Complainant

Respondent

Parties

Deirdre  Kerin

St Johns Girls And Boys Infants School After School Club

Representatives

Victoria Stephens, SIPTU Trade Union

Rosemary Mallon, BL instructed by Mason Hayes and Curran, Llp

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-00049801-001

21/04/2022

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

CA-00049801-002

21/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00049801-003

21/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00049801-004

21/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00049801-005

21/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00049801-006

21/04/2022

The complainant commenced employment with the respondent on 01/09/2011 as a childcare worker in an after-school club.  She was paid €103 gross per week.  In September 2013 the complainant’s status changed to that of self-employed and was paid from the money collected in the club.  In January 2015 the complainant was employed by the respondent from January 2015.  The trade union submits that the complainant did not receive a contract of employment.  The trade union also submits that the complainant’s redundancy calculations should have included the period from September 2013 to January 2015.  The respondent submits that the complainant is not entitled to any of the relief claimed.

It was submitted on behalf of the complainant that she did not receive any details of her terms and conditions of employment, and this is in contravention of Section 3 of the Terms of Employment (Information) Act, 1994. 

It was also submitted on behalf of the complainant that she was never advised of any changes to her terms and conditions of employment and therefore the respondent has contravened Section 3 of the Terms of Employment (Information) Act, 1994.

The complainant also submitted a complaint under Section 39 of the Redundancy Payment Act.  It was submitted on behalf of the complainant that she was not properly paid as the respondent used an incorrect starting date for the complainant’s employment. The complainant’s start date should be from 22/09/2011 and the trade union also submits that the period from September 2015 to January 2015 should be included as the complainant was still under the control and direction of the respondent.  The only change to her role during this period was the method of payment. The shortfall to the complainant is €288.

The respondent accepts that there was no statement of terms and conditions provided to the complainant.  There were discussions with the trade union in relation to contracts, but these were not finalised due to various circumstances.  The respondent concedes this claim.

The respondent does not accept that the complainant was not advised of changes to her terms and conditions as she was not issued with any of those.

In relation to the redundancy complaint the respondent submits that the complainant’s employment ended in September 2013, and she was issued with her P45 at that time.  During the period when she was self-employed the club was run by the complainant and two other employees.  All three were self-employed.   They paid themselves from the money which was paid by the parents who used the service. When the respondent became aware that this club was not being operated correctly it then returned to an operation under the respondent’s control and the complainant’s service as an employee commenced on 05/01/2015.  This was the date used in the calculation of her redundancy payment and there is no basis on which her period of self-employment can be reckoned for the purpose of a redundancy payment.

CA-00049801-001: The complainant is seeking adjudication by the WRC under section 7 of the Terms of Employment (Information) Act, 1994. 

The Terms of Employment (Information) Act 1994 and the Employment (Miscellaneous Provisions) Act 2018 apply in relation to providing an employee with details of his/her terms and conditions of employment. Section 3 of the Terms of Employment (Information) Act 1994 set out the terms which should be included in a statement to be furnished to the employee within 2 months of starting work. These include:

·       The full names of the employer and employee

·       The address of the employer

·       The expected duration of the contract (if the contract is temporary or fixed-term)

·       The rate or method of calculating your pay, and the ‘pay reference period’ (for example,  

        whether you are paid weekly, fortnightly or monthly)

·       What the employer reasonably expects the normal length of your working day and week to be  

         (for example, 8 hours a day, 5 days a week)

·       The place of work

·       The job title or nature of the work (such as a brief job description)

·       The date the employment started

·       Pay intervals (for example, weekly or monthly)

·       Any terms or conditions relating to hours of work (such as overtime)

·       Paid leave, including your annual leave and public holiday entitlements

·       Sick pay

·       Pension and pension schemes

·       Period of notice to be given by employer or employee

·       Details of any collective agreements that may affect your terms of employment.

In the instant case, it is the Complainant’s position that she was not furnished with this statement. At the hearing the respondent’s representative confirmed that this statement, which was the subject of discussions with the trade union, was not issued and concede this claim.

In accordance with section 7 of the Act, I declare that the complaint is well-founded, and I direct that the respondent pays to the complainant compensation that is just and equitable of €520.00 (the maximum compensation available).

CA-00049801-002: Terms and Conditions of Employment.  The complainant was not issued with any terms and conditions and the respondent has accepted that this is correct.  The respondent’s representative noted that the complainant did not particularise which terms and conditions had changed.  The complainant’s submitted that the respondent should have issued a “5 Day” written statement to the complainant and the complainant’s representative made a request for this on 04/08/2021.  As the respondent has already conceded that this statement was not issued, and a decision has been made on that matter I find that this complaint is not well-founded.

CA-00049801-003: The complainant is seeking adjudication by the WRC under section 7 of the Terms of Employment (Information) Act, 1994.  This complaint was withdrawn at the hearing.

CA-00049801-004: The complainant is seeking adjudication by the WRC under Section 39 of the Redundancy Payments Act, 1967.  It was submitted on behalf of the complainant that when the respondent was calculating the complainant’s redundancy payment, they should have taken the complainant’s start date as 22/09/2011 and not 05/01/2015. The complainant’s representative submitted that while the complainant was paid differently during the period 01/09/2013 to 05/01/2015 she was in every other respect still an employee of the respondent.  The resulting shortfall amounts to €288.00.

Having heard the submissions of the representatives on this matter I am satisfied that the complainant was issued with her P45 when her employment ceased prior to 01/09/2013.  I note that there was no grievance submitted by the complainant during this time and it is clear that she was satisfied with the arrangement which was put in place.   I find that the complainant broke her service with the respondent during this period and this cannot be reckoned for the purposes of calculating a redundancy payment.  I find that this complaint is not well-founded.

CA-00049801-005:  The complainant is seeking adjudication by the WRC under Section 11A of the protection of Employment Act, 1977. This complaint was withdrawn at the hearing.

CA-00049801-006:  The complainant is seeking adjudication by the WRC under Section 11A of the protection of Employment Act, 1977. This complaint was withdrawn at the hearing.

CA-00049801-001: I decide that this complaint is well-founded, and I direct that the respondent pays to the complainant compensation that is just and equitable of €520.00

CA-00049801-002: I find that this complaint is not well founded.

CA-00049801-003: This complaint was withdrawn at the hearing.

CA-00049801-004: I find that the complainant was not in continuous employment during the period 01/09/2013 to 05/01/2015 and this cannot be treated as reckonable service.  I decide that this complaint is not well founded.

CA-00049801-005: This complaint was withdrawn at the hearing.

CA-00049801-006: This complaint was withdrawn at the hearing.

Terms and conditions of employment.  Redundancy payment