Complainant

Respondent

Parties

Alison  Tierney

Seatang Ltd Cavistons

Complainant

Respondent

 Parties

Alison Tierney

Seatang Ltd

Representatives

  Alison Tierney

Ursula Cullen Miley & Miley LLP

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-00059281-001

08/10/2023

The Complainant worked as Chef with the Respondent. The period of her employment was as follows:

·       Date of Commencement: 22/08/2022

·       Date of Notice received (if applicable): 18/04/2023

·       Date Employment ended (if applicable): 23/04/2023

Her gross weekly pay was €1307.69.

The employer never provided the Complainant with a contract of terms and conditions of employment, despite requesting one multiple times. The employer subsequently dismissed her from her role, for alleged poor performance without any prior notification of any alleged performance issues. The specific complaint is detailed as:

I did not receive a statement of my core terms in writing under the Terms of Employment (Information) Act, 1994

While the Respondent conceded the claim, the Claimant refused to accept the offer of 4 weeks pay as in her view it was conditional on signing a waiver agreement in full and final settlement.

The Respondent accepted that regrettably due to a lapse in administration they did not supply Ms Tierney with Terms and Conditions of Employment as required by legislation. The Respondent has taken steps within their business to ensure an incident like this does not happen again. The Respondent has tried to resolve this claim with Ms Tierney at every opportunity including making an open offer to Ms Tierney of the full level of compensation under the Legislation. The Respondent opened an email chain relating to the offer of 4 weeks salary.

The fact that information as set out in the legislation was not provided on time is not in dispute.

The law requires that the employer shall provide the following within 5 days of commencing employment and after 2 months, which is detailed at section 3 of the of the Terms of Employment (Information) Act, 1994:

(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.

This was not complied with, and the absence of that information arguably has given rise to the dispute between the parties around the contractual obligations of both parties. The employee believing that the employer is abusing his position by changing shift patterns at will and the employer believing that this employee is difficult and intransigent.

The second provision states that :

3.—(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) 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)

(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) 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.

The failure or omission to provide the required information at or before 5 days and then after 1 months comprises two separate breaches and each breach in turn can lead to an award of compensation of 4 weeks. This means that total compensation in this case can be 8 weeks. However, that is a matter for the Adjudication Officer to determine on the facts of each case and the legislation provided for compensation up to this amount.

However, what is before me on the facts is an offer of 4 weeks which would have been accepted absent of any waiver agreement and the conditions set out in that waiver. Allowing for the circumstances of this case where this offer was acceptable, I award 4 weeks compensation to the Complainant.

The salary details are as follows:

Weekly Gross Pay 1307.69 x 4= €5230.76.

The complaint is well founded.

The failure or omission to provide the required information at or before 5 days and then after 1 months comprises two separate breaches and each breach in turn can lead to an award of compensation of 4 weeks.

However, what is before me on the facts is an offer of 4 weeks which would have been accepted absent of any waiver agreement and the conditions set out in that waiver. Allowing for the circumstances of this case where this offer was acceptable, I award 4-weeks compensation to the Complainant.

The salary details are as follows:

Weekly Gross Pay 1307.69 x 4= €5230.76.

I order the Respondent to pay the Complainant €5230 in compensation.

No Contract