EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
TE181/2012
Employer – appellant
against the recommendation of the Rights Commissioner in the case of:
Employee - respondent
under
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr. P. Casey
Ms H. Kelleher
heard this appeal at Cork on the 19 October 2012 and the 22 January 2013
Representation:
Appellant(s) :
Ms Niamh Kelly, Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor,
Block S, East Point Business Park, Dublin 3
Respondent(s) :
Ms Anne McShane, Martin A Harvey & Co, Solicitors, Parliament House,
9/10 Georges Quay, Cork
The decision of the Tribunal was as follows:-
This case came before the Tribunal by way of an employer’s appeal against the decision of the Rights Commissioner ref: R-109184-TE-11/JOC. Hereafter the appellant is referred to as the employer and the respondent as the employee.
Summary of Evidence
The employee was recruited to the role of salon manager by the employer in December 2009, to facilitate the employer in taking a step back from the day-to-day running of the business as she had a three-month old baby and three-year old daughter.
The employer’s position was that she was aware of the requirement to provide a contract of employment and told the employee that she would give her one within two months. She worked on the contract over Christmas. She gave the contract of employment to the employee on 4 January 2010 and gave her time to review it and revert to her with any queries she might have. The employer signed the contract on that date. The employer’s evidence was that she met the employee on or around 21 January 2010 to discuss any issues relating to the contract and the employee did not request any changes. The employer asked the employee to sign the contract. She gave the employee the original contract of employment and kept the copy herself. Although the employee never signed the contract the employer understood she was happy with its terms. The employer could not understand or explain why the contract was not signed by the employee. The employee had access to the filing cabinet and office. The employer produced a minute of the meeting of 21 January taken by another employee, who is no longer in the country. Employees were told about the grievance procedure and it was included in the contract of employment.
The employee’s position was that from the commencement of her employment she had frequently requested a contract of employment from her employer but had never received one. Prior to this she had worked in three large salons and had always received a contract of employment. There are things in the contract produced by the employer with which she would not have agreed. The meeting which took place on the 21 January was arranged to discuss how to improve the business as it had not being doing well at the time. When a problem arose she did not know what to do and contacted a number of different agencies. CIB advised her to contact the HSA regarding a bullying policy.
A manager (MB) of another of the employer’s salons gave evidence of having requested a contract of employment from her employer about two weeks into her employment. In February 2011, after the employee had left the employment, she (MB) was given a contract of employment, which was backdated to the date of the commencement of her employment. She refused to sign the contract as it contained terms she had not agreed to. She was later given an undated contract.
Determination
The Tribunal finds the evidence of the employee was credible. The contract of employment produced in evidence, although signed by the employer was not signed by the employee and the employer was unable to offer any satisfactory explanation for this omission. The employee who took minutes of the meeting of 21 January was not present to prove the minutes or to be cross-examined on them and accordingly these were not considered by the Tribunal in reaching its decision in this case. The appeal under the Terms of Employment (Information) Act, 1994 and 2001 fails. The Tribunal varies the decision of the Rights Commissioner and awards the employee €2,800.00 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)