Complainant

Respondent

Parties

Jason  Clack

Temple Recruitment

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Self-Represented

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-00067381-001

14/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00067381-002  WITHDRAWN AT HEARING

14/11/2024

This matter came before the Workplace Relations Commission dated 14/11/2024.  The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to his employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 06/06/2025. 

The Complainant is a former employee of the Respondent.  The Complainant was employed by the Respondent as an agency worker at all material times.  The Complainant commenced his employment with the Respondent in December 2023 and the employment ended when he left in August 2024. 

The within complaint relates to the Complainant’s claim that he did not receive a contract. 

The Respondent is a Recruitment agency. 

Written submissions were not provided in advance of hearing.  The Complainant relied on the content of his manual WRC complaint form. The Respondent relied on documents exhibited at hearing. 

CA-00067381-001

Overview of narrative on manual complaint form

I am writing to formally lodge a complaint regarding my recent employment situation at Temple Recruitment where I had been working as a reach driver since December 2023 to August 2024.  Despite repeated requests I did not receive a formal contract of employment which I understand is a legal requirement under the employment rights act.

I was hired as a temp reach driver and at no time was I issued a contract of employment.  My understanding was that after 6 months’ probation period I would have the opportunity to apply for a full time position with the company I was placed to work when I questioned this I was told I was not under any contract. 

The absence of a formal employment contract was causing significant concern and uncertainty in my job and it left me without clear terms regarding my job responsibilities, remuneration, working hours benefits and other essential aspects of my employment.  Additionally, it created uncertainty about my legal rights of obligations as an employee.  As a result of this I had no choice but to seek employment elsewhere.

I kindly request that the Workplace Commission office investigates this matter.

Thank you for your prompt attention to this matter.  I look forward to your guidance and resolution. 

CA-00067381-001

The Respondent exhibited a copy of the Temple Recruitment Registration Form completed by the Complainant when he first engaged with them regarding employment including that which the Respondent referred to as contract namely a contract for services for temporary workers which is signed by the Complainant and the Respondent on 12/12/2023.  The aforesaid Temple Recruitment Registration Form also includes a medical history form completed and signed by the Complainant and the Respondent on the same date.  The Registration form provided for personal information including bank account information and contact information all of which was completed by the Complainant. 

The Respondent categorically denies the Complainant’s assertions that he contacted them several times looking for his contract and exhibited details of a call the Complainant made on 22/08/2024 regarding exit payments due.  The Respondent categorically denies receiving any calls from the Complainant looking for his contract and conceded there were calls from the Complainant regarding an increase in his hourly rate. 

CA-00067381-001

This is a complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 (the “1994 Act”)

The Relevant Law

The Terms of Employment (Information) Act, 1994 as amended, sets out the basic terms of employment which an employer must provide to an employee in written form.

Section 3(1A) of the 1994 Act obligates an employer to provide employees with certain essential information, or core terms, in writing within five days of commencing employment.  Section 3(1) of the 1994 Act also obligates an employer to provide employees with a statement in writing concerning other aspects of an employee’s terms and conditions of employment within two months of commencing employment.  This provision was recently amended to indicate one month.

Award:

Section 7 of the 1994 Act  provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.  In Beechfield Private Homecare Limited v. Ms Megan Hayes Kelly  [TED 1919] the Labour Court awarded the maximum of four weeks’ remuneration.  Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decisionmaker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

The relevant sections of the 1994 Act provide as follows:

3.—(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 remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled 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;

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

(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”.

3.—(1) An employer shall, not later than one month 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) …

(b) …

(c) …

(d) …

(e) …

(f) …

(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) …

(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) …

(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 F9[were made,]

(n) the training entitlement, if any, provided by the employer,

(o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 2008 on temporary agency work), when and as soon as known, and

(p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of —

(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,

(ii) the reference hours and days within which the employee may be required to work, and

(iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and

(q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

Section 3A

Form of statement to be provided

A statement furnished by an employer under section 3, 4, 5, 6, 6E or 6F shall be—

(a) signed and dated by or on behalf of the employer,

(b) in writing, and

(c)  transmitted on paper or, provided that the information is accessible to the employee, that it can be stored and printed, and that the employer retains proof of transmission or receipt, in electronic form. [emphasis added]

The following information is a summary taken from the WRC website where the full requirements may be found and it provides as follows:

Since 16 December 2022, new legislation introduced an expanded definition of “contract of employment” and, therefore, the Act applies to any person as follows:

• Working under a contract of employment or apprenticeship,
• Working under any other contract whereby an individual agrees with another person personally to execute any work or services for that person,
• employed through an employment agency,
• where an individual agrees with a person carrying on the business of an employment agency to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), or
• in the service of the State (including members of the Garda Síochána and the Defence Forces, civil servants and employees of any local authority, health board, harbour authority or vocational education committee.

