Complainant

Respondent

Parties

Rossio Wara  Fulguera Tenorio

Links Creche Southside Ltd

Representatives

Gareth O'Reilly

Tiernan Lowey BL instructed by Martyna Rekosiewicz of ARAG Legal Protection

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-00069677-001

02/03/2025

This complaint was submitted on 2nd March 2025. The Complainant commenced employment with the Respondent on 19th March 2024 as a Relief Educarer. She submitted the within complaint, as well as a number of other complaints which are addressed in the decision for ADJ-00056892.

The Complainant gave evidence under oath on her own behalf and was cross-examined by the Respondent’s representative.

The Complainant asserts that the Respondent breached the Terms of Employment (Information) Act 1994 by failing to provide her with a written statement of core terms, particularly the hours and days she was required to work, within the statutory two‑month period. She stated that although her letter of offer referenced “ad hoc” hours, her subsequent contract did not specify her working hours. Throughout her employment, she repeatedly sought clarity regarding her schedule, particularly as her visa conditions meant that she required reliable working hours. Despite these requests, the Respondent continued to provide inconsistent and unpredictable rostering, citing overstaffing. She described how a lack of reliable hours caused financial insecurity and restricted her ability to secure alternative employment.

The Complainant gave evidence that her contract of employment does not specify her working hours as required by the Terms of Employment (Information) Act, 1994. She said that she counted on the Respondent to offer her hours and, from 9th March 2024 to October 2024, it did so. But everything changed in October 2024 and she was no longer offered the hours she expected. The Complainant said that there is no number of hours or days in the contract as there should be.

The Complainant’s representative said that section 3 of the Act states that no later than 2 months after the commencement of employment, an employee will be given a statement in writing with particulars to include “(i) terms and conditions relating to hours of work”. The Respondent failed to provide that core term as it did not tell the Complainant what hours she was due to work.

The Complainant also asserted that her “relief” contract operated like a zero‑hours contract, and that such contracts are only permitted in limited circumstances, which she believes does not apply to her situation.

The Respondent disputes the complaint in its entirety. It is the Respondent’s position that the Complainant has received what is required in a statement of employment because she was provided with a contract at the outset of her employment which contained full and complete details as required. The Complainant provided a copy of this contract in her written submissions.

The Respondent did not offer evidence on its own behalf but cross examined the Complainant.

Cross examination of the Complainant

The Complainant was asked if she accepted that she received what was required under the act, with the exception (she says) of the hours. She accepted that she had received all other information.

It was put to her that the legislation says what must be provided is the number of hours reasonably expected to work, but she had a relief contract which did not guarantee any set amount of hours. The Complainant replied that when she spoke to the HR representative she trusted his words. She understood the term “relief worker” to mean that she would be a floater and said that it was not explained to her that they would not offer her hours.

Mr. Lowey put to her that the hours were not ignored in the contract but rather that it specifically said that they were ad hoc. The Complainant accepted that it said this in the contract.

She was asked if she understood that there was no obligation on an employer to provide set hours in a relief contract. She replied that she trusted her employer and they exploited the statement of ad hoc in her contract.

Respondent submissions

In response to the Complainant’s assertion that her contract was similar to a zero hours contract, the Respondent says that it is in fact an “as and when” contract which is permitted under the legislation. It is accepted that there is a prohibition on zero hours contracts in section 18 of the Organisation of Working Time Act, 1997. However, this is not applicable to relief contracts which the legislation clearly envisioned.

The Respondent stated that section 3(1)(a)(e) of the Terms of Employment (Information) Act, 1994 now provides that an employer is required to state the hours they reasonably expect an employee to work. In the case of an “if and when” contract such as this one, the Complainant is not required to accept any hours and it is therefore impossible to set out the hours that she is required to work because she is not required to work any at all. Rather, she can refuse any hours that are offered as set out in the contract.

Further, section 17 of the Organisation of Working Time Act, 1997 gives a right to 24 hours notice for working hours and it therefore accepts that “if and when” contracts exist. Section 18(a) of that Act also states that where no set hours are provided, an employee has a right to seek certainty under banded hours and that was not sought in this case.

