Complainant

Respondent

Parties

Laura  Stynes Wiggins

The Board of Management of St Mark's Community

Representatives

Michelle Quinn, Colm O'Cochlain & Company Solicitors

Rosemary Mallon, B.L., instructed by  Mason Hayes & Curran

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-00053196-001

06/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053196-002

06/10/2022

The complainant commenced employment with the respondent on 07/12/2020.  She was a Grade III Clerical Officer, and she took up the role following an interview with the Deputy Principal, Mr Paul Dempsey.  The complainant applied for a Grade IV post in April 2022 and on 01/06/2022 she was told by the Principal that she was unsuccessful in her application.  The complainant believes that she was then given two weeks’ notice by the Principal.  The respondent strongly refutes the proposition that the complainant was dismissed and submits that she resigned following her disappointment at not being appointed to the Grade IV post.  It is the respondent’s position that the complainant’s appointment was at all times temporary in nature pending the advertisement of a permanent Grade III post.

The complainant received no documentation or training in relation to her post.  The complainant submitted her complaints to the Workplace Relations Commission (WRC) on 05/10/2022.  She was paid €25,000 gross or €453 weekly.

The complainant took up the role as a Grade III Clerical Officer on 07/12/2020.  She became aware of the vacancy through two friends who worked in the school.   She contacted the Deputy Principal who asked her to submit a CV.  He interviewed her and offered her the post immediately and she started the following week.  She received no contract of employment or any details in relation to her employment.  She also did not receive any training.  After a week working for the respondent, the complainant spoke with Mr Dempsey about her work hours, and it was agreed that she would work three full days and two half days and without any adjustment to her pay.  The complainant was told by the Principal and Deputy Principal that there would be an opportunity to apply for a Grade IV position at a later stage.

The Grade IV position was advertised in April 2022 and the complainant applied and was interviewed.  At the interview she raised a query about the salary and stated that if she was successful, she would want to be placed on the 2nd point of the applicable scale.

On 01/06/2022, two weeks after the interview, the complainant was invited to meet with the School Principal.  At this meeting she was told that her application for the Grade IV post was not successful and that a candidate with more experience was appointed.  The complainant described the Principal’s demeanour as cold.  The complainant asked what would happen now and she gave evidence that she was told by the Principal that she would be given her statutory notice of two weeks.  She was shocked at this news and was told by the Principal that she could apply for the permanent Grade III position.  Following this meeting she called into the Deputy Principal’s office and told him that she was given two weeks’ notice.  She told the Deputy Principal that she would be unable to work the two weeks’ notice as she was so upset and because of the way she was treated.  The complainant gave evidence that she wanted to look after her mental health.  She later sent an e-mail to the Principal stating that she would not be able to work her two weeks and that she was leaving with immediate effect.

The complainant sent a further e mail to the Principal a few days later in which she outlined several concerns about what happened and requested a response.  The Principal invited the complainant to a meeting and advised her that the Grade III permanent position was now advertised.  At this meeting the complainant asked why she could not resume her Grade III post as she was a permanent member of staff rather than being given two weeks’ notice.  The complainant also noted that she should have received a contract of employment.

The Principal wrote to the complainant two weeks later and made a reference to her resignation from her temporary position.  This was a new development as there was no mention of a resignation at any stage prior to this.  The complainant replied stating that she did not resign but rather she was given two weeks’ notice on 01/06/2022 and as a result of that the complainant said that she was leaving with immediate effect.  She asked if it could be clarified that she was not dismissed but did not receive any response to this.  The complainant then engaged her solicitor and in an exchange of correspondence from the respondent’s solicitors it was denied that the complainant was dismissed.

The complainant submits that she was unfairly dismissed and the respondent took no account of her unblemished record of employment.  She is entitled to redress pursuant to the Unfair Dismissals Act, 1997 and she is seeking reinstatement.  It was also submitted on behalf of the complainant that she has suffered financial loss as a result of the termination of her employment.

The complainant gave evidence that she was never made aware that her Grade III post with the respondent was temporary in nature.  She was regularly made aware that a Grade IV post would be advertised.  In 2021 she was invited to the school assembly and was welcomed to the school.

