ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00039488

Parties:

Complaint(s):

Date of Adjudication Hearing:  26/01/2023

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 during the hearing as well as any written submissions disclosed in advance of the hearing.

The Complainant herein has submitted a complaint under Section 26(3) of the Employment Permits Act of 2006 (as allowed for in schedule 5 (part 5)) which protects employees from being penalised. Section 26(3) of the Employment Permits Act states that the Employer shall not penalise or threaten penalisation against an employee for making a complaint to the Gardai or the Minister (or even expressing an intention to make a complaint) that a provision of either the 2003 or 2006 Act is not being complied with. An Employer cannot penalise an employee for giving evidence in proceedings brought under the Employment permit Acts.

“Penalisation” in the context of s. 26 of the Employment Permits Act 2006 would include (but is not limited to) dismissal, suspension, lay-off, demotion, transfer of duty, reprimand, imposition of discipline or penalty, and either coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given its ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665)

Section 26(5) of the Employment Permits Act provides that penalisation may include Dismissal and further specifies that if the penalisation constitutes dismissal the employee may not be granted relief in respect of the penalisation both under schedule 2 of the Employment Permits Acts and the Unfair Dismissal Acts.

It is noted that Schedule 2 of the Employment Permits Act 2006  provides that a decision of an adjudication officer under section 41 of the Workplace Relations Act in relation to a complaint of a contravention of Section 26 of the Employment Permits  Act shall do one or more of the following –

i Declare the complaint was well founded.

ii Require the Employer to take a specific course of Action.

iii Require the Employer to pay to the Employee compensation of such an amount that the Adjudicator considers just and equitable in the circumstances.

In addition to the above, the Complainant has brought a further complaint 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.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

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.

Dated:   03/02/2023

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Key Words: