Complainant

Respondent

Parties

Caimin  Hynes

Camera Inspection Services Ltd Cis 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-00061991-001

28/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061991-002

28/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00061991-003

28/02/2024

The complainant has presented a complaint that the respondent has breached section of the Act of the Terms of Employment (Information) Act, 1994, and a further complaint that he was unfairly dismissed on 8/9/2023.

He was employed as a Thermal Imager with the respondent from 16/9/2022 until his dismissal on 8/9/2023.

His gross weekly wage was €800.

He submitted his complaint to the WRC on 28/2/2024.

CA-00061991-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

Requisite Service

The respondent raised a preliminary issue of compliance with section 2 of the 1977 Act of 1977 which denies jurisdiction to employees with less than one year’s continuous service.

The complainant was employed from 16/9/2022 to the date of his dismissal on the 1 September 2023 and was provided with a weeks’ notice for which the complainant was paid in full, along with any outstanding holiday pay accrued.

On the 14th of September 2023, the respondent wrote to the complainant to confirm his dismissal to coincide with the last payment of his wages.

The respondent also refers to section 1 of the 1977 Act wherein in it states:

“Date of dismissal” means –

…(b) where either prior notice of such termination is not given or the notice

given does not comply with the provisions of the contract of employment or

the Minimum Notice and Terms of Employment Act, 1973, the date on which

such a notice would have expired, if it had been given on the date of such

termination and had been expressed to expire on the later of the following

dates—

i. the earliest date that would be in compliance with the provisions of the

contract of employment,

ii. the earliest date that would be in compliance with the provisions of section 4 of the Minimum Notice and Terms of Employment Act 1973.

Based on the complainant’s service of less than one year, the Act of 1973 provides for a week’s notice which brings the date of dismissal to the 8 September which is short of the requisite one year’s service demanded of section 2 of the Act of 1977.

The complainant declined to avail of an appeal option offered to him in September and October 2023.

The WRC do not have jurisdiction to hear this complaint.

CA-00061991-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

Requisite Service.

The complainant asks that I find that he has the requisite service.

Evidence of the complainant given under affirmation.

He views the termination of his employment by the respondent as a cynical move designed to escape his responsibilities under the Act of 1977.

On the 1 September 2023, the respondent told the complainant that he knew that he was just shy of a year’s service, but that he would have to let him go because he was unable to undertake house surveys due to his back problems.

The complainant asked the respondent for a letter explaining why he was being dismissed. The respondent replied stating that he did not like his tone. He refused to give him a letter until 14/9/23. That letter justified the dismissal on the complainant’s alleged lack of skills to perform the role, and the shortage of available work-factors which had never been mentioned previously to him. The respondent was always asking the complainant about his back.

CA-00061991-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

Requisite Service.

The complainant asks that I find that he has the requisite service.

The complainant was unrepresented.

It is accepted that his employment commenced on 16/9/2022 and that it terminated on 14/9/23, leaving him short of one year’s service.

The complainant believes that his dismissal was brought about by problems to do with his back.

I explained to the complainant that as the complaint was one of unfair dismissal and not a complaint of discriminatory dismissal on disability grounds, he must meet these jurisdictional requirements or miss out on the opportunity to have his complaint heard. I explained that no matter how justified the complainant might be in his analysis, section 2 of the Act makes no exceptions for the employer’s alleged motives nor for the proximity to meeting the service requirements. It provides

 2.—(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a)   an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him.”

It is accepted that the complainant falls short of one year’s service.

I find that I do not have jurisdiction to hear this complaint.

CA-00061991-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

Evidence of the complainant given under affirmation.

The complainant worked a thermal imager which entailed taking photograph of sites and interiors of buildings under construction. The respondent failed to provide the complainant with the terms of his employment contrary to section 3 of the Act of 1994.

Contrary to the respondent’s assertion, the complainant did ask his line manager for a contract of employment. His line manager responded that the respondent” doesn’t do contracts.”

The respondent issued a handbook to his colleagues the day after the complainant was dismissed.

CA-00061991-002. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The terms of his employment were changed.

He took on the job without knowing the hours of work. He secured the job via contacts. He was interviewed by the respondent director and was told he was to be employed as surveying technician. This was changed to thermal Imager on 12 December 2022.

His terms and conditions changed in that his salary was increased but he received no notification of same. He asked the respondent for a letter confirming a pay rise and the respondent told him he could see it in his pay slip.