The complainant also gave evidence in relation to her meeting with the School Principal on 01/06/2022.  She was told that the delay in informing her of the outcome was due to the fact that the Board of Management had to consider her request for a pay increase.  She was informed that she was not successful in her application.  The complainant confirmed that the Principal told her that she was giving her two weeks statutory notice.  She described how she was shocked at this and was distraught. 

The complainant also confirmed details of the meeting of 08/06/2022 with the Principal.  She raised concerns about alleged rumours that were circulating about her but the Principal was not aware of these.  She also asked for a reference and the Deputy Principal gave her one.  The complainant also spoke to the Principal about not having her contract and that she would be looking for a copy of the Board minutes which confirmed the decision to appoint another candidate.  The complainant also gave evidence that she told the Principal that she wanted her job back.

In response to a question from the Adjudicator the complainant said that she applied for three jobs since her dismissal.

The complainant was cross examined by Ms Mallon, B.L.  The complainant confirmed that the jobs which she applied for were all three days per week and that those applications were made in her local area.

It was put to the complainant that if she was looking to be reinstated, she could have applied for the permanent Grade III post which was advertised and which she was made aware of by the Principal.  The complainant stated that she had a job at that time.  It was put to the complainant that she told the Principal on 08/06/2022 that she had no respect for her and that she was disappointed in her and in those circumstances, it would not be possible to return.  The complainant responded that she was a professional person.

It was put to the complainant that when she met the Deputy Principal, she did not have a formal interview and that he told her that the job on offer was an “Office Temp”.   The complainant denied that she was told that but that he did tell her about an “accounts” role.  It was also put to the complainant that she made it clear that the pay was inadequate.  The complainant confirmed that it was and that after one week she told the Deputy Principal that she could not work for five days on the pay and as a result of that her week was changed to four days.

The complainant was asked about the meeting on 01/06/2022 where she was informed that she was unsuccessful in the Grade IV application.  She said that she was shocked that she didn’t get the Grade IV role as she felt that she was being groomed for it and she was also upset at being dismissed.  The complainant confirmed that she was told that the permanent Grade III role was being advertised.  The complainant also confirmed that she could not take up the Grade IV role based on the “year one” salary.

It was put to the complainant that the Principal was pleased when she indicated that she would apply for the permanent Grade III role and the complainant stated that this was not true as she found the Principal cold.

The complainant also confirmed that in her e mail, which was sent shortly after the meeting on 01/06/2022, she never mentioned that she believed she had been dismissed or that she believed she was given two weeks’ notice.  The complainant confirmed that was correct and that she did mention not working out two weeks’ notice.

It was put to the complainant that the e mail of 01/06/2022 was that of a disgruntled person who did not get a job.  The complainant did not agree and stated that the job was only worth about €50.00 more to her.

The complainant was asked if she was angry at the meeting on 08/06/2022 and she stated that tensions were high, and they discussed the alleged rumours and that the main items for discussion were those outlined in her e mail of 03/06/2023.  It was put to the complainant that at the meeting the Principal wanted to clarify the inaccuracies in that e mail. The complainant stated that the items for discussion were the reference request, holiday pay, overtime payment, delay in receiving the outcome of the interview and an explanation as to why the Board of Management would have to discuss the salary for the post if she was not successful.  The complainant confirmed that everything on her grievance list was covered.

It was put to the complainant that the Principal would say that she would not listen and that she told the Principal that she was going to her solicitors.  The complainant denied that this was the case.

It was also put to the complainant that telling the Principal that she had no respect for her was not appropriate when school students were in close proximity.  The complainant said that she did not see any students until she was leaving and that she did not shout.  She stated that she always had a good relationship with the School Principal.

The complainant’s representative submitted that there is a complete conflict of evidence in this case. The complainant has maintained a consistent approach and the facts have not changed.  She set out her position in an e mail and sought clarification from the School Principal, but this was not forthcoming.  A decision was made to terminate the complainant’s employment.  The respondent did not provide any written terms and conditions regarding her employment, and she should benefit from this. The respondent had 18 months to rectify this but did not do so.  The respondent’s case does not stand up.  There was never any request from the complainant about a permanent Grade III role as she was already in that role.  There is further conflict of evidence regarding the meeting with the School Principal, but the complainant clearly set out what had occurred at that meeting.

