ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00053225
Parties:
| Complainant | Respondent |
Parties | Martina Lyons | Tracy Horan Solicitors |
Representatives |
| Jason Murray BL Maria Kavanagh Solr. |
Complaint:
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-00065192-001 | 03/08/2024 |
Date of Adjudication Hearing: 30/10/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment.
The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
The Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms.
The complaint was made on the 3rd of August 2024 and I can consider such contravention of the Act which is alleged to have occurred within the six-month period prior to that date. The Complainant was in employment up to the 26th of July 2024. The complaint has therefore been brought within the appropriate timeframe and I have the jurisdiction to hear the complaint.
The contravention first accrues the day after the expiration of the two-month period for the provision of the Statement and every day thereafter. In the event of termination of the employment the right to bring such a claim will die six months after the end of the employment.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
In addition to the foregoing, The Employment (Miscellaneous provisions) Act of 2018 (s.7) amended Section 3 of the Terms of Employment Act 1994 so as to oblige Employer’s to provide a new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide the core details after one month of continuous service can lead to an award of four weeks remuneration. The 2018 Act came into effect on the 4th of March 2019. The balance of Terms outlined in the 1994 Act have to be detailed within the two-month period already specified.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.
Pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.
The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 3rd of August 2024. |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset the Complainant agreed to make an Affirmation to tell the truth. The Complainant primarily relied and re-iterated the submission already outlined in the Workplace Relations Complaint Form. The Submission reads: “I was engaged by Tracy Horan Solicitors in March 2024. I did three orientation days on March 26 and 27th and 28th. I started full time on the 8th April 2024. My employment was terminated without explanation on 26th July 2024. I did not receive and have not received, a Day Five statement of terms in accordance with the terms of section 3(1A) of the Terms of Employment Act 1994. I did not and have not received a written statement of terms in accordance with section 3(1) of the Terms of Employment Act 1994. I did not, and have not received, a contract of employment. I did not receive and have not received, any terms of employment, apart from receiving confirmation of full-time status for an apartment reference. I was not informed when I would be paid, how often I would be paid or in what manner I would be paid, or a breakdown of the rate of payment. I was not informed that I would be working a month in hand and was not paid for the first two months of my employment. I was not informed of any complaints procedure in place in what was a particularly toxic and oppressive working environment.” Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. At the outset the Respondent representative confirmed that his client was conceding the breaches of the Terms of Employment (Information) Act, 1994. |
Findings and Conclusions:
At the outset the Respondent indicated that it acknowledged that it had not provided the Complainant with a Statement of certain Terms of the employment within two months of the commencement of the employee’s employment with the employer) as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 In addition to the foregoing, the Employer accepts that it did not provide this new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. The Respondent has therefore been found to have contravened two separate contraventions of the Act. Each breach can lead to an award of compensation in an amount up to four weeks remuneration. The Complainant’s weekly remuneration was in the amount of €1,250.00. I am minded to award compensation in the amount of two weeks for each breach.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00065192-001 – The Complaint herein is well founded and I award the Complainant €5,000.00 compensation in total.
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Dated: 15/01/2025.
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Key Words:
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