ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00056239

Parties:

	Complainant	Respondent
Parties	Katrina Todd	Blair’s Hill Nursing Home Ltd.

Representatives

Self - Represented

Pat O’Brien, Director.

Complaint:

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-00068446-001	06/01/2025

Date of Adjudication Hearing: 25/03/2025

Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. Both parties came were self-represented.

The Complainant had ticked the box on the complaint form indicating a complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012-S.I. no 36/2012), but with her declared intention in her narrative on the form to file a complaint about a lack of a written employment contract. The Superior Courts have held that quasi-judicial decision makers cannot be more ‘rigid’ than the courts In County Louth VEC v. Equality Tribunal & Brannigan (Unreported, High Court, 24th July, 2009) McGovern J. commented: ‘If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint… remains the same.’ It follows that a quasi-judicial decision maker cannot approach its jurisdiction in a rigid fashion and must, at the very least, allow as much flexibility as is provided for by the Courts. The Complainant in this case was clearly not a person performing mobile road transport activities but was a care assistant in a nursing home. It has long been established that the complaint form is not a legally binding document. It was clear to me that the Complainant had erroneously ticked a drop down in the “Terms of Employment” segment. The narrative attached to the box on the complaint form stated “I asked for my contract to be sent or giving to me and I was told I have no contract. Have the message.” The Respondent accepted that they were aware that the specific complaint was that the Complainant had not received a contract/term of conditions of employment, and they had no objection to the amendment of the complaint to reflect instead a complaint under the Terms of Employment (Information) Act 1994 (“the Act”).

Background:

The Complainant worked as a Care Assistant at the Respondent Nursing home from 2 February 2006 until 29 November 2024. She was paid €624 fortnightly for a 24-hour week. The Complainant states that she never received an employment contract or any terms of employment, in violation of the Act.

Summary of Complainant’s Case:

The Complainant gave evidence that she never received the terms of her employment either at the commencement of her employment nor at any time during her employment. She said that when she asked for a contract of employment, she was informed that there was none on file.

Summary of Respondent’s Case:

The Respondent accepted that they had no record of the Complainant receiving a copy her contract of employment, nor of a statement of her terms of employment, as required by the Act.

Findings and Conclusions:

Applicable Law:

Section 3 of the Act in its relevant parts provides: -

(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—

(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,

…(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month, or any other interval,

….(i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours..

Redress under the Act is dealt with at section 7(2) which provides:

(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 section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G shall do one or more of the following namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under [section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G], or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under [section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G] 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 calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The Respondent accepted that it had no record of providing a copy of the terms of employment to the Complainant therefore the complaint was well founded. The only issue to be decided is the appropriate redress. When determining whether compensation should be granted for non-compliance with the provisions outlined in section 3 of the Act, I must be mindful of the practical implications for the Complainant. The Complainant gave evidence that she needed the terms of her employment regarding another issue, and she was shocked that there was nothing on file for her. Having considered the evidence and submissions in this case, I direct the Respondent to pay the Complainant compensation of €1000.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00068446-001: For the reasons outlined above, the complaint was well founded, and I direct the Respondent to pay the Complainant the compensatory sum of €1000.

Dated: 25/4/25

Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll

Key Words:

Terms of Employment (Information) Act 1994.