Complainant

Respondent

Parties

Denise  Ryan

Smart School Accounting Limited T/A Smart School Accounting

Representatives

Cathal Mooney, John Battles & Co.

Ray Ryan, HR Hub

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-00040288-001

07/10/2020

The Complainant commenced her relevant employment for the Respondent in January 2018. She received her contract of employment in September 2019. She resigned her position on 15th April 2020.

The Complainant referred her complaint to the Director General of the WRC on 7th October 2020 alleging that she did not receive a statement in writing on her terms of employment within the two month time period prescribed by Section 3 of the Act.

The Complainant submits as follows:

The Complainant had previously worked for the Respondent but left the company on or about December 2015 to take up a different role. The Complainant had subsequently sought to change jobs and was offered a position with the Respondent working in sales and as Office Manager. The Complainant worked 21 hours per week.

The Complainant submits that she did not receive a written statement of the terms and conditions of her employment until she received a contract dated 2nd September 2019. The contract states that the Complainant’s employment commences on 1st January 2018. However, the Complainant argues that she did not actually commence her role until 29th January 2018.

The Complainant submits that Section 3 of the Act makes it very clear that “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 employee’s employment…”. The Complainant argues that the Respondent has not complied with the legislation.

Furthermore, the Complainant submits that on 22nd May 2019, the Respondent emailed the HR adviser stating: “can you issue a contract for Denise [Complainant]”. The Complainant argues that is it clear that even at that point she had not received a written statement of the terms and conditions of employment.

The Complainant resigned her position on 15th April 2020.

In relation to the preliminary point raised by the Respondent, the Complainant’s representative referred to Section 7(3) of the original Terms of Employment (Information) Act, 1994 as enacted by the Oireachtas:

“(3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the period of 6 months beginning on the date of termination of the employment concerned.”

The Complainant’s representative argued that the Complainant terminated her employment on 15th April 2020 and her claim was lodged on 7th October 2020 and therefore within the 6 months’ time limit as outlined above. The Complainant’s representative alleged that, given the provision of the original legislation, the claim was submitted within the prescribed time limit. Alternatively, the Complainant’s representative argued that there is a serious flaw in the WRC complaint referral form, which allowed for the submission of the claim under the Terms of Employment (Information) Act, 1994.

The Complainant’s representative was given some time to consider the matter and following a short recess he noted that the Complainant is not precluded from submitting her claim as per Section 7(1)(A) as she has been in the continuous service of the Respondent for more than 1 month. 

The Respondent submits as follows:

In accordance with Section 41(6) and 41(8) of the Workplace Relations Act, 2015 this complaint cannot proceed as it was not lodged within 12 months of the last date of the alleged contravention.

The Respondent submits that the Complainant’s employment commenced on 1st January 2018. The Complainant was issued with both a paper and an electronic copy of her written Terms and Conditions of Employment on 16th September 2019 which the Complainant signed both physically and electronically. As the Complainant received her written Terms of Employment on 16th September 2019, more than 12 months prior to the Complainant lodging her complainant to the WRC on 7th October 2020, the Respondent argues that the claim is out of time and should not proceed.

The Respondent submits that the Workplace Relations Act provides that a complaint under the Act must be referred to the WRC within six months of the alleged contravention of the legislation. The date on which a complaint is referred is the date the complaint is received by the WRC. If a complaint is not within the time limit an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the complainant has demonstrated reasonable cause for the delay. An Adjudication Officer has no power to extend the time limit beyond 12 months.

Substantive matter

The Respondent submits that it is a small business employing 12 people providing payroll and accounting services to national schools. It was set up as a sole trader business in 2012, as the business grew slowly in or around October 2013 the position of sales executive was advertised. The Complainant applied for the role and, prior to starting, the Complainant requested that she work as a self-employed consultant and not as an employee, invoicing for her services, which was agreed to. The Complainant’s arrangement was very flexible i.e., she worked around her own schedule. This worked very well for both parties as the business was at a start-up stage. The Respondent was aware that the Complainant was furthering her education and there was a mutual agreement between them that it was a short-term arrangement until she got a more suitable job.

In October 2014, the Complainant began a more permanent position with the Respondent and was registered as an employee. In December 2015, the Complainant left for another job. She left on very amicable terms. In September 2016, the Complainant returned. The arrangement was very flexible i.e., when it was busy, she would help out. She invoiced the Respondent for the hours she worked.

On 10th January 2017, the Respondent emailed the Complainant offering to regularise her employment by making her an employee and asking whether she wanted to continue invoicing her services. In February 2017, the Complainant requested a more permanent role and was re-employed as an employee. In June 2017, the Complainant left for more suitable job, again on very amicable terms, offering to return in September, if needed. In December 2017, the Complainant requested to return to work for the Respondent. At this stage the business was in the process of setting up as a limited company and the Respondent said that it would be delighted to have her.