The fact is that the complainant was dismissed on 01/06/2022.  She obtained a job in mid-September 2022, but she is looking for reinstatement and she was happy in the job she had with the respondent.

The respondent acknowledges that the complainant did not receive a written contract of employment.  However, all the working arrangements and terms agreed with her were honoured.

The respondent denies that the complainant was dismissed, and the fact of dismissal is in dispute.  The complainant was employed in a temporary capacity as a Grade III Clerical Officer. 

Following receipt of funding from the Department the respondent was in a position to fill two posts – one at Grade III level and one at Grade IV level.  The Board of Management decided to advertise the Grade IV post first and when that process was completed, they would then move on to fill the Grade III post.  It is the respondent’s position that the complainant stated that she was not satisfied with the pay for the Grade III post and, therefore, she would not be interested in a permanent Grade III post.

The complainant applied for the Grade IV post, was interviewed but was unsuccessful in her application.  The outcome was communicated to her by the School Principal on 01/06/2022.  The complainant was not happy with the outcome and was upset.  The Principal told the complainant that the permanent Grade III role would be advertised, and the Principal assumed on the basis of previous conversations with the complainant that she would not be interested.  In that context the Principal mentioned notice.  The complainant clarified that she would in fact be interested in the permanent Grade III role and the Principal indicated that she was pleased to hear that.  It was the Principal’s understanding that the complainant would continue to work in the temporary Grade III role and apply for the permanent Grade III role.

Following that meeting the complainant then attended at the office of the Deputy Principal.  She told him that she did not get the Grade IV job and that she was saying goodbye.  The complainant said that she was glad she did not get the post as it was not worth the extra €20 per week.

Later that evening she sent an e mail to the Principal stating that she would be leaving the school with immediate effect.  She also stated that if she stayed and was interviewed for the other job, she would not get it.  She also mentioned that she enjoyed her time working there and wished the Principal all he best.  The Principal replied to the complainant following day and thanked the complainant for her contribution and told her that the permanent Grade III post would be advertised the following day. The complainant did not attend work the following day.

On 03/06/2022 the complainant sent a further e mail to the Principal in which she outlined a number of areas of concern.  The Principal acknowledged the e mail and set up a meeting with the complainant on 08/06/2022.  The Principal felt that the complainant was angry and concerned about rumours about her.  The Principal was not aware of these, and the complainant did not want the Principal to go through the list of inaccuracies in the e mail but told the Principal that she would be consulting with her solicitor.  The complainant sent a further e mail to the Principal following this meeting.  The Principal wrote to the complainant and advised her that the permanent Grade III post was now advertised.  This was followed by an exchange of correspondence between the legal representatives for both parties.

The Deputy Principal, Paul Dempsey, gave evidence on oath on behalf of the respondent.  He confirmed that he is the Deputy Principal and he outlined that in December 2020 the previous administration person retired, and the general office had no administration cover.  He became aware that the complainant was looking for a role from a member of staff.  He asked her to submit a CV and he then invited her in for a chat. The Deputy Principal gave evidence that the complainant was aware that this was an “office temp” role.  He stated that she was not promised a Grade IV role, but he was clear that the role which the complainant was undertaking would have to be advertised in due course.  The Deputy Principal told the hearing that on 01/06/2022 the complainant called into his office, and she was upset but not crying.  She told him that she was leaving as she did not get the Grade IV job.  The complainant did not say that she was dismissed or that she was given two weeks’ notice.  The Deputy Principal confirmed that he received two sets of complaints in relation to the complainant from members of staff.  The general nature of these were in relation to staff receiving texts and e mails.

