Terms of Employment (Information) Act

Terms of Employment (Information) Act Resources:

• Guide to Terms of Employment under Irish Employment Law
• Bringing a Terms of Employment Claim
• Terms of Employment Cases and Claims
• Contract of Employment under Irish Employment Law (Video)

Time Limit for Bringing Complaint under the Terms of Employment (Information) Act

In Denise Ryan Smart School Accounting Limited T/A Smart School Accounting (ADJ-00030153) the Adjudication Officer clarified the time limits for bringing a complaint under the Terms of Employment (Information) Act.

"The Terms of Employment (Information) Act, as amended by the Workplace Relations Act provides that a contravention of Section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.

The contravention of Section 3 of the Act is a subsisting and a continuing contravention as long as after the initial two month period the employee remains an employee not in possession of a statement.

If no statement was provided at any stage during the employment relationship, and this came to an end, the employee could refer a complaint within six months from the last day of their employment.

However, once a statement was provided during the period of employment, the time limit for submitting of the complaint is determined from the day the statement was issued to the employee."

The takeaway is that, as soon as an employee is given a statement of terms, the clock starts, and the employee has six months from that date to raise a complaint.

Trivial or Technical Breaches of Contract of Employment

The employee was employed as a waitress in a bar / restaurant business. The employee commenced employment with the employer on 1 August 2017 and worked 19.5 hours per week. A contract was issued to the employee in 2018. The issues that were the subject of the complaints were in relation to allegations by the employee that she was paid less than the amount that she was contractually entitled to, that she did not receive full details of her terms of employment as provided for in legislation and that she did not receive breaks as per the relevant legislation.

The employer held that the employee was provided with a contract of employment on or around 27 August 2018. The complaint was submitted to the WRC on 1 March 2019 and was therefore, they held, in excess of the 6-month period provided in legislation for the lodging of such complaints. Without prejudice to the foregoing, the employer contended, the breach was due to an oversight and was of a trivial nature that did not cause any harm, loss or prejudice to the employee.

Section 3(1) of the Act states:

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 -…..

(e) the date of commencement of the employee’s contract of employment….

The WRC held that it was clear that the employer did not conform with the requirements of the legislation with regard to the provision of a statement of employment within 2 months of the commencement of employment and that that breach continued into the time period covered by the complaint, thereby ordering the employer to pay to the employee the sum of €1,125.00 as compensation in this regard.

This case was later appealed to the Labour Court. The employer submitted that the employee was, at all times, aware of her terms and conditions of employment and never raised any issue with regard to same. The breach of the Act alleged by the employee, the employer reasserted, was of a trivial and technical nature, which occurred due to an oversight.

The employer drew the Labour Court’s attention to the case of Irish Water v Hall TED 1/2016 [2016] E.L.R. 61 and submitted that this case was authority for the proposition that the deviations from the strict application of S.3 of the Act in the within case were, as stated in Irish Water,

‘so trivial, technical, peripheral or otherwise so insubstantial as to come within the de-minimis rule’.

The employee submitted that a breach of the Act occurred, and that she should be compensated for that breach.

The Labour Court did not accept that a failure to comply at all with Section 3 of the Act can be reduced to a trivial or technical matter, dismissing the appeal on this point. The Labour Court exclaimed:

'If this Court were to accept the contention that a total failure to comply with Section 3 of the Act was a breach of such little significance as to allow the application of the de-minimis rule, the Court would, in effect, be allowing that section 3 of the Act could, as a general proposition, be ignored unless a worker could show a detriment arising therefrom. This Court does not accept that such a conclusion can be drawn.'

(See Waitress v Licensed Premises Operator ADJ-00020298)

No Job Title in Contract of Employment

The employee had been employed by her employer for fifteen years as a cleaner.

The employee raised a number of issues with the employer, one of which was that she never received a written statement of employment, but was instead offered an ‘employment certificate’.

Clarification was also sought about aspects of her employment duties, including her job title.

The WRC held that while the employee was entitled to a factual statement in respect of those terms which are specified in the Terms of Employment (Information) Act, 1994, it was a matter for the employer to determine what those terms are, and therefore held she had in fact received a written statement of terms, pursuant to the Act.

The WRC requested that the employer remedy the complainant’s statement of her Terms of Employment under section 7 (2) (c) of that Act, in that, no later than four weeks from the date of the decision, the employer should ensure that her statutory statement was amended to contain her job title (see A Cleaner v A Cleaning Company ADJ-00025767).