Complainant

Respondent

Parties

John  Clinton

Blindstyle Limited

Representatives

  Self-represented

Annalee Brazel Peninsula

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-00069538-001

21/02/2025

The Complainant made a single claim seeking compensation on foot of the alleged breach by the Respondent of Section 3 of the Terms of Employment (Information) Act 1994 as amended (“the Act”).

The Complainant was employed as a blind-fitter by the Respondent from August 2022 until he resigned on the 16th of January 2025. His WRC Complaint form was received by the WRC on the 21st of February 2025. His weekly gross remuneration was agreed in the sum of €802.72.

The Complainant alleged that he had never been given a contract of employment or any document reflecting his terms and conditions of employment. He also said that he felt victimised during the time that he was employed by the Respondent.

The Respondent denied failing to provide the Complainant with terms of employment. The Respondent contended that the Complainant was provided with a contract and a company handbook, copies of which were submitted prior to the hearing. Without prejudice to this position the Respondent contended that if a breach of the Act did occur (which was denied), the Complainant was not entitled to any compensation having suffered no loss. The incidents of alleged victimisation were also denied.

Complainant’s Evidence

The Complainant gave evidence on affirmation. He confirmed that he had received, prior to the hearing, the Respondent’s written submissions including copies of a contract of employment and company handbook attached. He said that he never received these or any other documentation whatsoever concerning his terms of employment at any stage in his employment. He did not ask for terms or employment or a contract at any stage in his employment. He never informed the Respondent of any concern he had regarding not having received terms of employment nor did he threaten the Respondent with or advise the Respondent of his intention to make a claim under the Act.

The Complainant explained that his use of the term victimisation was not a reference to  any complaints about not getting a contract but rather was a reference to the fact that he was treated differently to other employees and he complained about this.

He said that the only company vehicle with a tracker was the one which was on the van assigned to him. However, he did accept that the tracker had already been fitted to the van when it was assigned to him as his work vehicle.

He said that he was never issued with tools and instead he used his own tools and ladder. His company van was broken into outside his house and three power tools were stolen. The Respondent only replaced two of the three items stolen.

He was never given a company mobile ‘phone and he always used his own.

He said that he should have been issued with a RAMS (Risk Assessment and Methods Statement) Certificate authorising him to work alone. Two companies said that this was needed when the Complainant was working alone. The Complainant asked the Respondent’s MD Mr Hoverty to send someone to assist him to deal with this situation because when working on large developments/building sites he would have to carry heavy equipment up flights of stairs, and he sometimes had to work at heights.

The Complainant also said that he was unhappy with being required to do the work of a sales representative as well as his own work

If the above issues had been clearly set out in writing in accordance with the Respondent’s obligations under the Act, the Complainant said that his position would have been clearer. If he had received terms of employment he would have been able to clarify the terms including the issues outlined, if necessary, and to have any additional terms required set out clearly in any contract or written terms. As it happened the issues which he outlined in his evidence led to him being unhappy in the employment, but he felt compelled to remain in the employment as he was trying to buy a house at the time. Any time he complained about his terms of employment he was just told to ‘get on with it’.

In cross examination it was put to the Complainant that the Respondent’s MD would testify to the effect that contractual terms and a handbook were issued to the Complainant in early August 2022 – all of which he denied. He was aware of his terms of employment by verbal agreement only.

The Complainant clarified that he preferred to use his own tools, and he accepted that he was offered the use of the Respondent’s tools by Mr Hoverty. His company van was parked outside his private residence when his tools were stolen but he did not accept that it was a risky practice to leave tools in a van. He accepted that Mr. Hoverty did replace two of the three stolen tools.

The Complainant accepted that he did receive a RAMS certificate but he said that this did not cover working alone.

The Complainant agreed that the tracker was already fitted to his van when he got it, and he accepted that when the second van was acquired it did not have a tracker fitted.

The Complainant was promised an allowance for mobile ‘phone use which other employees did get. He never agreed to using his own ‘phone. However he was not put to any additional cost as a result of using his own mobile ‘phone. The issue was that he was making and receiving work calls on his own private ‘phone. 

Respondent’s Evidence

The Respondent’s MD. Mr. John Haverty gave evidence on affirmation.

He was sure that he “would have given” the Complainant a contract and accompanying documentation in August 2022 but he could not recall the exact date, and he did not keep a record of giving the documentation to the Complainant. He said “we have a small company employing only six people and I know everyone got a contract and I know John got one. Everyone else signed and returned their contracts but John didn’t”.

When the Complainant started, Mr. Hoverty offered him a mobile ‘phone but the Complainant said he was happy using his own. Other employees used their own ‘phones as well. No allowances were sought, given or agreed but Mr. Hoverty did give all the employees including the Complainant, a bonus at Christmas. [The Complainant accepted that this was the case]

Regarding the tracker on the van which the Complainant drove, there was a three-year lease on this van which already had a tracker. He didn’t put one on the new van. The Complainant had no issue with that.

When the Complainant’s tools were stolen from the van outside his house Mr. Hoverty replaced two of the stolen items which were tools which the Complainant needed every day to do his work for the Respondent.

Regarding the RAMS certification Mr. Haverty did certify the Complainant. He could not recall any discussion about and was not aware of the need for special certification when working alone.

As regards the Complainant having to do the work of the Sales Rep as well as his own, Mr. Hoverty said that it was perfectly normal for a sales rep to revisit a job to attend to any snags after the installation. He did recall the Complainant being unhappy with the way the work was done but he said that these were the company’s normal methods.

