EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Employee TE155/2012
against the recommendation of the Rights Commissioner in the case of:
Employer
under
TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. R. Maguire BL
Members: Mr. C. Lucey
Mr. P. Trehy
heard this case in Dublin on 24 October 2013
Representation:
_______________
Appellant(s):
Mr. Ciarán Maguire, Simon McAleese & Co.,Solrs., 3 Fitzwilliam Court, Dublin 2
Respondent(s):
Mr. Aidan Phelan, Peninsula Business Services, Unit 3 Ground Floor, Block S,
East Point Business Park, Dublin 3
The decision of the Tribunal was as follows:-
This case came to the Tribunal as an employee appeal under the Terms of Employment Acts, 1994 and 2001, against Rights Commissioner Decision r-118348-te-10/JT.
It was claimed by the employee that, during her employment, she had not received the required written terms and conditions inside the required timeframe. The respondent contested the claim and the respondent submitted a copy of a contract given to the appellant in October 2010.The Rights Commissioner made a finding on the balance of probability that the claim failed.
The Appeal
Evincing an inability to comprehend the Rights Commissioner Decision the appellant set out the following grounds of appeal.
The appellant took issue with the contention that on 29 September 2010 she had been provided with a letter of offer. On 4 October 2010 she had begun working with the respondent but no offer letter nor employment contract were given to her. Instead, she was told that it would be a couple of months before her contract would be ready because the respondent had taken on a new HR company (hereafter referred to as PX). The appellant still did not know her starting salary about two weeks after starting with the respondent. Acknowledging that it would be a couple of months before she would have her contract, she e-mailed him to ask her salary. The respondent called her into his office, gave her a letter, told her that her annual salary would be €18.5k and said that he had dated the letter 29 September 2010 because it should have preceded her commencing work with him.
The appellant explained that she had been employed as a trainee accountant under a registered training contract between herself, the respondent and the Irish institute for chartered accountants. The said contract was signed by both the appellant and the respondent. At the Rights Commissioner hearing (on 16 February 2012) it was submitted for the respondent that this was the appellant’s employment contract. However, it was submitted to the Tribunal that neither the appellant nor the respondent thought that this was a contract of employment. To bear out this point it was argued that, when the appellant attempted to e-mail the respondent a notice of resignation, she was soon told that the respondent had been advised by PX that it would not suffice for the appellant to state that she was ending her training contract but, rather, that it would be necessary for her to state that she was ending her employment. Therefore, the appellant took from this that the respondent had not believed her training contract to have been an employment contract but, rather, that the respondent was seeking a means of fudging the fact that he had not provided the appellant with an employment contract as distinct from a training contract.
On Tuesday 13 September 2011 the appellant was to go on study leave. On Wednesday 7 September 2011 the respondent provided her with an employment contract for her to sign and return to him before her study leave. Because the appellant was preparing for imminent examinations and was therefore unable to read the contract at that particular time she stated that she would read it and return it to him after her study leave. Before the appellant departed on 13 September for study leave the respondent called her to his office and broached the subject of the taking of files from the workplace for the benefit of ex-employees. The appellant denied having done this and the respondent accepted her reassurance but said that her employment would end if it had been the case.
On Thursday 15 September 2011 the appellant was in her home revising for her examinations when the respondent’s office manager phoned to say that the respondent wanted the contract signed and returned to him that morning if possible. The appellant replied that she was within only two days of an examination, that she had not had an opportunity to read it and, accordingly, that she would not sign it without having read it. The office manager phoned again soon after and said that the respondent needed the contract signed that day. The appellant replied that she could not facilitate this. After unsuccessful efforts to speak to the respondent on any of his phone numbers the appellant was urged to try e-mail. She e-mailed him that she was ending her contract but she got no reply.
The appellant now referred the Tribunal to the respondent’s contention that he had given the appellant a contract (of which the respondent had never kept a copy) at the beginning of October 2010. The appellant denied ever having received such a contract and added that if one had been given to her there would be no need for the respondent to use 15 September 2011 to have her telephoned.
The appellant queried the validity of the respondent contending at the Rights Commissioner hearing on 16 February 2012 that she had received a contract in October 2010. There was no evidence of this. The purported copy furnished at the hearing was unsigned.
The appellant contended that the Rights Commissioner Decision should have been based on facts rather than on the balance of probability and that, if she had received the contract due to her, she would not have brought the complaint.
The respondent had written to the Tribunal stating that it refuted the appeal under the Terms of Employment Acts, 1994 and 2001, against Rights Commissioner Decision r-118348-te-10/JT.
Determination:
The Tribunal heard sworn testimony from the appellant and the respondent. It was noted that the appellant was alleged not to have even known her exact salary before commencing with the respondent. However, it was also noted that the respondent had not shown the Tribunal any document of terms and conditions signed by the appellant and dated within the required timeframe.
In all the circumstances of this case the Tribunal overturns Rights Commissioner Decision r-118348-te-10/JT and, allowing the appeal under the Terms of Employment Acts, 1994 and 2001, unanimously deems it just and equitable to award the appellant the sum of €711.54 (this amount being equivalent to two weeks’ gross pay at €355.77 per week) under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)