In the case of agency workers, the party who pays the wages is the employer for the purposes of this Act and is responsible for providing the written statement.  [emphasis added] 

The Relevant Facts

In conducting my investigation, I have reviewed the Complainant’s submission on his complaint form  and the supporting documentation presented to me by the Respondent.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

The Complainant made many allegations in the course of his evidence.  I am restricted to considering the evidence as it relates to the Complainant’s specific complaint under the 1994 Act as that is the only matter properly before me for adjudication. 

It is common case the Complainant was employed as an agency worker by an agency as a temporary reach driver assigned to the hirer commencing on 12/12/2023 until such time as the Complainant terminated such arrangement in August 2024. 

It was in dispute between the parties whether or not the Complainant received a contract at the commencement of his employment with the Respondent.  

There is a serious conflict of evidence between the parties on the substantive matter.  The Respondent exhibited a “contract” which is signed by the Complainant and which the Complainant avers on affirmation that he never saw before albeit he does concede it is signed by him. 

The Complainant also avers on affirmation that he never saw the completed medical history page of the registration form although but again concedes it is his signature on the completed form. 

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.  Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

In reaching a conclusion in this case, I am guided by the findings of the Labour Court in DWT 1018 Rezmerita Limited v Katarzyna Uciechowska where the Court held:

“In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case.  There was also an absence of any probative independent corroboration on either side.  The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities.  In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.”

Applying that which is set out above in Rezmerita I am satisfied it is more probable than not that there was a document and said document was signed by the Complainant and the Respondent on 12/12/2023.    

I am satisfied the Complainant signed the “contract for services for temporary workers” which was the agency worker agreement within the specified time period under the 1994 Act as I am of the view this document falls to be considered as the core terms in writing oftentimes referred to as the 5-statement.    

I note this document contains some of the elements of a contract of employment but it falls far short of the statutory requirements set out under the 1994 Act as set out above.   I am satisfied the “contract” exhibited at hearing by the Respondent is not compliant with the legislation namely section 3(1).      

I am satisfied the Complainant was provided with a statement in writing of his core terms.  I am not satisfied that the Complainant was provided with a statement in writing of his terms of employment otherwise referred to as a contract.   I have carefully considered the contract exhibited at hearing by the Respondent and I find on the basis of the evidence presented that said contract did not contain all of the provisions set out at section 3(1) of the 1994 Act. 

Written Statement of Terms (Section 3(1) Statement)

An employer must also provide each new employee with a written statement of terms of employment within one month of commencement of employment. The written statement must include simple information such as, the full names of the employer (and address) and the employee, periods of notice etc (some thirteen items in all) [emphasis added] 

There can be no doubt that the Act places the responsibility on the employer to furnish its employees with written terms of employment.  Having carefully considered the above I have concluded that the written statement, as required under section 3(1) of the Terms of Employment (Information) Act 1994 was not issued to the Complainant.

In summary, for the reasons stated above, I find as follows.  I find the document exhibited by the Respondent at hearing and signed by the Complainant albeit his categoric assertions that he had never seen the document before is more akin to what is generally found in a 5-day statement. 

I find on the basis of the evidence adduced and the documents exhibited by the Respondent that this was not followed by the provision to the Complainant of a written statement of his terms of employment.    

Having identified the breach of section 3 of the Terms of Employment (Information) Act, in accordance with section 7(2)(d), I am required to order the employer to pay compensation of “such an amount (if any) as is just and equitable, having regard to all the circumstances, but not exceeding 4 weeks’ remuneration…” 

Taking account of the circumstances and evidence outlined by the Complainant together with the short tenure of his employment, it is my view that compensation equivalent to one week’s pay is just and equitable.

It was not disputed that the Complainant was in receipt of an hourly rate of pay of €14.00 and that he worked approximately 40 hours a week.

In the circumstances I decide it is just and equitable having regard to all the circumstances to order the Respondent to pay to the Complainant compensation in the amount of €560.00 for breach of a statutory right.   

CA-00067381-001 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994

For the reasons stated above I decide the complaint of a contravention of the Terms of Employment (Information) Act, 1994 is well-founded and I order the Respondent to pay to the Complainant the sum of €560.00 in compensation within 42 days from the date of this decision.  For the avoidance of doubt this is compensation for a breach of a statutory right and is not subject.  It is neither remuneration nor arrears of remuneration.    

Agency worker; 5-day statement; contract;