FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES : HOLDEN PLANT RENTALS LTD (REPRESENTED BY PENINSULA ) - AND - SINEAD VEREKER (REPRESENTED BY MR. LARS ASMUSSEN B.L., INSTRUCTED BY SEAN ORMONDE, SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00013042 CA-00017160-001 BACKGROUND: DETERMINATION: Background This is an appeal of an Adjudication Officer’s Decision under the Terms of Employment (Information) Act, 1994, ‘the Act’. Ms. Vereker, ‘the Complainant’, worked for Holden Plant Rentals Ltd. ,’the Respondent’ from March 1995 to February 2018. She was employed originally as an Office Manager and was General Manager when she ceased in the employment. The Complainant states that she received a contract of employment in 1995 and that her role and responsibilities changed many times subsequently but she was never notified of these changes in writing. She made a complaint under the Act to the Workplace Relations Commission. The Adjudication Officer upheld her complaint and decided that the Respondent should pay her €100 in compensation. Both parties appealed this Decision. The Respondent appealed the entire Decision including the quantum awarded. The Complainant appealed the quantum awarded. An issue was raised by the Respondent that the Complainant’s appeal was stamped as received by the Labour Court on the 43rdday after the Decision and that it was, therefore, outside of the 42 days allowed for appeal in the Workplace Relations Act 2015. Upon further investigation, it was established that the appeal had been received by the Court in electronic format prior to midnight on the 42ndday. The Court concluded that the appeal had been received in time. The Respondent’s representative raised a query regarding the numbering in the findings of the Adjudication Officer. The Court indicated that it was satisfied that the Decisions being appealed were clear and unambiguous. Summary of Complainant arguments The duties and benefits of the Complainant had changed considerably between 1995 and 2017. However, she did not receive revised contracts setting out her changed terms and conditions in that time. In related cases before the Court under the Employment Equality Acts, it is clear that this failure to provide contractual clarity led to an exceptional level of prejudice involving a ‘de facto’ demotion and because of the absence of clear contractual rights, the removal of benefits such as a company car and mobile telephone. Therefore, the Court should apply the maximum level of compensation permitted under the Act. The amount provided for in the Adjudication Officer Decision is totally inadequate, given the circumstances. Summary of Respondent arguments A formal complaint under the Act was made by the Complainant to the Workplace Relations Commission in January 2018 prior to any issue arising regarding her company mobile telephone in February 2018. The Complainant’s argument in respect of her company car relates to the type of car provided. A contract of employment would not have specified the make of car that would be provided to an employee. There is no detriment to the Complainant due to the absence of up-dated contracts. In the case ofPatrick Hall v. Irish Water (TED161)it was determined that a breach of the Act that involved no loss, inconvenience or expense could not justify an award of compensation. Witness evidence Ms. Sinead Vereker Ms. Vereker is the Complainant. The witness told how she had started to work for the company as a teenager. She had been promoted in time to General Manager. The witness said that when her role changed as she progressed in the company, she had never received any written notification of her new terms and conditions. Mr. Paul Holden Mr. Holden is the Managing Director of the Respondent. The witness said that the Complainant looked after all aspects of the business. He said, ‘She was the company’. She managed everything in the business. She looked after all employee contracts and remuneration, including her own. She dealt with all contracts of remuneration. Under cross examination, the witness accepted that there had been changes to the Complainant’s terms and conditions since she received a contract in 1995. He said that the Complainant looked after all of these matters and she would have been responsible for notifying staff of any changes. He said that the Complainant would have dealt with issues regarding maternity leave. The applicable law Terms of Employment, (Information) Act 1994 Written statement of terms of employment. 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, (ga) 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. (1A) Without prejudice tosubsection (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 theCompanies 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 theNational 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. Notification of changes. 5.— (1) Subject tosubsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer undersection 3,4or6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) 1 month after the change takes effect, 7. (d) in relation to a complaint of a contravention under changesection 3,4,5, or6, and without prejudice to any order made underparagraph (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 undersection 17of theUnfair Dismissals Act 1977. Deliberation. It is not disputed that the Respondent failed to advise the Complainant of changes in her employment conditions within one month of the changes taking effect. The Respondent argues that the responsibility for contracts rested with the Complainant as part of her duties. That may well have been so but the legal responsibility for compliance rests with the Respondent and the Respondent’s obligations have not been met. Accordingly, there has been a breach of the Act. Given the circumstances of the case and taking account of the arguments set out above, the appropriate compensation is €100. Determination. The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |