Complainant

Respondent

Parties

Erica  Canning

Egoli Childcare Solutions Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Nicola O’Malley, Managing Director

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-00052887-001

19/09/2022

The Complainant commenced employment with the Respondent on the 12th May 2021 and her employment ended on the 29th July 2022. The Complainant submitted that she did not receive a statement in writing of her terms of employment. The Respondent denied that it was in breach of the Terms of Employment (Information) Act 1994 stating that it had furnished the Complainant with two statements in writing of her terms of employment, the first in May 2021 and the second in August 2021.

The Complainant was employed by the Respondent from the 12th May 2021 until her employment ended on the 29th July 2022. The Complainant submitted and it was her evidence that she never received a statement in writing of her terms of employment and that consequently, the Respondent breached Section 3(1) of the Terms of Employment (Information) Act 1994. She stated that she had never seen the two contracts of employment contained in the Respondent’s booklet of documents submitted to the WRC prior to the hearing.

Cross-Examination

Under cross examination the Complainant accepted that initially in May 2021 she was only prepared to accept a temporary role with the Respondent and that she was not agreeable to signing a contract of employment as she was not sure where she was going to be housed. The Complainant stated that from September 2021 she had greater clarity regarding her housing and from that point onwards she was agreeable to signing a contract of employment. It was put to the Complainant by the Managing Director that she was aware that the position accepted by her in May 2021 was temporary sick leave cover and that the position accepted by her in August 2021 was temporary maternity cover contract and that contracts of employment and an employee handbook were furnished to her. The Complainant agreed that she was informed that the position in May 2021 was a temporary position to cover the cleaner’s sick leave and that she had read the employee handbook when she commenced employment with the Respondent but she denied that she was asked to read or sign a contract of employment at that time. The Complainant accepted that in or around August 2021 she advised the Respondent’s Creche Manager that she was happy to accept full time hours and that she discussed contracts of employment with the Creche Manager but she denied that the maternity cover contract was furnished to her to sign on the 30th August 2021.

The Respondent submitted and it was the Managing Director and Creche Manager’s evidence that the Complainant received her first contract of employment on the 12th May 2021 and her second contract of employment on the 30th August 2021 but that she refused to sign both said contracts.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Relevant Law:

Terms of Employment:

Section 3(1) and 3(1A) of the Terms of Employment (Information) Act 1994 as amended (hereinafter referred to as “the 1994 Act”) set out the basic terms of employment which an employer must provide to an employee in written form:

“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—

(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.

3(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. … ”

Findings:

The Complainant’s complaint is that she did not receive a statement in writing on her terms of employment.

It was common case that the Complainant commenced employment with the Respondent on the 12th May 2021 and that initially she was hired on a temporary basis to cover the Respondent’s cleaner’s (hereinafter referred to as “the cleaner”) sick leave. The Complainant gave evidence that while she was given a reference from the Respondent to say she was working as a part-time cleaner she was not given a contract of employment or a statement in writing of her terms of employment. This was disputed by the Respondent.

The Respondent submitted that from the 12th April 2021 the cleaner was on sick leave. The cleaner remained unfit to return to work and on the 10th May 2021 her sick leave was extended for a further month. The Managing Director and the Creche Manager gave evidence that the Complainant and her personal circumstances were known to the Respondent as the Complainant’s daughter was attending the Respondent’s creche. The Complainant was offered a temporary contract on the 12th  May 2021 for sick leave cover on a casual basis for one month in circumstances where the Complainant could not commit to the hours the Respondent required. According to the Respondent, the Complainant requested flexibility due to other working commitments and the Respondent was agreeable.

The Creche Manager and the Managing Director both gave evidence that on the 12th May 2021 the Complainant was furnished with a file containing the contract of employment for Temporary Cover (Sick Leave) Contract of Employment, Covid19 policies and the staff handbook but that she refused to sign the contract of employment. I was provided with a copy diary entry for the 10th ,11th and 12th May 2021 and my attention was drawn the entry under the 12th May 2021 wherein reference was made to “files for ________ and Erica”. The Creche Manager gave evidence that the entry was made to confirm that files containing the contract of employment for Temporary Cover (Sick Leave) Contract of Employment, Covid19 policies and the staff handbook were given to Complainant and another employee. I find that the document submitted as part of the Respondent’s case corroborates the Respondent’s version of events.

