Complainant

Respondent

Parties

Seval  Pekoz

Firgrove Service Station Ltd

Representatives

 Appeared in Person  

Tommy Smyth ,Tom Smyth & Associates

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-00035827-001

23/04/2020

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

I explained the changes which had followed Zalewski v Adjudication Officer and Ors [2021] IESC and both parties expressed satisfaction with proceeding with the factual case at hearing.

On 23 April 2020, the Complainant, a Turkish National and Lay Litigant submitted a claim that she had not received a statement in writing on her terms of employment, which spanned 4 March 2018 to 1 January 2020.

Prior to hearing, the Complainant had made an approach to the WRC to seek to augment her claim and was advised that it was not possible to augment the claim prior to hearing.

The Complainant was accompanied by her Partner at hearing.

The Complainant undertook to provide details on the Ankara Agreement and Revenue, which she referred to at hearing.

The Respondent operates several businesses and was represented by Tom Smyth and Associates. He filed a written submission in the case and attached details on statements on terms of employment relied on at his business. The claim was rejected.

The complainant outlined that she commenced work as a Food Assistant on 3 March 2018, working approximately on average 6 hours per week. She received her first payment on 16 March 2018.

At the outset of the hearing, the Complainant sought to augment her complaint to incorporate a complaint of unfair dismissal, which had not been mentioned on the form. The Complainant accepted that she had contacted the WRC on the day before the scheduled hearing and had been advised that this was not possible. She confirmed that she understood that the decision in this case would flow from the terms of Section 3 of the Terms of Employment (Information) Act, 1994.

 The Complainant inquired on her right of appeal on the instant case and was informed that her right of appeal lay with the Labour Court. She agreed to proceed on that basis. The Complaint has not been augmented. It is a sole complaint case.

The Complainant outlined that she had experienced an unsatisfactory employment experience at the respondent business. She explained that her employment and resultant flexibility was associated with the Ankara Agreement. When I explained I was unaware of this Agreement, she undertook to furnish details post hearing. I also requested some clarity on the start date, which the complainant undertook to secure through Revenue. I also sought details on the weekly wage.

The Complainant confirmed that her stamp 1 status permitted her to work

The Complainant submitted that she had not signed a contract during her employment. She explained that the lack of this foundation document caused her much uncertainty and unnecessary changes during her employment .She contended that she was vulnerable, due to her Visa and was  treated less favourably than other workers at the business .The Complainant submitted that she had requested a contract from two of her Managers in addition to the Proprietor , but was unsuccessful .she had also requested additional hours to work.

Payments received ranged from 2018 rate of €9-55- €9.80, 2019 -€10 .00 per hour in 2019. She also experienced difficulties with holiday pay.

The Complainant outlined that she had travelled to her home country on medical grounds when she learned from a second-hand source that her place of work had closed in January 2020.

By way of a post hearing submission, the complainant submitted an application dated 26 March 2019, for continued permission to work in the Country / GNIB card, made on her behalf by a group of Solicitors to the Authorities at the Dept of Justice Immigration Division.

This letter referred to the connection made by the complainant who came to Ireland as a Student and who then made the transition to the workforce. She confirmed at hearing, that she had continued in the Irish workforce to the present day. the Complainants right to work in this Country has not been disputed, but I understand the points made by the complainant regarding longevity of work tenure and the association with the Ankara Agreement through the case law of the CJEU. Court of Justice of the European Union, in terms of her pursuance of continuum.

Of note and mentioned in the body of the letter is a reference to a letter sent from the Respondent in support of the application to remain in Irish Workforce where the complainants start date was catalogued as April 3, 2021.The Complainant also submitted a Revenue print off her earnings.

The Respondent representative outlined that he operated several fuel and retail businesses. the Complainant was placed in a work location, which suited her home base.

He outlined that the Complainant had been furnished with a Contract of Employment as she started with the Company. This had not been made available at hearing as the original copy signed by the complainant was not to hand.

The Representative confirmed that the Company has a clear practice as part of induction to issue a contract to employees and the complainant was provided with a contract. He submitted a redacted contract of employment by means of example of a contract issued to another employee dated 28 April 2018.

