Complainant

Respondent

Parties

Trevor  Orr

Mc Gettigans Bakery

Representatives

Michael Boyd Boyd HR

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-00042719-001

25/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00042719-003

25/02/2021

The Complainant commenced employment with the Respondent with effect from 30th September 2011.  The Complainant complaints were as follows:

·       CA-00042093-001           Section 7, Terms of Employment (Information) Act, 1994

Complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994

alleging that he had received a statement of his core terms which deliberately contained false or misleading information.

·       CA-00042093-003           Section 27, Organisation of Working Time Act, 1997.

Complaint pursuant to Section 27 of the Organisation of Working Time Act, 1997 alleging that he had not received his public holiday entitlement

The Respondent is a Bakery employing approximately 12 staff.  

·       CA-00042093-001           Section 7, Terms of Employment (Information) Act, 1994

The Respondent accepted that the Complainant did not receive a contract when initially employed in 2001 but denied all other allegations in relation to breaches of the Act.

·       CA-00042093-003           Section 27, Organisation of Working Time Act, 1997.

The Respondent accepted that the Complainant was due 3 days annual leave arising from public holidays that fell during his period of sick leave.  The Respondent was of the view that as the Complainant remained an employee this was a “non-issue.”

The Respondent denied that the Complainant was not paid correctly for Saturday working and provided clarity on payment arrangements.

CA-00042093-001           Section 7, Terms of Employment (Information) Act, 1994

The Complainant submitted that he commenced employment with the Respondent in September 2011 but that he did not receive a contract until 2014 which he then signed.  He submitted that he asked for and had been given a photocopy of that contract in January 2020 and it showed that he had signed it in 2011, although he had not.

He submitted that in 2020 he and his colleagues were given new contracts and asked to sign them to show that the employees accepted the terms and conditions of that contract.  The Complainant confirmed that he did not sign the contract as he already had his contract agreed and he did not agree with some of the new terms in the new contract.  He submitted that he was subsequently given a letter by the Respondent saying that if he did not sign the contract that it was being assumed that he agreed to the terms of the contract.  The Complainant understood this to mean that if he signed the new contract he was agreeing to the new terms and conditions and that if he did not sign the new contract he was also agreeing to the new terms and conditions.  The Complainant drew attention to his view that the signatures of one of the Respondent directors was different on different contract documents.

CA-00042093-003           Section 27, Organisation of Working Time Act, 1997.

The Complainant submitted that at the time of the hearing he was on sick leave from 16th December 2020.  He submitted that 3 public holidays fell within the initial period of his sick leave, namely Christmas Day (2020), St Stephen’s Day (2020) and New Year’s Day (2021) and he submitted that he was entitled to get paid for public holidays for the first 13 weeks of sick leave. 

In his complaint form, the Complainant outlined that when he was originally temporarily laid off due to Covid in March that the employees were told that the Respondent would apply for the PUP for staff and that the Respondent had paid staff holiday pay for the first week.  He outlined that staff then received a text message from Mr. B, telling staff to apply for the PUP themselves and to back date it to the date they had finished up.  The Complainant opined that PUP could not be backdated so he was left a week without income at all, due to the actions of the Respondent.  The Complainant submitted that he normally worked on a Saturday for 4 hours and that if he excluded Saturday his wages would then be down to €80 for that week.  He submitted that this would not be reflected in his payslip, that the payslip would show the normal amount for 40 hours and he submitted that he presumed that he was being taxed on money that he never actually earned.

CA-00042093-001           Section 7, Terms of Employment (Information) Act, 1994

The Respondent provided an initial submission to the WRC on 9th April 2021

The Respondent submitted that the Complainant was correct that he had commenced employment in September 2011 and that he received his initial contract in 2014.  The Respondent submitted that the Complainant was given a copy of the 2014 contract in January 2020 and that it showed the date signed on the contract as 30/09/2011.  The Respondent accepted that the Complainant did not sign his contract on that date and that the Complainant’s start date had been inserted into the contract signature date in error.

The Respondent further submitted that the Complainant was furnished with a new contract in 2020 and asked to sign that contract.  The Respondent noted in its submission that the Complainant had stated in his complaint form that he “did not agree with some of the terms “in the new contract and the Respondent pointed out that the Complainant had not clarified which terms were of concern to him.  The Respondent confirmed that it did issue all staff with a Statement of Terms and Conditions of Employment (Information) Act in September 2020 which gave employees more comprehensive information, in compliance with the Act.  The Respondent disputed that the Complainant’s terms were changed in any way.

In its submission the Respondent drew attention to the Complainant’s complaint where he advised that he was subsequently given a letter by the Respondent stating that if he did not sign the contract that it was assumed that he was agreeing to the terms of this contract.  The Respondent submitted that the Complainant continued to attend work thus accepting the implicit contract.

