TED2414

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033978 (CA-00046458-002)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 7th September 2023 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2012.  A Labour Court hearing took place on the 4th June 2024. 

The following is the Decision of the Court.

DECISION:

This is an appeal by Brian Healy (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00028774- CA-00046458-002 given under the Terms of Employment (Information) Acts 1994 to 2014 (the Acts).  in a claim that he was not provided with a copy of his terms and conditions of employment by Pilvine Ltd (hereafter the Respondent).  The Adjudication Officer found that the complaint was well founded and awarded compensation of €1,010.

Background

The Complainant commenced employment with the Respondent in 2016.  His employment terminated on the 23rd April 2021 by way of redundancy.  The Complainant submits that he was not given a copy of his terms and conditions of employment as required by the Act. The Complainant submitted his complaint to the WRC on the 20th September 2021. The time limits as set out by the Act are 21st March 2021 to 20th September 2021. This case is linked to PW/23/88, PW/23/87, TE/23/62 and UD/23/136.

Summary of Complainant’s case

The Union representative submitted that the Complainant was never issued with terms and conditions of employment as required by the Act, despite raising this issue with the Respondent. In March 2020 the Respondent issued him with a contract which he did not sign, and a company handbook. However, this did not contain all the details required by section 3 of the Act and the Respondent cannot therefore rely on same. It is the Complainant’s submission that failure by the Respondent to provide the terms and conditions of employment as provided for by the Act, was a serious breach of the Act,

Summary of Respondent’s case

 The Respondent submitted that at the time of the hearing in the WRC the contract of employment was in place, but the Complainant had refused to sign it. The Complainant had also been given a copy of the employee handbook at the same time in March 2020.

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, 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) […]

(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 with section 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 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 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 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,

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply 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.]

Discussion

It is not disputed that the Complainant was given a copy of the employee handbook and a contract of employment on 19th March 2020, which predates the cognisable period for this complaint. There is no requirement under the Act for the Complainant to sign a copy of his terms and conditions of employment, therefore the fact that the Complainant did not sign it, does not take away from the fact that he received it.

However, the Union on behalf of the Complainant submitted that the documents provided to the Complainant did not fully comply with the Act and outlined a number of omissions. The Respondent did not contest the fact that these items which are stipulated under section 3 of the Act were not contained in either the contract or the handbook. On that basis the Court determines that there was a breach of the Act during the cognisable period.

Determination

 The Court having carefully considered the Complainants submission and evidence determines that there was a breach of the Act during the cognisable period.  Taking all of the above into account the Court awards compensation of €1,100 being the equivalent of two weeks salary.

The appeal succeeds. The   decision of the Adjudication Officer is varied accordingly.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
FC	______________________
24 July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.