Complainant

Respondent

Anonymised Parties

Medical Administrator

Clinic

Act

Complaint 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-00039131-001

11/08/2020

This Complainant has left her employment claiming constructive dismissal. This complaint is brought under section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant alleges that she should have received a contract or statement detailing terms of employment as prescribed by the Act.

The Respondent stated that while it accepted that no written contract had been provided to the Complainant, she was offered one in 2014 and declined and gave instructions that she didn’t want a contract or statement of terms and conditions.

Sworn evidence was provided by both parties and the opportunity for cross examination was provided.

The Complainant stated that she wanted a contract and was never provided with one although she commenced her employment in 2005.

The Respondent stated that they offered the Complainant a contract and it was declined and specifically told not to issue a contract. In these circumstances it would be unjust to award compensation for a technical breach.

The Act provides 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—

While the explanation for why it this did not occur differs between the parties; the fact is the Act has not been complied with as no statement with the prescribed terms and conditions were provided up to the point of the employee leaving her employment.

The Act provides for compensation as follows at section 7:

(d) [in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

The Act places the obligation on the Employer to fulfil the requirements as set out and attributing the blame to the employee for not providing one; in this case is not a mitigating factor having regard to the nature of the relationship under a contract of service. Allowing for the fact that the requirement was not fulfilled since the employment contract commenced in 2005, I award 4 weeks compensation which is €1264 weekly gross pay x 4=€5056.

I determine that the complaint is well founded, and I award the Complainant €5056 in compensation arising from the failure to provide her with a written statement of terms and conditions as prescribed by the Act.

No statement