s other location and works part-time) would deliver the contract at his next visit. The HR Manager submitted that the idea was that the contract would be discussed and signed at the next meeting with the Complainant. He noted that it is a standard procedure to have the contracts issued and signed.

The HR Manger confirmed that he forgot the contract on his first visit to the Complainant’s location and forwarded the document by email on 1st November 2019. He noted that the lack of signature was an oversight. The HR Manager said that he had met with the Complainant on many occasions and the Complainant never brought this to his attention.

The Respondent exhibited the following documentary evidence of the interactions with the Complainant:

·       The Line Manager’s contemporaneous report of an incident with the Complainant on 6th November 2019;

·       First official PMDS report of 11th November 2019 (meeting scheduled early due to complaints by and about the Complainant- ordinarily done after 3 months);

·       Lab Manager’s report of an incident on 12th December 2019;

·       Line Manager’s contemporaneous report of an incident on 12th December 2019;

·       Line Manager’s contemporaneous report of an incident on 3rd January 2020;

·       Email from the Line Manager to the HR Manager asking for assistance in respect of her difficulties with the Complainant dated 31st January 2020;

·       PMDS report of 5th February 2020;

·       Report from the Line Manager dated 24th November 2021

Evidence of the Line Manager

The Complainant’s Line Manager noted that the Complainant asked her a lot of questions in relation to his contract. She advised him that she had no role in that regard and advised him to contact HR, she referred him to the HR Manager and the Managing Director.

The Law

Terms of Employment (Information) Act, 1994

3. Written statement of terms of employment

(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, that is to say—

(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,

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

(e) the date of commencement of the employee's contract of employment,

(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,

(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,

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

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

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

(k) any terms or conditions relating to—

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

(ii) pensions and pension schemes,

(l) 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,

(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.

(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:

(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 National Minimum Wage 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.

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs, (h), (i), (j), (k) and (l) of the said subsection (1) may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer.

7. Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

(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 section 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,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6 or 6C, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under section 3, 4, 5 or 6, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The evidence of both parties in this case does not conflict.

The Complainant commenced his employment with the Respondent on 14th October 2019. On 1st November 2019, some 18 days after the Complainant commenced his employment with the Respondent, the HR Manager furnished the Complainant with a detailed Contract of Employment. There was no dispute that the document was issued by email and was not signed by the Respondent as required by section 3(4) of the Act.

I note that the document stated as follows:

“If you are agreeable to accepting the above on the conditions stated in this contract combined with the staff handbook and company policies and procedures, please confirm your acceptance on the duplicate of this contract and return it to us immediately, one signed copy is kept by the employee and the other copy is kept by the company”.

The Complainant reverted to the Respondent confirming the receipt of the contract. In his acknowledgement email he did not raise the issue of the lack of a signature, neither did he sign a copy of the contract and returned to the Respondent. While the Complainant raised the matter of not being given his contract in a timely manner during his PMDS meeting on 11th November 2019, he did not raise the matter of the lack of a signature on this occasion either. I note that in the period from November 2019 to February 2020 the interactions between the Parties were clearly centered around the Complainant’s performance management and the recurring incidents with his Line Manager, which culminated in the Complainant’s dismissal.

The HR Manager gave credible, clear and cogent evidence as regards the provision of the written statement to the Complainant and the reason for the statement not being signed.

Having considered all of the evidence before me, I find that the Respondent did not comply with the requirement to give the Complainant a written statement of core terms within 5 days under section 3(1A) of the Act and did not comply with Section 3(4) of the Act requiring the document to be signed and dated by or on behalf of the Respondent.

In assessing whether to award compensation, account must be taken as to whether the failure to comply with the requirements of Section 3 relates to matters that have a “practical significance” for the claimant. (Irish Water v Hall TED 1/2016).

Having considered all the evidence in the within case I am of the belief that infringement by the Respondent did not create an inconvenience nor did it cause any detriment to the Complainant. Taking into consideration the comprehensive contract, albeit issued electronically and not signed, provided to the Complainant some 18 days after commencement of employment, I am not convinced that the transgression by the Respondent in this instance is at the severe end of the scale.

I find that the complaint is well founded, and I order the Respondent to pay the Complainant €423.07 which I consider to be a just and equitable sum having regard to all of the circumstances of the case.

I declare this complaint well founded and I order the Respondent to pay the Complainant €423.07 in compensation.  

The Complainant submits that he did not receive written notice of termination of his employment.

The Respondent conceded that the Complainant was not given his notice in writing.

The Respondent provided a record of the meeting during which the Complainant was dismissed and submitted that due to the circumstances the Complainant was not given written notice.

The Minimum Notice and Terms of Employment Act, 1973 does not list the requirements ‘notice’ must comply with except from the period of notice.

In the Supreme Court case Bolands Ltd (In Receivership) v Josephine Ward and Others [1988] ILRM 382 Henchy J. held:

“As I have pointed out, the Act is silent as to the form of the notice of termination. The Act is concerned only with the period referred to in the notice, and it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in the notice.”

There was no dispute between the parties that the Compliant received his notice, albeit the notice was not given in writing. Therefore, I decide that this complaint not well founded.

I decide that the complaint pursuant to the Minimum Notice and Terms of Employment Act, 1973 is not well founded.

Terms of employment- minimum notice- written notice