ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035072
Parties:
| Complainant | Respondent |
Parties | Brendan W Downey | Mark McCann McCann(Auditors & Financial Advisors) |
Representatives |
| Donal Holohan Maguire McClafferty |
Complaint(s):
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-00046015-001 | 06/09/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046015-002 | 06/09/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046015-003 | 06/09/2021 |
Date of Adjudication Hearing: 27/09/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
In addition to the foregoing, The Employment (Miscellaneous provisions) Act of 2018 (s.7) amended Section 3 of the Terms of Employment Act 1994 so as to oblige Employer’s to provide a new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide the core details after one month of continuous service can lead to an award of four weeks remuneration. The 2018 Act came into effect on the 4th of March 2019.
The balance of Terms outlined in the 1994 Act have to be detailed within the two-month period already specified.
This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms. The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars of the statement as provided by the Employer. The obligation does not extend to a change occurring in provision of statutes and instruments made under statute.
The complaint was made on the 6th of September 2021, and I can consider such contravention of the Act which is alleged to have occurred within the six-month period prior to that date. The Complainant was in employment up to the 14th of June 2021. The complaint has therefore been brought within the appropriate timeframe and I have the jurisdiction to her the complaint.
The contravention first accrues the day after the expiration of the two-month period for the provision of the Statement and every day thereafter. In the event of termination of the employment (as in this instance) the right to bring such a claim will die six months after the end of the employment.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zaleski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) the hearing is conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public top attend this hearing. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that there was no serious and direct conflict in the evidence I heard. |
Summary of Complainant’s Case:
Complainant was not represented and made his own case. I was provided with a comprehensive submission dated the 6th day of June 2021 and which was attached to the workplace relations complaint form. The Complainant alleges that there have been a number of contraventions of the Terms of Employment (Information) Act, 1994. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent attended in person and relied on his representation to outline his defence to the issues raised by the Complainant. The Respondent representative made a number of points in defence of the Respondent, and I was provided with some supplemental documentation to support the position taken by the Respondent. The Respondent concedes there has been some contravention of the Act but has urged me to accept that there is mitigation and that the matter should be seen to fall at the less serious end of the scale. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced before me at this hearing. The Complainant commenced his employment with the Respondent on the 22nd of October 2018. The employment commenced after an interview process. The Respondent provided me with a previously unseen email in the course of the hearing which was addressed to the Complainant from the Respondent and dated the 25th of September 2018. This email pre-dates the commencement of the employment and offers the position of Accountant within the Respondent’s firm at a salary of €55,000.00. The email specifically states that “A full Contract will be offered on starting with the firm”. The Respondent has asked that I consider this document to be a preliminary Statement of the terms of the employment. It is conceded that the email does not detail all of the requirements set out in Section 3 but should at the very least demonstrate that the Complainant knew some of the terms when he commenced his employment. I have been asked to consider the fact of this email as a mitigation. It has been put to me that the claim that the Complainant was not provided with the core details of his employment under the 2018 Act is inapplicable as the Complainant’s commencement date pre-dates the coming into effect of the Act which operated from March of 2019. I find this argument to be correct. The Complainant states that when his Employer partook in the Temporary Wage subsidy scheme, he was not notified of this fact nor was he provided with any rationale. The Complainant did concede that this did not materially alter his take home pay or otherwise effect his role. On this last point, the Respondent has put the proposition that the Complainant cannot argue that there has been a contravention of Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of any change of the particulars of the statement where he has successfully demonstrated that he has not, in fact, received a statement as outlined in Section 7. I find that there is merit in this argument. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00046015-001 – This complaint is well founded. The Complainant did not receive a Statement of terms and I direct that the Respondent does pay to the Complainant the sum of €2,000.00. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00046015-002 – this complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00046015-003 – this complaint is not well founded.
|
Dated: 11th October 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
|