FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES : CANDLEVALE LIMITED TRADING AS MALDRON HOTEL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - ANNA GORCZYCA-GEBICKA (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision Nos: ADJ-00008553 CA-00012484-002/003/004/005/006/007/008/009/010/011/012/013/014/015/016
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 14 June 2018 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 5 October 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Anna Gorczyca-Gebicka against the Decisions of an Adjudication Officer Nos ADJ-00008553, CA000012484 – 002 to 016 under the Terms of Employment (Information) Act, 1994 to 2014 (the Acts). Ms Gorczyca-Gebicka claimed that her employer, Candlevale Limited t/a Maldron Hotel, had breached various Subsections of Section 3 of the Act. The Adjudication Officer declared that the complaint was well-founded and awarded one week’s pay (2016 P60 total divided by 52).
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Anna Gorczyca-Gebicka will be referred to as “the Complainant” and Candlevale Limited t/a Maldron Hotel will be referred to as “the Respondent”.
The claims were referred under the Acts to the Workplace Relations Commission on 12th July 2017.
Background
The Complainant has been employed as a Food & Beverage Assistant in the Hotel’s restaurant since 17th October 2004. At the relevant period her rate of pay was €10.09 per hour.
Position of the Parties
Mr Blazej Nowak, on behalf of the Complainant, informed the Court that the only claim on appeal to the Court is a claim under Section 3(1) of the Acts, whereby he alleged that the Complainant was not furnished with a statement in writing containing her terms and conditions of employment prior to the claim being referred to the Workplace Relations Commission. He told the Court that all other claims under the Act were withdrawn.
Ms Judy McNamara, Ibec, on behalf of the Respondent, denied the allegation and submitted that in line with its normal practice the Complainant was furnished with a written contract of employment on commencement of her employment. However, Ms McNamara accepted that a copy of that contract was no longer on file.
Ms McNamara stated that the Claimant, by her own admission, lost her copy of her contract and it was replaced by the Respondent in 2017, when the Respondent became aware that she had lost her original contract of employment.
Witness Testimony
Ms Lorna Murphy, HR Manager of the Respondent told the Court that she commenced employment with the Respondent in January 2016. She recounted the events of a meeting she held with the Complainant on 15th May 2017 when the Complainant sought copies of her job description and her contract, as she had “lost them”. Ms Murphy said she assured her that she would supply her with replacements and provided her with a reissued contract on 28th August 2017.
Ms Murphy confirmed that the minutes of that meeting which were furnished to the Court were an accurate reflection of what transpired at that meeting.
Findings of the Court
Having examined the minutes of the meeting held on 15th May 2017, which were not challenged by contrary evidence, the Court is satisfied that a contract of employment was provided to the Complainant in accordance with Section 3(1) of the Act.
Therefore, the Court finds that the Complainant’s claim is not well-founded and overturns the Adjudication Officer’s Decision. Consequently, the appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
MK______________________
22 October 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.