Complainant

Respondent

Anonymised Parties

A general operative

An events facilities company

Representatives

self

A manager

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-00014715-001

01/10/2017

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

CA-00016838-001

15/01/2018

The Complainant commenced employment with the Respondent company on 09/05/2016 as a yardman in the Respondent’s premises.

The Respondent is a company who construct various temporary structures at various types of events. Due to the type of work involved the work can be of a seasonal nature.

On the 01/10/2017 the Complainant submitted his first complaint to the Workplace Relations Commission, this complaint has been given the number of CA – 00014715 and is submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The second complaint, CA -00016838, was submitted to the Workplace Relations Commission on 15/01/2018 and was submitted under section 8 of the Unfair Dismissals Act, 1977.

At the end of the period of employment the Complainant was receiving a wage of €520.00 per 40-hour week.

CA – 00014715. Terms of Employment (Information) Act,1994.

The Complainant alleges that he did not receive a written statement of employment as specified in section 3 of the Act, section 3(1) reads as follows:

3(1) 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 of the terms of the employee’s employment, that is to say ………

At the hearing the Respondent claims that a contract of employment was issued but they are unable to produce a signed copy of such. What was produced at hearing was an unsigned copy of a temporary contract that was allegedly sent to the Complainant on 31st May 2017, some twelve and a half months after the commencement of employment. The Complainant claims he did not receive this and at hearing it was established that it was sent to an old address.

The document as presented is comprehensive and contains the information specified in the Act, it is not signed by the Respondent in accordance with section 3(4) of the Act.

CA -00016838. Unfair Dismissals Act, 1977.

The Complainant alleges that he was not informed that there was a seasonality adjustment made in the company each year as events taking place during the late autumn/ winter period are not as numerous as those taking place during spring/summer time.

The Complainant makes the argument that he would not have resigned from a permanent job to accept a position that could see him with no job some months later. The Complainant was adamant that he was offered full-time permanent employment and it was a shock to him when he was dismissed August 2017.

By way of submission the Respondent referred to a letter sent to the Workplace Relations Commission dated 17th November 2017, this letter formed the basis of a verbal submission at the hearing of the complaint.

To whom it may concern.

The complainant (name inserted) started working with us in May 2016 on an initial trial period of 6 months. Our industry is very seasonal – the busy period being summer months from approximately May to September however coming up to the end of the Complainant’s (name inserted) trial period we agreed with him to keep him on in a temporary fulltime position while we had work for him. In May 2017 we increased his hourly rate from €12 to €13 per hour.

In mid- August 2017 as our summer work contracts came to an end we had to let several of our employees go, the Complainant was one of these employees.

Our company is in existence since 2010 and we are aware of employment law and the requirement of Written Terms of Employment being supplied to all new employees. It is also policy of our company to notify in writing where possible any changes to working conditions.

As with all our employees, when the Complainant (name inserted) started working with us 2 copies of his terms of employment were posted to him, one for his own records and 1 to be signed and returned to us. Unfortunately we do not have a copy of the signed document on file however we always keep a copy of the original document sent to the individual in our records. It does happen on occasion that signed copies are not returned to us but 95% of our employees return a signed copy which are kept on file in our office.

Included with this letter are copies of various communications sent to the Complainant (name inserted) over his period of employment to show that we do our utmost to record everything and to keep our employees informed. I have also included a copy of the Complainant’s (name inserted) Terms of Employment which are held in an electronic file under his name.

We sincerely regret if the Complainant (name inserted) did not receive the posted copy of his contract. Be assured if we had been made aware of this at the time we would have given him a copy immediately.

Yours sincerely.

Also included were a letter dated 31/08/2017 headed Letter of Termination of Employment, a letter dated 24/05/2017headed Increase in Rate of Pay and a memo dated 01/12/2016 informing the Complainant of his remaining holiday entitlement.

CA – 00014715. Terms of Employment (Information) Act,1994.

I am not satisfied that the Complainant received a written statement of the particulars of his employment i.e. a contract. The Respondent claims that a contract was sent to the Complainant however he does not appear to have received it.

