TED242

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044789 (CA-00055617-002)

BACKGROUND:

The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 11 October 2023 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014.  A Labour Court hearing took place on 12 January 2024. The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal by Liviu Lucian Ionut (the Appellant) against a decision of an Adjudication Officer CA-00055617-002 in his complaint made under the Terms of Employment (Information) Act, 1994 (the Act) against Vladimir Vecerin Pepito Trade (the Respondent).

The Appellant was employed by the Respondent from 30th May 2022 until 9th March 2023. The within complaint was made to the Workplace Relations Commission on 21st March 2023.

Background

The Appellant made two separate complaints to the Workplace Relations Commission in respect of alleged breaches of Section 3 of the Act. The within appeal is an appeal of one decision of an Adjudication Officer in respect of one of those complaints. He has made two separate appeals of an Adjudication Officer’s decisions arising from his complaints in respect of alleged breaches of Section 3 of the Act to the Court.

Summary submission of the Appellant.

The Appellant submitted that he had never been provided with a written statement of the terms of his employment as required by the Act at Section 3.

Summary submission of the Respondent

The Respondent accepted in oral submission that no written statement as required by the Act at Section 3 or at all was ever provided to the Appellant.

Relevant Law

The Act at Section 3 in relevant part makes provision as follows:

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,

(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,

(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

(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.

(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.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1) or (1A)) as may be specified in the order and employers shall comply with the provisions of such an order.

Discussion and conclusions

It is common case that the Appellant was not provided by the Respondent with a written statement of the terms of his employment. Consequently, the Appellant is entitled to succeed in his appeal.

The redress which can be awarded is regulated by the combined effect of s.41 of the Workplace Relations Act 2015 and s.7 of the Act, as amended.

Section 7(2)  of the Act in its amended form now provides: -

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

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(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 .

It is common case that the Appellant was paid €550 per week while in the employment of the Respondent.

The complainant is seeking an order for compensation. The Court is satisfied that this is the appropriate mode of redress in this appeal. Paragraph (d) of s.7(2) places an upper limit on the quantum of compensation that can be awarded to an amount equal to 4 weeks’ remuneration.

Section 7 of the Act, on plain reading, limits the jurisdiction of this Court to an award of compensation not exceeding four weeks’ pay for a breach by the Respondent of his obligations under Section 3 of the Act. The extent of non-compliance is a matter that goes to the gravity of the contravention that can properly be taken into account in deciding on redress and in particular in measuring the quantum of any compensation to be awarded. However, the extent of non-compliance or the gravity of the contravention cannot offset or supplant the clear provision of s.7(2)(d) of the Act.

Having regard to all the circumstances of this complaint, the Court measures the amount of compensation that is just and equitable as the maximum amount permissible which is an amount equivalent to four weeks’ remuneration which is €2,200 (€ 550 x4).

Decision

 The within appeal succeeds and the Court orders the Respondent to pay to the Appellant an amount of €2,200 in compensation. The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
SOC	______________________
16 February 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Sinéad O'Connor, Court Secretary.