Complainant

Respondent

Parties

Patrick  Ingham

Michael Guiney Ltd

Representatives

  Appeared In Person

James Cleary , IBEC Executive

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00044010-001

12/05/2021

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

CA-00044010-002

12/05/2021

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On May 12, 2021, the Complainant, a Lay Litigant submitted two complaints to the WRC relating to his employment as a Customer Agent at the Respondent business. He also submitted a Dispute which is addressed by separate Adjudication file.

The Respondent operates a large Retail Business and was represented by IBEC.

Both parties made extensive submissions both written and oral in the case. Both parties submitted the additional documentation sought at hearing.

The Complainant was employed as a Customer Agent from 12 April 2021 until he was dismissed on 11 May 2021. He exhibited a contract of employment and documentation relating to his employment. He worked a 37.5 hr week in return for €500.00 gross pay.

He gave evidence to the hearing by affirmation.

CA-00044010-001 Minimum Notice

The Complainant outlined that he had not received his statutory minimum period of notice on the termination of his employment.

On 11 May 2021 the Complainant was informed by the Respondent Human Resource Representative that his employment had come to abrupt end.

He contended that he was due payment in lieu of notice.

CA-00044010-002 Terms of Employment

The Complainant outlined that the written statement of terms and conditions was deficient on a number of grounds.

On the complaint form, the Complainant submitted that the staff handbook bound the respondent to gross misconduct or other substantial reasons as the sole permitted grounds ground for termination of his employment. He contended that the 5 reasons provided for his dismissal departed from these grounds stated in the handbook.

On commencement of employment, his line Manager had told him that he could work 8 am to 5pm. He adopted that span of duty over the first 3 weeks before his hours were unilaterally changed to 9 am to 4.30 pm. He contended that the Respondent was bound to expressly state his hours of work in the pro offered statement. His daily hours were not set out and thus contravened the legislation.

Hours of work listed in the contract signalled The Company operates Monday to Sunday. Regular work hours are typically 37.5 hrs.  

The Respondent operates a large Retail Business and has denied both claims. It was the Respondent case that the Complainants employment had been brought to conclusion through performance issues within his contractual probation period.

The Respondent read from his prepared submissions . The Human Resource Manager gave evidence by affirmation . 

CA-00044010-001 Minimum Notice

The Respondent filed a submission in response to both claims. They confirmed that the complainant had been dismissed as stated on May 11, 2021.

The Respondent outlined that not withstanding an obligation to pay notice when an employee had served less that the statutory “continuous service for a period of 13 weeks “the Respondent had paid the Complainant in lieu of notice. The Respondent exhibited a Complainant pay roll record which listed

15 paid hours 10 and 11 May

37.5 hrs part of weeks’ notice

12.5 hrs annual leave owed

The Respondent also exhibited a copy of pay slip May 20, 2021, which reflected 52.5 hrs paid who corresponds to the earlier pay roll record.

The Respondent submitted that the respondent had no obligation to discharge this payment but had paid one weeks’ notice.

CA-00044010-002 Terms of Employment

The Company disputed the claim and submitted that the Respondent had complied with the presiding Legislation.

The Respondent outlined that the complainant was provided with his written statement within the correct time frame as specified under the Act. There were no contractual changes during his tenure.

The Respondent affirmed that employment had ceased in accordance with the Probation Policy through performance issues. This did not amount to a contravention under the Act.

I have been requested to inquire into two employment rights claims. In reaching my decision, I have taken account of written submissions and documentation submitted by the parties. I have also had regard for both parties’ presentations and evidence adduced at hearing.

The Complainant had made a number of submissions post hearing in seeking a decision in this case from the Administrative division as he has indicated that he now wishes to take an action at the District Court. This is a separate course of action to the action currently live at WRC.

My decision is based on my engagement with the parties, the documents relied on and the Law as I understand it to be.

CA-00044010-001 Minimum Notice

Both parties accept the stated tenure of the complainant’s employment ran from 12 April 2021 to 11 May 2021. The employment was accompanied by a contract of employment, subject to a probationary clause of 6 months.

Termination and specifically notice, was listed on the contract as referring to the contents of an employee handbook.

The Probation Policy contained in the Respondent documents carried the following clause

Termination of the contract of employment within the probationary period shall be at the discretion of the organisation and in the event of such termination you will receive one weeks’ notice.

This was signed by the Complainant and his Manager dated 12 April 2021.

