FULL RECOMMENDATION
PARTIES : SHANNONS SOLICITORS DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00030508 CA-00040376-004 BACKGROUND: DETERMINATION: Background The Appellant contends that she was employed by the Respondent from 10thFebruary 2020 until 22ndJune 2020. She contends that, in contravention of the Act at Section 3(1)(A), the Respondent did not provide her at any time with a written statement containing the particulars of the terms of her employment set out in that section and in any event did not do so as required within five days of the commencement of her employment. The Respondent agrees that the Appellant was at no time provided with a written statement containing the particulars of the terms of her employment required by the Act at Section 3(1)(A) by the Respondent. The Respondent contends that the Appellant was not employed by it under a contract of service at any material time and was engaged in an internship or work experience programme from November 2019. In the submission of the Respondent, she remained in such an internship or work experience programme until its termination on 26thMarch 2020. The internship or work experience programme was unpaid until the Respondent decided, in February 2020, to pay a stipend to her in acknowledgement of the work she was doing in the Respondent firm. The Appellant submitted that whereas she was involved in a form of unpaid internship from November 2019; she was offered and accepted employment with the Respondent with effect from 10thFebruary 2020 and that the salary offered to her and accepted by her was €20,000 per annum from that date. No matter concerning the nature of the relationship between the parties from November 2019 to 10thFebruary 2020 was before the Court. It is clear that the matter before the Court will therefore turn on whether the Appellant was engaged by the Respondent from 10thFebruary 2020 as an employee within the meaning of the Act. Summary position of Appellant The Appellant submitted that, following a period of unpaid engagement with the Respondent from November 2019, the Respondent in the person of Vincent Shannon, a senior partner of the Respondent, contacted her at the end of January 2020 to offer her employment as a full-time legal secretary in the Respondent firm. Mr Shannon, in a phone call at that time, offered her a salary of €20,000 per annum in return for a 37.5-hour week commencing on 10thFebruary 2020. She submitted that the job was offered to her by phone call from the Respondent in late January 2020 and that, consequent on that phone call, she terminated her permanent employment with another employer. She worked from 10thFebruary 2020 for three weeks in that month and received a salary payment of €1,153.84 which exactly reflects a calculation of three weeks’ pay based on a salary of €20,000 per annum. She provided the Court with a copy of a pay slip for that period, described on that pay slip as ‘monthly period 2’, provided to her by the Respondent which demonstrated that she was paid €1,153.84 and that the Respondent had paid employer contributions of €101.54 as well as having made deductions from her salary of €8.83 in employee PRSI contributions and €8.07 in Universal Social Charge. She also provided the Court with a copy of a pay slip for the period to 26thMarch 2020, described on that payslip as ‘monthly period 3’provided to her by the Respondent which demonstrated that she was paid €798.81 in respect of the period to that date and that the Respondent had paid employer contributions of €70.30 as well as having made a deduction from her salary of €8.07 in Universal Social Charge. She provided the Court with an e-mail from a partner of the Respondent on 26thMarch 2023 advising her to make a claim against the Department of Social protection but assuring her that she would be paid “for the three weeks you worked in March”. The Appellant also provided the Court with a letter dated 6thJuly 2020 from the Respondent which stated that she had “worked in this office from 29thNovember 2019 to 24thMarch 2020 as a legal intern and then a Legal Secretary. Due to Covid staff were let go at this time and her employment officially ended on June 22nd2020” She submitted that in the period in question she provided general secretarial assistance, production of correspondence and dictaphone work as well as supporting a partner and on occasion covering the main reception area of the practice. She said that she held more responsibility as an employee than she had as an intern / work experience participant previously. She submitted that she was required to complete a period of self-isolation due to Covid 19 from 24thMarch 2020 until 7thApril 2020. On the 22nd June 2020 she spoke with Vincent Shannon on the phone and he told her that the Respondent no longer had a job for her and advised her to continue to claim the pandemic unemployment payment (PUP). Summary position of Respondent The Respondent submitted that the Appellant was not at any time or at all engaged under a contract of service giving rise to an employer / employee relationship and consequently no breach of the Act as alleged could have occurred. She had made unsolicited contact with the Respondent in November 2019 and a non-remunerative work experience placement was discussed. Upon accepting the placement, it did not give rise to a contract of employment. When asked by the Court to comment on the letter of the Respondent dated 6thJuly which asserted that the Appellant worked in the office until 24thMarch as a legal intern and then as a legal secretary and that her employment officially ended on June 22nd2020, the Respondent’s representative submitted that this letter was by way of a reference. He agreed that a reference document was a serious document and that a person reading its content was entitled to believe that it was true. The Court asked the Respondent’s representative to comment on the proposition that the payment made to the Appellant on 28thFebruary 2020 was the