Complainant

Respondent

Anonymised Parties

Finance Sales Manager

Car Dealership

Representatives

James Lawless BL instructed by  Tim Kennelly Solicitors

Fiona Egan  Peninsula

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-00038656-001

10/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00038656-002

10/07/2020

The complainant is employed as the Finance Sales Manager of the respondent.  He commenced employment on 03 January 2017.  He is paid €30,000 gross per year plus commission.  The working hours included on the complaint form are 46 hours per week.  The complainant claims he did not receive a statement in writing of his terms of employment and that his terms and conditions were unilaterally changed by the respondent.  His second claim is that he regularly worked between 50 and 60 hours per week.  The respondent refutes the complaints.

CA-00038656-01

Complainant submitted under Section 7 of the Terms of Employment (Information) Act, 1994.

The complainant commenced employment with the respondent on 03 January 2017.

The complainant claims that the respondent failed to provide a written contract of employment at any stage between commencing employment in January 2017 and June 2019.  Further, he claims that no employee handbook, grievance procedure, or other supporting documentation were provided to him at any stage prior to him seeking out same in June 2020.  To date he has not been provided with a copy of an employee handbook.

The complainant alleges that the respondent unilaterally, without consultation or agreement, varied his remuneration by altering the commission structure thereby removing a substantial component of his wages.

When the complainant commenced employment, he was involved in sales of used vehicles and in writing new business for the finance element of the sales process.  He also acted as general manager of the overall dealership.  He was paid a basic salary of €35,000 per annum plus commission of 10% on the first €10.000 of sales and 15% on the balance of sales across all new finance business.  His total income in 2018 was €89,587 and €95,484 in 2019. 

In June 2019 the complainant states he was told his remuneration structure was to be revised downwards and if he did not accept the reduction he would be made redundant.  The complainant submits that he was effectively coerced into signing an agreement whereby his basic salary would be reduced to €25,000 per annum plus a new commission structure of 7% on total finance commission raised through finance profit of new business within the finance section of the dealership.  The complainant signed the new terms and conditions document on 25 June 2019.  A representation was made to the complainant by the owner of the respondent company on or around the time of entering into the June 2019 arrangement, that the reduction in commission was temporary and would be reversed within the near future, once trading conditions improved.

The terms and conditions document entered on 25 June 2019 was the first written contract of any kind entered, signed seen by or provided to the complainant by the respondent since he commenced employment in January 2017.  The complainant was never provided with an employee handbook, a grievance procedure or any related documentation advising how to progress disputes.

In November 2019 the complainant was informed of a further change to his remuneration.  His basic salary was increased from €25,000 to €30,000 per annum.  His commission rate was increased from 7% to 7.7% on total finance commission achieved.  The complainant was not notified of this change in writing.

On 11 March 2020 the complainant was asked to attend a meeting with management to discuss his sales performance.  The complainant was informed that a new commission structure would be put in place whereby both the complainant and an assistant, who had been recruited in December 2019, would both receive individual sales commission based upon new business that they personally wrote.  This represented a material and negative, change to the complainant’s pay structure where he had previously received a commission based upon overall section sales and not just upon his own personal sales. 

In Spring 2020 the complainant repeatedly requested guidance from the respondent about internal procedures to process a grievance about the proposed change to the commission structure.  After repeated requests the respondent provided a one page grievance procedure document.  The complainant was at that time on sick leave suffering from stress.  He was told that any grievances could be discussed on his return to work.  The complainant was never provided with an employee handbook.

The complainant submits that the respondent breached its obligations under the Terms of Employment (Information) Act, 1994 by failing to provide any written contract to him for the first two and a half years of his employment, failing to provide an employee handbook at any stage, and by only producing a grievance procedure after a dispute had arisen and after the complainant had to repeatedly seek out same, including by engaging independent legal advice.  Further, that his terms and conditions were unilaterally changed and only communicated to him orally.

CA-00038656-002

Complaint submitted under Section 27 of the Organisation of Working Time Act, 1997.

The complainant claims that he regularly worked more than 48 hours per week.

The complainant states that for a period, at least February 2018 to February 2019, he was required to continuously work twelve hours per day, six days per week.  When the complainant ceased holding the position of general manager in February 2019 he was required to work approximately 57 hours per week, without breaks.  He submits the hours he was required to work were grossly in excess of the maximum permitted under legislation.

