TED2424

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045012 (CA-00055831-001)

BACKGROUND:

The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 2nd July 2024 in accordance with the Terms of Employment (Information) Acts,1994 to 2014. A Labour Court hearing took place on 18th October 2024. The following is the Decision of the Court.

DECISION:

The matter before the Court is an appeal by Bahman Honari against a decision of an Adjudication Officer (Adj-00045012 dated 22 May 2024) in a complaint made by him against his former employer, Dundalk Institute of Technology, under the Terms of Employment (Information) Act, 1994 (the Act).

The Adjudication Officer held that the complaint was well founded and awarded the sum of €2,000 as compensation.

Summary of Appellant’s Submission

The Appellant received his contract of employment on 16 November 2022. As he did not receive his "Day 5 Statement of Terms” within the timeframe specified in the Act, his payment terms were not provided to him. 

The Respondent refused to pay the Appellant his correct rate of pay and did not accept that he was entitled to a higher pay scale by virtue of his previous employment in the Public Sector. The refusal of the Respondent to pay him the correct rate was based on a baseless misinterpretation of a Department of Finance letter

Furthermore, the rate of payment specified in the contract received on 16 November 2022, did not include the public sector pay adjustment of October 2022. The Appellant did not receive an amended contract, despite his request for one.

The Respondent was obliged to provide the Appellant with a day 5 statement to allow him to decide to accept the employment condition or not. The breach of the Act prevented the Appellant deciding if he wanted to accept the contract. The Respondent’s submission lacks factual and legal foundation. The Appellant rejects the Respondent’s assertion that the delay in issuing the statement within the 5-day timeframe was due to a lack of clarity around the maximum hours for the role. The Appellant the assertion that he was not entitled to be paid at the higher rate.

The Appellant requests that the Labour Court penalise the employer for not providing the Day 5 Statement of Core Terms and for presenting misinformation within the contract. The Appellant requests that the maximum penalty of 4 weeks’ pay is awarded. The Appellant further requests that the Labour Court instruct the Respondent to pay the difference between the correct rate and the incorrect rate paid to him for 120 hours work, in addition to the maximum penalty for the unlawful and falsified payment rate.

Summary of Respondent’s Submission

The Appellant began employment with the Respondent on 3 October 2022 as an Hourly Paid Assistant Lecturer in the Department of Computing Science and Mathematics. The Appellant worked up to 12 hours per week, at a rate of €59.65 per hour, and was in receipt of 8% for holiday pay. The Appellant’s employment with the Respondent terminated on 16 December 2022, due to the natural expiry of his fixed term contract.

The Respondent concedes that a breach of the Act occurred as it did not issue the Appellant’s statement of terms, within 5 days of his commencement of employment on 3 October 2022.

The maximum hours for the role had not yet been defined within the 5-day timeframe. The statement of terms was issued in the month following his commencement with the Respondent and was delayed due to the finalisation of the maximum hours attributable to the Hourly Paid Assistant Lecturer contract. Although this is not an excuse for issuing no terms at all, once the hours were defined, a contract was immediately issued to the Appellant inclusive of a statement of terms.

Further, the Appellant disputed the rate that he was paid claiming that the Respondent was deliberately underpaying him. The Respondent submits that the dispute in relation to the rate of pay does not fall within the scope of the within appeal to the Court, as no decision was issued by the Adjudication Officer with respect of that matter. The Respondent respectfully asserts that the Court therefore have no jurisdiction to rule on these matters.

The Respondent requests that the Court make an award of less than the maximum permissible amount of 4 weeks remuneration, having regard to all the circumstances pertaining to the case.

The Applicable law

The relevant sections of the Act provide as follows:

3.—(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.]

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

Deliberation and findings

The Court’s jurisdiction under the Act is confined to assessing if the Respondent breached the Act by failing to provide the Appellant with a written statement of the terms of his employment as per s. 3 of the Act.  The Court has no jurisdiction under the Terms of Employment (Information) Act to consider a complaint about what wages were properly payable to the Appellant, or whether there was an unlawful deduction of his wages at the relevant time.

The Terms of Employment (Information) Act imposes obligations on an employer and confers a corresponding right on a worker to have the basic terms of employment set out in writing in accordance with section 3 of the Act. The obligation to give an employee a written statement of terms of employment rests solely with the Respondent.  The Respondent failed to do so in this case.

The requirement to supply a written statement to an employee is an important one which provides the basis for an employee to have the clarity as required by the Act as regards his or her terms of employment. The Appellant in this case was without that clarity for a period up to 16 November 2022 in relation to certain terms of employment, as specified in the Act.

As a result, the Court finds that the complaint is well founded.

Where a contravention of the Act occurs the Labour Court must make an award that is just and equitable having regard to all the circumstances. The Appellant confirmed to the Court that he was in receipt of an hourly rate of pay of €60.38 and that he worked 10 hours a week.

In the circumstances of this case, the Respondent fully accepts that it failed to provide the Appellant with a written statement of terms of employment as required under s.3(1)(A) of the Act within 5 days of the commencement of his employment. It is accepted that the statement issued to the Appellant on 22 November 2022.

The Court considers that an award of €2,000 to be just and reasonable having regard to all the circumstances.

Decision

The Court determines that the Respondent was in breach of the Act at Section 3 and the complaint is well founded. The decision of the Adjudication Officer is upheld.

The Court orders the Respondent to pay the sum of €2,000 as compensation to the Appellant being the amount which the Court considers just and equitable having regard to all the circumstances.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
30th October 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.