Prior to, and at the start of, the Complainant’s employment in January 2018 (December 2017 to September 2019), numerous emails were exchanged between the parties clearly setting out, in writing, offer and acceptance of the terms and conditions of the Complainant’s employment. The parties agreed:

·       Salary/rate of pay

·       Days of work

·       Hours of work

·       Annual leave

·       Public holiday pay

·       Sick pay

·       Place of work

·       Start date

·       Name of the employer

·       Name of the employee

The Respondent argues that emails exhibited at the hearing evidenced that there was constant communication throughout the Complainant’s employment between the parties regarding her terms and conditions of employment. The Respondent submits that the Complainant was therefore provided with her written terms of employment within 2 months of her start date in January 2018.

In January 2018 the parties agreed that the Complainant’s new role would be to assist with management of the office. This work included working with the new HR advisor and assisting with the introduction of a new HR platform used to issue employees’ contracts and handbooks. The Complainant knew the Respondent was issuing contracts to employees with the use of the platform but did not raise any concerns around her own contract at this or any other point in time during her employment.

In September 2019, the Complainant’s role changed and an amended contract was issued in September 2019. This contract clearly states her start date as January 2018. The Complainant received and signed both a physical and digital copy of her written terms and conditions on 16th September 2019.

The Complainant terminated her employment on 15th April 2020.

In conclusion, the Respondent submits that the Respondent issued clear written terms of employment to the Complainant by way of emails prior to and within 2 months of the Complainant starting date of January 2018 as evidenced in the numerous emails between the parties. The Complainant received and signed her amended contract on 16th September 2019. Any alleged breach of the Act was put right on 16th September 2019. This claim was lodged on 7th October 2020, which is more than the 12 months limit allowed as set out in the Workplace Relations Act. At no time during the Complainant’s employment did she raise a grievance regarding the provision of written terms of employment, nor has she demonstrated that she suffered any loss as a result of the alleged breach.

Preliminary matter: time limit

Section 3 of the Terms of Employment (Information) Act, 1994 (the Act) provides as follows:

3. Written statement of terms of employment

(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.

There was no dispute between the parties that the Complainant started her employment with the Respondent in January 2018. While there was some confusion whether it was 1st January 2018 (as per the signed contract and the Complainant’s WRC complaint referral form) or 29th January 2018 (as per the Complainant’s written submission), given the timeline of events in the within case, the exact date is of no major relevance.

There was no dispute that the Complainant was issued with her written statement of terms and conditions of employment, which she signed on 16th September 2019.

Section 7 of the Act provides:

7. Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

(1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4, 5 or 6, if the employer concerned has—

(a) complied with a direction under section 6A given in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015 or

(b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

(1A) An employee shall not be entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of section 3(1A)—

(a) unless the employee has been in the continuous service of the employer for more than 1 month, or

(b) if the employer concerned has been prosecuted for an offence under this Act in relation to the same contravention.

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

Section 41 of the Workplace Relations Act, 2015 Act provides that an employee may present a complaint to the Director General of the Workplace Relations Commission that his/her employer has contravened Section 3 of the Terms of Employment (Information) Act, 1994 before the expiration of the six months period beginning on the date of contravention to which the complaint relates:

“(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.”

Subsection (8) provides that:

“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.”

The Complainant’s representative confirmed that he relied upon the provision of Section 7 of the Terms of Employment (Information) Act, 1994 which, prior to its amendment by the Workplace Relations Act, 2015 permitted a complaint to be made within six months from the date of termination of employment.

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 a statement. The contravention of Section 3 of the Act is a subsisting and a continuing contravention as long as after the initial two month period the employee remains an employee not in possession of a statement. If no statement was provided at any stage during the employment relationship, and this came to an end, the employee could refer a complaint within six months from the last day of their employment. However, once a statement was provided during the period of employment, the time limit for submitting of the complaint is determined from the day the statement was issued to the employee.

There was no dispute in the within case that the Complainant was provided with a written statement of her terms of employment on 16th September 2019. Therefore, the six-month time limit to refer the complaint to the Director General of the WRC expired on 15th March 2020. In order for the Complainant to avail of the extension of time from six to twelve months in accordance with the provision of Subsection 8 of Section 41, it must be established that the claim for redress was initiated within such a period not exceeding twelve months from the date of the alleged contravention. In circumstances where the Complainant was provided with the written statement of her terms of employment on 16th September 2019, I am satisfied that the twelve-month period commencing on this date ends on 15th September 2020. Therefore, as the instant complaint was referred to the Director General of the WRC on 7th October 2020, it is also clearly outside the extended period of twelve months as provided by the Workplace Relations Act.

I find that the complaint has not been referred to the Director General of the WRC within the time limits provided for in Section 41 of the Workplace Relations Act. Accordingly, I have no jurisdiction to inquire into the complaint.

Time limit – terms of employment- no jurisdiction-