Complainant

Respondent

Parties

Catherine  Moore

Skyframe Facades Ltd

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-00041350-001

01/12/2020

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

CA-00041350-003

01/12/2020

The Complainant has been employed as an Accounts Manager by the Respondent since 1st January 2015.  The Complainant works a 39 hour week and is paid €865.38 gross per week.  The Complainant has submitted complaints under the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act, 1997.

The Complainant submits that she has been employed by the Respondent since 1st January 2015 and only received a statement of her terms of employment when she informed the Respondent that she would be contacting the WRC. 

The Complainant submits that the statement which was issued to her is incorrect in the following manner:

·        The Complainant’s job title is given as Accounts/Bookkeeper in the statement of terms and conditions.  The Complainant contends that this is incorrect and that she is employed as an Accounts Manager.

·        The Complainant asserts that she was not issued with an Employee Handbook even though one is referenced in the statement of her terms and conditions.

·        Under the heading “Place of Work”, the Complainant’s working week is given as 24 hours per week.  However, under the heading “Hours of Work”, her working week is given as 39 hours per week.

·        Under the heading “Company Sponsored Pension Scheme”, it is written that there is no company pension scheme applicable to the Complainant’s employment.  The Complainant contends that this is incorrect and that she has been in the company pension scheme since September 2016.

The Respondent did not attend the adjudication hearing. 

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

(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.

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

In making my decision on this complaint, I am guided by the determination of the Labour Court in Beechfield Private Homecare Limited and Megan Hayes Kelly (TED1919) where the Court found as follows:

“It is well-established in the Determinations of this Court that it is not necessary for a Complainant under the 1994 Act to demonstrate that he or she suffered a detriment as a consequence of the Respondent’s failure to fully comply with its obligations under section 3 of that Act.

…

The Act provides that the Workplace Relations Commission, and this Court on appeal, can award up to four weeks’ remuneration when it determines that section 3 of the Act has not been complied with. In determining the appropriate level of compensation it should award in a particular case, the decision-maker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum, particularly the Respondent’s failure to advise the Complaint of her entitlement to access a Personal Savings Retirement Account.”

I am of the view that the Respondent breached section 3 of the Act when it did not clearly set out the Complainant’s weekly hours of work and when it did not correctly state that the Complainant was enrolled in a company pension scheme.  Whilst it is good practice that employees be provided with an Employee Handbook, this is not required under section 3 of the Act and, therefore, does not form part of my investigation.  I find that this complaint is well founded.

Following the reasoning of the Labour Court in Beachfield, I find that the errors and omissions in the Complainant’s statement of terms and conditions are at the upper end of the scale and this is reflected in my decision in relation to redress.     

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I find that the Respondent has contravened section 3 of the Act and that this complaint is well founded. I direct the Respondent to pay to the Complainant compensation in the amount of €3,461.52  being the equivalent of four weeks’ pay in respect of the contravention, the maximum permitted under the Act.

The Complainant submits that in June 2020, the Respondent informed her that he would place her on a two day working week.  The Complainant argued that her workload justified her remaining on a 39 hour week.  During her discussion with the Respondent, the Complaint informed the Respondent that if a two day week was enforced, she would be contacting the WRC. 

The Respondent did not attend the adjudication hearing. 

The Complainant submitted a complaint to the WRC that she was penalised or threatened with penalisation for invoking her rights or giving notice of her intention of doing so under the Organisation of Working Time Act, 1997. 

At the adjudication hearing, the Complainant confirmed that at the relevant time she had not submitted a complaint to the WRC under the Organisation of Working Time Act, 1997 nor had she given notice of her intention of doing so.

I find, therefore, that this complaint is not well founded.

I find that this complaint is not well founded.

Breach of section 3 of Terms of Employment (Information) Act – unfounded penalisation under the Organisation of Working Time Act