Complainant

Respondent

Parties

Roslyn  Barrett

St Gabriel's Special School

Representatives

 Forsa Trade Union

Mason Hayes & Curran LLP

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-00051134-001

14/06/2022

The Complainant submits that she did not receive a contract of employment from the Respondent.

The Respondent submits that while it cannot produce/find a copy of the contract, the Complainant did receive one. It surmises from the correspondence between the parties, that the Complainant knew the nature of her contract, i.e. that it was a fixed-term contract, which it submits lends credence to the fact that there was a signed contract albeit that the Respondent is not in a position to produce it currently.

It produced an appointment form (a template form which had been filled in) containing the details of the Complainant’s employment – start date, finish date, nature of the appointment as well as the Complainant’s bank details, and a blank template contract of employment based on the applicable circular.

The Complainant submits that the Respondent, St. Gabriel’s Special School, is the Complainant’s employer and that it did not provide the Complainant who is a Special Needs Assistant (SNA), with a signed contract of employment within one month of her commencing employment.

The Complainant submits that, through her union, she made a request for a copy of her SNA contract of employment. There was dispute as to the nature of the contract, and other matters were addressed also in the correspondence, which are not the subject matter of the complaint herein.

There was a large amount of correspondence between the parties, in respect of same:

1.       By letter dated April 29th, 2022, the Principal of the Respondent school wrote to the Complainant’s representative setting out, inter alia, as follows: “In response to the 3 letters sent by Forsa: Roslyn is on a fixed term contract covering a job share, this is in writing in the contract she signed with the Department of Education. As job shares change from year (sic), I am obliged to advertise and interview for these posts each year.”

2.       By letter dated May 6th, the Complainant’s representative wrote to the Respondent, setting out, inter alia, as follows: “With regard to Ms Barrett’s employment, Ms Barret has neither letter of offer, letter of acceptance or a copy of a contract of employment. You will be aware that in accordance with the Terms of Employment (Information) Act, 1994 and the Employment (Miscellaneous Provisions) Act, 2018 Ms Barret should have been furnished with a core statement of terms and conditions of employment within 5 days of commencing employment and the remainder within 1 month of her employment commencing. The school do not appear to have furnished Ms Barret with a copy of a written statement of terms and conditions signed by or on behalf of the school to date which is a clear breach of legislation. Ms Barret was not aware that her post is temporary by reason of backfilling a temporarily vacated post as she does not have a contract that states same.”

3.       By email dated May 6th, the Principal of the Respondent school wrote to the Complainant’s representative, setting out, inter alia, as follows: “In relation to Roslyn's employment concerns, copies of SNA Appointment Form and contract are on file and will follow in due course.”

4.       By email dated May 6th, 2022, the Complainant’s union representative wrote to the Principal of the Respondent school, setting out, inter alia, as follows: “Can you advise if Ms Barrett was furnished with a hard copy of the contract of employment from the school, signed by or on behalf of the school, within the first month of her employment?”

5.       By email dated May 17th, the Complainant’s union representative wrote to the Principal of the Respondent school, setting out, inter alia, as follows: “In relation to Ms Barrett’s employment type – I believe that Ms Barrett is still without a written copy of her contract of employment from you.”

6.       On May 17th, 2022, the Solicitor for the Respondent wrote to the union representative for the Complainant coming on record and requesting any future correspondence be directed to them.

7.       By letter dated May 27th,  2022, the Complainant’s union representative wrote to the Principal of the Respondent school, setting out, inter alia, as follows: “Contract of Employment: Please be aware that Ms Barrett will be exercising her right to escalate this matter to the WRC as despite repeated requests you have yet to furnish Ms Barrett with a written copy of her contract of employment which is a breach of the Terms of Information (Employment) Act, 1994 and the Employment (Miscellaneous Provisions) Act 2018.”

8.       By letter dated May 30th, 2022, the Solicitor for the Respondent school wrote to the Complainant’s union representative addressing a number of matters. The correspondence included the sentence: “Please find a copy of Ms. Barrett’s contract of employment and Appointment form for the year 2021/2022.” Appended was a filled in Appointment form and a blank (template) contract of employment.

The Complainant submits that on May 30th, 2022, the Respondent school, through its Solicitor, provided a copy of an unsigned and undated contract of employment for the Complainant to Fórsa (her union).

The Complainant’s representative submitted, in relation to the appointment form, that it is used by schools to communicate to the Department of Education and Science (DES) who is taking up the post of Special Needs Assistant (SNA) as the Department is the paymaster. The Complainant’s representative submits that it contains information such as home address, contact information, whether this is a job-share replacement etc., start and end dates. The Complainant’s representative submits that the appointment form does not meet the terms and conditions required to be set out by an employer in a contract of employment.

The Respondent submits that the parties entered into a contract of employment, and that it was signed, but that the Respondent is unable to produce a copy of the contract as it does not have a signed copy in its possession.

It submits that the correspondence between the parties refers to the contract, and its nature, and from that surmises that there was a signed contract issued and that the Complainant was aware of the nature of her contract, i.e. that it was a fixed-term contract.

As part of a Data Subject Access Request (DSAR), a blank template fixed-term contract was produced.

It also points to the filled in Appointment Form, which sets out the details of the appointment – start date, finish date, nature of the appointment etc. as well as containing the Complainant’s bank account details, for payment.

The Respondent also points to other documentation and information provided/applicable - pension scheme enrolment, information relating to the sick leave scheme etc.

The Respondent submits that it acknowledges the issue of not having a copy of the executed copy on file. However, it is relying on the correspondence between the parties and arguing that it is clear from the context and content of the correspondence that both parties thought there was a signed contract, which it suggests supports its position that there was one.

It further submits that the Complainant received a copy of the (blank) contract in May 2022, through her union, the first time it was requested.

Having carefully considered the submissions from both parties, I find, on the balance of probabilities, that what occurred in this instance is not consistent with the requirements of the Terms of Employment (Information) Act 1994.

The maximum jurisdiction under the Terms of Employment (Information) Act 1994 is the equivalent of four weeks’ wages.

I find for the Complainant.

I direct the Respondent to pay the Complainant compensation in the amount of €500 within 42 days of the date of this decision.

No signed contract; Blank contract; Fixed-term contract; Job-share;