The Respondent also drew attention to the Complainant’s complaint where he advised that the original contract had been signed by one of the directors (which the Respondent noted had not been named by the Complainant) and that the signature was different from another document held by the Complainant.  The Respondent confirmed that the original contract was signed by Mr. C who is a director of the Respondent.  The Respondent further advised that the Complainant was furnished with a letter regarding “Travel to Work” for essential purposes during Covid and this letter was signed by Mr. B in the absence of Mr. C from the office.

The Respondent provided a supplementary submission to the WRC on 6th July 2021

In the supplementary submission the Respondent confirmed the Complainant’s start date of employment as 30th September 2011.  The Respondent submitted that the Complainant was subsequently issued with a statement of his terms of employment in 2014.  The Respondent submitted that following a NERA Inspection. The company was advised that the contract of employment should be updated and be in full compliance with the Terms of Employment (Information) Act 1994-2014.  Consequently, a revised statement of terms and conditions was issued to all employees of the Respondent, including the Complainant.  The Complainant refused to sign the revised contract.  The Respondent submitted that the only material difference in the update contract of employment was that the Complainant’s gross weekly wage increased from €480 to €548 gross.  The Respondent submitted that all other terms and conditions of employment remained unchanged.

CA-00042093-003           Section 27, Organisation of Working Time Act, 1997.

In its submission to the Workplace Relations Commission received on 9th April 2021 the Respondent submitted that the Complainant commenced on sick leave on 16th December 2020 and remained on sick leave at the time of making its submission.  The Respondent drew attention to the Complainants complaint that three public holidays fell between the date of commencement of sick leave and the date of submission of the complaint and the Complainant’s position that he was entitled to be paid for those days. 

The Respondent confirmed that it did not dispute this entitlement and submitted that the Complainant remained an employee of the Respondent and that in accordance with his contract of employment any public holidays which fell within 26 weeks of his medically certified sick leave would be paid.

The Respondent submitted that it advised employees on Monday 16th March that staff would be scaled back due to the changing business model arising from Covid 19.  The Respondent drew attention to the Complainant’s complaint where he detailed that he was advised that the Respondent would apply for the Pandemic Unemployment Payment on his behalf.  The Respondent accepted that this did occur and submitted that they were originally given incorrect information from Revenue in this regard.  The Respondent further submitted that when it was subsequently advised by Revenue that employees should apply individually for this Covid payment, it immediately informed its employees.  The Respondent submitted that all employees were paid their weekly wage on Friday 20th March as holiday pay and the claim for PUP was to begin on Monday 23rd March.

The Respondent submitted that the Complainant stated that the Respondent advised him to apply for PUP and to back date it to the date he finished up. The Respondent submitted that it paid the Complainant a weeks’ holiday pay to Friday March 20th and as with all staff, requested them to apply individually for the PUP from Monday 23rd March.  The Respondent submitted that it was at a loss to understand why the Complainant stated that the PUP could not be backdate as the Department of Social Protection carried out an exercise which determined where arrears were due and payment was made to the relevant account.  The Respondent submitted that all their other employees had confirmed that where arrears were due, they were paid in December 2020.

The Respondent drew attention to the following extract from Gov.ie in relation to Pandemic Unemployment Payment Arrears:

“In order to ensure that the Pandemic Unemployment Payment (PUP) is paid to recipients for all weeks for which they had an entitlement, a comprehensive review of all claims has been taken to determine where arrears are owed.

If you received the PUP payment in 2020, your Covid-19 income support payments and social welfare records were examined to determine if PUP arrears were owed to you.

If you are owed PUP arrears, they were paid on 1 December 2020.  Arrears were paid into the bank account of Post Office where you last received PUP.”

The Respondent submitted that the Complainant’s normal working week was 5.5 days including working a half day on Saturdays.  The Respondent drew attention to the Complainants’ complaint that if he takes a Saturday off his wages reflected a decrease of €80.  The Respondent submitted that it contested this position and confirmed that the Complainant’s normal weekly net pay was €500.  The Respondent submitted that should the Complainant take a Saturday off his weekly net pay was reduced to €460, however, the Respondent further submitted that in circumstances where the Complainant took a Saturday off as part of his annual leave entitlement his weekly net payment remained at 500.

CA-00042093-001           Section 7, Terms of Employment (Information) Act, 1994

In considering this matter I took into account the information supplied by the parties in the Complainant’s complaint form and in the Respondent’s written submissions and other supporting documentation. I also considered carefully the information provided by the parties at the hearing.

