Complainant

Respondent

Anonymised Parties

A Claimant

A Solicitor

Representatives

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-00040765-007

03/11/2020

The Complainant worked as a Legal Secretary with the Respondent from 21st June 2019 until 13th March 2020. The Complainant worked 14 hours per week at an hourly rate of €15 gross. 

The Complainant submits that she did not receive a statement in writing of her terms and conditions as required under section 3 of the Terms and Conditions of Employment (Information) Act, 1994.

The Respondent did not attend that adjudication hearing.  I am satisfied that the Respondent was properly on notice of the date, time and location of the hearing.

The Complainant has referred a complaint under Section 7 of the Terms of Employment (Information) Act, 1994 in which she has alleged a contravention of Section 3 of the Act.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“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 …”

Preliminary Issue – Time limits

The time limits for submitting claims to the Workplace Relations Commission under the Terms of Employment (Information) Act 1994 are set out in Section 41 of the Workplace Relations Act 2015.

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

“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.”

If a complaint is not submitted within six months of the alleged contravention, 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 in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2105:

“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 established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination Cementation Skanska v Carroll DWT 38/2003.

“It is the Court’s view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The Complainant’s employment with the Respondent was due to finish on 30th April 2020.  However, she was laid off on 13th March 2020 due to the Covid-19 pandemic.  Given the complete absence of official communication of any sort from the Respondent, the Complainant was unclear when her employment with the Respondent actually ended. The Complainant’s complaint form was received by the WRC on 3rd November 2020. 

From the time of her dismissal until she submitted her complaint to the WRC, the Complainant made repeated efforts to contact the Respondent in relation to outstanding employment issues including the fact that her employment with the Respondent had not been registered with the Revenue Commissioners. 

The Respondent did not address the outstanding issues relating to the Complainant’s employment nor did it regularise the Complainant’s situation with the Revenue Commissioners.  The Respondent was not forthcoming in its dealings with the Complainant and never gave her any indication that her issues would not be addressed. 

The Complainant sought the assistance of the Revenue Commissioners but they were unable to assist her as their Compliance Unit could not contact the Respondent.

With the uncertainty as to her actual termination date, together with the complete absence of official communication from the Respondent, and the fact that her employment was never registered with the Revenue Commissioners, it is understandable that the Complainant was confused about her actual termination date. 

Accordingly, I find that the Complainant has satisfactorily demonstrated cause which prevented her from submitting her complaint within the statutory time frame of 6 months and is sufficient to allow me to grant her an extension of that period. 

Based on the uncontested evidence of the Complainant, I find that the Respondent has breached Section 3 of the Terms of Employment (Information) Act, 1994 and that this complaint is well founded.

I find that this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €840 in respect of the contravention being the equivalent of approximately four weeks’ pay, the maximum permitted under the Act, which I consider to be fair and reasonable in all the circumstances of the complaint.

No statement of terms and conditions issued to Complainant