TED2313

1.Appeal Of Adjudication Officer Decision No ADJ-00030106 CA-00040173-001

BACKGROUND:

2.The worker appealed the Decision of the Adjudication Officer to the Labour Courtin accordance with Section 8(1) of the Terms of Employment (Information) Act 1994.on 21st March 2023. A Labour Court hearing was held on 14th September 2023. The following is the Determination of the Court:

DETERMINATION:

Introduction
This is an appeal by Ms Viksna (the Complainant) against the Adjudication Officer’s Decision ADJ-00030106 CA-00040173-001 in her complaints against her employer Cardinal Health Ireland Manufacturing Ltd (the Respondent). The complaint was made pursuant to the Terms of Employment (Information) Acts 1994 to 2014(the Acts). The Adjudication Officer found that the complaint was well-founded andawarded compensation of €500. There is a linked case ADE/23/29.

Background

The Complainant was employed with the Respondent as a general operative from1st November 2005. The Complainant lodged her complaint with the WRC on the30th September 2020. The cognisable period for the purpose of the Act therefore is31st March 2020 to 30thSeptember 2020.

The Complainant in her submission had raised a number of issues that do not fall within the remit of the legislation that she has taken her complaints under, and on that basis the Court informed her that those issues were not properly before it for consideration. The Complainant was further informed that the Court could not consider events that had occurred after her complaint had been lodged with the WRC.

The Complainant confirmed to the Court that she understood she had won her case at first instance and that the case before the Court was to be held de novo. The Complainant confirmed that she wished to proceed with her appeal.

Summary of Complainant’s case

The Complainant submitted that she started work in November 2005 and did not remember getting a staff handbook or details of her terms and conditions of employment. On the13th August 2020 she requested copies of all the Respondent’s policies and employee handbook. The Complainant confirmed that towards the end of September she received all the policies, but she did not receive the handbook. She also submitted that the Respondent did not follow its own grievance procedure in respect of her complaint of6th July 2020 as they did not proceed with her complaint when she was out sick.

Summary of Respondent’s case

The Respondent submitted that when the Complainant commenced employment, she was given a statement of her terms and conditions of employment which she signed to confirm that she had read. Ms Fiona Perdisatt HR manager with the Respondent in her evidence to the Court opened a number of documents to the Court demonstrating that the Complainant at commencement of employment had been provided with her terms and conditions of employment and a copy of the employee handbook.

Ms Perdisatt went on to state that the pension is provided by Mercer and details of the pension can be viewed on Mercer one view. When the Complainant applied to join the pension scheme, she received documents setting out the contribution rates and all other relevant information. From time to time the Respondent facilitates the pension provider Mercer coming on site and holding information sessions.

When in August 2020, the Complainant had requested the policies, she was provided with all the policies by the end of September 2020, which when put together formed the staff handbook

Ms McNamara on behalf of the Respondent submitted that the Complainant had failed to identify a breach of the Act during the cognisable period and therefore her complaint must fail.

The relevant Law

• 3. Written statement of terms of employment
  (1) An employer shall, not later than [1 month] 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) […]
  (d) […]
  (e) […]
  (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) […]
  (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,
  [(n) the training entitlement, if any, provided by the employer,
  (o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 [OJ No. L 327, 5.12.2008 p.9] on temporary agency work), when and as soon as known, and
  (p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of—
  (i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,
  (ii) the reference hours and days within which the employee may be required to work, and
  (iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance withsection 17 of the Organisation of Working Time Act 1997, and
  (q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.]
  [(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 theCompanies 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 remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of theNational 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,
  (f) where sections 4B to 4E (in so far as they are in operation) of thePayment of Wages Act 1991apply to the employer, the employer's policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated],
  [(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;
  (h) either—
  (i) the title, grade, nature or category of work for which the employee is employed, or
  (ii) a brief specification or description of the work;
  (i) the date of commencement of the employee's contract of employment;
  (j) any terms or conditions relating to hours of work (including overtime);
  (k) where a probationary period applies, its duration and conditions.]
  (1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.]
  [(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.]
  (3) The particulars specified in [paragraphs (d), (j) and (k) of subsection (1 A) or paragraphs (h), (j), (k), (1), (n) and (q) of subsection (1)] may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.
  (4) A statement furnished by an employer under subsection (1) [or (1A)] shall be signed and dated by or on behalf of the employer.
  (5) 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.
  (6)
  (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1) [or (1A)]) as may be specified in the order and employers shall comply with the provisions of such an order.
  (b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.
  (7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.
  [(8) Paragraphs (p) and (q) of subsection (1) shall not apply to seafarers or sea fishermen.]
  
  Section 3A. Form of statement to be provided
  A statement furnished by an employer under section 3,4, 5,6, 6E or 6F shall be—
  (a) signed and dated by or on behalf of the employer,
  (b) in writing, and
  (c) transmitted on paper or, provided that the information is accessible to the employee, that it can be stored and printed, and that the employer retains proof of transmission or receipt, in electronic form.]
  
  Section 5 Notification of changes
  (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—
  [(a) the day on which the change takes effect, or]
  (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.
  (2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute [other than a registered employment agreement or employment regulation order] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.
  
  Discussion

  The Complainant under cross examination accepted that she had received her terms and conditions of employment when she commenced employment. She confirmed that she had signed to say that she had read them but that she had not in fact read them. She also confirmed that she had received the policies in September 2020 after she had requested them in August 2020, but felt that she should have received them quicker. She did not deny that policies were available from her line manager, nor did she rebut the evidence of the HR manager in respect of the sources of information relating to her pension.
  
  

  Determination

  The Court having carefully considered the Complainants submission and evidence determines that the Complainant has failed to identify a breach of the Act during the cognisable period and therefor her complaint must fail.

  The appeal succeeds. The decision of the Adjudication Officer is set aside.

  The Court so Determines.
  

  	Signed on behalf of the Labour Court
  	Louise O'Donnell
  CDK	______________________
  9 October 2023	Deputy Chairman