Complainant

Respondent

Anonymised Parties

Cleaning Manager / Letting Agent

A property management company

Representatives

Daniel Snihur Independent Workers Union

 Company management

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-00034601-001

12/02/2020

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

CA-00034601-002

12/02/2020

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

CA-00034601-003

12/02/2020

The Complainant commenced employment on 15th May 2005.

In 2008 the Complainant’s employment transferred to the Respondent. This transfer was under the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003. S.I.131 / 2003.

The Complainant worked 30 hours per week and was paid €15 per hour.

This complaint was received by the Workplace Relations Commission on 12th February 2020.

The complaint was heard by way of remote hearing on 5th February 2021.

The complaint submitted under section 27 of the Organisation of Working Time At, 1997 was withdrawn at hearing due to the Complainant still being in the employment of the Respondent.

The Complainant contends that she never received a statement of the particulars of employment (a contract) in the years of her employment. The Complainant further contends throughout her period of employment her role changed many times and she received no written notifications of these changes.

The Respondent has employed the Complainant for circa 12 years and during this period the Respondent has treated the Complainant very fairly and always ensured that she received salary increases throughout the worst financial crisis experienced in this country (2008). The Respondent also points out that the Complainant had the personal use of a company vehicle during weekends.

The Complainant commenced employment via a transfer of undertakings when the Respondent company commenced the contracts of another service provider. Through this transfer the Complainants terms and conditions of employment were protected, the Respondent honoured these terms and conditions.

Prior to 2019 there were no issues between the Complainant and her employer. When the Complainant commenced a lengthy period of medically certified absence from work the Respondent company suffered financially.

The contract of employment.

In 11 years, the Complainant has never made an issue in allegedly not having a contract of employment when all other employees had contracts of employment.

The Complainant is aware that the Respondent is not, due to Covid travel restrictions, in a position to access files with the staff employment contracts.

The general manager who was responsible for staff contracts resigned in 2019.

The employment contract will detail the Complainant’s job description. Job descriptions were reviewed and updated on an ongoing basis.

Change of role.

The Complainant would detail her job description on an ongoing basis. By comparing these various job descriptions one can see that there has been no change in her role.

The Respondent presented summary job descriptions for 2019 and 2017.

The legislation on this subject is very clear and is not open to any level of interpretation.

It is custom and practice in Ireland that when a transfer of employment takes place between employers via EC (Protection of Employees on Transfer of Undertakings) Regulations 2003. S.I.131 / 2003 the transferring employee continues under the existing terms and conditions of employment. The original employer should have issued the statement of particulars of employment, in the instant case the original employer failed to do this. This failure transferred to the Respondent at the time of the transfer.

Section 3 (1) of the above referenced Act reads as follows:

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)      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, 1963 ),

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)        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,

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

g)      the rate or method of calculation of the employee's remuneration,

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000 requests    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.

Section 5 of the said Act states:

5.(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by the 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

Section 7 of the Act states:

7.-(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3, 4, 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.

Section 7 (2) of the same Act states:

7(2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

(a)    Declare that the complaint was or, as the case may be, was not well founded,

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all 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.

CA – 00034601 – 001.

No statement of particulars of employment were issued to the Complainant. The complaint is well founded.

CA – 00034601 – 002.

No notification of change was issued in relation to the statement of particulars of employment. The complaint is well founded.

I now order the Respondent to pay compensation of two weeks pay for each of the breaches listed above, a total of four weeks’ pay that I calculate to be €1,800.

This payment should be made to the Complainant within 42 days from the date of this decision.

Terms of Employment (Information) Act, 1994.