The complainant submits that the respondent breached its obligations under the Organisation of Working Time Act, 1997 by allowing a situation where he, over a sustained period, worked hours in excess of the maximum periods permitted.

CA-00038656-01

Complainant submitted under Section 7 of the Terms of Employment (Information) Act, 1994.

The respondent asserts that the complainant commenced employment on 03 January 2017 and was issued with a contract of employment on 15 June 2017.

In 2019 the respondent issued an updated contract of employment with an employee handbook to the complainant, which he signed on 25 June 2019.  The respondent submits that the statement of main terms of employment issued to the complainant must be read in conjunction with the company employee handbook.

The respondent submits that the complainant was issued with extensive documentation which detailed his essential terms and conditions of employment.  The said documentation was broadly complaint with the requirements of the Act and was certainly compliant with the spirit of the Act.

The respondent submits that where any breach of the Act is technical or minor in nature fairness dictates that such a breach could not justify an award of compensation to the complainant.  The respondent relies on the decision of the High Court in Petraitis v Philmic Limited T/A Premier Linen Services TED1616 to support the submission that a complainant may be awarded zero compensation, notwithstanding a finding that there was a breach of the Act. 

The respondent referred to the decision of the Labour Court in Irish Water v Hall TED161, submitting that elements of that decision are applicable to the present proceedings.  In the context of that decision the respondent asserts that the complainant signed the statement which was provided to him, at no stage since receiving the statement did he request further or better particulars on any matter pertaining to his employment and if he had sought such particulars they would have been provided by the respondent.  The respondent further submits that there is a grievance procedure in place and at no stage did the complainant seek to exhaust these procedures in order to address concerns he may have had in respect of his terms and conditions of employment, prior to the amendment being made.

The respondent does not deny that an amendment was made to the complainant’s contract of employment.  The respondent contends that it was within its rights to do so further to the contract of employment signed and accepted by the complainant on 25 June 2019.  As per the terms of the contract the respondent gave the complainant 90 days’ notice of the proposed change to the commission structure.  This matter was addressed via a grievance hearing and appeal hearing whereby on both occasions the complainant’s claim was unsubstantiated.

CA-00038656-002

Complaint submitted under Section 27 of the Organisation of Working Time Act, 1997.

The respondent refutes, in its entirety, the complainant’s claim that he was compelled to work more than 48 hours per week contrary to Section 27 of the Act.  The respondent asserts that no member of staff is expected or requested to work hours in addition to their contracted hours.

The respondent submits that in compliance with Section 27 (4) of the Act a complainant must be brought within 6 months of the date of the contravention to which the complaint relates.  The complainant submitted his complaint on 10 July 2020.  Therefore, the relevant period for this complainant is 10 January 2020 to 16 March 2020, when the complainant was put on temporary layoff, due the COVID-19 health restrictions.  The complainant returned to work on 25 May 2020 and went on sick leave on 02 June 2020.  There was no application to extend the 6 months to 12 months under Section 27 (5).  The respondent submits that the complainant has failed to particularise his complaint in any way and failed to identify an alleged timeframe with respect to same.

The general manager would attest that he never saw the complainant working additional hours and he regularly saw him leaving promptly at the end of his shift.

CA-00038656-01

Complainant submitted under Section 7 of the Terms of Employment (Information) Act, 1994.

The complainant commenced employment with the respondent on 03 January 2017 as a Sales Executive.  He was later promoted to Sales Manager, then Finance Sales Manager, a post he currently holds.  At one period in his employment he was also the General Manager of the dealership.  The complainant has been on sick leave, suffering from stress, since 02 June 2020.  His complainants are that he did not receive a statement in writing of his terms and conditions of employment and that the respondent unilaterally changed his terms and conditions without notice in writing.

The complainant in his evidence stated that when he commenced employment with the respondent in 2017 he was not given a statement of his terms and conditions.  In mid-2017 he suggested that contracts, for all the employees, should be formalised.  The respondent engaged an external HR person and draft contracts were prepared but no contracts materialised or were issued.