His working hours changed as the standard 7am- 3pm changed to 7am – 7pm changed periodically throughout his employment.

CA-00061991-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

Evidence of the respondent Director given under affirmation.

The respondent apologised for their failure to provide the complainant with terms of employment. They thank the complainant for bringing this omission to their notice.

The respondent’s representative characterised their failure to comply with section 4 of the Act of 1994 as a minor breach.

The respondent refers to the decision of the Employment Appeals Tribunal in Udalous -v- Southeast Vegetable Producers Limited (TE224/2012) in which the EAT determined as follows:

“The Tribunal notes the case of Archbold v CMC (Ireland) Ltd TE05/2003

where a division of the Tribunal held that money payable under the Act did

not "equate to loss of remuneration" but was "in the nature of compensation"

and accordingly, the Tribunal was entitled to determine what payment was

just and equitable in all the circumstances (not exceeding four weeks

remuneration) including whether a claimant was "unduly prejudiced" by the

failure of the employer to provide the written statement of terms and

conditions of employment…

“…the Tribunal finds that employer complied with the spirit of the Terms of

Employment (Information) Act 1994 to such an extent that it would be unjust

for the Tribunal to exercise its jurisdiction ordering the employer to award

compensation to the employee…”

The respondent submitted that the above excerpt from the Labour Court is equally applicable to the instant case.

The respondent points to the well-established precedent of the Labour Court and the EAT, and indeed the High Court, that where any breach of the 1994 Act is technical or minor in nature that the dictates of fairness or equity could not justify an award of compensation to the claimant.

In this regard, the adjudicator should be guided by  Labour Court decision in Philmic Limited T/A Premier Linen Services -v- Petraitis (TED1616) where the Labour court determined that in spite of the Respondent having been in breach of the 1994 Act:

“The Court measures the compensation amount which is just and equitable

having regard to all of the circumstances of this case as being nil.”

Upon appeal, the High Court held that the Labour Court had not erred in law.

Non-withstanding the above, should the adjudication officer consider the breach is

one that is not technical or minor in nature, the respondent submits that the award to

the complainant must be proportionate to the harm suffered as per the principles laid

out in von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.

CA00061991 – 002 – Terms of Employment (Information) Act 1994

 The complainant has failed to particularise this complaint.

Furthermore, the respondent states that this claim is wholly unfounded as there were no changes to his terms and conditions of employment.

CA-00061991-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

Failure to provide a written statement of the terms of employment in accordance with the Act of 1994.

Relevant Law.

“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) 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, 1963),

(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) 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,

(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) 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,

(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”.

It is accepted that the complainant was not provided with any of the aforementioned terms. The respondent provided him with no contract.

The respondent refers to the absence of a statement of terms as a minor breach. The respondent cites Udalous -v- Southeast Vegetable Producers Limited (TE224/2012) as authority for the proposition that an award of compensation need not necessarily follow an acknowledged breach of the Act. But that decision acknowledged that the respondent had complied with the spirit of section 3 , where terms were issued , with the deficit confined to one or two of the requisite provisions. It stated

“That there was a breach of article 3(1) of the Terms of Employment (Additional Information) Order 1998 (ST49/1998) in that the contract did not contain particulars of the times and duration of rest periods and breaks referred to in sections 11, 12 and 13 of the Organisation of Working Time Act 1997”.

In the instant case, the respondent provided no terms at all and resisted any attempt to comply with the statute.

This left the complainant with no certainty, waiting to be advised of his hours, pay etc.

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

I find the complaint to be well founded.

The evidence does not support the case for minimal or no redress.     

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”.

I direct the respondent to pay the sum of €2400, (the equivalent of three  weeks salary) to the complainant.

CA00061991 – 002 – Terms of Employment (Information) Act 1994.

The complainant has asked me to find that a breach of section 5 of the Act occurred.

It provides as follows:

“5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

                              (a) 1 month after the change takes effect, or

                              (b) n/a”

Aside from the statutory time limits,the uncontested evidence is that the complainant never received any terms of employment so a complaint that the employer altered his (non-existent) terms is a non- sequitur.

I find this complaint to be misconceived.

CA-00061991-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

I find this complaint to be well founded.

I decide that the employer must pay the complaint the sum of €2400, (the equivalent of three weeks’ salary) to the complainant.

CA-00061991-002. Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

I do not find this complaint to be well founded.

CA-00061991-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I find that I do not have jurisdiction to hear this complaint

Absence of Terms of Employment; requisite service in UD case.