Complainant

Respondent

Parties

Daria  Petrenko

Raftery's Centra

Representatives

Self

Grainne Moran The HR Suite

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00066387-001

30/09/2024

The Complainant presented as a litigant in person and gave evidence on her own behalf.

An interpreter attended for the majority of the hearing, but lost contact towards the conclusion of proceedings. The Complainant was asked if she wished for the remainder of the hearing to be adjourned until another interpreter could be in attendance, but she wished to proceed and was assisted by her husband at the end of the hearing in this regard.

The Complainant commenced work with the Respondent on 19th June 2024. Her salary is €14 per hour, with a Sunday premium rate of €14.50.

The Complainant stated that she did not receive a written statement of the terms of her employment within 5 days as she should have. Instead, on 16th September 2024, her employer gave her an envelope and she asked if it was urgent but was told it was not. On 20th September, the Complainant read the contents and realised that it was a fixed term contract of employment, rather than the permanent contract that she was expecting. She has brought this complaint as she does not accept a fixed term contract and wants to receive a permanent contract.

The Complainant submitted a complaint form to the WRC on 30th September 2024. That complaint form raised a complaint that “My employer failed to inform me (a fixed-term employee) of opportunities for (a) permanent employment or (b) of appropriate training opportunities”. In the narrative of the complaint form the Complainant stated that “The employer failed to give me “written statement of terms of employment”. I didnt know that I'm taking job with fixed term contract. I was only informed about fixed term contract after 3 months of my employment. I wouldn't take that job if I knew about fixed term contract”.

The Complainant gave evidence that she did not specifically ask whether the contract was fixed or permanent in her interview as she assumed that she would get her contract within the same time as her previous employment, which was within 5 working days. She also stated that she agreed in the interview that she would work 30 hours per week but that the fixed term contract offered by the Respondent states that the hours are 10-25 hours per week.

The Complainant had given up a permanent job in order to take up this role and is deeply distressed that she was offered a fixed term rather than a permanent contract. She stated that she took this job without knowledge of the terms of the contract and feels extremely anxious about the situation. She has had to attend the doctor on two occasions due to stress and is on antidepressants because of this.

She said that the employer’s failure to provide her with her contract within 5 days as required by law cost her a permanent position and that she has no secure future. She feels that her employment is unstable and if she had received the contract in time she wouldn’t have lost her permanent position or have these problems.

The Respondent stated that it did not have a permanent job vacancy at the point the Complainant was hired and that there have not been any permanent job vacancies available in the interim period. There are no permanent vacancies currently available in the Company and, accordingly, the Respondent Company cannot have breached Section 10 of the Protection of Employees (Fixed Term Work ) Act, 2003 as it has not failed to “inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.” The Respondent does not have any permanent vacancies to offer the Complainant but should permanent vacancies become available, the Complainant will be informed and invited to apply for same.

The Respondent outlined in submissions that the Complainant attended paid training / induction on 19 June and 26 June 2024. As she had to work a 2-week notice period with her previous employer, she then re-commenced working for the Respondent company from 15 July 2024. The Respondent accepts that the contract of employment was not provided to the Complainant within the statutory one month of the commencement of her employment.

The Complainant brought this complaint under the Protection of Employees (Fixed-Term Work) Act, 2003 (the Act). Specifically, her complaint form outlined that “My employer failed to inform me (a fixed-term employee) of opportunities for (a) permanent employment or (b) of appropriate training opportunities”. This is a reference to section 10 of the Act which states that:

(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.

The Respondent’s position that there were, as of the hearing date, no available permanent positions and it therefore could not be in breach of this section of the Act is accepted. It could not have failed to inform the Complainant of a position which did not then exist. In those circumstances, I must find that the Complainant’s complaint under this legislation is not well founded.

The Complainant referenced multiple times that this situation arose because the Respondent failed to provide her with a statement of her employment within 5 days of commencing work. She was clear that if she had received this information, she would not have taken the position and would have remained in her permanent post.

The Complainant’s statement that she should have received this information within 5 days is a reference to section 3(1A) of the Terms of Employment (Information) Act 1994. The Complainant did not specifically identify this legislation in her complaint form, but she did clearly state in the narrative that “The employer failed to give me “written statement of terms of employment””.

Given the nature of the complaint and the specific reference in the complaint form to not receiving a written statement of terms of employment, I have considered whether or not the Complainant has made a complaint under the Terms of Employment (Information) Act 1994. In considering this matter, I have noted the judgement of McKechnie J. in the Supreme Court case of County Louth VEC –v- The Equality Tribunal [2016] IESC 40 where it was held that: 

“As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant … seeks redress by referring the case to the Director” (s.77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard …… I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact, the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”

I note that this judgement related to a claim under the Employment Equality Acts, however I am satisfied that the reasoning of McKechnie J. in relation to the referral of complaints to a quasi-judicial body using a non-statutory form is applicable to the present case. The online complaint referral form used by the WRC is not a statutory form, and I am satisfied in this particular case that the Complainant clearly identified a complaint that her employer failed to provide her with a written statement of terms of employment. That being the case, I am satisfied that she has made a complaint in relation to section 3(1A) of the Terms of Employment (Information) Act 1994.

Section 3(1A) states that:

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;

….”

I am satisfied, based on the uncontested evidence of the Complainant on this point, that the Respondent failed to provide the Complainant with a statement in writing containing the above particulars within 5 days after the commencement of her employment, which was 19th June 2025.

The relief available in the Terms of Employment (Information) Act 1994 is set out at section 7. Section 7(2) states that:

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, 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 Complainant was ultimately provided with the statement of her employment on 16th September 2024, however the delay by the Respondent in providing this has had a significant effect on the Complainant. Had she been provided with the necessary details within the required 5 days after the commencement of her employment when she attended for training/induction on 19 June 2024, she would have had the information necessary to decide whether to remain in her permanent position or not.

However, It is important to note that section 7 above does not allow me to make a direction that would change the nature of the employment contract. It does not provide any power to direct the Respondent to offer a permanent contract to the Complainant. Section 7(2)(b)(ii) states that an Adjudication Officer can alter or add to any such statement, but only for the purpose of correcting any inaccuracy or omission. The nature of the contract between the parties cannot reasonably be described as an inaccuracy because the Respondent has been clear that no permanent position was available at the time, and it is therefore not inaccurate to describe it as fixed term.

Given the significant impact that failure to provide the statement has had on the Complainant, I find that compensation of two weeks remuneration is just and equitable having regard to all the circumstances.

I find that the complaint under the Protection of Employees (Fixed-Term Work) Act, 2003 is not well founded.

I direct the Respondent to pay two weeks’ remuneration to the Complainant in respect of a contravention of section 3 of the Terms of Employment (Information) Act 1994.

Fixed term contract – permanent contract – statement of employment