SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012
- AND -
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. Appeal of Adjudication Officer Decision No. ADJ-00001808.
2. This is an appeal under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court Hearing took place on 13 December 2016. The following is the Court's Determination:
Background to the Appeal
This is the Company’s appeal from a decision of an Adjudication Officer (ADJ-00001808) dated 9 September 2016. The Company is, therefore, referred to in the within determination as the Appellant and Mr Davoust is referred to as the Respondent. The notice of appeal was received by the Court on 19 October 2016.
The Adjudication Officer upheld the complaint under the Terms of Employment (Information) Act 1994 at first instance. He found that the Appellant had failed to issue the Respondent with “the required statement under section 7” of the Act and awarded the Respondent compensation of €750.00.
The Respondent commenced his employment with the Appellant in June 2015 as an Administrative Assistant and was paid €20,000.00 per annum (i.e. approximately €384.62 per week). The Respondent resigned his employment on 5 February 2016. He submits that on that date he had requested an employment contract from the Appellant as he believed he hadn’t been provided with one previously.
The Appellant submits that it did, in fact, furnish the Respondent with a written statement of terms and conditions of employment in fulfilment of its obligations under the Act. It exhibited a copy of that statement dated 8 June 2015.
Statement of Terms and Conditions Required under the Act
Section 3 of the Act specifies the details that must be included in the written statement of terms and conditions that an employer is obliged to issue to each employee within two months of the employee commencing employment with that employer. Section 3(1) provides as follows:
- 3.—(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—
(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
(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,
F5[(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,]
F6[(g) 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,
(ga) 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 as provided in that
(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.
Subsection (4) of the same section 3 places a further specific obligation on the employer in relation to the statement required under subsection (1) as follows:
- (4) A statement furnished by an employer under subsection (1) shall be signed and
dated by or on behalf of the employer.
Discussion and Findings
The statement exhibited by the Appellant is not signed “by or on behalf of the employer”. Clearly, the statement does not, therefore, comply with the requirements of section 3(4) of the Act. In fact, on examination of the contents of the statement submitted, the Court also notes that it fails to address a number of the items specified in section 3(1) of the Act. It follows that this Court is not required to make a finding on whether or not the Respondent herein received a copy of the exhibited statement before 5 February 2016 or at all having regard to its finding herein that the document exhibited by the Appellant does not meet the requirements of section 3 of the Act and in particular does not comply with subsection (4) thereof.
The Appeal fails and the Court awards compensation of four weeks’ gross pay in the amount of €1,538.48. The decision of the Adjudication Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
16th December 2016______________________
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.