Complainant

Respondent

Parties

Daniela  Krause

Tiktok Technology Limited

Representatives

  N/A

Ciaran Doherty BL instructed by DLA Piper

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-00043525-001

11/04/2021

The Complainant asserted that the Respondent breached the Act on 31 March 2021 when a job offer made to her on 16 March 2021 was withdrawn following queries she made in relation to the contract of employment issued by the Respondent on 26 March 2021.

The Complainant stated that she asked the Respondent’s HR Department for clarification on the following clauses in her contract of employment:

·       Clauses 6.1, 6.2, 6.3: She asked if regular overtime hours would be expected in this role as these were not mentioned in any previous conversations, especially

              not the fact that overtime hours would have been calculated in the salary.

·       Clause 17.1: Given the references in the contract of employment to the company handbook, she asked for a copy to have a full understanding of the Respondent’s procedures.

·       Clause 22.8 b)+ c): She questioned the Intellectual Property Rights/ Copyright Infringement section as it was not communicated to her at the interview that she might be exposed to the risks of having to settle client claims at her own expenses where they arise. She also asserted that she would require personal liability insurance to cover any claims from her own resources and stated that the Citizen Information and Community Law and Mediation who she consulted, regarded these conditions as unreasonable and not suited for this particular job role.

·       Furthermore, she asked why the Respondent’s employees would be asked to create any content for clients as this is not part of the job role and does also not make sense since users upload their own video content on the Respondent’s platform.

The Complainant stated that, on 31 March 2021, instead of providing clarification on her questions, she was told that due to their fast growth & expansion, the HR department would be unable to liaise with internal departments for gathering full information and would be withdrawing their job offer. She asserted that the withdrawal of the job offer because she asked questions in relation to the contract was unethical. She also stated that she rejected another job offer when signing the initial job offer letter on 16th March 2021 and was asked by the Respondent to upload her personal data such as passport and bank details to the Respondent’s internal HR system

The Complainant was invited to interview for a position as an EU SMB (Server Messenger Block) Client Services Specialist with the Respondent by email dated the 2nd March 2021, which said interview took place on the 4th March 2021. The Respondent made an offer of employment to the Complainant by letter dated the 16th March 2021, with a proposed commencement date of the 19th April 2021. The Complainant agreed on a later start date of 4th May 2021 in email correspondence with the Respondent on 16th March 2021, before the Complainant confirmed her acceptance of the offer on the same day by email.

By email of the 25th March 2021, the Complainant emailed the Talent Acquisition Partner in the Respondent, demanding her contract of employment by the following day. She responded to the Complainant by email of the same date stating that a contract would be provided as soon as possible. In response, the Complainant stated that she could not see why it would take so long to send her a contract and that without a contract she did not regard the job offer as valid. The contract was sent to the Complainant on the 26th March 2021 and in response the Complainant raised a number of queries with the contract and stated she required answers on the queries before she would agree to sign the contract. The Complainant’s queries contained in her email of 26th March 2021 are outlined as follows:

(1) A 6-day working week was not mentioned in any interview and conversation with Noelle Eiffe and if this is the requirement of this particular role, then we would need to discuss about a different salary package. In the contract there is Sunday mentioned as a working day for example.

(2.) Please specify what you mean with further steps 10 days before starting date, I do not wish to experience any bad surprises here.

(3.) If you require details of my referees that you may wish to contact, please let me know and I supply you with a list.

(4.) Intellectual Property. I take this topic in general very serious as I am myself also a registered Artist who does not tolerate any copyright infringements, misuse of my intellectual property and own copyrights. Can you please specify what you mean with clients might raise claims towards employees? Does that happen at Tik Tok and why are employees at risk of facing any trials for copyright/intellectual property? I do not fully understand this.

(5.) Monitoring of IT Equipment. I only have my personal phone here which I naturally use for private purposes and for my work as musician and would not allow any monitoring of it. So, if a physical phone is required for this role, kindly provide me with one of Tik Tok´s mobile phones. Also, I wish to outline that I have an internet connection in my home which covers the use of my personal laptop as well. So, where you perform any excessive monitoring, then I kindly ask to explain how you divide between private and professional use on one internet line.

(6.) Can you please send me the Employee Handbook mentioned in the contract.

(7.) Do I already qualify for your Pension/Health schemes during probation and is it possible to apply for days off during probation covered by the holiday entitlement as I will have a few single appointments to attend in the upcoming months.

The Complainant sent a further email to the HR Ops Specialist in the Respondent, which she CC’d to the Talent Acquisition Partner at 4.32pm on Saturday, 27th March 2021, stating that unless she received answers to the questions raised she would not sign the contract.  The Complainant sent a further email to the Talent Acquisition Partner at 4.44pm on Saturday, 27th March 2021, asking her to ensure the HR Ops Specialist read and responded to her emails and again stating that, unless all points were fully clarified, she would not sign the contract.

By email dated the 29th March 2021, Ms Balog responded to the questions that had been raised by the Complainant in respect of the contract. By email dated 30th March 2021, the Complainant wrote to the Senior HR Operations Specialist for the Respondent, taking issue with the reply received, stating that all questions were not answered, that there were still several issues with the contract and she demanded an answer that afternoon.

There was a telephone call between the Complainant and the Talent Acquisition Partner  on behalf of the Respondent on the 31st March 2021 during which the Complainant was informed that the offer of employment was being rescinded by the Respondent. By email of the same date, the Senior HR Operations Specialist wrote to the Complainant to confirm in writing that the Respondent had decided to rescind the offer of employment and enclosed a letter to that effect. In response to said letter and email, the Complainant replied to the Senior HR Operations Specialist by email on 31st of March 2021 stating that she had issued legal proceedings and asked that she be forwarded a copy of the employment contract she had been offered, as well as verification that the Respondent would delete her entire personal data from its system. The contract was provided to the Complainant by email of the 1st April 2021 with confirmation that the offer had been rescinded and was being provided for information purposes. The Senior HR Operations Specialist also confirmed that the Complainant’s query in respect of her personal data would also be addressed.

The Respondent submitted that in circumstances where the Complainant had not commenced employment, there could not be a breach by the Respondent of the requirements of Section 3 of the Act.  Furthermore, in circumstances where the Complainant had not yet commenced employment with the Respondent there could not be a breach of Section 5 of the 1994 Act as there had been no change to the Complainant’s terms of conditions of employment and indeed no such employment had commenced.

Preliminary Matter:

3. Under Section 1 of the the Terms of Employment (Information) Act 1994 an “employee” means a:

“person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board , as the case may be;.”

A contract of employment is defined under Section 1 as follows:

“(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of either the Employment Agency Act 1971 or the Protection of Employees (Temporary Agency Work) Act 2012 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract,

whether the contract is express or implied and if express, whether it is oral or in writing;”

I note that the Complainant was a candidate for a role with the Respondent and was made an offer of employment but this was rescinded in writing by the Respondent on the 31st of March 2021. Moreover, the offer was withdrawn well before the proposed commencement date of 4th May 2021.

In circumstances where the Complainant was never an employee of the Respondent, she has no locus standi to bring a claim under the 1994 Act and I do not have jurisdiction to hear the matter.

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.