Complainant

Respondent

Parties

Gian Tabassi

Icts ( Ireland ) Ltd.

Representatives

  Self - represented

 Peninsula

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-00060080-001

16/11/2023

The complainant has submitted a complaint that the respondent failed to provide him with a written statement of terms of employment in contravention of Section 3(A) of the Terms of Employment (Information) Act, 1994.

He worked as a security officer with the respondent from 1/9/23 – 3/11/23

He worked 42 hours a week. He was paid an hourly rate of €13.48.

The complainant submitted his complaint to the WRC on 16/11/23.

The respondent failed to provide the complainant with a written statement of terms of employment that comply with the Act.

Evidence of the complainant given under oath

The complainant applied for a position advertised as a screening security officer in the hold baggage area in Dublin Airport.

He commenced work on the 11/9/2023.

He was engaged in training until 15/9/23, and he was assigned to aviation on 18/9/23.

The job offer which he received on 31/8/2023 set out his pay, working hours and location, but not the other terms specified in section 3 of the Act.

He sent an email to HR on 17/10/23 and another on 20/10/23 asking for specific training in hold baggage security. He received no reply

He was advised by the area Manager on 30/10/23 that a role had yet to become available in hold baggage security, though this was the job which was advertised and to which he had been appointed.

Cross examination of the complainant

He confirmed that he received terms and conditions of employment on 31/8/23.

He confirmed that the job offered to him was that of a security officer.

He stated that he was told at interview that he would be provided with hold baggage training.

He could not confirm if it was the norm to provide new employees with general security training  in the first 2 weeks of employment.

He asks the adjudicator to uphold his complaint.

The respondent accepts that they did not provide the full terms and conditions as set out in section 3 of the Act.

The respondent drafted terms and conditions for the complainant, but he left before they had a chance to provide him with same.

However, the respondent did set out in a letter to the complainant on the 31/8/23

the hourly rate of pay,

premium payments,

the hours of work, start time and length of shifts, and

the location.

Therefore, the complainant was provided with information related to the 5 core terms of employment according to the Employment (Miscellaneous Provisions Act) 2018, as follows, and therefore no detriment was caused to him

Company Secretary gave evidence under oath

The witness confirmed that for the first 5 days, the complainant was provided with training in general security, then a for a further 2 weeks he was provided with aviation security training.

On week 4 he was assigned to work as a security officer in aviation, which would automatically indicate the location, though not specifically in baggage hold security.

While he was not assigned to baggage hold security in his first two months, that was his ultimate destination, subject to vacancies arising. He took unpaid annual leave for two weeks in October.

Training for security officers in the baggage hold area was scheduled for February 2024, and in the meantime, he was deployed in general aviation security in the airport.

The respondent intended to give him a contract but, but between training and him taking leave it did not happen.

Legal submissions

The respondent refers to Petraitis -v- Philmic Limited T/A Premier Linen Services, TED1616, where the Court found that the respondent was in breach of the Act at Section 3(g) and 3(ga),but also concluded that the complainant suffered no detriment and awarded no compensation. This determination was upheld in the High Court in Petraitis -v- Philmic Limited T/A

Premier Linen Services [2016 No. 253 MCA] and is authority for the respondent’s contention that no compensation is merited in the instant case as no detriment befell the complainant.

The respondent asks that the complaint be deemed to be unfounded.

The issue for determination is whether the respondent contravened the complainant’s statutory entitlement to particulars of his employment as set out in section 3 of the Act of 1994.

The Relevant Law

Section 3 of the Act provides:

“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,

(g) […],

(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.

(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.

(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 paragraph (d) of subsection (1A) or paragraphs (h), (i), (j), (k) and (l) of the said 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.”

It is accepted that the respondent did not provide the complainant with the full set of terms as set out in section 3 of the Act.

The respondent refers to the absence of a statement of terms as a breach of minimal consequence, if any, for the complainant, and  that an award of compensation need not necessarily follow an acknowledged breach of the Act. The case upon which the respondent relies, Petraitis -v- Philmic Limited T/A Premier Linen Services, TED1616, entailed a failure to notify that complainant of the method of calculation of that complainant’s pay reference period and the option of a written statement of the employee’s average hourly rate  with the deficit confined to one or two of the requisite provisions. But in the instant case with the exception of the particulars provided to the complainant on the 31/8/23, he was not provided with the particulars set out in sections 3(e)-(m) of the Act.

This deprived the complainant of the clarity and certainty to which he was entitled.

Based on the evidence, I find that the respondent breached section 3 of the Act of 1994.

I find the complaint to be well founded.

Section 41 of Workplace Relations Act 2015 provides for redress in terms of contraventions of sections 3, 4, 5 or 6 of the Act and provides for the adjudicator to award compensation in the following terms:

“(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”.

Based on the evidence, I direct the respondent to pay the sum of €566 (the equivalent of one week’s salary) to the complainant,  a sum which is just and equitable having regard to all of the circumstances.

I decide that the complaint is well founded.  I direct the respondent to pay the sum of €566 in compensation for this breach of the Act.

Section 3 of the Terms of Employment (Information) Act, 1994;failure to provide terms of employment