Contained within the unsigned copy sent to the wrong address is a clause that states there is a requirement to sign in the place indicated in acknowledgement of acceptance of the conditions. When such a signed statement was not received by the Respondent they should have followed this up with the Complainant and ensure that they had a signed copy on file. It does not help that the copy sent to the Complainant (the one sent to the wrong address) was not signed by the employer as required under the Act.

Under section 7 (2) (a) of the Act I must “declare that the complaint was or, as the case may be, was not well founded”.

On the balance of probability, I find the complaint to be well found and in accordance with section 7 (2)(d) award compensation of 2 weeks remuneration i.e. €1,040.00.

Section 7 (2)(d) of the Terms of Employment (Information) Act, 1994 states:

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act,1977.

CA -00016838. Unfair Dismissals Act, 1977.

The Complainant alleges that he was never informed that his employment with the Respondent could in any way be seasonal and the possibility of lay-off was never mentioned by the Respondent. The Respondent’s manager who conducted the employment interview with the Complainant was adamant that this subject was discussed at interview. It was noted that the interview took place in a coffee shop in Blanchardstown.

At the end of the events season in 2016 there was a level of maintenance to be carried out on the Respondent company’s equipment and therefore no period of lay-off was mentioned to the Complainant who worked through the entire year.

On 14th August 2017 one of the Respondent’s managers informed the Complainant that he would be placed on lay-off at the end of August 2017 due to the downturn in the business. This fact was confirmed in letter by one of the Respondent company directors and the Complainant’s employment ended on 31st August 2017.

I note that the letter sent to the WRC dated 07th November 2017 states that if the Respondent company had been aware that the Complainant had not received his contract they would have rectified this immediately.

Looking at the content of this contract I note that it is headed Terms of Employment – Temporary Contract. Clause 9 of this document reads:

“Length of Contract: Your employment id for an initial trial period from 9th May 2016 until 9th November 2016 and therefore no further notice need be given. Your notice period is one week in the event that that either side wish to terminate the contract earlier than expected. Any extension of your contract will normally be subject to the same conditions and confirmed to you in writing”.

When the six months trial period was completed the Respondent agreed with the Complainant to keep him on in a temporary full-time position. This fact was never put in writing to the Complainant in accordance with the preceding paragraph outlined above.

On reading the entire contract produced at hearing by the Respondent there is no mention whatsoever regarding the possibility of a lay-off, if lay-off is a feature of the business and industry such a clause should be included in the contract of employment.

In the case of John Lawe v Irish Country Meats (Pig Meats) Ltd [1988] ELR 266, the issue of payment during lay-off was considered by Mr Justice White. In that case the Court referred to the legal position that is summarised in Forde Employment Law (p.81), where it stated “Absent a term in the contract to the contrary, the employer’s fundamental obligation is to pay the agreed remuneration for the time of work during which the employee is prepared to work (Hanley v Pearse & Partners). Ordinarily, an employer is free to lay-off workers for any reason, provided he continues to pay them. A lay-off without paying the normal agreed remuneration can be treated by the employee as a dismissal”.

In this instant case there was no payment made to the Complainant after he was placed on lay-off, there was no clause in the contract stating the employer had the right to lay-off without pay in quiet business periods. I can only conclude that the Complainant was dismissed from his employment with the Respondent.

In any Unfair Dismissal case the burden of proof lies with the Respondent, in this instant case that burden has not been discharged. By not inserting a clause in the employment contract in relation to the possibility of lay-off the Respondent has breached the contract of employment.

I find that the complaint is well found and that the Respondent did unfairly dismiss the Complainant.

The Complainant commenced new employment on 07/09/2017, one week after his dismissal. The new job paid €9.50 per hour, some €3.50 per hour less than the job with the Respondent.

The Complainant was unfairly dismissed. I now order the Respondent, under section 7 of the Unfair Dismissals Act of 1977, to pay compensation consisting of the following: one week’s pay €520.00 plus the difference in hourly rate for a period of 26 weeks i.e. €3.50 x 40 x 26 = €3,640.00. Total €4,160.00 under the Unfair Dismissals Act 1977 plus €1,040.00 under the Terms of Employment (Information) Act,1994. Total compensation = €5,200.00.

Unfair Dismissal; Lay-off; Terms of Employment (Information) Act.