TED2416

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00034982 (CA-00045756-003)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 14 September 2022 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2012.  Labour Court hearings took place on 23 June 2023 and 20 June 2024.   

The following is the Decision of the Court.

DECISION:

This is an appeal by Sueann Moore of a decision of an Adjudicator Officer dated 12 August 2022 under the Terms of Employment (Information) Act 1994 (the Act) in a claim against her former employer Ringsend Community Services Forum CLG.

The Respondent did not attend the hearing at first instance.  The Adjudication Officer found that the complainant was not well founded.

For ease of reference the parties are given the same designation as they had at first instance.  Hence Sueann Moore is referred to as “the Complainant” and Ringsend Community Services Forum CLG is referred to as “the Respondent”.

Position of the Complainant

The contract of employment issued to the Complainant on commencement of her employment was in breach of s.3 of Act. A subsequent ‘new’ contract issued to her was also in breach of the Act in that it did not contain the following as required pursuant to the Act:

• The Complainants place of work contrary to s.3(1)(c)
• That the Complainant may seek a statement pursuant to s.23 of the National Minimum Wage Act, 2000 contrary to s.3(1)(ga)
• Pay reference period for the purposes of the National Minimum Wage Act 2000
• Details of times and duration of rest periods and breaks referred to in S11, 12 and 13 of the Organisation of Working Time Act, 1997, pursuant to SI. 49 of 1998 Terms of Employment (Additional Information) Order 1998
• Grievance procedure and disciplinary procedure – SI 146 of 2000 Industrial Relations Act, 1990, (Code of Practice and Grievance and Disciplinary Procedures) (Declaration) Order 2000 requires that the copy of the grievance and disciplinary procedures are furnished to the employee on commencement of employment. This was not done.

The importance of providing statements of terms in compliance with the Act is well established in case law. The Respondent was in breach of the Act.  The Respondent cannot rely on assertions that breaches were of a technical nature, and the Complainant is entitled to the highest level of compensation.

Position of the Respondent 

The Respondent accepts the defects in the written statement of terms and conditions of employment, as outlined.

The Applicable law

The relevant section of the Act provide as follows:

Written statement of terms of employment.

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—

(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,

(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) 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. 

(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.

Deliberation and findings

The Act imposes obligations on an employer and confers a corresponding right on a worker to have the basic terms of employment set out in writing in accordance with section 3 of the Act. The Respondent failed to do so in this case.

The requirement to supply a written statement to an employee is an important one which provides the basis for an employee to have the clarity as required by the Act as regards his or her terms of employment. The Complainant in this case was without that clarity in relation to certain terms of employment, as specified in the Act.

The Court finds that the complaint is well founded.

Where a contravention of the Act occurs the Labour Court must make an award that is just and equitable having regard to all of the circumstances.  In the circumstances of this case, where the Respondent fully accepts that it provided the Complainant with a written statement of terms of employment which did not comply with the Act, the Court considers that an award of two week’s remuneration to be just and reasonable. 

As the Complainant was paid a weekly rate of €575 gross, the Court orders the Respondent to pay the sum of €1,150 as compensation.

Determination

The Court determines that the Respondent was in breach of the Act at Section 3 and the complaint is well founded.

The Court orders the Respondent to pay the sum of €1,150 as compensation to the Complainant being the amount which the Court considers just and equitable having regard to all of the circumstances. 

The decision of the Adjudication Officer is set aside.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
7 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.