The Proprietor addressed the hearing and confirmed that he ran a Family Business, where the long running practice was to issue contracts to new starters. He explained that he carried a high personal administrative workload and he could not recollect handing the complainant a contract which reflected the terms of employment.

In his review of the contract of employment attributed to the complainant. He confirmed the commencement date of employment as 10 March 2018 and the date of issue of the terms of employment as 18 June 2018.

He also confirmed holidays were paid at 8% of time worked. The Respondent disputed that the Complainant had pursued a request for the statement of terms of employment.

By means of a post hearing submission, the Respondent confirmed that the Complainant received an average gross pay of €327.88 per week.

I have been requested to decide on the claim lodged on 23 April 2020. This is a claim concerning a submitted contravention in Section 3 of the Terms of Employment (Information) Act, 1994. I have explained the limits of my jurisdiction in accordance with section 7 to the complainant.

I am satisfied that a claim for unfair dismissal is not before me. The WRC had already addressed that matter with the complainant prior to hearing.

It is material to the case that the complainant has approached the circumstances of the case against a certain amount of vulnerability. I appreciate that she has travelled from Turkey as a student and has since made a successful transition into the Irish Workforce in which she continues today.

The issue before me is that the complainant submitted that she had not received a statement in writing of her terms and conditions of employment within the first two months of her employment. I accept that her commencement date was 3 March 2018. This is further supported by the reaffirmation of that date in the application for the GNIB card in March 2019

There had been some ambiguity in relation to the complainants start date at the respondent business. The date is relevant to help me identify the correct start point for 2-month notification period provided for in Section 3 should apply.

  Section 3-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—

( a)  [ … ]

( b)  [ … ]

( 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,

( f)  [ … ]

 ( 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, 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.

Section 3 of the Act places a mandatory onus on the Employer to provide a signed and dated statement of terms of employment within 2 months of commencement of employment. I appreciate that provision may take many guises via handbooks, contracts, and other recognised sources of information.

In this case, the complainant is clear that she did not receive such a document. The Respondent is clear that all employees receive these statements and the complainant would not have been treated differently. He did qualify this by adding that he manged his own administration and this was arduous.

For my part, I reviewed the pro-offered copy of the terms of employment issued to the Complainant by the Respondent. I had some difficulties with this document as the date of issue referred to 18 June 2018. It did not reflect the start date of 3 March 2018.Instaed, it mentioned a commencement date of March 10.

At any rate, 18 June 2018 issue date, over shot the obligation to issue the statement of terms within 2 months as that 2 months elapsed by my calculations on 2 May 2018.I also noted that the exhibited contract referred to a duplicated letter which inferred consent to a staff handbook and company policies. I was not provided with a copy of a staff handbook.

Neither party was able to confirm that a signed document on behalf of the Respondent had issued prior to 18 June 2018. I accept the complainant’s evidence that she was not provided with the mandatory document.  Therefore, I find that a continuous breach of Section 3 of the Act ran once the two-month notification period had elapsed on 2 May 2018 until the cessation of the complainant’s employment in this case

I find her claim is well founded.

I would like to add a supplementary comment here. For a newly arrived, and first time, Turkish employee, a statement of terms of employment is a very useful document as it provides a pathway of baseline rules and records for employment. It is also beneficial to an Employer, who is meant to retain this document for 1-year post issue.

I accept that the Respondent supported the complainant’s continuation of employment in terms of the GNIB application, however, I have found an omission at the commencement of employment, which was not corrected. The Complainant was adamant that she had some difficulties securing resolution to workplace difficulties. A timely issue of the terms of employment may have mitigated this effect, or at the very least provided some “equality of arms “in that regard.

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 that I decide in relation to the complaint in accordance with Section 3 of that Act.

I have found the claim to be well founded as a continuous breach of Section 3 of the Act. The employment in this case has ceased, therefore, compensation is the sole remedy open to me.

I order the Respondent to pay the complainant €655.76 as compensation in respect of the contravention. This amounts to two weeks gross pay.

It would be advisable for the Respondent to actively consider offering translated statements within the notification period.

Terms of Employment during 2-month notification period