Complainant

Respondent

Parties

Gary  Cunningham

Odbc Consultants Ltd  t/a Elite Stocktaking

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Act

Complaint/Dispute 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-00044315-001

25/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044315-002

25/05/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant commenced employment was employed by the respondent between 28 September and the end of November 2020.  Both parties agreed that the complainant was paid at a rate of €30,000 p.a.

Both the respondent and the complainant gave evidence under affirmation and although the witness who attended the hearing took the affirmation, his evidence was not taken as he was not present at the meeting of 19 November 2020 upon which the complaints turned.

The complainant submitted that he was not provided with a written copy of his core terms and conditions of employment.  He also submitted that he was not provided with a written copy of his terms and conditional of employment at any stage although he submitted that he was given a copy of his contract of employment at a meeting on 19 November 2020, he was not allowed to retain the copy of the contract.

The respondent submitted that complainant was provided with a written contract at a meeting which took place on 19 November 2020 and took a copy of this away with him for consideration.

CA-00044315-001 – Core Terms

The respondent submitted that he gave the complainant his contract of employment on 19 November 2020, seven and a half weeks after he started employment and confirmed in oral evidence that he gave the complainant no information in writing before that time.

Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(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.

As the respondent has confirmed that it has not complied with the provisions of this section of the Act, I find that this element of the complaint is well founded.

CA-00044315-002 – Terms in Writing

The respondent submitted that he gave the complainant his contract of employment on 19 November 2020, seven and a half weeks after he started employment and confirmed in oral evidence that he gave the complainant no information in writing before that time.

The complainant submitted in evidence that although he was given his contract of employment to look over at the meeting of 19 November 2020, he was not given a copy to keep.  The respondent insisted in his evidence that the complainant was given a copy of his contract to take away to consider.  He also noted that the complainants account in relation to receiving these terms has varied in each of the three submission that he has given to date.

Section 3 of the Terms of Employment (information) Act, 1994 states that:-

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, 

F9 [ (g) [ … ]

(ga) that the employee may, under section 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.

Having considered both the evidence put forward by the complainant and the respondent, and on balance I prefer the respondents account of what transpired at the meeting of 19 November 2020.  In coming to this conclusion, I am mindful that the complainants account of when and whether he received any terms and conditions of employment has changed over the course of his submissions while the respondent’s statements have remained consistent.  I am also mindful that the respondent proffered evidence which detracted from his position with regard to Section 3(1A) of the Act, without any prompting or questioning. Accordingly, I find that the respondent has complied with the provisions of Section 3(1) and that this element of the complaint is not well founded.

CA-00044315-001 – Core Terms

Having regard to the written and oral submission in regard to this complaint, my decision is that this element of the complaint is well founded and I award the complainant one weeks remuneration (i.e. €576.92) which I consider just and equitable having regard to all the circumstances of this complaint.

CA-00044315-002 – Terms in Writing

Having regard to the written and oral submission in regard to this complaint, my decision is that this element of the complaint is not well founded.

Balance of evidence, differing oral accounts, contract of employment.