TED219

1.An appeal of an Adjudication Officer's Decision No.ADJ-00029119 CA- 00038840-011

The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, under the Terms of Employment (Information) Act 1994 after he left this employment on the basis that he had not received a contract of employment while working for the Respondent.

The Respondent did not deny that the Complainant had not received a contract but argued that he had suffered no detriment as a consequence.

The Adjudication Officer, ‘AO’, decided that the claim was well founded and awarded compensation of €1000 to be paid to the Complainant.

The Respondent appealed this Decision to this Court.

Summary of Respondent arguments.

It is accepted that the Complainant was not given an employment contract. However, he suffered no detriment as a consequence and was treated very well.

When the Complainant’s parents re-located, he had nowhere to live. He was allowed to stay rent free in a mobile home on the Respondent’s property. He ate dinner with the Respondent owners every evening and was brought to a restaurant once a week.

The Complainant was given every opportunity to learn the business of stud farming. He received private lessons to enable him to become a competent horse rider. He was provided with tickets to race meetings and was introduced to relevant people in the industry. He was encouraged to join the Irish Thoroughbred Breeders’ Association and was facilitated to take part in organised events. He was brought to functions.

The Complainant was facilitated with an introduction to Ireland’s foremost expert in grassland management and he was assisted in gaining acceptance to the University of Aberystwyth as an extra mural student.

Summary of Complainant arguments

The Complainant never received a contract of employment despite being promised one.

The Complainant never received health and safety or manual training, he was never provided with time sheets, he was never given an employee handbook or a copy of a bullying and harassment policy and he only received six pay slips in his entire time working for the Respondent.

A WRC investigation found the Respondent to be non compliant in all of these areas.

The Complainant became ill due to excessive working hours and a poor working environment.

The Complainant was required to come back to the Respondent’s premises even when out visiting friends in order to feed and water the horses. He received no additional pay for this.

The Complainant worked on average over 50 hours per week, for which he received no extra payment.

The Complainant was unable to have his issues addressed when he raised them.

The Complainant was required to do farrier work for which he was not trained, resulting in damage to his back.

During foaling, the Complainant was required to be present late at night and did not get the statutory breaks to which he was entitled.

The Complainant started work every day at 7am and worked up to 5.30pm or 6pm with less than an hour of breaks in total during the day.

The applicable law

Terms of Employment (Information) Act 1994

Written statement of terms of employment.

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, 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,

(g)

(ga) that the employee may, undersection 23of 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.

7. (2) A decision of an adjudication officer undersection 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention ofsections 3,4,5,6or6Cshall 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 undersection 3,4,5,6or6C, 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 changesection 3,4,5, or6, and without prejudice to any order made underparagraph (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 undersection 17of theUnfair Dismissals Act 1977.

(e) in relation to a complaint of a contravention undersection 6C, and without prejudice to any order made underparagraph (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 undersection 17of theUnfair Dismissals Act 1977.

Decision of Labour Court on appeal from decision referred to in section 7

8. — A decision of the Labour Court undersection 44of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to insection 7, shall affirm, vary or set aside the decision of the adjudication officer.

Deliberation

The Respondent has accepted that a contract was not provided to the Complainant. The Respondent drew the attention of the Court to case law where the Court had found that, although the terms of the Act had been breached, a complainant had suffered no detriment and no award of compensation was made.

The Court accepts that there were commendable aspects of the Respondent’s approach to the employment of the Complainant.

However, equally, no argument was put to the Court to refute many of the claims made by the Complainant.

That being so, the Court accepts that compensation should be paid by the Respondent for its failure to provide a contract which could have offered protections to the Complainant in respect of the matters which led to his complaint.

The Court concurs with the AO in determining that this compensatory amount should be set at €1000.

Determination

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
CC	______________________
21 April, 2021.	Deputy Chairman