Complainant

Respondent

Parties

Mara  Fanni

Madenice Ltd Restaurant

Representatives

  Appeared In Person

Act

Complaint 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-00055905-001

03/04/2023

On 3 April 2023, the Complainant, a Sommelier submitted a complaint to the WRC that she had not received a statement in writing of her terms of employment ,4 August 2022 to 19 November 2022.

The Complainant is a lay litigant and has presented her own case.

The Respondents operate a Restaurant and have disputed the claim. The Respondents equally are lay litigants and have presented their own case.

In advance of the hearing, I wrote to the parties and explained that I needed to see the statement of terms referred to in the respondent submission for both parties to comment on at hearing.

The hearing was held in the Cork Office with the Complainant participating by means of the Hybrid screen.

Both parties presented written submissions. The hearing was supported by an Italian Interpreter.

The Complainant took the affirmation to accompany her evidence. The Respondent took the oath.

The Interpreter affirmed.

The Complainant is an Italian Sommelier and came to work at the Respondent Restaurant on 4 August 2022. She was a full-time worker and earned €430.00 gross per week.

The Complainant submitted her complaint as not having received a statement in writing on her terms of employment during her employment.

On the complaint form, the complainant detailed an unhappy period of employment which had fallen short of her expectations on arrival.

The Complainant submitted that she left the job on 19 November 2022 at the Respondent invitation.

There were delays around payments, which were subsequently resolved. The Complainant wrote that it took her months to get over the trauma she experienced in the job.

Her case to the WRC is that she had never received a statement of terms of employment.

The Complainant exhibited her application for PPS number, documents provided by the respondent to aid accommodation, schedule changes and confirmation of annual salary of €28,000.

Complainant Evidence:

The complainant outlined that this was her first time in Ireland and that she had sent her CV in the post to the Respondent. She wanted to learn English.

She was keen that she be paid correctly and that she could see her contract. She addressed both of these requests with the Respondent.

It was the complainant evidence that she had never seen the document tabled by the Respondent as her statement of terms. She submitted that this document was not signed by either party .

The Complainant submitted that she left the employment due to the manner in which she had been treated.

During cross examination, the respondent put to the complainant that the statement of terms had issued to her in the early three days of her employment. She was requested to read over and sign it. The Complainant disputed this and conformed that she had no recollection of receiving the statement.

The Complainant confirmed that she had experienced a delay in receiving her PPS number and only received it before she left the employment.

In closing, the Complainant confirmed that she had found her experience in the job to be very difficult.

She confirmed that the address on the statement of terms reflected her initial address in Ireland.

The Respondent operates a Restaurant, and it was common case that the complainant was employed for the period stated.

On 19 April 2023, the Respondent disputed the claim.

“… We can only say that we did indeed have a contract/term of work printed signed by myself and given to Mara, it was a physical copy, one that Mara never signed or took with her even after being asked to on more than one occasion ……”

The Respondent lodged a defence in the claim.

It was their case that the complainant was provided by a signed statement of terms, and she had left it behind the counter in the restaurant from where she was requested to take it home.

The Respondent outlined that the complainant commenced work in August 2022 without the back up of a PPS number or a bank account. This necessitated a number of weeks payment to a Spanish bank account.

The Complainant was employed for 5 days yet worked 4 days. The Respondent disputed the complainant recollection of an unsupported work environment. They submitted that the complainant had been supported through assistance with her accommodation and her work.

The Respondent acknowledged that the working relationship had been unsuccessful, and it was the complainant’s decision to leave. She was paid in full.

Evidence of Helen Mc Donald

Ms Mc Donald told the hearing that she had endeavoured to help the complainant in her preparations for commencing work for 8 weeks before she commenced work. The Complainants English was very good.

The agreed salary was €28,000. The PPS number issued 2 weeks before she left.

Accommodation was a personal matter for the complainant, and she stayed in a number of settings.

The Complainant worked 4 days and was paid for 5 days. The business was seasonal, and it closed.

