Complainant

Respondent

Parties

Adam  Heys

Celsius Logisitics Limited

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self-Represented

Dorothy Donovan BL

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-00054957-006

30/12/2022

The Complainant commenced employment with the Respondent transport company as a truck driver in December 2021 and resigned his position to take up other employment in December 2022. The Complainant submits that he never received his Terms of Employment as required by section 3 of the Terms of Employment (Information) Act 1994 (“the Act”).

The Respondent denies the complaint and submits the Complainant received his terms of employment in line with the Act.

The Complainant said he never received his terms of employment during his employment. It was put to him in cross-examination, that a copy of his terms and purportedly signed by him on December 14, 2021, which was exhibited, was proof that he did receive his terms. The witness denied ever having received the terms as alluded to and further stated that he did not sign for them. He accepted he signed documents, the contents of which he could not recall, but was adamant he did not sign for his terms.

Ms Amanda Conroy, manager for the Respondent,  gave evidence that  the Complainant received his terms of employment on 14 December 2021 and testified to the authenticity of a copy that was exhibited. The witness also stated that the commencement date of the Complainant’s employment was 7 December 2021 as acknowledged in his terms, and not 2 December 2021, as argued by the Complainant.

APPLICABLE LAW.

Section 3 of the Act in its relevant parts provides: -

(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—

(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,

…(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

….(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..

Section 3 (1A) of the Act states in its relevant part:

“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:

…(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..”

The Complainant was adamant that he did not sign for the copy of his terms of employment on 14 December 2021 as exhibited, but Ms Conroy gave evidence that he did not receive his terms of employment on 14 December 2021. The Complainant, though sure in his evidence that he did not sign for his terms, was unsure of the documents he acknowledged he did sign. It was also accepted that in previous correspondence he did not recollect signing for his terms, which was a considerable step from his position at the hearing, where he expressed certainty that he did not sign for the terms. On this point I found the evidence of Ms Conroy more convincing. Furthermore,   a copy of the signed terms was exhibited. I am therefore satisfied that the Complainant received his terms of employment on 14 December 2021.

However, I am satisfied also that he did not receive his core terms within the specified five-day period, as specified under Section 3(1A) above. Moreover, the remaining information must be given not later than two months after the date of commencement of employment. The Respondent did not include the core term provided under Section(1A) on December 14 2021 which requires the following:

…(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…

As there was a subsequent failure to rectify the transgression, the transgression  then subsisted,  resulting in a situation where  the Respondent did not provide the  full statement of core terms as provided under Section 3(1A) of the Act. I therefore find that the complaint was well founded.  

Redress in the Act is described as follows at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6or 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,

 (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 17of the Unfair Dismissals Act 1977.

When determining whether compensation should be granted for non-compliance with the provisions outlined in section 3 of the Act, I must be mindful of the practical implications that it held for the Complainant. The Complainant gave no evidence of any adverse effect on him, however, the non-inclusion of the number of hours a truck driver was expected to work during a normal day, nor a normal week, cannot be considered a technical breach. However, the Respondent did argue a strong point of mitigation in that statement of terms, albeit incomplete ,was made given to the Complainant within seven days of commencement of employment. Having considered all the circumstances in this case I do believe that compensation is justifiable. I believe compensation should reflect the approximate sum of one week’s wages. As I made a finding of fact that the Complainant acknowledged that his rate of pay was €125 per day,  in reference to the terms he signed for,  I award the Complainant the compensatory sum of €625. 

CA-00054957-006: For the reasons outlined above, I find that the complaint was well founded and I direct the Respondent to pay the Complainant the compensatory sum of €625.

Terms of Employment (Information) Act 1994.