Complainant

Respondent

Parties

Scott  Howard

MCD Home and Garden

Representatives

  Self

 No appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030531-001

28/08/2019

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

CA-00033985-001

25/01/2020

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

CA-00033986-001

25/01/2020

The complainant was employed as a sales assistant with the respondent from 13 Mach 2019 to 27 June 2019.  He worked a forty hour week and was paid €1040.00 gross per fortnight.  The complainant stated the respondent had not provided him with the required statement in writing of terms of employment or with a contract.

The complainant stated that he applied for the post of sales assistant with the respondent through an online recruitment company.  He was offered the post and was engaged in selling garden sheds and gazebos.  He stated the rate of pay for the post and the hours of work were discussed but were never put in writing.  When the complainant commenced employment, he participated in an induction session for approximately two hours.  He stated that although he had requested a contract several times, he never received anything in writing to do with his terms of employment and he was not provided with a staff handbook.

The complainant commenced employment on 13 March 2019 and in April he applied for annual leave to be taken in the month of June 2019.  He stated that the day he was due to go on annual leave he was told that his employment was ended.  He received his final payment on 02 July 2019.

On the complaint form the date of termination is given as 27 June 2019.  The complaint was received by the Workplace Relations Commission on 25 January 2020, outside the normal six month time limit for the submission of a complaint.  The complainant stated that he had submitted a complaint on 28 August 2019 and believed he had included the complaint under the Terms of Employment (Information) Act on that complaint form.  The form submitted on 28 August 2019 had only one complaint, that was brought under the Employment Equality Act, 1998.  The complainant explained that he did not realise his error until he was preparing for the hearing of the complaints in January 2020.  He had commenced a new job in late 2019 and had to have several hearing dates changed due to illness, hospital appointments and being unable to take leave so early in his new employment.  When he was preparing for a hearing scheduled for 27 January 2020 he realised he had in error omitted his complaint under the Terms of Employment (Information) Act, 1994 on the original complaint form.  He immediately submitted the complaint under the Terms of Employment (Information) Act, 1994, which was received by the Workplace Relations Commission on 25 January 2020.

The complainant requested that time be extended for the complaint under the Terms of Employment (Information) Act, 1994.

There was no appearance by or on behalf of the respondent.  The respondent did not make a submission to contradict the claims submitted. 

The complainant withdrew complaints CA-00030531 and CA-00033986-001 at the hearing.

CA-00033985-001

Complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant alleges he was not given a statement in writing of his terms of employment at any time during his employment with the respondent.  Section 3 of the Act, as amended, provides the following:

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

(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.

The times stated in the Act for the provision of the statement of terms of employment must be considered in the context of the European Directive 91/533/EC.  The Terms of Employment (Information) Act transposed the Directive into Irish law.  Article 2 of the Directive requires that a statement of the terms of employment be provided by the employer to the employee and does not limit this requirement to any time within the employment relationship.  It is now well established that reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.  See An Animal Carer v A Charity ADJ-00000009820, An Employee v A Company ADJ-00012491 and A Doctor v Public Service Provider ADJ-00003277.

Where, after the expiry of the initial two-month period of employment, the employee has not been provided with the required statement, the contravention of section 3 of the Act, is a subsisting contravention. Therefore, if no statement of terms is provided to an employee during the employment relationship and the relationship comes to an end, then the employee may refer a complaint to the Workplace Relations Commission with six months of the last day of contravention, that is the last day of employment.

This complaint was received by the Workplace Relations Commission on 25 January 2020. On the complaint form the complainant stated that his employment had been terminated on 27 June 2019.  The complaint was submitted outside six months from the date of termination of employment.  The complainant requested an extension of time.

The normal period for the submission of complaints under section 41 of the Workplace Relations Commission Act, 2015 may be extended by an Adjudication Officer due to reasonable cause.  Section 41 (6) and (8) provide:

Presentation of complaints and referral of disputes.

