Complainant

Respondent

Anonymised Parties

A Sales Representative

A Textiles Recycling Company

Representatives

The Complainant attended in person and was not represented

The Respondent attended in person and was not represented

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-00015268-001

24/10/2017

The Complainant claims that the Respondent failed to provide him with a written statement of his terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994.

The Complainant was employed by the Respondent as a Sales Representative from 21 August, 2017 until 27 October, 2017 when his employment was terminated. The Complainant was normally expected to work 30 hours per week and was paid €300 per week.

The Complainant claims that he requested a written statement of his terms and conditions of employment from the Respondent but did not receive same at any point during his period of employment. The Complainant claims that he was informed by the Sales Manager on 23 October, 2017 that he would be provided with a written contract of employment and was asked to attend a meeting the following day. The Complainant attended this meeting with the Sales Manager on 24 October, 2017 in a local coffee shop on the understanding that he would be provided with his contract of employment. However, contrary to his expectations, the Complainant was informed by the Sales Manager at this meeting that the Respondent was not prepared to offer him a six-month contract and that his employment was being terminated.

The Complainant claims that he was dismissed by the Sales Manager in an abrupt manner and vehemently denies the Respondent’s contention that he was provided with a copy of his written terms and conditions of employment at this meeting.

The Respondent operates a textiles recycling business. The Complainant commenced employment with the Respondent as a Sales Representative on 21 August, 2017 and within a few short weeks of his commencement rang the office demanding his written terms and conditions of employment. The Respondent states that it was explained to the Complainant that the company was well within its rights to hold off giving him a contract of employment for two months after his starting date with the company.

The Respondent submitted that the company does not provide any employee with their written terms and conditions of employment on commencement. Conditions are spoken of during the interview process and if anything is unclear the employee can contact the Sales Manager with any queries. The Sales Manager in this case would have been in contact with the Complainant quite frequently to determine how he was getting on with sales, so he would have had every opportunity to speak to him in person and by phone.

The Respondent submitted that over the years the company has learned that the position doesn’t always suit the employee and after observation and careful consideration the employee’s contract is terminated. The company doesn’t ever take the termination of employment lightly as considerable time, effort and money goes into recruiting each employees, and it is more beneficial for the company to try and keep the employee on the team. In this case, the Complainant’s work rate and sales were considered carefully, and with the experience of the new Sales Manager who met with him, analysing his sales and considering his attitude and work ethic, it was agreed that it would be more beneficial to the company to terminate his employment.

The Complainant was informed about the termination of his employment by the Sales Manager on 24 October, 2017 and was paid up to 27 October, 2017. The Respondent contends that the Complainant was provided with a written contract of employment by the Sales Manager at the meeting on 24 October, 2017 when he was informed of the termination of his employment.

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

The key facts in relation to this complaint were in dispute between the parties. The Respondent, on the one hand, claims that the Complainant was provided with a written statement of his terms and conditions of employment by its Sales Manager at a meeting on 24 October, 2017 when he was also informed of the termination of his employment. The Complainant, on the other hand, claims that the Respondent failed to provide him with a written statement of his terms and conditions of employment at any stage during his period of employment. The Complainant denies that the Sales Manager provide him with this written statement of his terms and conditions at the meeting on 24 October, 2017.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “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 …… “.

It was not in dispute that the Complainant commenced employment with the Respondent on 21 August, 2017. Therefore, in accordance with its obligations under Section 3 of the Acts, the Respondent was obliged to provide the Complainant with a written statement of his terms and conditions of employment no later than two months from that date (i.e. by 20 October, 2017).

Even if I were to accept the Respondent’s evidence, which on balance I do not, that the Complainant was provided with a written statement of his terms and conditions of employment on 24 October, 2017, this would clearly have occurred outside of the specified period provided for in Section 3 of the Act. I have found the Respondent’s evidence to be inconsistent in relation to this matter. In this regard, the Respondent’s Operations Manager attended the oral hearing and gave evidence that the Complainant was provided with a written statement of his terms and conditions at the meeting on 24 October, 2017. However, I note that the Respondent failed to make any reference to this contention in the letter which it forwarded to the WRC on 13 December, 2017 in response to the present complaint. The Respondent did not adduce a copy of this written statement in evidence at the oral hearing but submitted a copy of the purported document to the WRC following the hearing. This document was not signed or dated by either party and I find that it is of no evidential value in relation to the matter.

In considering the totality of the evidence adduced, I have found Complainant to be a credible witness and I prefer his evidence in relation to this matter. I find, on the balance of probabilities, that the Complainant was not provided with a written statement of his terms and conditions of employment during his period of employment.

Accordingly, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €900.00   being the equivalent of three weeks’ pay in respect of the contravention.

Terms of Employment (Information) Act 1994 – Section 3 – Failure to provide written statement of terms and conditions – complaint well founded – compensation awarded.