The question of hours is not ignored in the contract, instead it is stated that they are on an ad hoc basis “if and when” they are available by the Respondent and the Complainant chooses to accept them.

The Respondent said that the hours had been addressed in the contract and therefore there is no breach of the Terms of Employment (Information) Act, 1994.

The Complainant brought this complaint under the Terms of Employment (Information) Act, 1994 which states in relevant part at section 3 that:

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)…(o)]

(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,

The contract dated 26th March 2024, and provided by the Complainant, describes her role as a “Relief Educarer” and under the category of hours states:

“Work will be offered to you on an "ad hoc" basis as and when there is work to be done. You are free to accept or decline such offers of work. You are not guaranteed continuous work and we are under no obligations to offer you further engagements or re-engagement.”

It is clear from the evidence of the Complainant that this complaint, and many of those in ADJ-00056892, arose because she did not appreciate the wording of this clause when she signed her contract. Her evidence was clear that she understood that she would be offered two days work per week while she was in college. She did not appreciate the meaning of “relief worker” within the contract and, until October 2024, was provided with the hours that she anticipated.

The question for me is whether or not this clause in the contract satisfies the requirements of section 3(1)(p) of the Terms of Employment (Information) Act, 1994. The Complainant’s work schedule was variable but the contract does not identify a number of guaranteed paid hours. Rather it says that there are no guaranteed hours, that work will be offered on an “ad hoc” basis and the Respondent describes it as an “if and when” contract. The Complainant says that this is effectively a zero hours contract, which is prohibited by section 18 of the Organisation of Working Time Act, 1997. The Respondent’s position is that such relief contracts are envisaged by the legislation.

The prohibition of zero hours working practices is addressed by section 18 of the Organisation of Working Time Act, 1997. It states:

18.—(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—

(a) a certain number of hours ("the contract hours"),

(b) as and when the employer requires him or her to do so, or

(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to that week (whether or not the number of those occasions or the circumstances otherwise touching the engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in that week).

(2) In a contract for a certain number of hours of work referred to in paragraphs (a) and (c) of subsection (1), the number of hours concerned shall be greater than zero.

(3) Notwithstanding subsection (1), subsection (2) shall not apply to—

(a) work done in emergency circumstances, or

(b) short-term relief work to cover routine absences for that employer.

As noted in section 18 above, this applies to an employee whose contract of employment operates to require them to be available for work for the employer in a week. The Complainant’s contract states that “You are free to accept or decline such offers of work.” She was therefore not required to be available for work for the Respondent.

The Labour Court considered this issue in Contract Personnel Marketing Ireland -v- Buckley DWT1145. In that case, on the basis that the Complainant was not required to be available for work, it was decided that section 18 did not apply. It said:

“…the Court is satisfied that the Complainant is not obliged to remain available for work during defined periods. She is not required to report to the Respondent on a daily basis or otherwise, for the purpose of being allocated work. She is not expected to be on stand-by in case work becomes available. She is offered work time to time as it becomes available and has the option for whatever reason to decline such work. In the event that she declines the work offered she is not subjected to any form of disciplinary proceedings.

In these circumstances the Court is not satisfied that Section 18 of the Act applies.”

The Complainant’s contract in this case states that she is free to refuse work.  She is therefore not obliged to remain available for work during defined periods. She is also not required to report to the Respondent on a daily basis or otherwise for the purpose of being allocated work and she is not expected to be on standby in case work becomes available because she is free to refuse offers of work. She is offered work as it is available in her preferred locations and has the option to decline such work. She is also not subjected to any form of disciplinary proceedings if she chooses to decline work. The Complainant’s situation is therefore analogous to that of the Complainant in Contract Personnel Marketing Ireland -v- Buckley and I am satisfied therefore that section 18 of the Organisation of Working Time Act, 1997 does not apply.

That being the case, I am satisfied that the Complainant’s contract does in fact satisfy the requirements of section 3(1)(p) of the Terms of Employment (Information) Act, 1994 as it does address the issue of what hours she is required to work, namely that she is not required to work any hours but may be offered hours which she is free to accept or reject on a casual basis.

For that reason, I find that this complaint is not well founded.

For the reasons set out above, I find that this complaint is not well founded.

Terms of Employment (Information) Act, 1994 – zero hours