ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000843

Complaints for Resolution:

Date of Adjudication Hearing: 01/09/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 7 of the terms of employment act, 1994, Section 27 of the Organisation of Working Time Act, 1997 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

:

                                           A Night Porter V A Hotel

Complainant’s Submission and Presentation:

The complainant worked as a Night Porter for the respondent Hotel from 8 May, 2014 to 2 October 2015. He earned €375.00 gross in respect of a 36 hour working week. It was the complainants’ case that

1 He was never given written terms of employment.

2 He was due two weeks annual leave as this annual leave was paid to him during a period of sick leave in summer 2015.

3 He was given a verbal and a written warning and, denied a right of appeal .He was unhappy about this and left his employment under protest .He felt he had no option outside resignation.

Mediation was agreed in the case and statements issued from

1 The owner.

2 The manager.

3 The duty manager.

This did not resolve the matter. The Union wrote to the Hotel on 27 October, 2015. The claim was actioned .No further progress evolved and the matter was referred to the WRC on 24 November, 2015.The complainant commenced a new job during June 2016.

The complainant gave evidence to the hearing that he had had issues at the hotel. The work was hard and he felt unsupported .He had been interested in becoming a Medium and had entered into conversation on this with a customer but he apologised afterwards for the upset caused.

In response to the respondent’s questions, he denied that anyone at the hotel had helped him and that his written warning of December 2014 was unfair in all respects.

He got an opportunity to take up a course in IT, an area he was interested in. He sought the requisite Saturdays off to attend and was unsuccessful. He felt compelled to resign. He confirmed that he was not aware of the respondent grievance procedure .He left as he was dissatisfied by people talking about him at the hotel. He felt pressurised.

Respondent’s Submission and Presentation:

The respondent denied all claims. The respondent confirmed that a written statement of terms of employment had issued to the complainant within the required 8 week period from commencement of employment. The respondent undertook to furnish this to the Adjudication Officer. The Hotel had been very supportive of the complainant throughout his employment.

The respondent confirmed that annual leave had been paid in agreement with the complainant and there was nothing outstanding in this regard.

The respondent denied the claim for unfair dismissal. He submitted a number of written statements by members of staff in support of his case. He recounted that the complainant had been treated fairly throughout his employment .He described a series of issues which pointed towards a shortfall in the complainants work performance. The respondent sought to address this by changing his role to kitchen porter.

The complainant requested a number of successive weekends off to undertake a 6 week IT course. The hotel was unable to facilitate his attendance. The complainant told the respondent he “had had enough” and submitted two weeks resignation. He did not serve this resignation .The complainant walked out of his job. He did not communicate his resignation by text to the Hotel Manager .At the time of his departure there were no notes on his file, nor were there live disciplinary sanctions.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

At the conclusion of the hearing, the claims CA -00001067-002, Organisation of Working Time Act, 1997 and CA-00001067-003 under Unfair Dismissals Act, 1977 were both withdrawn by the complainant. The sole live claim before me therefore is CA-00001067-001 on Terms of employment.

Legislation involved and requirements of legislation:

Written statement of terms of employment.

3

3. —(1) 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—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

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

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

[(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(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,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

Decision:

I have listened carefully to the submissions of both parties in respect of the sole claim before me .I have reviewed the document received from the respondent, which purports to comply with the requirements of Section 3 of the Terms of Employment(Information) Act 1994. The document was received in both Polish and English language.I forwarded this document to the complainant for commentary with in a seven day period. I followed this up, but did not receive this commentary.

I find that the document fits the pre-requisites of Section 3 of the Terms of Employment Act, 1994 at face value. However, I am struck by two material dates which appear to me to place this document outside the mandatory 8 week window:

The document is marked as signed on behalf of the company on 28 August 2015. There is a hand written rider at the bottom of page 1 which states “handed to (the complainant) on September 3, 2015”.There is no further information available to me on this document. Section 3(1) of the Act requires the furnishing of the written statement of terms of employment “not later” than two months after the commencement of employment. Both of these dates place the document received outside the mandatory time limit .

I am mindful of the complainants protestations at the hearing on the documents failure to materialise within the 8 week period set down by the Act. I did not hear evidence that he had requested the document during the course of his employment.

I find therefore, that the complaint is well founded and I award the sum of €800.00 in compensation for the omission. I find this sum to be just and equitable under the circumstances.

Patsy Doyle, Adjudicator.

Dated:   7-11-2016