Complainant

Respondent

Anonymised Parties

Lead Health Worker

Health Services Provider

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-00039107-001

10/08/2020

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

CA-00039107-003

10/08/2020

The Complainant worked as Clinical Lead employee with the Respondent from 11 November 2019 to 24 Nov 2019. He was paid a gross sum of €2541.66, net €2165 for that period. The Complainant claims that he has not received a statement of his core terms of employment within 5 days of commencement of employment nor a statement of his more detailed terms of employment contrary to section 3 of the Terms of Employment (Information) Act 1994, as amended, (The Act).

Preliminary Issue (1)- Service Requirement:

The Respondent submits that the Complainant does not have the required service regarding his two complaints under section 2 of the Act, in that the Complainant has less than one month’s service with the Respondent. The Respondent asserts that he commenced employment on 11 November 2019 and finished his employment on 24 November 2019, which is only 2 weeks service.

Preliminary Issue (2): Time Limit.

The Respondent submits that the Complainant engaged a solicitor firm from which the Respondent received correspondence. The Respondent was in correspondence with this firm through the Respondent’s assigned solicitor, however the Respondent submits it was informed on the 28th April 2020 from the Complainant’s solicitor that they were no longer representing him and that the letter was sent directly to the Complainant.

The Respondent submits the Complainant would have had over three months between November 2019 and March 2020 to lodge his claim before the country was placed in its first lockdown. The Complainant also had legal representative who could have submitted   a claim on his behalf. The Respondent submits that as the Complainant was receiving legal advice, the Complainant should have been mindful of the time limits for taking such a claim.

The Complainant submits that the Adjudication Officer does not have jurisdiction to hear the case on the two counts submitted above.

Substantive Issue:

The Respondent submitted no evidence of having furnished a written statement of terms under section both section 3(1) and (1A) of the Act.

Preliminary Issue (1): Service Requirement:

The Complainant submits that he had 4 insurance weeks on his payslip and submits that this would meet the one-month service requirement.

Preliminary Issue (2): Time Limits:

The Complainant submits that he requested that the Respondent provide him with its legal representative firm details at regular intervals within the timeframe but with none was forthcoming. The Complainant submits that he was uncertain as to his legal rights regarding non-production of an employment contract and on review of emails he noted that the HR director had a written plan to provide him with a contract prior to taking up the role. The Complainant submits that the absence of this contract was a contributory factor to his planned resignation and subsequent dismissal.

The Respondent submits that as a health worker he had been very busy working with a health agency in various parts of Ireland and cited this previously in correspondence to the Workplace Relations Commission as a reason for delay in submitting the Complaint.

Substantive Issue CA-00039107-001, CA-00039107-002:

The Complainant submits that he did not receive his written terms of employment nor his core terms of employment contrary to sections 3(1)   and 3(1A) respectively, of the Act.  

Preliminary Issue (1) – Service Requirement:

The applicable provisions of the Terms of Employment (information) Act 1994, as amended provide:

Section 2 Exclusions:

(1) This Act, other than section 3(1A), shall not apply to employment in which the employee has been in the continuous service of the employer for less than 1 month.

Section 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.

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

 (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…

Section 2 of the Act states that at (1) This Act, other than section 3(1A), shall not apply to employment in which the employee has been in the continuous service of the employer for less than 1 month. The Complainant submits two complaints; one under section 3(1) and another under section 3(1A). It is clear that the Act does not apply to the complaint under section 3(1) but does apply to the complaint under section 3(1)(A). However, when section 7(1A) states that an employee must have a service requirement of 1-month continuous service for him/her to present a claim under the Act. The Complainant did not have one month’s continuous employment service with Respondent therefore I find that I do not have the jurisdiction to hear the Complaints under the Act.  

Preliminary Issue (2) Time Limits:

Section 41 of the Workplace Relations 2015 Act provides that an employee may present a complaint to the Director General of the Workplace Relations Commission (WRC) that his/her employer has contravened ss.3, 4, 5, 6, or 6C of the Act. Any such complaint should be presented to the Director General before the expiration of the six months period beginning on the date of contravention to which the complaint relates. In this instance the date of contravention would have been six months from the Complainant’s date of termination which was 24 November 2019. Six months from that date was 24 May 2020. However, the complaint was received at the WRC on 10 August 2020.    

Section 41(8) of the Workplace Relations Act 2015 Act, however, permits an extension of up to six months if the failure to present the complaint within the original six months period “was due to reasonable cause”. The Complainant in this case submits that the Respondent’s failure to give him its legal firm contact details, his own lack of knowledge with regard to his employment rights and the fact that he was a health worker who was very busy and had no time to submit the complaint in time, should in totality be considered as reasonable cause for not submitting his claim on time.  The power to extend the time limit was fully considered by the Labour Court in Cementation Skanska v Carroll DWT 38/2003. It was 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 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 within 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.”

On the issue of a complainant pleading that he did not know what the time limits were, I refer to the Labour Court Determination in Globe Technical Services Limited v Kristin Miller UD1824. In that case the complainant argued her lack of knowledge on time limits for submitting a claim was based on the fact she was not a resident in this jurisdiction and was therefore unfamiliar with the processes.  The Court stated:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

According to the decision of the Labour Court in Cementation Skanska the explanation must be reasonable and make sense and that the failure to present the case within the six-month period must be due to the reasonable cause relied on. The Complainant had been receiving legal advice in regard to issues related to his employment during the period relied upon and it does not make sense that he would have not been aware of his legal rights. Furthermore, in the Labour Court in Globe Technical Services Limited made clear the point that ignorance of one’s legal rights is no defence. I do not doubt that the Complainant’s case that he was busy working for a number of months, but I cannot accept that fact as plausible reason as to why he wasn’t attentive to the fact that he had six months in which to lodge his complaint. I therefore find that the Complainant has not established a reasonable cause for an extension of the time period to 12 months for submission of his complaint therefore I find that the complaints are out of time.

In conclusion, I find in favour of the Respondent on both preliminary points raised and I conclude that I do not have jurisdiction to hear the complaints in  under section 7 the Minimum Notice and Terms of Employment (Information) Act 1994.

CA-00039107: Complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act 1994 – Alleged Contravention of section 3(1) of the Act:

I find that the I do not have jurisdiction to hear this complaint on two grounds (1) That the Complainant does not have the requisite one month’s service to pursue a claim under section 3(1) and (2) that the Complaint is out of time.

CA-0039107: Complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act 1994 – Alleged Contravention of section 3(1A) of the Act:

I find that the I do not have jurisdiction to hear this complaint on two grounds (1) That the Complainant does not have the requisite one month’s service to pursue a claim under section 3(1A) and (2) that the Complaint is out of time.

Terms of Employment (Information) Act 1994, Time Limits, Continuous Service.