Complainant

Respondent

Anonymised Parties

HR & Payroll Manager

Contract Cleaning Company

Representatives

  Self

Helen Quinn  

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-00036234-004

14/05/2020

The complainant commenced employment as HR & Payroll Manager of the respondent company on 03 February 2020.  She claims that she did not receive a statement in writing of her terms of employment.  Because of an issue arising concerning the processing of the wage subsidy scheme the complainant resigned on 23 April 2020.  The complainant worked 20 hours per week and her gross monthly pay was €1916.66.  She submitted her complaint to the Workplace Relations Commission on 14 May 2020.

The complainant applied for the position of HR & Payroll Manager with the respondent company through a recruitment website advertisement.  She was interviewed on 21 January 2020 and was offered the position, by telephone call, on 23 January 2020.  She also received a message through the recruitment website offering her the position.  The message included the start date, working times and salary.

The complainant started her employment on 03 February 2020.  She worked 09.30 to 13.30 Monday to Friday.  She was not provided with a contract of employment or a copy of an employee handbook.  She did not receive a written statement of her terms of employment within two months of commencing her employment.

At a meeting with the Managing Director on 07 February 2020 the complainant asked about her contract of employment.  The Managing Director was to look after the contract.

The complainant requested a change in her working hours on 02 March 2020.  The change was agreed, and she asked if the new hours would be included in her contract.  Again, the Managing Director was to look after the contract, including the revised working hours.

Following the announcement of the Covid-19 lockdown the complainant was given a company laptop and told to work from home.  She had to use her private telephone if she needed to contact the Managing Director or the company accountant.  She processed the monthly payroll and bi-weekly payrolls using the wage subsidy scheme, without issues.

On 23 April 2020 an issue arose about the processing of the wage subsidy scheme.  The Managing Director spoke with the complainant and the company accountant about the issue.  The complainant tried to explain the issue.  The complainant received a telephone call from the Managing Director advising that another member of staff would call to her house to collect her work laptop.  The complainant was shocked and felt she had no option but to resign.  She did not have a company handbook, so she was unable to check the company’s grievance procedure.

The complainant claims she was entitled to a contract of employment and a copy of the employee handbook.  She was working for the respondent for six weeks before the pandemic was declared so it has no baring on this situation.  The complainant claims that the failure of the respondent to provide her with a contract of employment is a breach of employment law.

The respondent is a contract cleaning company providing clearing services to its clients.  The complainant was recruited as HR and Payroll Manager for the respondent in January 2020.  She reported to the Managing Director and worked 20 hours per week.  The job offer was issued by e-mail on 24 January 2020.  The e-mail included the job title, hours of work, salary and start date of 03 February 2020.  The complainant was given a copy of the full job description which outlined her responsibility for all aspects of the HR function and processing payroll for all staff on a bi-weekly and monthly basis.  The complainant could avail herself of the support of the external company accountant if any issues arose with the payroll.

Due to the government public health measures, arising from the Covid-19 pandemic, the complainant was required to work from home from 16 March 2020.  She was supplied with a company laptop.  During March and April the complainant processed the payrolls as normal until the Temporary Wage Subsidy Scheme (TWSS) came into operation. 

In the payroll ending 19 April 2020 the complainant made an error and applied the TWSS to the employees who were still working their normal hours.  The error needed to be rectified as quickly as possible.  The Managing Director and the complainant exchanged e-mails and phone calls.  The complainant expressed the view that the error could not be fixed for that payroll week.  The external company accountant advised that, although it would be complicated to amend it, the error could be fixed that week.  To fix the error, the company accountant needed the company laptop that was in the possession of the complainant.  The Managing Director arranged for the collection of the laptop from the complainant.  In reply the complainant stated the laptop was ready for collection and she was resigning with immediate effect on 23 April 2020.

The respondent acknowledges that the complainant did not receive the full terms of her employment in writing within the statutory time limit as contained in Section 3 of the Terms of Employment (Information) Act, 1994.  However, this was a genuine oversight, largely due to the impact of the Covid-19 pandemic and the complainant had received the basic terms in her job offer e-mail.

The respondent contends that the complainant, as HR & Payroll Manager, had access to the Company Handbook, including the grievance procedure. 

