Complainant

Respondent

Anonymised Parties

An Employee

A Company

Representatives

Kevin Mcerlean MCERLEAN WEIR LAW FIRM

Actons Newman

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013492-001

31/08/2017

Preliminary Issue.

The complainant states that he commenced employment with the respondent in May 2016 however he did not receive a contract to sign until May 2017.

He saw an advertisement for the respondent company online and replied to it. He had several Skype interviews with the MD in China. During that interview he was told how many hours he would be expected to work per month and the net salary. The complainant states that the duration or type of contract was not discussed during that interview.

He stated that he was extremely excited to be working for the respondent entity, as he believed that it was going to be "the next big thing" in Ireland. In conjunction with his employment with the respondent, he also was employed by a third-party Chinese company that had a financial interest in the respondent. The complainant stated that the third party, Chinese company sent engineer's over from China and he was responsible for them while they were in this jurisdiction and also in Northern Ireland. He was paid a salary by the Chinese company. He also prepared monthly reports for the Chinese company in relation to the respondent’s business progress.

In April, 2017 the complainant received an email asking him to sign the contract of employment. He stated that he was told if he did not sign the contract of employment he would not be paid nor would he get a renewal contract. The complainant states that he was not paid a salary by the respondent from May 2016 to May 2017. He did not file a claim in relation to the non-payment of wages because he says in his own words he was " stupid".   He wanted to impress both the respondent and the third party Chinese company and was excited about his future with them and therefore went over and above what was expected of him.

Since completing his employment with the respondent, he set up his own travel agency however he states that he is only making “a couple of €100 per month” from that. He also stated that he hasn't actually looked for work because his wife works, so he doesn't need to.

Preliminary issue.

The complainant was employed on a 1 year, fixed term contract dated from the 23rd of May 2016 to the 22nd of May 2017. The respondent states that it was made known to the complainant that he was being employed on a 1 year fixed term contract. The contract was sent to him from the Chinese office by email on the 5th of April, 2017 the complainant was asked to sign that contract which he did. In signing that contract the complainant confirmed that " I have read understood and confirm that I accept employment with the respondent of due to the terms and conditions referred to above and those contained in the appendix attached". The respondent denies that any threat was made to the complainant or that he was coerced in any way to sign that contract. It was open to him not to sign it and to seek legal advice however he failed to do so and signed the contract without argument.

On that basis the respondent states that the adjudicator does not have jurisdiction to hear this matter as the complainant employment ended on the expiration of the one year fixed term contract.

Preliminary Issue

The complainant commenced working with the respondent in May, 2016. The workplace relations complaint form states that the complainant commenced work on the 2nd of May 2016. The fixed term contract produced during the hearing states that the complainant commenced work on the 23rd of May 2016. Whilst the complainant was employed by the respondent he was also employed by a third-party Chinese company. Based on the evidence given by the complainant I am satisfied that the majority of duties he performed whilst employed by the respondent where in fact for the third party, Chinese company. The complainant gave evidence that he was charged with the responsibility of meeting engineer's that were sent from China, finding them accommodation and acting as a concierge for them. He specifically stated that those engineers were employed by the third party, Chinese company and not the respondent. In addition to his salary with the respondent, he was paid approximately €20,000 per annum from the third party, Chinese company. He continues to be paid a salary by the third party, Chinese company despite the fact that his employment ended with the respondent in May 2017.

In relation to the fixed term contract that was produced during the hearing, the complainant states that he was coerced into signing that contract in May 2017. He was told that if he did not sign that contract he would not get a new contract nor would he get paid. I note that the complainant states that he was not paid for the entire duration of his employment with the respondent. However, he has not lodged a claim pursuant to the Payment of Wages Act in relation to that nor did he file a claim pursuant to the Terms of Employment Information Act in relation to the contract of employment not being given to him within two months from the start date of his employment with the respondent.

Based entirely on the complainant’s evidence, I am satisfied that the complainant was aware that the contract he was given in relation to the period May 2016 to May 2017 was a fixed term contract. When giving evidence he specifically stated that he was told “if you did not sign this contract you will not get a renewal contract.” The complainant received a phone call from the product manager in China on the 14th of May 2017 telling him that his contract was not going to be renewed. The complainant took that to mean that he was “fired”.

Based on the evidence adduced during the hearing, I find that the complainant was employed by the respondent on a fixed term contract and his employment came to an end on the expiration of that contract. Therefore, I do not have jurisdiction to hear the within claim.