Complainant

Respondent

Parties

Lana  Tilly

Audace Hair And Beauty Salon

Representatives

  self

 No show

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-00053367-001

20/10/2022

The Complainant commenced her employment on or about the 14th of June 2022. Her employment ended on or about the 20th of October 2022. The Complainant was on a monthly gross salary €1215. Up to the point of termination no information was provided to her pursuant the Terms of Employment (Information) Act, 1994(the Act).

The Complainant stated that she received no information about her terms and conditions of employment as required by law pursuant to the Act.

The Respondent sought a postponement at short notice. That request was declined, and the employer was informed that they could make the application at the scheduled hearing. The Respondent did not attend at the hearing.

Based on sworn evidence I am satisfied that the Complainant has not been provided with the information as required by the Act.

The law requires that the employer shall provide the following within 5 days of commencing employment and after 2 months, which is detailed at section 3 of the of the Terms of Employment (Information) Act, 1994:

(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.

This was not complied with, and the absence of that information arguably has given rise to the dispute between the parties around the contractual obligations of both parties. The employee believing that the employer is abusing his position by changing shift patterns at will and the employer believing that this employee is difficult and intransigent.

The second provision states that :

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,

(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.

Section 7 provides that:

(1A) An employee shall not be entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of section 3(1A)—

(a) unless the employee has been in the continuous service of the employer for more than 1 month, or

(b) if the employer concerned has been prosecuted for an offence under this Act in relation to the same contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of [sections 3, 4, 5, 6 or 6C] shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer undersection 3, 4, 5, 6 or 6C, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) In relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

CA-00053367-001

Statement within 5 Days

On the sworn evidence no statement has been provided to the employee as required under the Act.

Statement within 2 Months

On the sworn evidence no statement has been provided to the employee as required under the Act

In contravention of the Act to provide statements of information pursuant to section 3, an Adjudicator may:

order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

Absent of evidence from the Respondent the facts are this business is a small business and I have had regard to that fact in determining what compensation in the circumstances is just and equitable.

CA-00053367-001

 Statement within 5 Days

On the sworn evidence of the Complainant no statement has been provided to the employee as required under the Act.

Pursuant to section 3 1(A) of the Act the Respondent has failed to provide a statement within 5 days as required by law. I determine that the complaint is well founded and award the Complainant 2 weeks’ pay which is an amount of €600. The Complainant has opened a payslip as evidence of her rate of pay.

Statement within 2 Months

On the sworn evidence of the Complainant no statement has been provided to the employee as required under the Act.

Pursuant to section 3 of the Act the Respondent has failed to provide a statement within 2 months as required by law. I determine that the complaint is well founded and award the Complainant 2 weeks’ pay which is an amount of €600. The Complainant has opened her payslip as evidence of her rate of pay.

In total I award 4 weeks compensation amounting to €1200

Terms of Employment Information