TED2321

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037684 (CA-00049040-001).

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 28 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 20 December 2023. The following is the Decision of the Court:

DECISION:

This is an appeal by Dalcassian Wines & Spirits Ltd Dalcassian Wines & Spirits Ltd of a decision of an Adjudication Officer in a complaint by Brendan Kelly under the Terms of Employment (Information) Act, 1994 (the Act).

The Adjudication Officer decided that the complaint was well founded.

The parties are referred to in this Determination below as they were at first instance. Hence, Brendan Kelly is referred to as the Complainant and Dalcassian Wines & Spirits Ltd Dalcassian Wines & Spirits Ltd is referred to as the Respondent.

Position of the Complainant

The Complainant was employed by the Respondent from 1 November 2021 until 28 February 2022 as an Account Manager.

The Respondent failed to furnish the Complainant with a contract of employment or specific particulars of his employment, despite repeated requests to do so.

The lack of a contract of employment created unnecessary challenges for the Complainant during his employment.

Position of the Respondent

The Respondent did not attend the appeal at first instance as the email received with the hearing details was assumed erroneously to be junk mail.

The Respondent acknowledged that a breach of the Act had occurred, and that it did not provide the Complainant with a written statement of the terms of his employment.

The Respondent intended to draw up a full-time permanent employment contract for the Complainant at the end of his trail period. The Complainant employment ended In February 2023.  

The Law

Section 3 of the Act in relevant part provides as follows:

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.

(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.

Discussion and conclusions

It is common case between the parties that the Complainant did not receive a written statement of the terms of his employment as required by the Act at Section 3(1). On that basis the within appeal is well founded.

The only issue for the Court to consider in this case is that of compensation for the acknowledged breach of the Act by the Respondent.

The Act provides that the Court may order an employer to pay to an employee compensation of such an amount (if any) as it considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks' remuneration. The Court considers that the provisions of s3 of the Act have been infringed and that the absence of a statement of the terms of his employment left the Complainant in an uncertain legal ‘limbo’ that the Act is designed to avoid.

For these reasons, the Court agrees with the Adjudication Officer’s decision that the appropriate compensation is four week’s pay or €2,769.23.

Decision

The within appeal is well founded.

Having regard to all the circumstances, the Court measures the appropriate level of compensation which is just and equitable having regard to all the circumstances to be four weeks’ pay.

Based on the submission of the Complainant as regards the salary applicable to him in the employment, the Court calculates that four weeks’ remuneration amounts to €2,769.23.

The Court orders the Respondent to pay compensation to the Complainant in that amount.

The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
CDK	______________________
8 January 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Coleen Dunne Kennedy, Court Secretary.