TED229

1.Appeal of Adjudication Officer Decision No(s) ADJ-00029359 CA-00038894-02

BACKGROUND:

2.This is an appeal under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 23 April 2022. The following is the Court's Determination:



DETERMINATION:

Background to the Appeal

This is an appeal by Mr Robert Blazsik (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00029359/CA-00038894-002, dated 29 November 2021) under the Terms of Employment (Information) Act 1994 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 21 December 2021. The Court heard the appeal in Waterford on 28 April 2022.

The Facts

The Complainant was employed by MFC Foods Limited T/A Dessert First (‘the Respondent’) as an Assistant Baker from 30 August 2019 until his dismissal om 2 July 2020 for alleged gross misconduct.

The Complainant received two Statements of Terms and Conditions during his period of employment with the Respondent: the first was signed on behalf of the Respondent on 25 September 2019; the second was signed on behalf of the Respondent on 16 June 2020. Both Statements provided that the Complainant’s rate of pay was €10.50 per hour. The second Statement outlined his hours of work in the following terms: “Your normal hours of work are 24 per week with variable start and finish times as per roster from Monday to Sunday, with breaks in accordance with the Organisation of Working Time Act each day”.

The Complaint

The Complainant submits that the second Statement does not comply with section 3 of the Act in so far as it does not expressly state the days of the week on which he was required to work or his daily working hours.

The Respondent acknowledges that the Statement is silent in relation to the matters referred to by the Complainant. It submits, however, that the normal working day in the Respondent’s business consists of an eight-hour shift and that the Complainant was never asked to work anything other than an eight-hour day.

The Law

Section 3 of the Act provides:

• “3. Written statement of terms of employment

  (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.

  (1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

  (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.

  (5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

  (6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1) or (1A)) as may be specified in the order and employers shall comply with the provisions of such an order.

  • (b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.
  (7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.”
  
  

Discussion and Decision

It is common case that the second Statement furnished to the Complainant does not comply with s.3(1A)(e)(i) of the Act.

The Court finds that compensation equivalent to one week’s gross pay is just and equitable in the circumstances. The Court, therefore, directs the respondent to pay the Complainant €252.00, being one week’s gross pay, by way of compensation for breach of his rights under the Act.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CO'R	______________________
12 May 2022	Deputy Chairman