The respondent contends that the complainant did not suffer a detriment because of not receiving her contract of employment.  The respondent relies on the Labour Court decision in Grant Engineering v Denis Delaney TED1728 to support the view that where no detriment is suffered the breach of Section 3 of the Act had no practical effect on or consequence for the complainant. 

The respondent submits that the complainant knew her terms of employment, she did not suffer a detriment due to the oversight of the respondent in not providing a statement in compliance with Section 3 of the Act and there were mitigating factors that led to the oversight.

CA-00036234

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

The Act provides the following concerning the statement of terms of employment:

Section 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 complainant in her evidence stated that she had not been provided with a statement of her terms of employment.  She stated that she asked about her contract of employment on 07 February 2020 and again in the week beginning 02 March 2020.  The Managing Director on each occasion indicated she would look after the contract.  No contract or statement of terms of employment was provided. 

On 23 April 2020 the Managing Director called the complainant about the processing of the wage subsidy scheme.  There was a lack of communication about which employees the Managing Director wanted to put on the wage subsidy scheme.  The complainant stated she tried to explain but the Managing Director said she would call the accountant and then call back.  Moments later the Managing Director called back to say a member of staff would call to the complainant’s house to collect her work laptop.  The complainant was shocked at this and felt she had no option but to resign.  She stated that if she had been given a contract of employment she would have known the grievance procedure and might not have had to resign.  She stated she was entitled to a contract of employment.

The respondent acknowledged that the complainant was not provided with a statement of her terms of employment in compliance with Section 3 of the Act.  The Managing Director gave evidence of the difficulties being experienced in early 2020 due to the COVID-19 pandemic.  There was a lot of anxiety and the respondent had to respond quickly to the impact of the pandemic on their business.  Due to these unusual circumstances the issues of the statement of terms of employment was an oversight.  She did not recall the complainant asking her for a contract.

From 16 March 2020 the complainant was required to work from home due to the government public health restrictions.  She was provided with a company laptop.  During March and April 2020, the complainant processed the payroll as normal until the Temporary Wage Subsidy Scheme (TWSS) came into operation. 

When the TWSS was being implemented some errors occurred that resulted in some staff being overpaid and some underpaid.  The Managing Director was anxious to have the errors rectified as quickly as possible.  On 23 April 2020, following phone conversations and e-mails between the Managing Director, the complainant and the external accountant it was decided that the external accountant could rectify the errors.  However, to do so the company laptop being used by the complainant was required.  The Managing Director arranged to have the laptop collected from the complainant.  The complainant, by e-mail, advised the Managing Director that the laptop was ready for collection and that she was resigning with immediate effect.

The respondent acknowledged the statement of terms of employment was not provided to the complainant. 

I accept the statement of the Managing Director that when an issue arose over the implementation of the TWSS she was anxious to have the matter rectified as quickly as possible.  She acted quickly to retrieve the company laptop and send it to the accountant to rectify the payroll issue. 

The complainant also acted quickly by tendering her resignation by e-mail, time dated 10.50, 23 April 2020.  The complainant stated that if she had received a contract of employment she would have known the grievance procedure and might not have had to resign.  I do not find this statement credible for the following reasons:  the complainant was the HR & Payroll Manager, in that role, she should have had some knowledge of the internal grievance procedure.  Even if she genuinely did not have knowledge of the grievance procedure she made no attempt to find out what the grievance procedure was before submitting her resignation.  I am satisfied the complainant acted hastily in submitting her resignation.  The respondent is not responsible for the complainant’s hasty decision.

I find that the complainant’s claim is well founded as she did not receive a statement of the terms of her employment as provided for in Section 3 of the Act.  I am satisfied that the failure to issue the statement was an oversight due to the unusual business pressures arising from the pandemic.  Having regard to all the circumstances, I consider it just and equitable to order the respondent to pay to the complainant compensation of €200.00.  That being approximately two day’s pay.

CA-00036234

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

I find that the complainant’s claim is well founded as she did not receive a statement of the terms of her employment as provided for in Section 3 of the Act. 

I am satisfied that the failure to issue the statement was an oversight due to the unusual business pressures arising from the pandemic.  Having regard to all the circumstances, I consider it just and equitable to order the respondent to pay to the complainant compensation of €200.00.  That being approximately two day’s pay.

Statement of Terms of Employment