Mr. Hoverty confirmed that the standard contracts including the one he said he gave to the Complainant, did not contain any specific terms in relation to any of the issues raised by the Complainant in his evidence.

The Complainant put it to Mr. Hoverty that he was often told to remeasure after a sales rep had been out to a customer and he frequently did the measuring as well as the fitting which was not his job and that he complained about this almost on a daily basis. Mr. Hoverty said that all of what was described was part of the job.

The Complainant submitted that he would have wanted different terms and if he had been issued with a contract he would have wanted changes made to it to reflect the issues which he outlined in his evidence.

Relevant Law

The applicable provision is Section 3 of the Act the full text (as amended) provides:

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) [Repealed]

(b) [Repealed]

(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,

(f) [Repealed]

(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) [Repealed]

(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

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 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;

(d) 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 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.

(1B) Where a statement under subsection (1A) contains an error or omission,

the statement shall be regarded as complying with the provisions of that subsection

if it is shown that the error or omission was made by way of a clerical mistake or was

otherwise made accidentally and in good faith.

(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.

(5) A copy of a statement furnished under this sectionshall be retained by the

employer during the period of the employee's employment and for a period of 1 year

thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to

employees within a specified time a statement in writing containing such

particulars of the terms of their employment (other than those referred to

in F11subsection (1) or (1A)) as may be specified in the order and employers

shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection,

including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects

contracts of employment entered into before the commencement of this Act.

The Complainant having denied in evidence under affirmation that he received any documentation that could constitute terms of employment, the Respondent was on full proof to establish on the balance of probability that written terms in compliance with the Act were provided to the Complainant. There was a direct conflict of evidence on this issue. Compliance with the Act does not require an employee to sign a contract or any other written terms but where an employee does sign a contract this  is of assistance where receipt of written terms is in issue. At very least it is best practice and reliable evidence in the event of a dispute for an employer to get signed confirmation from an employee that he/she has received all documentation required by the Act or to retain a paper and/or electronic record of the documentation being delivered to the employee. This could be an email with an attachment or even a diary entry. No such record or any record of the delivery of the documentation relied upon by the Respondent was retained or offered in evidence. If any of the above evidence had been available, it might have corroborated Mr. Hoverty’s testimony. Without it and given the total conflict of evidence, I must resolve the issue on the basis that the Respondent has not on the balance of probability established that terms sufficient to comply with Section 3 of the Act were issued to the Complainant and it follows that I find that the Respondent was in breach of Section 3. In making this finding however I would like to clarify that I did not form the impression that Mr. Hoverty was knowingly giving false testimony but rather that his evidence rested on his recollection of what he said he “would have” done rather than on documentary evidence which might have put the issue beyond doubt.

Goven that I have found that the Respondent was in breach of Section 3, I must now assess compensation.

Section 41 of Workplace Relations Act 2015 provides for redress in terms of contraventions of sections 3, 4, 5 or 6 of the Act and provides for the adjudicator can:

“(d) 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”.

In the case of  Archbold v CMC (Ireland) Ltd TE05/2003, the Employment Appeals Tribunal  held that money payable under the Act didnot "equate to loss of remuneration" but was "in the nature of compensation"and accordingly, the Tribunal was entitled to determine what payment wasjust and equitable in all the circumstances (not exceeding four weeksremuneration) including whether a claimant was "unduly prejudiced" by thefailure of the employer to provide the written statement of terms andconditions of employment…

There is certainly legal precedent, as pointed out by the Respondent’s representative, for cases where compensation has been assessed at nil. However this is not to say that this is the norm nor is it the case that compensation can only be awarded where an economic loss occurs. In the present case, the Complainant was not able to point to any economic loss as such. The thrust of his evidence was that he was unhappy with some aspects of his work and that he complained about these issues to the Respondent. This fact was not really disputed. However, it is well established that disputes about the content and application of contractual terms are beyond the scope of a claim for a breach of Section 3. That section requires that written terms be provided but it does not require those terms to be agreed as such.

All of that said,  I do take the Complainant’s point that if and when terms of employment were issued, this would have given him an opportunity to discuss and negotiate these terms more specifically with the Respondent and that for this reason he was prejudiced to some extent by the failure (as so found) to provide written terms of employment. My jurisdiction is to award such compensation as I consider just and equitable having regard to all of the circumstances and in this regard, I deem a figure in the sum of €800 to be appropriate and the Respondent is ordered to pay that sum as non-remuneration related compensation to the Complainant for breach of his statutory rights.

Finally, as regards the Complainant’s suggestion that he was “victimised” I considered whether any of his evidence supported a claim for what the Act describes as “penalisation”   

Section 6C (1) prohibits penalisation as follows:

(1) An employer shall not penalise or threaten penalisation of a employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

Section 6C subsection (5) defines “penalisation” as

“any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.”

Given that the Complainant in his evidence, confirmed that he never sought written terms of employment and never mentioned the Act or a possible breach of it to the Respondent there is no evidence of any protected act as listed in Section 6C (1) and accordingly I find that insofar as any possible claim for penalisation under the Act was made by or implicit in the evidence given by the Complainant, there was no such penalisation.

CA-00069538-001 - The complaint is well-founded. The Respondent will pay the Complainant compensation of €800 payable by way of non-remuneration related compensation for breach of the Complainant’s statutory rights.

Key Words - Terms of Employment (Information) Acts 1994-2014 – Sections (3) and (6C) - Workplace Relations Act 2015 - Section 41 - of  Archbold v CMC (Ireland) Ltd TE05/2003