ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003020

Complaint for Resolution:

Date of Adjudication Hearing: 22/11/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.

Complainant’s Submission and Presentation:

The complainant was employed as a waitress by the respondent from June 1^st 2015 until March 20^th 2016. She was not provided with a statement of her Terms of Employment as required by the Act.

Respondent’s Submission and Presentation:

The respondent says that the complainant was the partner of the Manager of the restaurant and that it was one of the Manager’s responsibilities to provide the complainant with the statement under the Act and he failed to do so.

Findings and Conclusions

An obligation falls on an employer to provide an employee with a statement within two months of their commencement. This complainant is one of seven who made complaints against the respondent under the Terms of Employment (Information) Act. All had ceased employment with the respondent by the time the hearing came on.

These complainants included the current complainant, the manager, (the current complainant’s life partner) and the manager’s mother. Two complainants failed to attend the hearing.

I see no reason why the manager, the complainant’s partner, who had effective responsibility for the running of the establishment could not have delivered a basic document which would have met the requirements of the Act.

While acting with the guidance and approval of the owner he had de facto control of the business during her unusually extensive absences.

His contract of employment refers to responsibilities for ‘day to day operations in the restaurant’, ‘looking after staff and customer queries and resolving them on real time basis’, ‘managing staff roster and arrangement of staff shortages’, for the maintenance of ‘company health and safety policy and procedures’.

These are extensive responsibilities in the HR area and I accept the respondent argument that at least some responsibility fell on him to either provide the statement, or ensure that one was provided by the owner.

And yet, he was apparently unable to deliver such a simple outcome as providing the statement of Terms of Employment (which is readily available on the internet) and neither he nor the complainant raised any grievance about the matter until after his controversial departure.

Accordingly, while I find that the respondent did not comply with the requirements of the Terms of Employment (Information) Act 1994, and the owner of the business must legally shoulder ultimate responsibility, my award of compensation takes account of the unusual factors in the case to which I have referred, and the failure of the manager to discharge his responsibility to the complainant, his own partner.

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.

I uphold complaint CA-00004165-002 and award €25.00 compensation.

Dated:   25^th January 2017