Mr Dempsey was cross examined by the complainant’s representative.  He was asked if he interviewed the complainant for the job.  He explained that it was a casual arrangement.  Mr Dempsey acknowledged that his meeting with the complainant could be seen as an interview, but he clarified that if it was a permanent post there would be a more formal interview and a formal process to be followed.  Mr Dempsey was asked what the complainant’s response was when he told her that the role would have to be advertised and a formal interview required.  He stated that she was happy to accept and the arranged for her to start the temporary role the following Monday.  It was put to Mr Dempsey that the complainant was appalled at the rate of pay for the amount of work involved and so she requested to work a five day over four arrangement.  He confirmed that he agreed to this flexible arrangement with the complainant.  Mr Dempsey also confirmed that there was no written confirmation of her terms and conditions.  Mr Dempsey was asked if the complainant ever asked him when the role would be advertised, and he confirmed that she did, but he would not be able to recall exact dates.  Mr Dempsey was asked if there was a similar arrangement for any other employee and he confirmed that there was another employee who was in same position.  Mr Dempsey confirmed that the complainant raised the pay issue early in her employment and she never brought the subject up again.  Mr Dempsey also confirmed that the complainant told him on 01/06/2022 that the Grade IV job was not worth the additional €20.00 per week.  Mr Dempsey said that he was not aware when the funding for the Grade III and Grade IV posts were approved.

In response to a question from the Adjudicator in relation to the lack of formality surrounding the appointment of the complainant Mr Dempsey said that this was an “emergency appointment” given the circumstances at the time and that was the reason he did not follow the normal procedure.

The School Principal, Ms Eithne Coyne gave evidence on oath on behalf of the respondent.  Ms Coyne confirmed that she was not involved in the appointment of the complainant in December 2021.  Ms Coyne confirmed that the position at that time was they received Board of Management approval to appoint someone in a temporary capacity.  Ms Coyne also gave evidence that there was a moratorium on appointments at that time.  The school had two office staff and one retired and was not replaced.  The person who was left worked for an additional year post her retirement date and she gave notice of her decision to retire in November 2021.  Ms Coyne outlined that the funding for the Grade III and Grade IV posts came because of a circular from the Department.  Ms Coyne was asked why she did not push for Board of Management approval to have the post replaced.  She outlined that the school was closed from January to March 2021 and then there was a very busy end of year followed by the summer break.  Ms Coyne confirmed that it was challenging to recruit office staff.

Ms Coyne also gave evidence that it was decided to advertise for the Grade IV post first as this was more attractive and they were required to have separate competitions for the two posts.  Several people applied including the complainant and she was interviewed.

Ms Coyne recalled the conversation she had with the complainant on 01/06/2022.  She said that this was a difficult conversation, and she met the complainant at the end of the day.  She outlined to the complainant that she was not successful in her application.  Ms Coyne gave evidence that she did not dismiss the complainant at that meeting. If the complainant was going to be dismissed this would require a Board of Management decision to that effect. She told the complainant that the permanent Grade III post was to be advertised and the complainant asked her what happens next. Ms Coyne understood from the complainant that the salary for the Grade III post was not adequate, and she told the complainant that she was happy she was going to apply for the permanent post. Ms Coyne told the hearing that she would not use the word “statutory”.  Ms Coyne confirmed that it was her understanding that the complainant would continue in the Grade III role until such time as it was advertised and filled on a permanent basis.  Ms Coyne said that she was shocked and concerned when she received the first e mail from the complainant.  On receipt of the second e mail, she arranged to meet with her.  This took place on 08/06/2022.  The complainant was concerned about alleged rumours, but Ms Coyne was not aware of these.  She described the complainant’s demeanour as being upset and annoyed about the rumours.  Ms Coyne said that she wished to review the inaccuracies in the complainant’s e mail and clarify the conversations she had with her.  The complainant wanted to get the meeting over with and the complainant told her that a solicitor acting on her behalf would be in contact.  Ms Coyne confirmed that the complainant did not ask for her job back.  Ms Coyne also stated that she had expected the complainant to apply for the permanent Grade III role.

Ms Coyne also gave evidence that the complainant did not ask for any clarification in relation to how she might raise a grievance.  Ms Coyne said that at the end of the meeting the complainant said that she was disappointed it had come to this.  The complainant then went to the door and from the corridor she stated back  to Ms Coyne that she had no respect for her as a person.

