FULL RECOMMENDATION
PARTIES : VERVE MARKETING LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S)ADJ-00029223; CA-00038618-001 This is an appeal by Ms Sandra Blakeney (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00029223; CA-00038618-001, dated 26 July 2021) under the Terms of Employment (Information) Act 1994 (‘the Act’). The Adjudication Officer decided that the complaint under the Act was not well-founded. The Complainant’s Notice of Appeal was received by the Court on 3 August 2021. The Court heard the appeal in Dublin on 14 October 2021. The Complainant commenced employment with Verve Marketing Limited (‘the Respondent’) on 13 June 2017 as a Senior Account Manager. She received a contract of employment dated 18 July 2017 and a revised contract on 2 February 2019. She was paid an annual salary of €55,000.00. With effect from 30 June 2020, the Complainant was placed on temporary lay-off due to a downturn in the Respondent’s business because of the pandemic. She commenced employment elsewhere in September 2020. The Complainant’s Submission The Complainant submits that the employment contracts she was furnished with do not comply with section 3 of the Act in a number of respects:• The contract does not include details of the times and duration of rest breaks provided for in sections 11, 12 and 13 of the Organisation of Working Time Act 1997, as required by SI 49 of 1998; The contract contains insufficient information in relation to weekly working hours – it advises the employee that she is required to be at her desk at 9.00 am but specifies no daily finishing time; The contract does not specify a pay reference period for the purposes of the National Minimum Wage Act 2000; The contract does not contain particulars in accordance with section 3(1)(ga) of the 1994 Act which provides that an employee may request a statement of their average hourly rate under section 23 of the National Minimum Wage Act 2000. The Respondent’s Submission The Respondent accepts that the Complainant’s contract does not contain any information in relation to breaks but submits, nevertheless, that it otherwise complied with Section 3 of Act to “a high degree”. It further submits that, as the Complainant did not request a statement of her average hourly rate of pay for any pay reference period under section 23 of the National Minimum Wage Act 2000 – and her annual salary was €55,000.00 – “the inclusion of a clause comprehending the national minimum wage reference period is irrelevant”. The Respondent’s representative referred the Court to clause 6.1 of the contract issued to the Complainant in February 2019 (which sets out the Complainant’s total weekly hours exclusive of meal breaks and a start time of 9.00 am) and section 14 of the Employee Handbook which provides for compliance with the working hours provisions of the Organisation of Working Time Act 1997. Finally, the Respondent submits that the Complainant has not suffered any detriment arising from the alleged breach of the Act. The Law Section 3 of the Act provides: “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. (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. (2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given. (3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs (h), (i), (j), (k) and (l) of the said subsection (1) may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way. (4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer. (5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter. (6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1) or (1A)) as may be specified in the order and employers shall comply with the provisions of such an order. (b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph. (7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.” Discussion and Decision This Court previously made the following observations in relation to the 1994 Act in its determination in Felix Guerrero v Merchants Arch Company Limited DWT188: “The Court finds that the Act imposes an obligation on an employer to provide a worker with basic information regarding the terms of their employment. The requirements set out in section 3 of the Act are not complex matters. A simple attention to detail would enable any reasonable person to comply with its terms. A failure to do so therefore requires a clear and understandable explanation as to why a worker has not been provided with such basic information about the terms under which s/he is employed. No such explanation has been provided in this case. The respondent relies on its assertion that breaches were of a technical nature only and argues that the complainant suffered no adverse consequence arising out of its misfeasance. The Court finds no merit in that argument. The Court finds that the statute imposes obligations on an employer and confers a corresponding right on a worker to have the basic terms of employment set out in writing in accordance with section 3 of the Act.” The Respondent in the instant appeal has admitted that the written contract furnished to the Complainant in February 2019 did not comply with section 3 in certain respects. The Respondent submits that a number of the breaches admitted are either technical or irrelevant and, in any event, the Complainant has not suffered demonstrable detriment arising from the aforementioned breaches. The Court finds, therefore, that the Respondent has not fulfilled its obligations under section 3 of the Act. It furthermore finds little merit in the justification that the Respondent seeks to advance for its non-compliance. The Court, when measuring the appropriate compensation to be awarded must take account of all the relevant facts. In this case, having done so, it finds the breach of the Act to be at the lower end of the scale and, accordingly, awards compensation of €1,000.00 to the Complainant. The Court so determines.
NOTE |
