Complainant

Respondent

Parties

Chloe  O'Connor

Proper Innovation Limited trading as The Merchant

Representatives

  In person

 Michael Brennan

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-00062865-002

17/04/2024

The complainant was employed by the respondent from on or about 7th Feb 2024 to 14th April 2024. The complaint was submitted to the Workplace Relations Commission (WRC) on 17th April 2024 and relates to the complainant not receiving terms and conditions of employment in writing from the respondent.

The adjudication hearing took place remotely using the Webex platform. There were some technical difficulties, which delayed the commencement of the hearing.

The complainant addressed her complaint by way of oral submission. The complainant stated that she never received written confirmation of her terms and conditions of employment while employed by the respondent. The complainant stated that she worked from 7th February 2024 until 14th April 2024 and when her employment ended, she was not in receipt of a written contract of employment.

In supplemental documentation submitted after the adjudication hearing, the complainant provided copies of what’s app messages that she sent to the employer on 11th April 2024, which was two months after she started her employment, seeking a copy of her contract of employment, and a principal of the respondent confirmed that he would address the matter the following week. As it transpired the employment subsequently ended on 14th April 2024.

At the adjudication hearing, the respondent acknowledged that the complainant may not have received her terms and conditions of employment in writing as the respondent inadvertently used an incorrect email address for the complainant when it sent the relevant details to her on or about 12th February 2024. A copy of the incorrect email that was sent to the complainant was submitted by the respondent post hearing. The respondent stated that it wasn’t aware that the complainant did not receive the relevant documentation until it was requested by her on 11th April 2024 shortly before her employment came to an end. Notwithstanding that the error occurred, the respondent stated it was due to inadvertence. The respondent argued that the complainant did not suffer any detriment in respect of the issue and asked this to be taken into consideration.

The issue to be addressed is whether the respondent acted in compliance with the Terms of Employment (Information) Act, 1994 in relation to providing the complainant with a copy of her written terms and conditions of employment within the specified periods prescribed by the legislation.

The Applicable Law

Section 3(1) and 3(1)(A) of the Terms of Employment (Information) Act, 1994 provide as follows:

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………

(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.

(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 paragraphs (d), (j) and (k) of subsection (1A) or paragraphs (h), (j), (k), (l), (n) and (q) of 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.

(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.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

(8) Paragraphs (p) and (q) of subsection (1) shall not apply to seafarers or sea fishermen.

Conclusions

I note in the additional documentation submitted by the parties’ post hearing that the respondent had sent written terms and conditions of employment to the complainant in February 2024 after she had started work but an incorrect email address had been used. The complainant, having not received the email, sought written terms and conditions from the employer on 11th April 2024 and this was to be addressed in the week that followed, although her employment subsequently ended the following week.

Having considered the matter, and taking into account the requirements of the legislation, I find that the complainant did not receive written terms and conditions of employment from the respondent within the time frames prescribed by the Act. On that basis, I am satisfied that the complaint is well founded.

For the reasons set out above, I find that the complaint is well founded. The respondent is directed to pay the complainant two week’s gross pay (€1,415.68) in respect of the breach of the legislation.

Written terms and conditions of employment