ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011604

Parties:

	Complainant	Respondent
Anonymised Parties	A Building Labourer	A Construction Company

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-00015420-001	29/10/2017

Date of Adjudication Hearing: 12/02/2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath BL

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the hearing as well as any written submissions disclosed in advance of the hearing.

The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment (as specified in Section 3 of the 1994 Act).

In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four week’s remuneration such that is just and equitable in all the circumstances.

Background:

The Complainant herein is a Romanian national who has worked in Ireland since 2014. The Complainant has limited English and unfortunately did not avail of the Translation Services readily made available by the Workplace Relations Commission.

Summary of Complainant’s Case:

The Complainant did provide me with a written submission wherein he states he was employed from at least 2015 to 2017 at which point he was dismissed. The submission outlines certain other issues and Grievances which are quite simply outside the remit of the Terms of Employment (Information) Act 1994 and I note from the paperwork provided that a claim under the Unfair Dismissals legislation might be pending or has been considered.

The Complainant did not receive a Contract of Employment whilst employed by the Respondent. The required Terms of Employment as outlined in the Act were never made known to him.

The Complainant’s weekly wage was €540.00.

Summary of Respondent’s Case:

The Respondent through it’s Director made the case that the Complainant was a self-employed Contractor. The evidence was that the Complainant had initially been taken on as an employee and then was engaged as a self-employed Contractor.

Findings and Conclusions:

I have carefully considered the evidence adduced. The Respondent herein seeks to eschew obligations it might have as an employer stating that from January 2015 to June of 2017 the Complainant was self-employed. In June of 2017 the Department of Social Protection (having assessed the working environment) found that the Complainant had been an employee for this period of time, and this decision was not appealed. This finding, on the face of it, appears to be a reasonable view of the facts that pertained – there was no evidence to suggest that the Complainant was self-employed or thought he was self-employed. I am therefore of the view that the Complainant should have had a Contract of Employment or other written statement stating the terms and conditions of his employment from before January of 2015. This was never forthcoming and the Respondent company has therefore failed to meet it’s obligations under the Terms of Employment (Information) Act 1994.

I note that the Respondent has now engaged the services of an Employment Services provider to assist with the creation of Contracts of Employment for all staff but this has only happened after the fact.

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.

In the circumstances, I consider the complaint to be well founded and I direct a payment of compensation up to the value of four week’s remuneration be paid and in the calculating this, I award the sum of €2,160.00.

Dated: 31 May 2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath BL

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