Ms Coyne was asked about the flexible arrangements in the permanent Grade III role.  Ms Coyne said that there was a very specific contract for the role and the Department set out the working times which were 8.00am to 4pm and it was a five-day week role.  This role is consistent across the school system.

Ms Coyne was cross examined by the complainant’s representative.  Ms Coyne was asked if she had made it clear before 01/06/2022 that the Grade III post would have to be advertised. Ms Coyne stated that it was always clear to her that the complainant’s  post was temporary and there were conversations with the three-administration staff about the role.  Ms Coyne was asked if she could recall a specific occasion when she told the complainant that it was to be advertised.  Ms Coyne said that she could not recall specific dates, but she was clear that the flexible hours would not be applicable in the permanent role.  In relation to the funding Ms Coyne confirmed that this was approved from the Department. Ms Coyne was asked if she recalled the complainant saying that the pay was not adequate.  Ms Coyne said that the complainant said that she could not live with the salary on offer.  Ms Coyne confirmed that they had not succeeded in filling the Grade III post on a permanent basis.

The respondent’s representative made some closing remarks.  She outlined that there was no dispute that the role was a temporary role. When the complainant asked the Principal on 01/06/2022 “What happens now”? this shows that she was aware that her post was temporary.  It is also clear that she applied for the Grade IV post in a half-hearted fashion, and she told the Deputy Principal that it was not worth the €20.00 per week.  The complainant wants the Adjudicator to believe that she was dismissed but her e mail of 01/06/2022 is telling – specifically there is no mention of dismissal, there is no mention of notice and she decided that she was not going to apply for the Grade III post.  The complainant provided no explanation as to why she did not apply for the permanent Grade III job.

In relation to the meeting on 08/06/2022 the School Principal’s evidence is clear – she clarified everything at that meeting.  The complainant’s response to the Principal was that she stated from the corridor that didn’t respect her as a person.  The evidence is clear that the complainant resigned and was not dismissed, and she decided not to apply for the permanent Grade III post.  The complainant fails the breach of contract test and the reasonableness test.  Following on from the Conway v Ulster Bank Ltd UD 474/1981 the complainant did not lodge any complaint or grievance.

The respondent’s representative submitted that if it was found that the complainant was unfairly dismissed reinstatement is not an option.  She failed to apply for the permanent Grade III post.  If she was reinstated it could only be into a temporary role which she previously had.  However, any reinstatement is impossible given the comment that she made to the School Principal on 08/06/2022 from the school corridor.

It is clear that the complainant did not apply for the permanent Grade III post as the lack of flexibility did not suit her.

The complainant also failed to mitigate her loss.  She only looked for jobs which offered a three-day week, and which were close to where she lived.  She did not provide any mitigation documents in relation to the jobs she applied for or evidence in relation to her current employment.  The complainant outlined a number of family needs in order to justify this, but family needs are not grounds for reinstatement.  Following on from the Labour Court judgement in the Synergy Solutions case UD/18/141 it is clear that the complainant made no “reasonable efforts” to mitigate her loss.

She was not unfairly dismissed. Her actions show that she resigned and that her relationship with the School Principal would render reinstatement impossible.

The complainant is seeking reinstatement arising from her complaint of constructive dismissal from her employment with the respondent.

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal.  Section 1(b) states:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate his contract of employment without giving prior notice of the termination to the employer.”

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the complainant to demonstrate that her resignation was justified.

In supporting her decision to terminate her employment the complainant will have to prove that the circumstances of her dismissal met the tests as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described as follows:

“conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance.”

And the reasonableness test which was expressed in the following terms:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, the employee is justified in leaving.”

Both of these tests have been followed by various Irish authorities.

In relation to breach of the complainant’s contract of employment there was no evidence that any such breach occurred.  Significantly, no formal grievance was raised by the complainant.   It is expected that an employee will exhaust internal procedures prior to resigning.  This requirement featured in many Employment Appeals Tribunal decisions and subsequently in the  WRC and Labour Court.  This was particularly well expressed in Conway v Ulster Bank (UD474/1981) where the Tribunal held that “the claimant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.  An elaborate grievance procedure existed but the claimant did not use it.  It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible”.

