Complainant

Respondent

Parties

Linda  Moran

English By Design Limited

Representatives

Michelle Loughnane Mullany Walsh Maxwells

Conor O’Boyle

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-00055013-001

13/02/2023

The Complainant alleges breaches of the Terms of Employment (Information) Act . The Respondent is not contesting the claim.

The Complainant was employed by the Respondent as an Academic Coordinator and Teacher of English.  She commenced employment with the Respondent on 3rd January 2020.  Her hours of work were approximately 40 hours per week for which she was paid approximately €2,520.00 gross per month. 

Terms of Employment (Information) Act 1994 (as amended):

The Complainant submits that she did not receive a document which complies with Section 3(1) of the Terms of Employment (Information) Act. 

The most recent contract of employment furnished to the Complainant is dated 12th December 2022.  It fails to comply with the following provisions of Section 3 of the Terms of Employment (Information) Act:

Section 3 (1) (b) The contract does not contain the address of the Employer in accordance with Section 3 (1) (b).   

Section 3 (1) (ga) The contract does not state that the employee may under Section 23 of the National Minimum Wage Act 2000 request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period in accordance with Section 3 (1) (ga) (as amended by Section 44 of the National Minimum Wage Act 2000).    

Section 3 (1) (k) (ii) The contract does not set out any information in relation to pensions and pension schemes as required by Section 3 (1) (k) (ii).  Employers who do not provide an occupational pension scheme for employees are legally obliged to provide access to a Personal Retirement Savings Account (PRSA) and to facilitate deductions from payroll, where requested by an employee.

The Unfair Dismissals Act 1977 provides that an employer shall give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purposes of dismissing the employee not later than 28 days after entering the contract of employment.  This notice was not furnished to the Complainant within the aforementioned 28 day period.

Furthermore, S146/2000 Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 requires that the grievance and disciplinary procedures be furnished to an employee at the commencement of employment.  There is no evidence of this information having been furnished to the Complainant.

The case of Felix Guerrero -v- Merchants Arch Company Limited DWT188 highlighted the obligations placed on an employer to furnish information in accordance with the legislation.  In that case, the Labour Court stated:

“The Court finds that the Act imposes an obligation on an employer to provide a worker with basic information regarding the terms of their employment.  The requirements set out in Section 3 of the Act are not complex matters.  A simple attention to detail would enable any reasonable person to comply with its terms.  A failure to do so therefore requires a clear and understandable explanation as to why a worker has not been provided with such basic information about the terms under which s/he is employed.”

In a similar complaint, the Labour Court rejected the Defences put forward by the employer as reasons for non-compliance with Section 3 in the case of Megan Hayes Kelly -v- Beechfield Private Homecare Limited TED1919:

“It is well established in the Determinations of this Court that it is not necessary for a Complainant under the 1994 Act to demonstrate that he or she suffered detriment as a consequence of the Respondent’s failure to fully comply with its obligations under Section 3 of this Act. Likewise, the Court does not accept that a Respondent’s classification of its non-compliance with the requirements of the Act as a merely “technical breach” provides a legitimate defence to such non- compliance.  Furthermore, there is no provision in the 1994 Act that makes it a condition precedent of an employee’s entitlement to refer a complaint under the Act to the Workplace Relations Commission that he or she firstly raises a grievance about their contract with their employer.”

Mr. O’ Boyle appeared on behalf of the Respondent, in his capacity as Liquidator appointed to Respondent company.  He has conceded the claim made by the Complainant.

The Complainant commenced employment with the Respondent on 3rd January 2020. 

The most recent contract of employment furnished to the Complainant was dated 12th December 2022.  I find that it failed to comply with the following provisions of Section 3 of the Terms of Employment (Information) Act in the following ways:

Section 3 (1) (b) The contract does not contain the address of the Employer in accordance with Section 3 (1) (b).   

Section 3 (1) (ga) The contract does not state that the employee may under Section 23 of the National Minimum Wage Act 2000 request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period in accordance with Section 3 (1) (ga) (as amended by Section 44 of the National Minimum Wage Act 2000).    

Section 3 (1) (k) (ii) The contract does not set out any information in relation to pensions and pension schemes as required by Section 3 (1) (k) (ii).

The claim is conceded by the Respondent. Therefore, based on the Complainant’s evidence in relation to the breaches of the act I find that the complaint is well founded and accordingly succeeds.

I award the Complainant four weeks wages in the amount of € 2,520.00

The complaint is well founded. I award the Complainant € 2,520.00

Terms of Employment. Contract of employment. Breaches.