On the 21st May 2021 the Managing Director prepared a file note wherein she confirmed that the Complainant would “not sign her contract as she is on the housing waiting list and currently in emergency accommodation. She cannot commit to a permanent position … She will continue to cover the sick leave and possibly the maternity cover later this year but is unable to cover in the Clane or Prosperous branch unless we can organise a lift for her to get drop and collected.”  I was provided with a copy of the file note dated the 21st May 2021 and I find that the document submitted as part of the Respondent’s case corroborates the Respondent’s version of events that the Complainant was furnished with a statement in writing of her terms of employment but refused to sign it and that she was aware that cover was required for the cleaner’s sick leave and potentially her maternity leave.

The Creche Manager stated in evidence that each employee has a personnel file and that on the front of each file there is a “Personnel File Checklist”. She gave evidence that it was the Respondent’s practice to highlight matters which remained outstanding and which needed to be followed up on and that on a number of occasions the Creche Manager checked the Complainant’s personnel file to see if she had returned a signed copy of the contract of employment furnished to her as this remained highlighted on the checklist. I was provided with the Complainant’s Personnel File Checklist and I find that the document submitted as part of the Respondent’s case supports Respondent’s version of events.

According to the Complainant, on the 27th August 2021 she was offered a full-time permanent position with the Respondent as a cleaner. She stated that she was happy to accept the position and asked the Respondent to furnish her with a reference to confirm her job description, pay and hours as she was on the housing list and required this information. The Complainant gave evidence that some time in September 2021 the Creche Manager asked the Complainant if she would sign a contract of employment as she had previously refused to do so. The Complainant stated in evidence that she agreed to sign a contract of employment at this time but that she was never furnished with one and that she had never seen the contracts of employment in the Respondent’s booklet.

The Respondent refuted the Complainant’s evidence that a contract of employment was not presented to her. The Managing Director gave evidence that on the 23rd August 2021 the cleaner informed the Respondent that she would be commencing maternity leave immediately. The Complainant was asked if she wanted to work full time hours to cover the cleaner’s maternity leave and on the 27th August 2021 the Complainant accepted the position. The Managing Director gave evidence that she prepared the Complainant’s contract of employment and put it into a brown envelope and furnished the envelope to the Creche Manager to give to the Complainant.  The Creche Manager gave evidence that on the 30th August 2021 a brown envelope containing the maternity cover contract of employment was furnished to the Complainant in the office. This was denied by the Complainant.  

The Managing Director gave evidence that the Complainant was informed that the cleaner would be returning from maternity leave in September 2022 when the Respondent received an email from the cleaner in May 2022. The Complainant met with the Managing Director in her office on the 28th July 2022 and according to the Managing Director during this conversation the Complainant agreed that it was communicated to her that her position as a cleaner was only temporary and that it was only for the duration of the cleaner’s maternity leave. The Complainant denied that she was aware the position was maternity cover stating in evidence that she was unhappy because the Respondent had never advised her that the position offered to her in August 2021 was a temporary maternity cover contract. I was provided with an email dated the 29th July 2022 from the Managing Director to the Complainant and the document submitted as part of the Respondent’s case corroborates the Respondent’s version of events. By e-mail dated the 29th of July 2022 the Complainant informed the Managing Director that she would not be returning to work with the Respondent due to “personal reasons”. 

There was a dispute on the facts as to whether the Complainant was furnished with the Temporary Cover (Sick Leave) Contract of Employment and/or the Maternity Cover Contract Temporary Employment. Taking account of the evidence of the Complainant and the witnesses on behalf of the Respondent and the oral submissions and documentation presented on behalf of the parties I accept the Respondent’s version of events which was corroborated by documentary evidence and find that the Respondent gave or caused to be given to the Complainant a statement in writing  containing particulars of her terms of employment.  

For the reasons set out above, I decide that the complaint is not well-founded.