ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007016
Parties:
| Complainant | Respondent |
Parties | A Café Assistant | A Bakery & Café |
Complaint(s):
Act | Complaint/Dispute 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-00009541-001 | 05/02/2017 |
Date of Adjudication Hearing: 11/05/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 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.
Background:
The Complainant was employed as a Café Assistant from 16th April 2014 to 25th April 2017. She was paid €9.25 per hour and worked usually 19 hours per week. She has claimed that she did not get a written contract when she commenced employment. Her employer made changes to her contract and she eventually had to resign her position. |
Summary of Complainant’s Case:
When the Complainant started her employment she had a verbal contract only. She was not given a written contract. She regularly worked Wednesdays, Thursdays and Fridays. Due to her family circumstances she needed to work 19 hours per week in order to receive FIS. Also due to pressing family commitments she could not work on Mondays, she told her employer this. On January 25th 2017 she received a written contract which imposed changes to her hours of work that she had been working. She was required to work on Mondays. She could not do this due to her family commitments. Her employer threatened to terminate her employment if she did not agree to the changes. She became very stressed as a result of this and eventually resigned her position on 25th April 2017. She has claimed that she did not get a written contract when she commenced employment. She has claimed that the new contract issued to her on 25th January 2017 did not provide for her signature. This contract which changed her verbal contract worked for a long period of time was not discussed and agreed. |
Summary of Respondent’s Case:
They raised a preliminary point that the claim before the hearing was in respect of the Terms of Employment (Information) Act only and should not address any issue about her resignation.
They stated that this is a small family business run informally. It is accepted that she did not get a written contract of employment. When she commenced it was agreed verbally with her that she must be available to work between 4.5 to 25 hours per week, Mondays to Saturdays. Her hours of work and days worked varied depending on the needs of the business. It is accepted that in the last year her hours of work were more settled. The business declined and they changed trading hours, closed on Saturdays and reduced opening hours. The contract issued on 25th January 2017 was the same as the verbal agreement when she started; However the Complainant was very rigid on the hours and days she would work. She would only work Wednesdays, Thursdays and Fridays. |
Findings and Conclusions:
Preliminary Point This is a complainant under the Terms of Employment (Information) Act 1994. Therefore matters in respect of that Act may only be adjudicated upon. Therefore I may not investigate or adjudicate upon any matter relating to the termination of employment. 1) Written Contract of Employment |
Sec 3 (1) of this Act states, “ An employer shall, not later than 2 months after the commencement of an employees 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”
I find that the Complainant was not issued with a written contract of employment within two months of commencement of employment.
Therefore I find that the Respondent Employer has breached Sec 3 of this Act.
2) Changes to the contract of employment
Sec 5 states “the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than (a) 1 month after the change takes effect”
I note that the Complainant alleges that her contract was changed unilaterally on 25th January with the presentation of a written contract.
I note that the Respondent disputes this.
I find that under this Act there is a requirement that the Respondent Employer notifies the employee in writing of the changes within one month after the changes.
If there were changes contained in the contract, then the changes were notified in writing. Therefore there was no breach of Sec 5.
Regarding the complaint that the Complainant did not sign the contract I note that Sec 3 (4) states, “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.
I note that the Respondent employer signed the contract and so complied with Sec 3(4) of this Act.
I note that Sec 7 (2) (d) of the Act states, ”compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”.
Decision:
Section 41 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 have decided that the complaint is well founded in part only.
I order the Respondent employer to pay the Complainant compensation of €350.00 within six weeks of the date below for breach of Sec 3 of this Act.
Dated: 21-June-2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Contract of employment |
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