Complainant

Respondent

Parties

Eoin  Farrell

OSS Company (Recruitment Agency)

Representatives

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-00043250-001

25/03/2021

The complainant commenced employment with the respondent on 19/01/2021 as a “spotter”.  This role involved assisting hoist drivers by ensuring that the drivers operate and lifting in a safe manner.  He was informed on the evening of 19/02/2021 that the role was no longer available.  He submits that the never received any details of his terms and conditions.  He submitted his complaint and dispute to the WRC on 25/03/2021.  His rate of pay was €17.97 per hour with an additional 2.5 hours travel time each day.  The respondent denies that he was unfairly dismissed as he was dismissed in line with the probation conditions outlined in his contract of employment.

In November 2020 the complainant noted a job advertised by a recruitment company for a spotter on one of their client sites.  This was advertised as “a long-term position with excellent conditions on site.”  In January 2021 the complainant was contacted by the recruitment company and offered the job with a start date of 19/01/2021.  He accepted and handed in his notice to his then employer.  This role suited him as he could access the site easily with public transport.  On 19/02/2021 he was told at the end of his shift that there was no more work available.  At that point he had not received a contract of employment or any written details about the terms and conditions of employment.  He did receive a copy of his employment contract after he was dismissed.  He was offered another job in the city centre, but he turned it down as he deemed the role “demeaning” and there would be a considerable cost in terms of travel, parking and longer working day.  The complainant also submits that the respondent refused to give him a letter saying that he was let go.  He obtained alternative employment about two months after his dismissal. 

The respondent is a recruitment company with particular specialisation in the construction sector.  The complainant was employed by the respondent on 19/01/2021.  He was employed as a “Category B” worker and this was analogous with the role of general operative/labourer.  The complainant was assigned to one of their client sites.  On 19/02/2021 they were told by the client that there was no further work for them on that site and so they had to make decisions.  There were approximately five to ten employees affected by this decision.  The complainant was offered a role with similar pay and conditions and based in a city centre location.  He turned this down and, in that context, he was dismissed.  It was submitted on behalf of the respondent that the contract of employment was sent to the complainant’s e mail on 22/01/2021 at 17.45.  There was no evidence of any “bounce back” or other error message to indicate that this was not delivered. 

It is the respondent’s position that any work they provide is dependent on the needs of the clients who use their services. It is for that reason that the mobility and flexibility provisions are included in the contract of employment.

In this case the client contract was ended on 19/02/2021 and the complainant was offered a similar role on another site, but he did not accept.

CA-00043250-001:  Terms and Conditions of Employment: This is a complaint pursuant to the Terms of Employment (Information) Act, 1994.   The complainant submits that he did not receive a document which complies with Section 3 of the Act.  Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(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.

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than two months after the commencement of the employee’s employment.  These are not relevant to this case.

The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis).  It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said statement of terms.  The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms.

Neither party provided any evidence of a document which was signed and dated by the respondent.  There is no requirement for the complainant to sign such a document. The respondent is clear that the complainant was sent a copy by e mail, but the complainant submits that he never received it.  The respondent confirmed at the hearing that they did not have any process in place to follow up and place a signed contract on file.  As there is an onus on the respondent to provide a signed and dated copy and to retain such a document for at least a year after the employment ends I find that there was a contravention of the Act during the relevant period.  In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.2 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should be applied.  I therefore order that the respondent pay the complainant the sum of €3,800 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00043250-001:  I order that the respondent pay the complainant the sum of €3,800 representing two week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

Terms and conditions.