The complainant stated that the only contract he received was provided to him in June 2019.  The contract included changes to his terms of employment including a reduction in basic salary from €35,000 to €25,000 p.a. and a reduction in the rate of commission from 10/15% to 7%.  The contract refers to an employee handbook, but he claims he was not provided with such handbook.  As far as he knew the handbook did not exist.  The complainant signed the document as he felt he was given no option but to accept the changes.

 In November 2019 the complainant’s salary and commission were changed again.  As and from 01 December 2019 the complainant’s basic salary was increased to €30,000 and his commission rate to 7.7%.  The commission was based on total finance commission achieved.  The November 2019 changes to the complainant’s terms and conditions were not given to him in writing.  Around the same time discussions took place about recruiting an assistant into the finance department.  It was intended that new finance business could be conducted seven days a week.  The new assistant reported to the complainant and was paid a lower commission rate. 

At a meeting on 11 March 2020 with the General Manager and the Sales Manager the complainant was told of a further change to the commission structure.  This was five days before the temporary layoff due to the COVID-19 health restrictions.  The respondent was of the view that the complainant’s commission contribution and performance had disimproved significantly in the first quarter.  The proposed change was to pay 7.7% on the finance commission the complainant wrote as opposed to the total finance commission achieved.  This change would result in a significant reduction of the complainant’s total earnings.  The complainant stated that he had not expected such a change.

 In response to a question from the respondent’s representative the complainant stated that he was aware that the commission rate could change but he only expected it to go up as the owner had indicated to him in June 2019 that the company would grow.  He had not taken heed of the 90 day clause. 

The complainant stated that after the 11 March 2020 meeting he had to ask about the company grievance procedure as he had not been provided with a copy and was never given an employee handbook.  He did eventually receive one page document setting out the grievance procedure.  The complainant submitted a grievance on 26 May 2020.  The complainant’s grievance, concerning the change to his commission structure, was heard by an external consultant as was the appeal.  His complaints were not upheld.  The appeal hearing report was issued on 01 December 2020.

The General Manager of the respondent gave evidence.  He stated that he was employed as an accounts administrator in mid-September 2019, promoted to Office Manager in May 2020 and is now the General Manager.  On 11 March 2020 he along with the Sales Manager met with the complainant to review the performance in the previous quarter.  As the expected targets had not been achieved they made the decision to amend the complainant’s commission scheme giving him 90 days’ notice of the change.  The change to be introduced on 11 June 2020 was that the complainant’s commission would be 7.7% of the commission he wrote as opposed to 7.7% of the total finance commission achieved.

The General Manager stated that when he was first employed in September 2019 it was part of his brief to ensure employees had access to the employee handbook.  He stated he had told employees the handbook was in the accounts office, in a lever arch file, beside the photocopier.  He could not comment on anything that occurred before September 2019.   He stated that when the complainant had asked for guidance about the grievance procedure he had responded but he did not mean to imply that the complainant had to return to work before his grievance was dealt with.  At the time he had responded he expected the complainant to be back in work within thirty days.  He acknowledged that he had received correspondence from the complainant’s solicitor.  The respondent then took independent advice and appointed an external consultant to investigate the grievance.

Legislation

The stated purpose of the Act is to provide for the implementation of Directive NO. 91/533/EEC OF 14 October 1991 of the Council of the European Communities on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship.  Section 3 of the Act, as amended, requires the following of the employer:

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.

The requirement on the employer is to provide the employee with a statement, in writing, of all the above, within two months after the commencement of employment.  The complainant was very clear in his evidence that he did not receive such a statement until June 2019. 

The respondent in its written submission asserts that the complainant was issued with a contract of employment on 15 June 2017.  However, the respondent could only provide an undated and unsigned document that had blank spaces for date of commencement and remuneration.  Section 3(5) of the Act provides:

A copy of a statement furnished under this sectionshall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

Having considered the evidence of the complainant and the document produced by the respondent, I am satisfied that the respondent did not provide a written statement, as required by the legislation, within two months of the commencement of employment in 2017. 

The complainant accepted that in June 2019 he was provided with a statement of his main terms of employment.  The complainant contends that he felt coerced into signing this document as he felt his job was under threat.  The complainant accepted he signed the document on 25 June 2019. 

Time Limit for Complaints

The Workplace Relations Act, 2015 at Sections 41 (6) and (8) provides the following in relation to the time for submitting complaints:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) ,,,

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

However, the Terms of Employment (Information) Act, transposes Directive 91/533/EC and Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time within the employment relationship. 

