Complainant

Respondent

Parties

Andre Luiz  Brentini Da Silva

Fashion Court Bistro Limited

Representatives

Robert Dooney Sherwin O'Riordan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00040151-001

29/09/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave evidence under affirmation.  Both parties were afforded the opportunity to cross examine witnesses from the other side.

A translator was provided by the WRC for the hearing.

The complainant was paid €10.40 per hour and worked and average of 35 hours per week giving an average weekly wage of €364.00

The complainant outlined three complaints in his original application form submitted on 29 September 2020.  The first complaint related to not being given a contract of employment, the second related to Sunday payments, and the third related to rests and intervals at work.

The respondent submitted that the complaints are not taken under the correct legislation and should, on that basis, fail.  Alternatively, the respondent submitted that some of the complaints were lodged outside the timeframe permitted by the Acts.

The respondent agreed that the complainant was not provided with written terms and conditions of employment but submitted that during his initial interview his terms and conditions of employment were outlined to him.

In relation to break times, the respondent submitted that the complainant asked to be paid for his breaks rather than taking time away from work.

In his initial submission the complainant indicated that was taking a complaint under the Organisation of Working Time Act.  However, in the accompanying narrative he enumerated three complaints in the following manner:

I am requiring according to the Organisation of Working Time Act 1997, that my employer comply with the following duties: 1) Provide my employment contract; 2) Pay me the supplemental provisions for all Sundays that I worked. 3) Pay me the break-times that the shop owes me, My average journey was 8hs, but the maximum break-time according to store's rules allowed was only 30 minutes. These 3 duties do not obey the law "Organisation of Working Time Act 1997".

The complainant commenced his testimony by reiterating the complaints he wished to bring and outlined the three complaints again.  Accordingly, I find that the respondent was on notice of all three complaints from the outset.  I note that the complaint form for the WRC is not a statutory form.  I also note that the initial complaint marked 1 in the complainant form refers to a breach of the Terms of Employment (Information) Act, 1994, specifically Section 3 of that Act.

Section 3 states that

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) F7 [ … ]

( b) F7 [ … ]

( 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) F7 [ … ]

F8 (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,

F9 [ (g) F7 [ … ]

(ga) that the employee may, under section 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 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.

Having regard to the foregoing, I find that the respondent is not at a disadvantage in proceeding with hearing a complaint regarding these matters as noted on the complaint form.

The respondent submitted that the complainant is out of time in that it dates back to the start of the working relationship.  It was confirmed by the respondent that no contract of employment or written statement of his terms and conditions of employment were provided to the complainant at any point in the employment relationship, rather it was submitted that such terms and conditions were explained to the complainant at the initial interview for the job.  The complainant contested this suggestion.  However, I am satisfied that no written terms and conditions of employment were given to the complainant at any point in the employment relationship and accordingly amounts to a subsisting contravention. 

I am mindful of two decisions of the Workplace Relations Commission which concern similar situations: The decision of the Adjudication Officer, Kevin Baneham in the case of An animal carer v A Charity (ADJ-0009820) and the case of A Doctor v A Public Service Provider (ADJ-0003277; [2020] ELR 159.) 

In A Doctor v A Public Service Provider Adjudication Officer Pat Brady, citing Mr Baneham’s reasoning, provides the following which is instructive in this case:

The decision in ADJ-9820 sets out an interpretation of the legal position in relation specifically to the Terms of Employment (Information) Act 1994. It has not been appealed to the Labour Court and has been followed by this Adjudicator in ADJ-19368 and others as a correct statement of the law.

The following appears in that Decision (ADJ 9820).

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship.

Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress.

The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.

If the respondent’s submission is correct, section 7(1) is superfluous.

This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.

While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law.

 First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period.

 Applying a conforming interpretation to section 3 does not, therefore, require an impermissible contra legem interpretation of the section.

Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. 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.

Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.

For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.

The contravention of section 3 is a subsisting contravention.

If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.

Mr Brady concludes with the following: “Accordingly, I adopt and apply this to the current complaint and I find that an alleged breach of this Act is a subsisting and continuing breach and the complaint is within jurisdiction from the point of view of time limits.”

The current case is based on a similar set of facts to A Doctor v A Public Service Provider in that the complainant in this case was not provided with a statement of the Terms and Conditions of his employment throughout his entire working relationship with the respondent.  Accordingly, I also adopt and apply the Baneham reasoning to the current complaint and find the lack of provision of a written statement of the complainants’ terms and conditions (as agreed by the respondent) constitutes a subsisting and continuing breach and accordingly places the complaint within the required time limits.  Therefore, I find that this complaint was well founded.

In relation to the second complaint put forward by in the complaint form relating to remunerating Sunday working, the complainant submitted that he was paid minimum wage for the first year and thereafter was paid 30 cents over the minimum wage.  All hourly wages were paid the same within each year.  The respondent submitted that the complainant was paid an hourly rate that included a Sunday premium and indicated that this was outlined to the complainant at the start of his employment.  However, the respondent was not in a position to point to a written contract or statement of terms and conditions in support of this contention.

Section 14 of the Organisation of Working Time Act, 1997 states the following in relation to Sunday work: supplemental provisions

14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

Having regard to the foregoing, I am not satisfied that the Sunday payment has “otherwise been taken account of in determination of his or her pay”.  Accordingly, I find that the complaint was well founded.

The respondent submitted that only the six months prior to the submission of the complaint is relevant in relation to this complaint and I am satisfied that this is the case.  Having regard to this aspect of the complaint the period in question stretches back from 29/09/2020 when the complaint was lodged with the WRC to 30/03/2020.

In relation to the third complaint, the complainant submitted that he was not allowed to take rest periods when they were due.  The respondent submitted that the complainant sought to work through his breaks and be paid for them.  Although the complainant provided testimony regarding his rest breaks, I am not satisfied that the complainant provided evidence in any great detail to support his contention that he was not afforded the appropriate rest periods.  Accordingly, I find that this complaint is not well founded.

Having regard to the complaint that the complainant was not provided with a written statement of this terms and conditions of employment, my decision is that this complaint was well founded and I award the complainant four weeks remuneration which consider to be just and equitable in the circumstances of this case, €364.00x4=€1456.00

Having regard to the complaint regarding the lack of a Sunday premium, my decision is this complaint was well founded and I award the complainant €3,640 which I consider just and equitable having regard to all the circumstances of this case.

Having regard to the complaint regarding the rest periods, my decision is that this complaint is not well founded.

Complaint form, Organisation of Working Time Act, Terms of Employment (Information) well founded, compensation