TED231

1. Appeal Of Adjudication Officer Decision No(s) ADJ-00033114 CA-00043829-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 15 August 2022. A Labour Court hearing took place on 17 January 2023.
The following is the Court's Determination:




DETERMINATION:

This is an appeal by Mary Power (Complainant) of decision ADJ 00033114 CA-00043829-001 of an Adjudication Officer under the Terms of Employment (Information) Act 1994 (the Act) in a claim that the Respondent failed to provide her with a five-day written statement of terms and conditions of employment as required by the Act. The Adjudication Officer upheld the Complainant but did not make an award. This case was heard with linked cases ADE/22/65, ADE/22/64 and TE/22/38

The Complainant lodged her complaint with the WRC on the 30^th April 2021 therefore the cognisable period is 31^st October 2020 to 30^th April 2021.

Summary of Complainant’s submission and evidence.

Ms O'Loughlin BL on behalf of the Complainant submitted that the Complainant never received either a statement or a contract of employment setting out her terms and conditions of employment. This was a serious breach of the Act and compensation should have been awarded. The Complainant in her evidence to the Court stated that she never received the five-day statement or a contract of employment. It was put to the Complainant that it would be the evidence of Mr Courtney that he emailed her a document prior to commencing work and that when she started work, he handed her a contract. The Complainant was adamant that she had not received either document.

Summary of Respondent’s submission and evidence.

Ms Walsh on behalf of the Respondent states that the Complainant was given a contract of employment dated 27^th July 2020 and a written offer of employment dates 22^nd July 2020.
Mr Courtney in his evidence to the Court stated that he emailed a scanned copy of a letter of offer which contained her rate of pay and the hours she would work to her private email address the day before she started work with the company. It was also his evidence that when she started work he printed off a copy of the contract and handed it to her as she sat beside him.

The applicable law

Section 3 (1) (a) of the Act states;

• (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 rate or method of calculation of the employee's remuneration 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.
  
  
  

Discussion

The Court notes that the letter of offer that the Respondent was relying on in his sworn evidence does not comply with the requirements of section 3(1) (a) of the Act. The Court also notes that the Respondent’s sworn evidence before the Adjudication Officer was that it had been sent to the Complainant two weeks after she had commenced work, which conflicts with his sworn evidence to this Court that he had sent it by email the day before she commenced work. The Court finds that on the balance of probabilities that the Complainant did not receive a statement complying with the requirements of section 3(1) (a) of the Act within the designated time frame.

Determination

The Court having carefully read the submissions and listened to the oral submissions on the day determines that compensation in the amount of four weeks salary should be paid to the Complainant. Based on the payslips provided to it, the Court determines that the Complainant worked on average 23 hours a week at an hourly rate of €20 giving a total of 23x20 =460 x4 weeks =€1840.

The Decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
02 February 2023	Deputy Chairman