Ms Mc Donald submitted that the statement of terms was available in plain sight for the complainant. She stated that it was not hidden.

Ms Mc Donald exhibited the statement of terms from her submission. She stated that she had handed this to the complainant and asked her not to leave it lying around. She recalled that the complainant looked at it.

She stated that she had found it lying around and was apprehensive as the document demonstrated that the complainant was earning a higher wage than her colleague at the Restaurant.

Ms McDonald submitted that the business had reached out to the complainant to seek to resolve this issue prior to hearing but she had not responded.

During cross examination,

Ms Mc Donald denied hiding the statement from the complainant and relied on the wage differential between the colleague’s colleague on her as the reason she asked the complainant not to let it lie around.

She stored the copy in the Pidgeon hole with other records. It had been presented in an envelope. This was completely opposed by the Complainant.

Ms Mc Donald confirmed that the statement had been signed by the respondent on page 3, but not the complainant. The Respondent had not retained a copy of that document.

In closing the respondent confirmed that they had tried to provide the statement of terms as required. They acknowledged that there were some errors in terms of a mention of “Hotel” but otherwise it reflected the terms provided to but not retained by the complainant.

The Respondent acknowledged that the job may not have lived up to the complainants’ expectations but denied any maltreatment of her.

The Respondent contended that the complainant had not prepared for her working in Ireland and an element of “catch up “was necessary in terms of accommodation support, pay system and an extended wait for a PPS number.

I have been requested to consider if a contravention in Section 3 of the Statement of Terms of Employment (Information) Act, 1994 has occurred in this employment.?

In reaching my decision, I have considered the parties oral and written arguments in addition to the party’s evidence at hearing.

At first, I find a requirement for me to record my observation that the complainant brought a high level of anger and frustration to the hearing. On many occasions during the hearing, she sought to move the dialogue to broader complaints on the nature of the employment.

The Respondent acknowledged that the employment had not worked out for the parties and reflected that the level of preparation for work in Ireland had been incomplete in the complainant’s case.

I worked hard to focus both parties on the sole claim before me. That was whether the Respondent had contravened Section 3 of the Legislation, from where my jurisdiction arises.?

 Written statement of terms of employment.

3.— (1) An employer shall, not later than one 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—

……

(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,

……..

(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 20085 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 (1A) or paragraphs (h), (j), (k), (l), (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.

The Parties are in complete conflict in terms of whether the statement of terms was provided to the complainant or not.

I have considered the document exhibited by the respondent.

I note that it is headed with the complainants first address in Ireland. This document, if provided within the first 5 days and within one month of the commencement of employment and signed by the Respondent would satisfy the provisions of Section 3 of the Act.

There is a reference to a two-month duration of work, whereas the complainant had over 3 months tenure without a new contract issuing.

The annual salary of €28,000 was agreed and the complainant underestimated this on her complaint form as €430.00 instead of €538 gross.

The case turns on the conflict of evidence in relation to the issuing of the statement of terms within the statutory period allowed.

I have to resolve that conflict in favour of the Respondent as I accept the evidence submitted that the signed statement issued and was followed directly up with the complainant to retain the document from the Pigeonhole at the premises.

I would have liked to have seen the signed version but have to accept the evidence submitted that it was signed and given by the Respondent on the balance of probabilities.

I can understand that the complainant remains highly aggrieved by her experiences at work, however ,while I accept that the primary obligation to provide the terms lies with the Respondent , it was open to the complainant  to chase this statement during her employment and while I accept that she chased clarifications on salary and work schedules , I could not find any evidence of a formal grievance which sought the statement during her employment .

This claim comes almost 5 months after the employment concluded and is accompanied by a high level of pronounced dissatisfaction with that period.

I hope that this finding will go some way towards placing closure of a difficult working period for both parties.

I have found the claim is not well founded. I have not identified a subsisting contravention of Section 3 of the Act.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with Section 3 of that Act.

I have found the claim not well founded.

Statement of Terms on commencement in employment