Complainant

Respondent

Parties

Joseph  Kelly

Apcoa

Complainant

Respondent

Anonymised Parties

Representatives

  In person

Peter Dunlea Peninsula

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-00060105-002

18/11/2023

The Complainant was employed by the Respondent as a Traffic Warden. Employment commenced on 13th March 2023 and ended on 6th October 2023. The Complainant worked 43 hours per week for which he was paid €2,400 per month.

This complaint was received by the Workplace Relations Commission on 18th November 2023.

The Complainant states that he would like to make his complaint under the Terms of Employment (information) Act 1994.

The Complainant states that he has read the Act thoroughly and can see that under the terms of the Act that he did not receive the following:

1. A Day 5 statement of terms (section 3(1A) Statement

2. A written statement of terms of employment (section 3(1) statement.

 The Complainant contends that the Respondent did not provide him within one month of his commencement of employment with a written statement of his terms of my employment

The Complainant has lodged a claim to the Workplace Relations Commission for unfair dismissal under section 13 of the Industrial Relations Act 1969. Furthermore, the complainant has referenced an alleged breach of the Terms of Employment (Information) Act 1994 that has not been formally made.

Background

The complainant commenced employment on the 13th of March 2023 and his employment was terminated on the 6th of October 2023.

The complainant began training for the role at the commencement of his employment during the course of which he received two copies of his written statement of terms of employment from Robert Fennell. A copy of this statement was made available to the hearing.

At this point the complainant took a copy of the terms of employment, leaving the other at the premises of the respondent in Newbridge Co. Kildare. At this point the complainant was instructed to return a signed copy of the terms of employment to the respondent which he failed to do.

Claim under the Terms of Employment (Information) Act 1994

The complainant has stated that they did not receive their terms of employment. This is wholly denied by the respondent.

As outlined above, the complainant received two copies of his written statement of terms of employment from Robert Fennell two weeks after he began employment with the respondent. The complainant was instructed to return a signed copy of the contract to the respondent which he failed to do.

The complaint form used by the Workplace Relations Commission is not a mandatory form.

In the instant case the Complainant does not appear to have made a specific complaint under the Terms of Employment (Information) Act 1994 however when one reads the specific details of the complaint it becomes very clear that he has indeed made a complaint under this Act.

The Respondent has addressed this complaint in the submission provided to the Workplace Relations Commission.

Under the Terms of Employment (Information) Act 1994 (as amended) the employer has a duty to supply the employee with a statement containing the particulars of employment. Section 3 of said Act reads as follows:

The Claimant has an entitlement under community law to be provided with a written statement of the main terms of his employment within one month of commencement of the contract of employment. This statement must include the following information and be signed and dated by the employer.

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, 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,

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

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

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000

      requests 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.

 In addition to this statement the employee has a right to be issued with a statement under section 3(1 A) within 5 days of commencement of employment, this statement is commonly referred to as the Day 5 Statement. Such a statement must include:

·       Details of Parties – both parties and would include full names and addresses.

·       The Work / Job – Title/Grade/Nature/Category of Work

·       Place of Work

·       Commencement date

·       Duration of Contract

·       Remuneration – Initial basic amount/Other component elements/frequency of payment/ method of payment/pay reference period

·       Tips and Gratuities Policy – if applicable

·       Hours of Work

·       Probationary Period

·       Transmission to Employee

·       Signed by Employer and Employee

·       Dated by both.

In the instant case no statement under section 3A was provided to the Complainant.

A copy of the main statement under section 3 of the Act was provided to the hearing. I note that this statement was not signed by the employer. Such a signature is required in law.

We have a situation in which one party states that a statement of particulars of employment was issued and the second party claims it was not issued.

On the balance of probability, I accept that a copy of the statement may have been left out for the Complainant in the belief that he would collect it. I believe the statement should have been given to him in person by his line manager. I also note that the statement was not signed by the Respondent.

Section 7 (2) (d) of the Act as amended reads as follows:

7(2)(d) in relation to a complaint of a contravention under section 3, 4,5, 6,6D,6E,6F or 6G and without prejudice to any order made under paragraph (e) 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 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.

In the instant case I find that the Respondent has breached the Act and now order the Respondent to pay compensation in the sum of €1,200.00 (2 weeks’ pay) to the Complainant.

This amount should be paid to the Complainant within 42 days from the date of this decision.

In the instant case I find that the Respondent has breached the Act and now order the Respondent to pay compensation in the sum of €1,200.00 (2 weeks’ pay) to the Complainant.

Terms of Employment (Information) Act, 1994.