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

I must decide if the complainant has shown reasonable cause as to why his complaint was submitted outside the normal six month time limit.  “Reasonable cause” is not defined in the Act but has been considered in detail by the Labour Court.  In Cementation Skanska Limited v Carroll DWT0338 the Court stated its view as follows:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The complainant must explain the delay and show why that prevented the complaint being submitted within the normal time limit.  The complainant submitted a complaint to the Workplace Relations Commission on 28 August 2019.  That was just two months after his employment had been terminated.  The complainant stated that he understood he had submitted complaints about discrimination and not having received a statement in writing of his terms of employment on the one complaint form.  The complainant represented himself.  The complaint form received by the Workplace Relations Commission on 28 August 2019 only contained the complaint of discrimination.  A hearing was scheduled for 12 December 2019 and the parties were notified of same on 09 November 2019.

The complainant explained that in November 2019 he had just started a new job and his wife was ill.  He had to take time off work himself for hospital appointments and it was a stressful time.  The complainant made a postponement request to the Workplace Relations Commission.  The hearing was postponed.  Due to the combination of illness and restrictions on taking time off work the complainant had to request a postponement of hearings on three occasions.  The respondent requested a postponement of a hearing scheduled for 14 January 2020.  All the postponements were granted.  The next scheduled hearing date was 27 January 2020.  When preparing for that hearing the complainant realised his error and immediately submitted a complaint under the Terms of Employment (Information) Act.  That complaint was received on 25 January 2020.  The respondent was notified of this complaint on 05 February 2020.

I have considered the complainant’s oral submission concerning the extension of time and reviewed the documents on file.  The complainant is a credible witness and I accept that he understood that he had submitted a complaint under the Terms of Employment (Information) Act on 28 August 2019 together with the discrimination complaint.  Having reviewed the documents on file concerning the three applications for postponements in November/December 2019 I accept that the complainant’s circumstances were difficult at that time.  I accept that the complainant acted without delay in January 2020 when he realised his complaint under the Terms of Employment (Information) Act had not been included on the complaint submitted on 28 August 2019.  Taking account of the views expressed by the Labour Court I consider that the delay in this case was not long.  The respondent was notified of the complaint within a short period and had plenty of time to submit their views.  No submission was received from the respondent.

I am satisfied that the failure to present the complaint under the Terms of Employment (Information) Act, 1994 was due to reasonable cause and I find I have jurisdiction to entertain this complaint.

I find, based on the complainant’s uncontested evidence, that he was not issued with a statement in writing of his terms of employment as required by section 3 of the Terms of Employment (Information) Act, 1994.  The complainant’s evidence was not contradicted as the respondent failed to attend the hearing.  The complaint is well founded. 

Failure to issue a statement as required under section 3 of the Act is a serious matter.  I note the Labour Court decision in Megan Hayes Kelly v Beechfield Private Healthcare DWT 1919 where the Court awarded the maximum of four weeks’ pay in redress in circumstances where there were errors and omissions in the statement.  I consider a failure to issue a statement as required by the legislation at least as serious, if not more so, than a defective statement.  Therefore, I award the complainant redress of the maximum of four weeks’ pay of €2080.00 gross.

CA-00030531-001

Complaint of discrimination under section 77 of the Employment Equality Act, 1998.

This complaint was withdrawn at the hearing.

CA-00033985-001

Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

I am satisfied that the failure to present the complaint under the Terms of Employment (Information) Act, 1994 was due to reasonable cause and I find I have jurisdiction to entertain this complaint.

I find, based on the complainant’s uncontested evidence, that he was not issued with a statement in writing of his terms of employment as required by section 3 of the Terms of Employment (Information) Act, 1994.  The complainant’s evidence was not contradicted as the respondent failed to attend the hearing.  The complaint is well founded.

Failure to issue a statement as required under section 3 of the Act is a serious matter.  I note the Labour Court decision in Megan Hayes Kelly v Beechfield Private Healthcare DWT 1919 where the Court awarded the maximum of four weeks’ pay in redress in circumstances where there were errors and omissions in the statement.  I consider a failure to issue a statement as required by the legislation at least as serious, if not more so, than a defective statement.  Therefore, I award the complainant redress of the maximum of four weeks’ pay of €2080.00 gross.

CA-00033986-001

Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The complaint was withdrawn at the hearing.

Notice in writing of terms of employment

Time limit

Reasonable cause

Extension of time