ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003300
Complaint(s)/Dispute(s) for Resolution:
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-00004392-001 | 12/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004393-001 | 12/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004395-001 | 12/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004398-001 | 12/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004399-001 | 12/05/2016 |
Date of Adjudication Hearing: 18/07/2016
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
Section 3 of the Terms of Employment (Information) Act, 1994 sets out the minimum information which an employee must be provided with, in writing, within 2 months of commencing employment. In particular, the following information must be provided: "(a) the full names of the employer and the employee, (b) the address of the employer in the State .. (e) the date of commencement of the employee's contract of employment, (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (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," . Another employees employment circumstances are essentially on all fours with our own and, therefore, there is no legitimate reason why we should not be similarly recognised as an employee. It is evident that we are employed under a contract of service, meeting, as I do, the majority of the established criteria for employee status. We therefore call upon the Respondent to confirm in writing our employee status and to provide a written statement of our terms and conditions of employment, in compliance with their obligations under the Terms of Employment (Information) Act, 1994. |
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Respondent’s Submission and Presentation:
The Respondent denied that the complainants were employees of the Respondent and therefore the Act did not apply to the Complainants.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Decision:
The Complainants took this case under Section 3 of the Terms of Employment (Information) Act 1994. This section requires an employer to provide to an employee certain conditions of employment within two months of commencing employment. In this case no substantial contractual evidence was put forward by the Complainants that they were in fact employees. In essence they were seeking that I determine that they were employees of the Respondent and for the Respondent to provide them with their terms and conditions of employment. The Respondent denied that the Complainants were employees of the Respondent. The Act does not empower an Adjudicator to make a determination if a Complainant is an employee or not. I therefore cannot assume a power onto me, which is not in the Act, to issue a decision in this case on the status of the Complainants relationship with the Respondent. The parties were offered the opportunity for me to evaluate the contractual relationship between the parties, to establish if they were employees or not, and issue a preliminary decision on that issue which either party could then appeal. The Respondent was not in a position to consent to this proposal.
Based on the above I therefore decline jurisdiction under the Act in these five cases as I am not in a position to determine that the Complainants are indeed employees and covered by the Act.
Dated: 15 August, 2016