ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003089
Complaint for Resolution:
Act | Complaint 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-00004344-006 | 11/05/2016 |
Date of Adjudication Hearing: 09/08/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act, 1994, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Attendance at Hearing:
(A Chef V A Restaurant)
By | Complainant | Respondent |
Parties | A Chef | A Restaurant |
Complainant’s Submission and Presentation:
The complainant commenced work as a Chef with the respondent Restaurant on 20 October, 2014. He earned €11 per hour and worked a variety of hours from 30 -70 hrs per week. His employment ended on 13 December, 2015. The complainant had launched a number of claims for Inspection before the WRC, the sole claim presented at Adjudication constituted that the complainant had not received a written statement of employment from the respondent during the course of his employment.
The complainant told the hearing that he had approached the respondent on a number of occasions seeking the statement but had not succeeded. This issue was then overtaken by the issues that are awaiting investigation.
Respondent’s Submission and Presentation:
The respondent confirmed that the complainant had not been furnished with a written statement of terms of employment within the requisite 8 week period.
He recalled that the complainant had presented as being very enthusiastic on commencing employment. This prompted the respondent to approach him to take a percentage of the business rather than a contract .He understood that the complainant wanted to become a part shareholder. This was the rationale advanced for the absence of the written statement.
He disputed the 70 hour working weeks described by the complainant, stating that the complainant was paid in accordance with his own compiled time sheets and these did not exceed 30-45 hrs per week. The company Accountant paid on the time sheets produced.
The respondent concluded his submission by notification that he had ceased trading.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint, in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 7, of the Terms of Employment Act 1994, requires me to give a recommendation to the parties.
Legislation involved and requirements of legislation:
Written statement of terms of employment.
Section 3, Terms of Employment Act, 1994
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.
Decision:
I have listened carefully to both submissions advanced by the parties. I appreciate that inclusion into the core business may well have been in contemplation by the respondent, however, I accept that the complainant was not placed on formal notice of this. Therefore, I must examine this case under the strict provisions of Section 3 of the Act. The respondent accepted that he did not comply with this section of the Act; therefore, I must find the complaint to be well founded. Given that the complainant no longer works at the restaurant, I find that compensation is the most just and equitable remedy.
I order the respondent to pay to the complainant the sum of 4 weeks’ pay , based on a 39 hour week at €11.00 per hour which amounts to €1716.00 as compensation for the breach of Section 3 of the Act .
Dated: 7th November 2016