In another decision (Travers v MBNA Ireland Ltd (UD720/2006)) the Tribunal emphasised the same point: “the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case … In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In examining the conduct of the employer there was no evidence that the complainant was dismissed.  It is clear that while the complainant believed she was dismissed, the respondent at all times made the position clear – the permanent post is advertised, and the complainant was welcome to apply for it.  At no stage did the respondent confirm that the complainant was dismissed.  Any ambiguity on the part of the complainant in relation to this should have been finally resolved when the respondent’s solicitors wrote to the complainant’s solicitors on 05/07/2022: “Firstly, for the sake of clarification your client was not dismissed from her employment with our client.  Any assertion to the contrary is refuted and denied”.   

I accept the respondent’s position that any dismissal would have to be sanctioned by the Board of Management and no such sanction was sought.  I also accept the respondent’s evidence that any permanent post would have to be sanctioned by the Board of Management, advertised, and followed by a competitive interview process.  Any appointment would then have to be sanctioned by the Board of Management. 

It is not contested that the complainant’s appointment did not follow such a process.  I accept the evidence of the Deputy Principal that this was an “emergency appointment” and that in those circumstances the appointment was temporary and not subject to the formal process used in permanent appointments. 

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

There is no doubt that this was a difficult situation for the complainant.  She had worked for the respondent for just over 18 months and the flexibility suited her.  However, her e mail dated 01/06/2022 confirming that she would no longer work in the school is unambiguous, conclusive and distinctly confirms that she “decided to leave St Marks with immediate effect”. 

What transpired in the exchange of correspondence and meetings after that is inconsistent with the sentiments which she expressed in her e mail of 01/06/2022.  I also find that her failure to apply for the permanent Grade III role, despite having been told about this on a few occasions, is extraordinary and unfathomable.  The complainant did not provide the hearing with any enlightenment regarding her failure to apply.  The complainant did not provide any confirmation that she would accept the permanent Grade III role when the flexibility which she previously enjoyed would cease if she was appointed to that role on a permanent basis.

The complainant has failed to provide the hearing with any evidence that she attempted to mitigate her loss.  She gave clear evidence that she only wanted a role which had a three day per week commitment, and which was based in her local area.  I find that this also conflicts with her submission that she is seeking reinstatement.

Based on the evidence of the complainant and the authorities cited, I find that the complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp (1978) IRL 332. 

I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

CA-00053196-001: Terms and Conditions of Employment:

This is a complaint pursuant to the Terms of Employment (Information) Act, 1994.   The Complainant submits that she did not receive a document which complies with Section 3 of the Act.  Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(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.

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than two months after the commencement of the employee’s employment.

The 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.

It is not disputed that the complainant was not issued with a contract of employment or any documentation in relation to her role. There is an onus on the respondent to provide an employee with all details which are fully compliant with the Act and to and to retain such a document for at least a year after the employment ends.

While some of these terms required may be viewed as trivial and technical in nature it is well established by the Labour Court that a failure to comply at all with Section 3 of the Act can be reduced to a trivial or technical matter.  In the case of TED2013 the Labour Court stated: “If this Court were to accept the contention that a total failure to comply with Section 3 of the Act was a breach of such little significance as to allow the application of the de-minimus rule, the Court would, in effect, be allowing that Section 3 of the Act could, as a general proposition, be ignored unless a worker could show a detriment arising therefrom.  The Court does not accept that such a contention can be drawn”.

I find that there was a contravention of the Act during the relevant period.  In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.3 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should be applied.  I therefore order that the respondent pay the complainant the sum of €1,812 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.  For the avoidance of doubt this amount is calculated on the agreed weekly rate of €453.00.

CA-00053196-001: Terms and Conditions of Employment:

I have decided that there was a breach of the Act and I order that the respondent pay the complainant the sum of €1,812 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00053196-002: Unfair Dismissal:

I have decided that I do not find that the complaint of constructive dismissal taken under the Unfair Dismissals Act to be well founded.

Dismissal not agreed.  Terms and conditions of employment.  Constructive dismissal.