Complainant

Respondent

Parties

Leszek  Zero

EM News Distribution Ireland Limited

Representatives

N/a 

Graham Bailey, IBEC

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-00040197-001

29/09/2020

The Complainant began working with the Respondent as a Production Planner on 4 October 2019 and was paid €430 per week. He is claiming that there was no provision surrounding a weekly responsibility allowance of €50 in the contract of employment that he received.

The Complainant began working with the Respondent as a Production Planner on 4 October 2019. He was informed at the interview stage by Mr X that he would be entitled to a weekly allowance of €50 when he worked alone. He stated that despite having started working alone in December 2019, he was not paid this allowance at any stage between then and the beginning of the Covid lockdown at the end of March 2020. He also highlighted that while there was no provision in his contract of employment surrounding the working alone payment, he has been in receipt of the weekly amount since April 2020.

The Respondent’s witness stated that that the responsibility allowance was always only payable to employees who had successfully completed their probationary periods. He also asserted that he had spoken to Mr X who had carried out the Complainant’s interview and stated that Mr X had denied informing the Complainant that he would be entitled to receive the allowance in question as soon as he began working alone. He highlighted that the Complainant has been in receipt of the amount since April 2020 as he was no longer in his probationary period.

The Law

The Terms of Employment (Information) Act, 1994, as amended (the Act) require that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment. The relevant law is found at section 3 of the Terms of Employment (Information) Act, 1994, as amended, (The Act) where the pertinent sections provide as follows:

(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 …

(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,

(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…

… (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…

Findings

While there was a disagreement between the parties as to when this allowance was payable, as highlighted in ADJ 27872, it was not in dispute that there was no provision in the contract of employment surrounding this payment and having reviewed the contract presented to me, I am satisfied that it was not included and find therefore that the complaint is well founded.

In deciding on my award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant in that matter claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

While I recognise that there was only one infringement of the Act in relation to this Complainant’s contract of employment, namely the failure to include any stipulation around the payment of the responsibility allowance, it caused him some hardship in that he was deprived of the payment from December 2019 until April 2020. This was not so serious however that a full award could be justified and I therefore make an award of €430, namely one weeks’ pay.

I find that the complaint is well founded and make an award of €430

Omission; contract of employment