The Law

Section 3 of the Terms of Employment (Information) Act sets out the obligation of the employer to furnish each employee a written statement of their terms and conditions of employment “not later than 2 months after the commencement of employment”, and sets out the particulars to be included in such a statement as follows:

“Section 3(1)

(a)   the full name of the employer and 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,

(g)   the rate or method of calculation of the employee’s remuneration,

(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 and 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 and 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, particular of the bodies or institutions by whom they were made.”

It is a clear and undisputed fact that the Respondent did not issue a contract or any other statement of terms to the Complainant in accordance with the requirements of the act when he initially took up employment in 2011.  It is also a clear and undisputed fact that this only occurred in 2014 when the Respondent engaged with an external HR service provider.  While this would have constituted a breach of the Act, any complaint in this regard would be well outside of the timeframe for making such a complaint.

Section 5(1) of the Act sets out the obligation for the employer “whenever a change is made or occurs in any of the particulars of the statement furnished by the employer…. 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.”

The Complainant did not point to any change made to his terms and conditions which would constitute a breach of Section 5.

In any event, I understand the substance of the Complainant’s complaint to be that, in January 2020, when he received a copy of the contract given to him in 2014 it deliberately contained false or misleading information. 

In this regard I noted the Complainant’s position that the photocopy of the contract received by him reflected that it had been signed by him in 2011, when, in fact, he had never signed the contract.  I further noted the Respondent position that his start date was inserted in the date of signing area in error. 

I noted that the Complainant further outlined his concerns in relation to a subsequent revised contract issued by the Respondent in 2020 and I noted that while the Complainant refused to sign the contract he did not outline to the Respondent or to the hearing, his specific objections to that contract.  In fact, it is evident that the Complainant accepted the terms of that contract when he accepted the revised remuneration arrangements set out in that contract.  In any event, there was no submission made, nor was any evidence given as to any false information contained in that contract. 

In the above context I take it to be that the Complainant’s complaint centres on the incorrect signing date contained in the photocopied contract provided to him in 2014.

Having considered this matter carefully I have concluded that the Respondent did provide the Complainant with a contract that contained false or misleading information and while I accept the Respondent’s position that this was done in error, the date of signing of a contract is, in itself an important part of the contract.  I therefore find that the Complainant’s complaint was well founded. 

In determining what award to make for this breach of the legislation I must consider the intent of the Respondent.  The Respondent position was that this was simply an error, where the Respondent inserted the Complainant’s start date in the area for the date of signing. On the other hand, the insertion of the Complainant’s start date as the signing date would serve to create an impression that the contract was provided and signed off in accordance with the Act, which it was not. 

I found the Respondent to be generally honest and forthright in accepting any errors or shortcomings in their practices and in that context, I tend towards accepting that there was no mal intent in their actions. I also noted that the Complainant was not disadvantaged by this incorrect information.

CA-00042093-003           Section 27, Organisation of Working Time Act, 1997.

I examined the totality of the complaint submitted by the Complainant and noted that although he outlined details of issues of concern in relation to PUP these matters are not encompassed by the Organisation of Working Time Act.  I noted that the specific complaint made by the Complainant was that he had not received his public holiday entitlement, and in that regard, I noted that he contended that he had not been paid for 3 public holidays that fell on 25th December 2020, 26th December 2020 and 1st January 2021 during his period of sick leave.

I noted the Respondent position that it accepted that the Complainant was entitled to be paid for those dates and that the Complainant remained an employee of the Respondent.  I accept that it was the intention of the Respondent to make payment for the dates concerned or to provide paid leave to the Complainant.  It seems to me that this matter could easily have been resolved between the parties if the Complainant had raised any concern locally in relation to this matter.  However, as the leave had not been addressed at the time of the Respondent submission, I can only find that the Complainant is entitled to be paid for the 3 public holidays in question

CA-00042093-001           Section 7, Terms of Employment (Information) Act, 1994

I have found that the Complainant’s complaint was well founded but that the Complainant was not disadvantaged by this incorrect information. However, given that the record of the signing of the contract was materially altered by the insertion of the incorrect date it is my decision that the Respondent should pay the Complainant the sum of €500 for the breach of the Act.

CA-00042093-003           Section 27, Organisation of Working Time Act, 1997.

I noted that the Respondent accepted that the Complainant was entitled to be paid for the 3 public holidays outlined above and that the Complainant remained an employee at the time of the Respondent submission to the WRC.  As at that time, the payment remained outstanding I have found that this complaint was well founded.  If as yet, payment has not been made for the relevant days or time in lieu provided, it is my decision that the Respondent should pay to the Complainant the amount equating to 3 days’ pay.

Terms of employment, organisation of working time, pay for public holidays,