TED232

1.Appeal Of Adjudication Officer Decision No(s)ADJ-00033114 CA-00043829-008

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 15 August 2022. A Labour Court hearing took place on 17 January 2023. The following is the Court's Determination:




DETERMINATION:

This is an appeal by Mary Power (Complainant) of decision ADJ 00033114 CA-00043829-008 of an Adjudication Officer under the Terms of Employment (Information) Act 1994 (the Act) in a claim that the Respondent failed to provide her with a statement of terms and conditions of employment as required by the Act. The Adjudication Officer upheld the Complainant and awarded compensation of €2,105. This case was heard with linked cases ADE/22/65, ADE/22/64 and TE/22/37

The Complainant lodged her complaint with the WRC on the 30^thApril 2021 therefore the cognisable period is 31^stOctober 2020 to 30^thApril 2021.

Summary of Complainant’s submission and evidence.

Ms O Loughlin BL on behalf of the Complainant submitted that the Complainant never received either a statement or a contract of employment setting out her terms and conditions of employment. This was a serious breach of the Act and compensation should have been awarded. The Complainant in her evidence to the Court stated that she never received the five-day statement or a contract of employment. It was put to the Complainant that it would be the evidence of Mr Courtney that he emailed her a document prior to commencing work and that when she started work, he handed her a contract. The Complainant was adamant that she had not received either document.

Summary of Respondent’s submission and evidence.

Ms Walsh on behalf of the Respondent states that the Complainant was given a contract of employment dated 27^thJuly 2020 and a written offer of employment dated 22^ndJuly 2020.
Mr Courtney in his evidence to the Court stated that when the Complainant started work he printed off a copy of the contract and handed it to her as she was sitting beside him.

The applicable law

Section 3 (1) of the Act states

• 
  (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, undersection 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.
  
  

Discussion

The Court notes that the Respondent’s sworn evidence before the Adjudication Officer was that the contract was sent by post to the Complainant which conflicts with his sworn evidence to this Court that he handed it to her when she commenced work. The Court finds that on the balance of probabilities that the Complainant did not receive a statement complying with the requirements of section 3(1) of the Act within the designated time frame.

Determination

The Court having carefully read the submissions and listened to the oral submissions on the day determines that compensation in the amount of four weeks salary should be paid to the Complainant. Based on the payslips provided to it, the Court determines that the Complainant worked on average 23 hours a week at an hourly rate of €20 giving a total of 23x20 =460 x4 weeks =€1840.

The Decision of the Adjudication Officer is varied accordingly.

The Court so determines

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
02 February 2023	Deputy Chairman