It is now well established that reading Section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.  See An Animal Carer v A Charity ADJ-00009820, An Employee v A Company ADJ-00012491, and A Doctor v A Public Service Provider ADJ-00003277. 

Taking note of the above decisions it is clear that the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of Section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with the required statement.  The contravention of Section 3 is a subsisting contravention.  If no statement is provided to the employee during the employment relationship and the relationship comes to an end, the employee may refer a complaint to the WRC within six months of the last day of contravention, that is the last day of employment.  If, as in this case, the employee is given a statement during their employment they have six months to refer a complainant from the day the contravention ends, that is the date the statement is provided to the employee.

I have found that the complainant was not provided with a statement of his terms of employment in 2017.  He was however provided with a statement of his terms of employment on 25 June 2019, which he signed.  The provision of that statement, which complied with the requirements of Section 3, ended the contravention of Section 3.  A complaint could have been referred within six months after the date the statement was provided.  The complainant did not refer his complaint to the WRC until 10 July 2020, over twelve months after he received the statement.  In compliance with the provisions of Section 41 (6) of the Act of 2015 I am not permitted to entertain this complaint as it was referred after the expiration of 6 months from the date of contravention.

The complainant also claims that his terms and conditions were unilaterally changed by his employer and that the changes were communicated to him orally.  Section 5 of the Act provides:

Notification of changes.

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

       (a) 1 month after the change takes effect,

From the written and oral submissions, it is clear that the complainant’s terms were changed on three occasions.  The first change took place in June 2019 and changes were set out in the statement of terms of employment that the complainant signed on 25 June 2019. 

The second change was communicated orally to the complainant in November 2019 and was effective from 01 December 2019.  The complainant did not refer a complainant to the WRC until 10 July 2020, outside the six month time limit for a complaint about this change. 

The third change was communicated to the complainant orally at a meeting on 11 March 2020.  A document headed “Amendment to Statement of Main Terms of Employment”, dated 27 March 2020, was sent to the complainant by e-mail on 17 April 2020.  The changes to the commission structure were to take effect in 90 days, as provided in the statement of 26 June 2019.  I am satisfied that this change was notified to the complainant, in writing, in advance of the change being implemented and was therefore compliant with the provisions of Section 5 of the Act.  The complaint in respect of a breach of Section 5 of the Act is not well founded.

CA-00038656-002

Complaint submitted under Section 27 of the Organisation of Working Time Act, 1997.

The complainant in his submission stated that for a period from February 2018 to February 2019 he was required to work shifts from 8am to 8pm, six days per week.  This equated to 72 hours per week.  After he ceased to hold the General Manager role in February 2019, he states he worked an average of 57 hours per week.  In addition, the complainant stated that in April 2018 he worked 30 days consecutively.

The complainant in his evidence stated that he frequently had to work extra hours at home to complete finance documents for the bank.  He stated he worked 8am to 8pm on a regular basis without a break, taking his lunch at his desk.  More recently he worked 9.30am to 7pm Monday to Friday and 9am to 5pm on Saturday.  In response a question the complainant stated that he was working two roles until February 2019.  His hours reduced to 9.30am to 7pm between February and December 2019.  An assistant was recruited in December 2019.

The respondent refutes the allegation that the complainant was required to work excessive hours.  The respondent asserts that no member of staff is expected or required to work hours more than their contracted hours of work.  The complainant’s contracted hours of work are 42.5 hours per week.  The General Manager of the respondent in his evidence stated that he worked in the same building as the complainant and he saw him every day.  He stated that he saw the complainant in the morning and in the evening each day and that the complainant was not the last person on site every day. 

The complainant submits that the respondent breached its obligations under the Act by allowing a situation where the complainant over sustained period worked hours far more than the permitted maximum periods.

The responded in its submission provided a list of hours it contends that the complainant worked from January 2017 to March 2020.  In the period from November 2019 to March 2020 the respondent states the complainant worked as follows:

Monday to Thursday either 08.30am to 4.30pm or 10.30am to 6.30pm

Friday either 08.30am to 4pm or 09.30 to 5pm

Saturday 10am to 4pm

Every other Sunday 10am to 4pm

The respondent stated the complainant worked 39.75 hours approximately per week.  Section 25 of the Organisation of Working Time Act imposes a duty on the employer to keep records.  This statement is not the usual form of record required by the legislation.  However, the document and the oral evidence of the General Manager are consistent in the view that the complainant did not work more than 48 hour per week in the period relevant to the complaint.

Section 41(6) of the Workplace Relations Act, 2015 provides:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complainant submitted his complaint to the Workplace Relations Commission on 10 July 2020.  The cognisable period is therefore 11 January to 10 July 2020.  Due to the restrictions arising from the COVID-19 pandemic the complainant was on temporary lay off from 16 March to 25 May 2020.  He returned to work on 25 May 2020 and went on sick leave on 02 June 2020.  He had not returned to work to the date of the hearing.  The cognisable work period is therefore 11 January to 16 March 2020 and 25 May to 02 June 2020. 

The complaint’s written submission and oral evidence regarding excessive hours worked focussed on the period from February 2018 to February 2019.  That time is outside the cognisable period and cannot be adjudicated upon by me.  The complainant made a general statement about excessive hours in 2019 and again that is outside the cognisable period. 

Both parties sated an assistant was recruited to the complainant’s department in December 2019. The complainant did not give specific evidence of working more than 48 hours per week in the period from 11 January to 16 March 2020 or from 25 May to 02 June 2020.  Taking note that there was an assistant working in the complainant’s department from December 2019 and the evidence of the General Manager I am satisfied, on the balance of probabilities, that the complainant did not work more than 48 hours per week in the cognisable period.  I find the complainant is not well founded.

CA-00038656-01

Complainant submitted under Section 7 of the Terms of Employment (Information) Act, 1994.

Complaint of a breach of section 3 of the Act by failing to provide a statement in writing of the terms of employment.

I am satisfied that the complainant was not provided with a statement of his terms of employment in 2017.  He was however provided with a statement of his terms of employment on 25 June 2019, which he signed.  The provision of that statement, which complied with the requirements of Section 3, ended the contravention of Section 3.  A complaint could have been referred within six months of the date the statement was provided, 25 June 2019.  The complainant did not refer his complaint to the WRC until 10 July 2020, over twelve months after he received the statement.  In compliance with the provisions of Section 41 (6) of the Act of 2015 I am not permitted to entertain this complaint as it was referred after the expiration of 6 months from the date of the contravention.

Complaint of a breach of section 5 of the Act by failing to notify the employee in writing of a change to his terms of employment.

The complainant’s terms were changed on three occasions.  The first change took place in June 2019 and the changes were set out in the statement of terms of employment that the complainant signed on 25 June 2019. 

The second change was communicated orally to the complainant in November 2019 and was effective from 01 December 2019.  The complainant did not refer a complainant to the WRC until 10 July 2020, outside the six month time limit for a complaint about this change. 

The third change was communicated to the complainant orally at a meeting on 11 March 2020.  A document headed “Amendment to Statement of Main Terms of Employment”, dated 27 March 2020, was sent to the complainant by e-mail on 17 April 2020.  The changes to the commission structure were to take effect in 90 days, as provided in the statement of 26 June 2019.  I am satisfied that this change was notified to the complainant, in writing, in advance of the change being implemented and was therefore compliant with the provisions of Section 5 of the Act.  The complaint in respect of a breach of Section 5 of the Act is not well founded.

CA-00038656-002

Complaint submitted under Section 27 of the Organisation of Working Time Act, 1997.

The complaint’s written submission and oral evidence regarding excessive hours worked focussed on the period from February 2018 to February 2019.  That time is outside the cognisable period and cannot be adjudicated upon by me.  The complainant made a general statement about excessive hours in 2019 and again that is outside the cognisable period. 

The complainant did not give specific evidence of working more than 48 hours per week in the period from 11 January to 16 March 2020 or from 25 May to 02 June 2020.  Taking note that there was an assistant working in the complainant’s department from December 2019 and the evidence of the General Manager I am satisfied, on the balance of probabilities, that the complainant did not work more than 48 hours per week in the cognisable period.  I find the complainant is not well founded.

Terms of Employment

Failure to provide written statement of terms of employment

Failure to notify in writing changes in terms of employment

Working Time

Woking over 48 hours per week