Complainant

Respondent

Anonymised Parties

Kitchen Porter

Pizza Company

Representatives

none 

 none

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-00035108-004

09/03/2020

The Complainant commenced employment with the Respondent as a kitchen porter on 28 November 2019 until 09 February 2020. His wage was €387.52 gross: net €360 for a 36-hour week. The Complainant submits that he did not receive his written core terms of employment within the time period directed under section 3 (1) and (1A) of the Terms of Employment (Information) Act 1994, as amended. The Respondent accepts that the Complainant did not receive his terms and conditions as per the provisions of the Act

The Complainant submits that he regularly looked for his terms and conditions of employment from the operations manager at his place of employment but that this was never forthcoming. This caused problem with regards to his responsibilities and the line of communication with management.

The Respondent accepts that the Complainant did not receive a written statement of his terms and conditions of employment. This situation arose because at the time the Respondent was going through a transitionary period regarding the human resources management functions, and the appointment of a new operations manager.

The Applicable Law:

The Terms of Employment (Information) Act, 1994, as amended (the Act) require that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment. The relevant law is found at section 3 of the Terms of Employment (Information) Act, 1994, as amended, (The Act) where the pertinent sections provide as follows:

(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 …

(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…

… (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…

Furthermore, redress in the Act is described as follows at Section 7(2):

A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 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, 6or 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 change 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 17of the Unfair Dismissals Act 1977.

The evidence of both parties in this case does not conflict and I find that the complaint is well founded. The Respondent breached both the requirement to give a written statement of core terms within 5 days under section 3(1A) of the Act and to give more specific terms within 2 months under section 3(1) of the Act. The sole matter to decide is the compensation sum (if any) to be awarded under section 7(2) of the Act. I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.3 “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied. Having heard all the evidence in this case I am of the belief that the infringement by the Respondent did create an inconvenience but did not create hardship to the extent that the full compensatory limit under section 7(2) should be reached. I therefore order that the Respondent pay the Complainant the compensatory sum of €387.52, representing one week’s remuneration. which I consider to be a just and equitable sum having regard to all the circumstances of the case.

CA-00035108: Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision on this complaint. I find that the complaint is well founded, and I order the Respondent to pay the Complainant compensation of €387.52, representing one week’s remuneration.

Terms of Employment (Information) Act 1994