Complainant

Respondent

Parties

Mary  Hebron

Bouncy Times Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Mr. John Keenan, JRK Business Support

Ms. Valerie Morrison, Peninsula

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-00053541-002

03/11/2022

The Complainant commenced employment with the Respondent on 1st May 2019. The Complainant was a permanent member of staff, in receipt of an average weekly payment of €300. The Complainant’s contract of employment was terminated on 28th November 2022.

On 3rd November 2022, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent had failed to provide a written statement of her terms of employment, in contravention of the Act. In denying this complaint, the Respondent submitted that a contract of employment had been issued to the Complainant but that she failed to sign and return the same.

A hearing in relation to this matter was convened for, and finalized on, 16th June 2023. Both parties issued submissions in advance of the hearing and expanded upon the same in oral agreement. The Complainant gave sworn evidence in support of her complaint while a Director of the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross-examination by the opposing side.

At the outset of the hearing, it was agreed that the named Respondent was the Complainant’s employer for the cognisable portion of the employment.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. 

In evidence the Complainant stated that she did not receive a statement of terms of employment, in contravention of the Act.

In response to the Respondent’s position, she accepted that she was charged with issuing contracts to other members of staff but submitted that this did not absolve the Respondent of their obligations to her as an employee. She denied having received a blank statement of terms as opened by the Respondent and submitted that the same did not contain many of the statements required by the Act.

In denying this allegation, the Respondent submitted that the Complainant had received a statement of terms of employment.

In evidence, the Director of the Respondent submitted that the Complainant was charged with many administrative functions. Amongst these was the preparation and distribution of contracts of employment. In this regard, the Respondent opened an email whereby the pro forma contract was issued to the Complainant. The Respondent submitted that part of the Complainant’s duties was to complete this contract herself and essentially issue it to herself. Having regard to the same, the Respondent submitted that they complied with the requirements under Section 3 of the Act and submitted that the Complainant’s application should fail.

Notwithstanding the same, the Respondent submitted that the Complainant suffered no prejudice as a consequence of the alleged failure to receive terms. Having regard to the same, the Respondent submitted that the Complainant should note receive a payment of compensation on foot of the alleged breach.

Section 3(1) of the Act (as amended) provides that,

“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”

Section 3(5) of the Act (as amended) provides that,

“A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.”

In the present case a number of matters are not in dispute. It is agreed that the Complainant did not receive a statement of terms of employment at or near the commencement of her employment. It is further accepted that the Complainant did not, at any stage of her employment, receive a particularised statement of terms of employment. The height of the Respondent’s case in this regard is that the Complainant received a blank, pro forma contract. They submitted that she should have completed the same and returned to the Respondent for completion. In this regard, it should be noted that the Complainant denied having sight of the email containing the contract.

Having regard to the foregoing, it is apparent that the Respondent is in breach of the impleaded legislation. Section three of the same requires that an employer provide a written and signed statement of terms within a certain timeframe. The Respondent accepted that this did not occur and consequently, the Complainant’s application must succeed. In addition to the same, the Respondent’s suggestion that the Complainant is responsible for the creation of her own terms of employment does no exempt them, as her employers, from their obligations under the Act.

Regarding redress, the Respondent has submitted that the Complainant suffered no prejudice and consequently should not be awarded any compensation under the Act. Having regard to the totality of evidence presented, I cannot find that this is that case. Notwithstanding the fact that the Respondent cannot act in breach of the legislation without consequence, it is apparent that a significant degree of confusion existed regarding the terms of the Complainant’s employment, not least relating to the correct identity of her legal employer.

I find that the complaint is well-founded, and consequently the Complainant’s application succeeds.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks’ remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented, I award the Complainant the sum of €900.00, or the equivalent of three weeks’ remuneration, in compensation.

Contract, Pro Forma