ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00027565

Parties: 

Complaint(s):

Date of Adjudication Hearing:  26/03/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

This complaint refers to the alleged failure of the Respondent to provide the Complainant with a written copy of her Terms and Conditions of Employment. The Complainant has also submitted a separate complaint of unfair dismissal which is dealt with separately under ADJ-27366.

Summary of Complainant’s Case:

The Complainant was employed with the Respondent as a Senior Stylist Hairdresser from 24th April 2018 until 12th October 2019.  The Complainant submitted that they asked on a number of occasions for a written copy of her terms and conditions of employment but that the Respondent failed to provide this information.

Summary of Respondent’s Case:

It was the Respondent’s contention that it did not receive a copy of the WRC complaint regarding its failure to provide written terms and conditions of employment until 22nd  February 2021.

The Respondent submitted that the business was subject to a WRC audit on 21st October 2020 where it was deemed to be fully compliant in all aspects of employment law.  The Respondent maintained it provides all of its employees with a contract of employment and submitted a standardised contract of employment as an example of what it provided to the Complainant. 

The Respondent maintained it did not retain a signed copy of the Complainant’s contract on the basis it was advised for GDPR purposes and under employment law that an employer must only retain a copy of an employer’s contract for 1 year after termination of employment.

Findings and Conclusions:

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that 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…particulars of the terms of the employee’s employment.     

Section 3(4) of the Act requires that the statement furnished by an employer shall be signed and dated by or on behalf of the employer.

Section 3(5) of the Act states that the statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

The parties dispute the evidence that each has presented. On the one hand the Complainant has submitted she did not receive her written terms and conditions of employment despite asking for it on a number of occasions, and on the other hand the Respondent advised they issued her with such notice from a template that is contained in the employee handbook, and where this template required for the notice to be signed and returned by the Complainant.

It is also the Respondent contention that it did not receive notification of the within complaint from the WRC until 22nd February 2021.

It is noted that the Complainant’s employment terminated on 12th October 2019 which was the last day she attended work following an altercation with the Respondent. The Complainant issued a complaint about an unfair dismissal to the WRC on 2nd March 2020, and her complaint regarding the written terms and conditions of employment was submitted on 19th March 2020. Both complaints were submitted within 6 months of her termination of employment. The records show that the Respondent was put on notice by letter dated 5th March 2020 from the WRC that the Complainant had submitted a complaint to the WRC under Section 8 of the Unfair Dismissals Act, 1977; and on 27th March 2020 that Respondent was put on notice of the complaint under Section 7 of the Terms of Employment (Information) Act, 1994.

Whilst the records show the Respondent was advised of the within complaint, the Respondent contests this occurred.  Notwithstanding, the Respondent did receive notice about the complaint of Unfair Dismissal. However the Respondent has submitted that it destroyed the written document confirming the terms and conditions of employment that it provided to the Complainant.  However, a prudent employer in preparation of defending a complaint of Unfair Dismissal would have retained a signed copy of the written notice of the terms and conditions of employment had it existed rather than deleting it on the basis 12 months had passed since the Complainant left her employment. 

Based on the evidence provided and adduced, I therefore prefer the Complainant’s evidence that she never received her written terms and conditions of employment, and that the template in the employee handbook is not a suitable alternative.

I therefore uphold the complaint and find that the Respondent failed to provide the information required under Section 3 of the Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 7 of the Terms of Employment (Information) Act, 1994 I find that the complaint is well founded, and that the Respondent has failed to provide the Complainant with written terms of her conditions of employment.

I therefore order the Respondent to pay to the Complainant compensation of four weeks renumeration based on a gross wage of €450 per week.

Dated:   23rd November 2022

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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