Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Cian Conboy IBEC

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-00035240-001

15/03/2020

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

CA-00035241-001

15/03/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994, and has submitted she did not receive a statement in writing of her terms of employment. (CA-00035240-001).

There was a duplication of the aforesaid complaint and the parties agreed to withdraw complaint CA-00035241-001.

The Complainant commenced employment in November 2011 in the role of sales assistant. The Complainants initial pay was €10.15 (net) per hour for 12 hours worked per week. Although the Complainant is still employed with the Respondent, she last attended for work on the 10thOctober 2019 and has been on certified sick leave since.

The Complainant submitted that in or about September 2018 she began to notice changes to her treatment in the workplace by management, for example exclusion from coffee breaks, night packs and her weekly hours were reduced without explanation. The Complainant has an impeccable record, was never subject to any disciplinary measures and was previously awarded employee of the month by regional management.

In 2019 the company proposed to introduce monthly as opposed to weekly pay. The Complainant was handed information by store management but was never consulted beyond this as per company stated policy. Given the lowering of her weekly hours, the introduction of monthly pay and the behaviour of store management the Complainant sought in writing her Contract of Employment on the 5th of May 2019.

The Complainant submitted that, to date, she has not been furnished with her Contract of Employment. Further, as a result of the on-going issues that were of concern to the Complainant to include reduced working hours, payroll mistakes in monthly pay, holiday refusals and the Respondents refusal to provide her with a Contract of Employment, the Complainant lodged a complaint with the Respondent on the 9th of June 2019. The Complainant was notified by letter dated the 10th of September 2019 that a Grievance meeting would be held on the 13th of September 2019. The Complainant attended this Grievance meeting wherein she outlined all her ongoing concerns.  On the 7th of October 2019 the Complainant received a letter from the Respondent outlining its summary of the meeting and proposed actions. The Complainant was not satisfied that all of her concerns raised in the course of the grievance meeting were addressed in the Respondents report and accordingly she appealed the grievance outcome on the 15th of October 2019.

The appeal hearing was originally scheduled for the 22nd of October 2019 but was initially delayed as the Complainant was on annual leave and latterly due to a diagnosis of workplace stress and anxiety. Ultimately, the appeal hearing took place on the on the 8th of January 2020. The Complainant submitted that she has not heard from the Respondent in relation to the outcome of this appeal hearing and this delay has further added to her stress and anxiety.

The Complainant provided detailed evidence of correspondence between the parties from the 1st March 2019 to the 14th October 2020.

This complaint was received by the Workplace Relations Commission on the 15thMarch 2020.

The Respondent outlined the background to the foundation of the Respondent Company and confirmed that the Complainant commenced employment in 2013 and since that time has been employed on a permanent contract as a Sales Assistant in the store located in Dublin 14.

The Respondent had a preliminary submission that this particular complaint was out of time. The Respondent relied on Section 41 of the Workplace Relations At 2015 in relation to the six month time limit. Considering this Complaint was received on the 15th March 20201, the Respondent submitted that having regard to Section 41 the cognisable period for the complaint is between the 16th September 2019 and 15 March 2020.

The Respondent submits that the Complainant was issued with a statement of her terms and conditions of employment no later than the 24th October 2014. A copy of the signed and dated contract were provided in the course of the hearing.

Accordingly, the Respondent submitted that there was no alleged breach of the 1994 Act within the aforementioned cognisable period of time and therefore the Adjudication Officer does not have the requisite jurisdiction to hear this claim.

However, without prejudice to the preliminary submission, the Respondent rejects the Complainants assertion that she was not provided with a contract of employment as a signed and dated copy of same has already been provided. The Respondent submitted they have complied with Section 3 of the Terms of Employment (Information) Act, 1994, in that the Complainant was provided with a statement in writing containing the terms of her employment no later than the 24th October 2014.

The Respondent further submitted that should it be adduced that any breach of section 3 had occurred within the cognisable period then such a breach could be considered as trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule and in that regard the Respondent relies upon Patrick Hall -v- Irish WaterTED161 and Component Distributors (Cd Ireland) Ltd -v- Brigid Burns TED 1812.

 The Respondent also addressed the Complainants issue in relation to the move from a weekly to a monthly pay period. The Respondent submitted that the Complainant was provided with written confirmation of this company wide change by letter dated the 1st March 2019 and a copy of same was produced in the course of this hearing. Accordingly, the Respondent submitted that it has complied fully with Section 5 of the Terms of Employment (Information) Act, 1994.

It is the Respondent’s position that the Complainant is not entitled to succeed in relation to the Complaint herein.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

 Section 3 of the Terms of Employment (Information) Act, 1994-2014, provides, inter alia:

(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 …

And Section 5 of the Terms of Employment (Information) Act, 1994 - 2014, provides, inter alia:

(5) (1) whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect ..

In the course of the hearing of this matter, the Complainant outlined a number of issues of concern to her in relation to her employment with the Respondent.

However, the Complainant submitted and  received by the Workplace Relations Commission on the 15th March 2020  is primarily that she did not receive a statement in writing in relation to her terms of contract.

In relation to this initial complaint,  a copy of the Complainants contract of employment with the Respondent signed by the Complainant and dated the 24th October 2014 was provided in the course of this hearing. The Respondent, for the avoidance of doubt, provided a copy of same to the Complainant on or about the 13th January 2021 prior to the hearing of this matter. Although the Complainant does not deny this was her signature on the copy of the aforesaid contract, she maintained that she did not receive a copy of same following her commencement of employment in or about November 2013.

Pursuant to Section 3 of the aforesaid act, there is an obligation on the employer to provide a statement of the employees terms of employment to the employee within a two month period of the commencement of said employment.

I have been provided with uncontroverted evidence that the Respondent provided the appropriate statement in writing to the Complainant no later than the 24th October 2014. Accordingly, I would accept the Respondents preliminary submission, that pursuant to Section 41 of the Workplace Relations Act, 2015, that this complaint is statute barred. There was no breach of the 1994 Act that occurred within the aforementioned cognisable period of time.

The Complainant also raised issues of concern, in relation to the move from weekly to monthly pay,  that would come within the parameters of Section 5 of the Terms of Employment (information) Act, 1994-2014. In that respect, I was provided with a copy of a letter dated the 1st March 2019 which addressed this issue and indicated it would could come into effect from the 10th May 2019 and this new cycle would commence on the 24th May 2019. This would correspond with the initial letter of complaint from the Complainant dated the 9th June 2019 and confirms that the Complainant had been notified in writing of proposed changes. Although, I have already found that this particular complaint is statute barred, for the avoidance of doubt, I would accept the Respondents submission that they have fully complied with Section 5 of the 1994 Act as amended.

I appreciate that the Complainant has a number of concerns in relation to her employment which included changes to her treatment in the workplace by the Respondent and I further accept that she has ongoing stress and anxiety in relation to those concerns. However, in the circumstances of this matter, this particular complaint is misconceived and accordingly it is not well founded.

I find that the Complaint (CA- 00035240-001) made pursuant to Section 7 of the Terms of Employment (Information) Act, 1994, is not well founded.

Terms of Employment