exact amount which would have been due to be paid to her had she been engaged on a salary of €20,000 as she alleged from 10thFebruary until 28thFebruary 2020. The representative submitted that if this was the mathematical reality it was, according to his instructions, a co-incidence. Mr Vincent Shannon, a senior partner, gave evidence on behalf of the Respondent. He said that the Appellant was never an employee. He said that he could not recollect a telephone conversation with the Appellant at the end of January and stated that he did not offer her employment on a full-time basis. He accepted in evidence that the Appellant did work for 37.5 hours per week and that she carried out the tasks as described by her in her submission with effect from 10thFebruary 2020 and that she did work more intensively in the period after 10thFebruary than she had previously. He stated that the Respondent’s letter of 6thJuly 2020 was ‘not completely accurate’, that he was trying to oblige the Appellant and in that context he had felt it appropriate to ‘gild the lily’ in terms of her role with the Respondent. He had felt in February 2020 that it was not fair to have the Appellant in the office on work experience and to be receiving no remuneration. He felt that an ex-gratia or stipendiary payment should be made to her. He stated that the accountant for the Respondent handled all matters associated with payments to the Appellant and that he could not give evidence as regards calculations or deductions from the payments made to her in February or March 2020. When questioned by the Court he could not clarify when the Appellant had been advised as to why a payment would be made into her bank account in February 2020 but believed that she must have been so advised by him. The Law Section 1 of the Act in relevant part defines certain terms as follows: ‘contract of employment ’ means — (a) a contract of service or apprenticeship, or (b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of either the Employment Agency Act 1971 or the Protection of Employees (Temporary Agency Work) Act 2012 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract), whether the contract is express or implied and if express, whether it is oral or in writing; “employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the F3 [ Local Government Act 2001 (as amended by the Local Government Reform Act 2014) ], a harbour authority, a health board or F4 [ an education and training board ] shall be deemed to be an employee employed by the authority F4 [ or board ], as the case may be; “employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “ contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer; Section 3 of the Act in relevant part 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— (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 places, (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, (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, (g) that the employee may, undersection 23of 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 section, ] (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. (2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given. (3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way. (4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer. Discussion and conclusions The parties are agreed that no written statement as required by the Act at Section 3(1)(A) was ever provided to the Appellant. It is common case that she worked for 37.5 hours per week in the Respondent firm with effect from 10thFebruary 2020. According to the Appellant she was working under a contract of service following an offer of employment made to her by Vincent Shannon in a ‘phone call in late January 2020. According to Mr Shannon, he could not recollect a phone conversation with the Appellant at the end of January. In any event he stated in evidence that no offer of employment was made to her at that time or at all. It is a mathematical fact that the payment made to the Appellant on 28thFebruary was in the exact amount which would have been due to her had she, as she alleged, accepted an offer of employment commencing on 10thFebruary on a salary of €20,000 per annum. It is also a fact that in a letter dated 6thJuly the Respondent did record the fact that the Appellant had worked for the Respondent as she alleged as a Legal secretary and that her employment had, as she alleged, been terminated on 22ndJune 2020. There is no dispute between the parties that the Appellant carried out the tasks and duties which she alleged she had carried out on behalf of the Respondent with effect from 10thFebruary 2020. In all the circumstances, the Court concludes that the amount of the payment made to the Appellant in February 2020 was not a co-incidence. It was an exact calculation of the wages which would have been due to her arising from a salary of €20,000 per annum. In those circumstances, the Court concludes that the payment was, as the Appellant alleges, a salary payment arising from a contract of employment within the meaning of the Act. The Court is fortified in this conclusion by the fact that the accountant for the Respondent made statutory deductions and payments appropriate to an employer and employee when calculating the payments to be paid to the Appellant in both February and March 2020. For these reasons the Court concludes that the Appellant was engaged by the Respondent under a contract of employment within the meaning of the Act with effect from 10thFebruary 2020. The Court further concludes that the accepted failure to provide her with a written statement of certain particulars of her employment within five days of the commencement of her employment amounted to a breach of the Act at Section 3(1). Award 7(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6 or 6C shall do one or more of the following, namely — (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 Decision
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