ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000518

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 05/04/2016

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41(4) 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:

Jurisdiction of Adjudication Officer

At the start of the hearing the Complainant accepted that his complaint did not properly lie under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012, as cited on his claim form.

His complaint was that his contract was not issued to him within two months of the commencement of his employment in June 2015, the relief for which lies under the Terms and Conditions of Employment Act 1994.

While the Complainant cited his complaint as being for Terms and Conditions of Employment, he did not cite this under the redress section. Rather under the redress section he cited Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012, which was incorrect, as this deals with rest periods for drivers.

The Respondents were asked if they wanted an adjournment in order to meet a case under the Terms and Conditions of Employment Act 1994 or whether they wished to consent to the claim being amended and to be heard on the same day. It was clear that the six month time limit had not expired for the Complainant to issue a fresh claim under the 1994 Act. After consultation with their representative, the Respondents agreed to the case being heard on the same day and the matter proceeded.

It was accepted by the Complainant that the case was limited to rights under section 3 of the Terms and Conditions of Employment Act 1994 and therefore his claim was confined to his complaint that no contract was issued within two months of his commencement. It was further accepted that no claim lay in respect of unpaid wages or also anything that fell outside section 3 of the 1994 Act, i.e. for pay slips or a P45.

Substantive Complaint

The Complainant gave evidence as follows:

1. He started employment as a driver with the Respondent in June 2015.

2. He asked for a written contract in June 2015 but was not given one

3. He discussed this matter with KL of the Respondent and she said that she would issue a contract to him

4. A dispute arose between the parties and in October 2015 the Complainant again requested a written contract. He sent an email to KL making this request at the start of October 2015.

5. On 15 October 2015, the Complainant resigned his post

6. He did receive a copy of the contract after his employment ended, on 12 November 2015 along with copies of payslips, but this was the first time that he saw the contract. The contract signed by KL and was back dated to 17 July 2015. He was certain that he did not receive the contract in July 2015. If he did, why would he have sent the email in October 2015.

Respondent’s Submission and Presentation:

The Respondent gave evidence.

KL, a manager of the Respondent, gave evidence as follows:

1. The Complainant started his employment on 11 June 2015 as a driver

2. The Complainant made a request for his contract and this was posted to his home address in mid July 2015

3. KL prepared the contract and gave it to the office assistant, MP, to post, along with other post.

4. She accepts she did not retain a copy of the cover letter that would have accompanied the contract.

5. She accepts that she did not follow up on whether the Complainant received the contract after then and explained that because her child was very ill during that summer, she did not consider the matter again.

6. She accepts that she received an e mail dated 1 October from the Complainant, requesting his contract and that the reason that she did not reply to this e mail was that she was due to have a meeting with the Complainant soon after then so believed that she would clarify the matter at the meeting. However, the complainant did not attend the meeting.

7. She accepts that the cover letter dated 12 November 2015, which accompanied the contract, to the Complainant did not state that the contract had already been furnished the previous July.

ML, an office assistant of the Respondent, gave evidence as follows:

1. He recalls being asked by KL to post the Complainant’s contract and that this was in mid July 2015

2. He put the letter and contract in an envelope, that had been addressed by KL

3. He posted the envelope along with other post in Lanesborough post office on his way home

4. He does recall the Complainant making requests for a copy of his contract but he cannot recall when this occurred, whether it was before or after July 2015.

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.

Having heard the evidence of both parties I am satisfied that the contract was sent to the Complainant for the first time in November 2015. Based on a conflict of evidence between the parties, I find the evidence of the Complainant to have greater credibility.

I find the complaint to be well founded and, as compensation, I award one week’s salary to the Complainant, namely €384.00

Dated:   03/08/2016