Complainant

Respondent

Parties

Fiona  Shanahan

HSE Cork Kerry Community Healthcare

Representatives

  Self-Represented

 Mr Dave McCarthy, HR Dept.

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-00067283-001

10/11/2024

The Complainant worked as a clerical officer for the Respondent from 2 September 2020 until she started employment with another public sector employer on 4 October 2024. Her salary was €19.25 per hour for a 25-hour week. The Complainant submits she never received a contract of employment, core terms of employment nor a written statement of terms of employment.

The Respondent acknowledged that they have no record of the Complainant receiving a statement of terms as required by section 3 of the Terms of Employment (Information) Act 1994 (the Act).

The Complainant gave evidence that she was employed originally as a home help, but in reality, commenced clerical officer duties and continued to be employed as clerical officer until her resignation in October 2024. She is now employed with another public body but details of her increments of pay are not readily available, resulting in serious hardship for herself regarding incremental progression as a result of not receiving a statement of her written terms.

The Respondent could not satisfactorily rebut the Complainant’s position because it had no record of a contract of employment nor of the Complainant’s written terms for the position she occupied. By way of mitigating circumstances, the Respondent argued that the Complainant was employed during the Covid-19 period and beyond, where the Respondent was under severe pressure when dealing with the effects of the pandemic on its vulnerable clients. .

Section 3 of the Act in its relevant parts provides: -

(1) An employer shall, not later than 2 months 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—

(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 of such agreement or order,

…(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

…. (i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours..

Section 3 (1A) of the Act states in its relevant part:

“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:

…(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...”

The Complainant gave convincing uncontested evidence that she received no documentation from the Respondent regarding her terms of employment, near commencement of employment, nor at any other time during the period of employment. I am satisfied therefore that her complaint was well founded.

Redress in the Act is described as follows in its relevant part at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6or 6C shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

 (d)in relation to a complaint of a contravention under change section 3, 4, 5, or 6, 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 of 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…

 When determining whether compensation should be granted for non-compliance with the provisions outlined in section 3 of the Act, I must be mindful of the practical implications that it held for the Complainant. The Complainant gave a plausible account of the practical difficulties she has encountered regarding pay increments with a new public body, because of the failure of the Respondent to give a verified statement of her terms of employment. She also felt she quite unsure of her position because she carried out clerical officer duties but was registered officially as a home help.  The fact that the Respondent is a public body and failed to uphold its legal obligation to the Complainant is an added aggravating factor in this case. I believe the transgression to be on the serious end of the scale. However, I am also conscious of the fact that the Respondent “put the hand up” at the hearing and did not attempt to contradict the evidence of the Complainant. The Respondent further submitted that the Respondent was under severe pressure during the pandemic. Having taken all the submissions and evidence into account, I direct that the Respondent should pay the Complainant the compensatory sum of three weeks pay which is equivalent to €1444.00.

For the reasons outlined above, I decide that the complaint was well founded, and I direct the Respondent to pay the Complainant the compensatory sum of €1444.00

Terms of Employment (Information) Act 1994.