Complainant

Respondent

Parties

Sabrina Kennedy

Best Bites Catering Limited, t/a O’Briens Sandwich Café

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049740 - 002

19/04/2022

The Complainant was employed by the Respondent as a Catering Assistant from 11 December 2021 until her dismissal on 14 March 2022. On 19 April 2022, the Complainant raised a complaint that she did not receive a statement in writing on her terms of employment. The Complainant sought adjudication under section 7 of the Terms of Employment (Information) Act 1994.

The Complainant commenced work on 11 December 2021. She was dismissed on 14 March 2022, receiving pay in lieu of notice. The Complainant earned €220 gross per week, working 20 hours per week at €11 per hour. The Complainant submitted that she did not receive a contract of employment or any written terms and conditions of employment, upon or after commencement of employment. The Complainant submitted that she asked the Respondent about signing a contract and was told that it would be done on another day, but this did not happen. The Complainant submitted that a probation period was never discussed with her.

The Respondent submitted that she has been running her café for 14 years.  She currently employs five members of staff. She believes that she is lenient and treats her employees well. She has never previously appeared before the Workplace Relations Commission.

The Respondent hired the Complainant in December 2021 after interviewing her. The Respondent submitted that a three-month probation period was discussed during the interview and that she made a handwritten note of this in her interview record. The Respondent submitted that she did not provide the Complainant with a contract of employment or any written terms and conditions of employment, upon or after commencement of employment. The Respondent submitted that she did not provide the Complainant with the Staff Handbook. The Respondent submitted that it was her practice not to provide a contract of employment until the three-month probation period ended.

The Law:

Terms of Employment:

The Terms of Employment (Information) Act 1994 (the “Act”) sets out the basic terms of employment which an employer must provide to an employee in written form. The Act obligates an employer to provide employees with certain essential information in written form within five days of commencing employment. The Act also obligates an employer to provide employees with information concerning other aspects of an employee’s terms and conditions of employment in written form within two months of commencing employment:

“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. … ”

Awards:

Section 7 of the Act provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.

In Beechfield Private Homecare Limited and Ms Megan Hayes Kelly, TED 1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decision-maker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

Application of the Law:

The Complainant was employed by the Respondent for over three months, from 11 December 2021 until her dismissal on 14 March 2022. The Complainant was not provided with a statement in writing on her terms of employment. Consequently, the Respondent breached section 3 of the Act and the complaint is well founded.

As the Respondent failed to provide any statement in writing on the Complainant’s terms of employment, the breach was at the serious end of the spectrum. Pursuant to section 7 of the Act, an award of four weeks’ remuneration is appropriate.

I find that the complaint is well founded. I award the Complainant €880, which is 4 weeks’ remuneration (4*€220), in compensation for the breach of the Terms of Employment (Information) Act 1994.

Terms of Employment (Information) Act 1994, Breach of Terms of Employment (Information) Act 1994, Compensation Awarded.