ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002604
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00006494-001 | 16/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00006494-002 | 16/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003635-001 | 02/04/2016 |
Date of Adjudication Hearing: 31/01/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Act, 1977 and or Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and or Section 7 of the Terms of Employment (Information) Act, 1994 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:
I went on a holiday with my girlfriend for 4 weeks dated July 2nd-July 30th with my bosses permission. When I arrived home , I text my boss on the 31st of July telling him I was available for work immediately. He told me he didnt have any hours for me until a certain co-worker quit to go Australia ( October ). I went down to collect my last pay slip and was informed I would not be getting any notice of dismissal or payment instead of notice . |
I did not receive any written or verbally warnings, I did not receive any period of notice. I started the same day as many of the other members of staff so I am unsure as to why I was singled out and dismissed. The only reason I can think of for him dismissing me is that I made a complaint to the workplace relations commission regarding my Terms and Conditions of Employment. |
I commenced my employment in May 2014. I was not provided with the terms of my employment in writing. I was assured that the terms would be provided to me. I have requested that the terms be provided on several occasions since but they have not been forthcoming. I ceased my employment with this company in June 2015 for a period of five weeks. I was invited to rejoin the company at an enhanced wage and did so in July 2015. Again, no terms of employment were provided in writing. The hours I am required to work are not consistent. I will provide a copy of payslips for my employment to date by post. They demonstrate that in some weeks I work 22 hours and in others as much as 45 hours. Typically the roster of hours is released on a Sunday night. The roster is published on social media only (Facebook). I have made several requests to my manager to regularise my hours. My manager was not receptive to my request. I am severely disadvantaged by the lack of consistency in my hours. |
Respondent’s Submission and Presentation:
Did not attend the Hearing. I was satisfied that adequate notice had been served on all parties.
Decision:
Section 41(4) of the Workplace Relations Act 2015 and or and or Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and or Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under the cited Acts.
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Issues for Decision:
Did breaches of the Terms of Employment (Information) Act, 1994, the Minimum Notice & Terms of Employment Act, 1973 and the Terms of Employment (Information) Act, 1994 take place and if so what redress is due?
Was there an Unfair Dismissal in this case?
Legislation involved and requirements of legislation:
The Workplace Relations Act, 2015, the Unfair Dismissals Act, 1977 & S.I. 146 of 2000, the Minimum Notice & Terms of Employment Act, 1973 and the Terms of Employment (Information) Act, 1994.
Decision:
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003635-001 |
The relevant section of the Act is quoted below.
Written statement of terms of employment.
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,
F5 [ ( 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, ]
F6 [ (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.
(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.
(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.
(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.
From the uncontested evidence given I was satisfied that the Complainant did not receive a written statement of his Terms and Conditions of employment.
Redress:
I award 3 days’ pay (24 hours by € 9.80) =€ 235.20 as Compensation for breach of a Statutory Right.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00006494-002 |
Time Limits:
The Complainant had been working for another employer (on his evidence) from the 1st July to the 18th July 2015.
It was submitted in evidence (supported by copy text messages) that he had returned to the main employer here – the Respondent, by the 27th July 2015. As the date of dismissal was taken to be the 31st July 2016 I allowed the claim to proceed under the Unfair Dismissals Act, 1977.
There was absolutely no evidence provided by the Respondent and I found the Complainant a credible witness.
Procedurally and having regard to S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures the Dismissal was completely flawed.
The Complainant was dismissed on his return from a period of Annual Leave in July 2016 that had been agreed (on Complainant evidence) in advance by the Respondent. On making inquiries regarding his work hours he was informed that the Respondent did not have “space for him anymore” and that he should not come back.
Redress
I was satisfied that the Complainant had made reasonable efforts to secure alternative employment – supported by copy e mail evidence. At the date of the hearing he remained unemployed.
Reinstatement or re-engagement were not options realistically available.
I award the Complainant the sum of one year’s pay (an approximation of 30 hours per week was used as the employee’s hours were variable and the exact details were unclear – the Respondent not attending made records unavailable). The Complainant quoted an hourly rate of €9.80.
30 hours by €9.80 = €294 x 52 weeks = € 15,288 lump sum as just and equitable Compensation.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00006494-001 |
The Complainant did not receive any Notice Pay at the date of Dismissal.
In view of his service ( one year since returning from his other employer) I award a lump sum of one week’s pay = €294 in Compensation.
Dated: 27th April 2017