ADJUDICATION OFFICER DECISION

A Business Manager -v- A Catering Company

Adjudication Decision Reference: ADJ-00002585

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

Date of Adjudication Hearing: 03/08/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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.

This claim refers to the alleged breach by the employer (the Respondent) under Section 3 of the Terms of Employment (Information) Act 1994 for failing to provide the employee (the Complainant) with information on his terms and conditions of employment.

The Claimant was employed as a Business Manager on a gross pay of €608.82 per week.:

Complainant’s Submission and Presentation:

The Complainant contended that he joined the business on 6^th May, 2015. He advised that soon after his appointment as Business Manager he quickly discovered a very unsettled team and where there was an ongoing NERA investigation taking place regarding the Respondent’s non adherence to statuary employee issues.

Prior to his appointment the Complainant advised that he had been providing services to the Respondent as he had experience in the retail and catering trade. Over this time he assessed their business and acted as a mystery shopper. Within a month of providing these services he was offered a position of employment on 6^th May 2015 with a net income of €500 per week. At this time, the Complainant discussed with the Respondent that it was not something he would do forever and a day, but that he agreed to give adequate notice if he was to leave.

The Complainant advised that initially he had no issues and he was well treated and paid on time weekly. He maintained that in December 2015 it was mentioned to him that he may be asked to revert to being self-employed, however he heard no more about this proposal from the Respondent. Around this time the Complainant noticed that his pay was coming from another of the Respondent’s companies, and where the Complainant no longer received pay slips on line. The Complainant also contended that a notice to the effect that he was a part owner of the company also appeared in the staff area. The Complainant maintained that at this time he agreed to become an equal partner in a new start-up company, and he agreed to this on the basis he could depend on his weekly wage as he was not in a position to be without an income on a regular basis.

The Complainant advised that from this time he worked for the Respondent along with working for another of the Respondent’s companies to source clients.

The Complainant contended that on 24^th February 2016 he was informed by a representative of the Respondent that with effect from the 26^th February 2016 he would no longer be in receipt of a weekly wage. The Complainant maintained that over the following days, and on a number of occasions, he made the Respondent aware that he needed to earn but he was only afforded a few hours work over the next two weeks. The Complainant said that he told the Respondent that he was not content to continue with the arrangements as he felt that his earnings were not being split fairly across the businesses and that he felt there was not a fair split of the work to find future business between himself and the directors of the business.

On 10^th March 2016 the Complainant said that he was told he was to be offered no more hours in the original business leaving him with no option but to opt out of any dealings with the Respondent’s businesses going forward. He therefore left the business on 10^th March 2016 where he terminated his employment.

The Complainant alleged that he never received a contract of employment, was never given proper notice and did not receive all his payslips. He also contended that during his time working with the Respondent he made the Directors aware that no staff member was in receipt of a contract of employment and that some staff were paid part of their wages in cash despite his protests.

Respondent’s Submission and Presentation:

The Respondent acknowledged that the Complainant had significant knowledge of the business and where they initially decided to appoint him as a self-employed contractor. Following discussions with the Complainant in May 2015 it was decided to appoint him as an employee where a contract was drawn up on 18^th May 2015 and where the Complainant became an employee on 25^th May 2015. The Respondent maintained that the contract was provided to the Complainant and they submitted a copy of the contract to the WRC after the hearing, and an internal e-mail between two Directors referring to the contract and which they maintain provides a contemporaneous note of the contract being prepared at that time.

The Respondent also maintained that the Complainant attended a HR training workshop on 16^th June 2015 at which time the Complainant would have been informed of his terms and conditions and other employment law issues. The Respondent provided a signed record that the Complainant attended this training. The Respondent also maintained that the Complainant would have received a copy of his contract at this time but it was never returned.

The Respondent advised that the relationship continued well and that it was aware the Complainant did not want to be working with them long term as there were other business opportunities. The Respondent maintained that the employment relationship ended upon agreement due to developing business opportunities where the Complainant became self-employed. The arrangement at that time was that the Complainant would submit an invoice for his work, and from November 2015 the Complainant was to be paid weekly on presentation of an invoice. The Respondent argued that the Complainant never provided an invoice but they paid him on a weekly basis from another of their companies.

The Respondent also advised that during 2015 it was subject to a NERA inspection and in May 2015 it was provided with information from NERA on what its obligations were. In July 2015 it advised NERA that it was fully compliant with its obligations where it emailed NERA a series of documents and confirmation of issues including time sheets/forms and record of hours for all employees, corresponding payslips for all employees including the Complainants, the Respondent’s terms of business, record of annual leave entitlements, and a staff handbook.

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 (Information) Act 1994 requires that I make a decision in relation to Section 3 of that Act regarding the complaint in that Complainant alleged that the Respondent failed to provide to the Complainant 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 ofthe employee’s employment, that is to say—

1. the full names of the employer and the employee,

2. 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),

3. 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,

4. the title of the job or nature of the work for which the employee is employed,

5. the date of commencement of the employee’s contract of employment,

6. 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,

7. [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; 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]

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

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

10. any terms or conditions relating to paid leave (other than paid sick leave),

11. any terms or conditions relating to—

    1. incapacity for work due to sickness or injury and paid sick leave, and

    2. pensions and pension schemes,

12. 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,

13. 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.

In addition, Section 3 of the Act further requires:

(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 anddated 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.

Other issues raised by the Complainant at the hearing such as non-receipt of pay slips were not raised in the complaint form and as it is under a separate statute it is therefore not within the jurisdiction of the hearing.

I am satisfied, based on the evidence provided that the Respondent did provide the Complainant with a Contract of Employment in or around 16^th June 2015, which was within 2 months of his commencement of employment. I have based this finding on the contemporaneous internal email provided by the Respondent at the time, a signed note of attendance by the Complainant at a HR information workshop that was held on 16^th June 2015, and the fact that the Respondent had been subject to a NERA inspection and where on 18^th May 2015 it received a list of obligations it was required to adhere to and this included a requirement to provide terms of employment to employees. The Respondent confirmed to NEA in July that it was fully compliant and provided sample documents in this regard.

On that basis I find that the complaint must fail and I do not uphold that the Respondent acted contrary to its obligations under Section 3 of the Terms of Employment (Information) Act 1994 as alleged by the Complainant.

Dated:   18^th October 2016