A careful examination of the Respondent pays records yielded an acceptance by the Complainant that he had received weeks’ pay in lieu of notice. When asked if he wished to proceed with the case to secure a decision in this case, he confirmed that this was his wish.

The Law on Minimum Notice in employments rests on a starting position of having 13 weeks service before the entitlement to notice crystallises.

Minimum period of notice.

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

The Parties had concluded a specific agreement on the probation policy which allowed for payment of a weeks’ notice.

I am mindful of the deliberations of the EAT in the case of a 4-week contractual notice clause in Jameson V MCW ltd MN  878/1983 where they held in awarding a deficit of 1.4 weeks’ notice on cessation and observed:

The statutory notice period should occupy the last appropriate number of weeks of the contractual notice.

I am satisfied that the Respondent paid weeks’ pay in lieu to the complainant on his cessation of employment on 11 May 2021 as outlined in the Probation Policy. I find that the Complainant had no further entitlement to notice.

I find the claim is not well founded.

CA-00044010-002 Terms of Employment

I have inquired into this complaint. I have also had regard for oral and written submission taken in tandem with evidence adduced.

It is important for me to reflect my careful observation in this case. I observed that the Complainant carried a high level of disappointment in response to the circumstances at the conclusion of his employment. He had not anticipated it and he exhibited residual signs of trauma some 3 months down the line.

He has asked that I explore the application of the law to the provision of his written statement of terms of employment provided to him on commencement of employment.

The Respondent has asked that this complaint be dismissed as the respondent had complied fully with the Act in both the scope and application of the Legislation.

The initial submission of the written contract by the complainant caused me to query the irregularity of the font. The text did not flow as it should and caused me to inquire further. I settled on a 6-page document signed by the complainant dated 12 April 2021.

My jurisdiction in this case rests within Section 3 of the Act. This Section was amended by SS 3 and 7 of the Employment Miscellaneous Provisions Act, 2018, where Section 3(1)(A) has a particular application in this case.

The Complainant had served 1 month and one day in continuous employment, which brings him in line with the requirements of Section 7(1)(a)(a) of the Act, of more than one month’s service.

Both parties accept that the employment spanned 12 April to 11 May, 2021 in this case, therefore the 2 month window for action in accordance with Section 3(1) had not passed by  the complainants point of departure .

This necessitates a careful inquiry on how the terms of Section 3(1)(A) of the Act were applied. I found it helpful to consider the WRC template for the suggested notification of the requisite terms within the first 5 days of employment.

Written statement of terms of employment.

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. 

(1) 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.

It is important to reflect that the statement was provided and signed by the complainant on the first day of his employment. It was a permanent contract. 

I also noted that the Respondent exhibited some emails where the complainant was notified of the required working day 8 to 4.30pm on May 6. This fell outside the 5-day window but did not amount to a breach of Section 5 of the Act as it did not alter the contractual weekly hours of work, just the divisor. It seemed to be a misunderstanding that was revised by the respondent, who reminded the complainant to take his statutory breaks rather than a 10-minute lunch break.

I found a number of omissions   on the statement of terms of employment as set down in Section 3(1)(A)

The statement was not signed on behalf of the employer.

It did not record the Employers name or address. The Employee’s name was recorded in handwriting at the conclusion of the document. It ought to have been apparent at the top. I did note that the last name of the Company was mentioned in the Declaration section.

The Pay reference period was not set down for the purposes of the National Minimum Wage Act, 2000.

The hours assigned to a normal working day were not visible.

It seemed to me that the Respondent had not familiarised itself with the revised statutory obligations in section 3(1)(a) from March 2019. I did review extracts from the handbook, but these did not allow me to revise the above findings. I would encourage to reflect on the terms of section 3(1)(a) of the Act and how it should interface with new recruits.

I find the claim to be well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00044010-001 Minimum Notice

Section 12 of Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find the claim is not well founded.

CA-00044010-002 Terms of Employment

Section 7 of the Terms of Employment (Information) Act, 19 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 3 of the 1994 Act.

I have found the claim to be well founded. I have established a breach of Section 3(1)(a) of the Act by the noted omissions not shared with the complainant within the first five days of his employment. The gold standard being the WRC template, available on the web site.

As the employment has concluded, I find that compensation is the most accessible remedy open to me in this case. I order the Respondent to pay the Complainant €1,000 in compensation (2 weeks gross pay) for the breach observed in Section 3(1)(A) of the Act.

Minimum Notice, Terms of Employment