FULL RECOMMENDATION
PARTIES : OSS COMPANY (RECRUITMENT AGENCY) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00032709 CA-00043250-001. The Adjudication Officer held that the complaint was well founded and awarded the sum of €3,800, which the Adjudication Officer found to be a just and equitable award having regard to the circumstances of the case. A Notice of Appeal was received by the Court on 19 October 2021 and a remote hearing of the Labour Court was held on 05 January 2022. The parties are referred to in this Determination as they were at first instance. Hence, Mr Farrell is referred to as the Complainant and OSS Company is referred to as the Respondent. The Respondent in this case is an ‘employment agency’ through which the Complainant was contracted to start employment on a client contract site on 19 January 2021. The Complainant was set up on payroll on 21 January 2021. The Respondent lost the contract on the client site one month later. Complainant’s Submission The Complainant submits that he did not receive a written statement setting out the particulars of his employment within 5 days as required by Section 3(1A) of the Act. The Complainant left a good job to take up employment with the Respondent. He was informed one month later that no further work was available. He raised the fact that he had not received a contract of employment. A contract of employment was subsequently issued to him after his employment had ended. He would not have signed the contract or left his previous job if he had seen it in advance, as it did not meet his expectations and did not comply with the Act. Although, he received a contract of employment after his employment ended, which complies with the requirement under Section 3(1) to receive a statement within two months of his employment start date, that document did not comply with the Act as no details were provided in relation to travel time, hours of work or work location. An offer of alternative work made by the Respondent was unsuitable, as it was at a lower level and in a different work location. The Adjudication Officer’s award equates to four week’s pay which does not represent the true financial loss he sustained. Respondent’s Submission The Respondent disputes that any breach of the Act occurred. A contract of employment was sent by email to the Complainant in a timely manner on 22 January 2021, two days after he commenced employment. The contract was transmitted to an email address provided by the Complainant and issued by email with an electronic signature. The Respondent referred the Court to a copy of an email addressed to the Complainant dated ‘Fri 22/01/2021 17:41’ with an attachment titled ‘Eoin Farrell Contract’. The email address was the same email address used to provide payslips and other employment documentation to the Complainant, which were all received satisfactorily by him. The Respondent contends that a contract of employment sent by email as an attachment complied with all elements of the statutory requirements as set out at Section 3 of the Act. The transmission of documents by email is a legally accepted way to serve legal documents. The sending of a contract of employment to an employee by email fulfils an employer’s obligations under Section 3(1)and 3(1A) of the Act to ‘give or cause to be given’a statement in writing to an employee. In the alternative, should the Court find a contravention occurred, there was an obligation on the Adjudication Officer when finding a breach of the Act to make an award that is ‘just and equitable having regard to all of the circumstances’, and to provide an explanation of the level of compensation awarded. In circumstances where the Respondent has demonstrated their compliance with the law, in fact and in spirit, a maximum award of four week’s pay cannot be considered to be just and reasonable. The applicable law The relevant sections of the Act provide as follows: 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— (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, (g) that the employee may, undersection 23of 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 theCompanies 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 theNational 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. (3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way. (4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer. Deliberation and findings The obligation to give an employee a written statement of terms of employment is an obligation, under the Act, that rests solely with the Respondent. In this case, the Respondent submitted that it issued such a statement by e-mail on 22 January 2021 within two days of the Complainant commencing employment. It provided the Court with a copy of the email sent to the Complainant on that date. It could not confirm if the Complainant received the email and had not requested a read receipt message. The Complainant denies that any such e-mail was ever received by him. The Act requires that an employer shallgive or cause to be givento an employee a statement in writing containing specified terms of the employee’s employment. A plain reading of the Act does not require the employer to confirm that the Complainantreceivedsuch a statement, although this undoubtedly is good practice. In this case, the Complainant consented to receiving communications by email. He confirmed that the email address used by the Respondent was his correct email address, and that he received other emails from the Respondent to that address. It is accepted that the transmission of documents by email is a legally accepted way to serve legal documents. In this case, where the Complainant consented to receive communications by email, the Court finds that, the Respondent fulfilled his employer’s obligations under Section 3(1A) of the Act when it sent a statement of employment particulars to the Complainant by email on 22 January 2021. The Complainant further submits that the Respondent breached the Act as the document provided to him after his employment ended did not provide details in relation to his hours of work, work location and travel time. The Act at Section 3(1)(c) requires an employer to give an employee, particulars in writing in relation to his or her 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. The Act at Section 3(1)(i) requires an employer to give an employee, particulars in writing in relation to any terms or conditions relating to hours of work (including overtime). The Respondent set out in its submission to the Court, how the contract of employment complied with each of these statutory provisions. The Court having reviewed that document is satisfied that no breach of Section 3(1) Section 3(1A) of the Act occurred in relation to the particulars provided to the Complainant is his contract of employment. Determination The Court determines that the Respondent discharged its obligations required under the Act at Sections 3(1) and 3(1A), and that the complaints, as a result, are not well founded The decision of the Adjudication Officer is set aside. The Court so determines.
NOTE |
