Complainant

Respondent

Anonymised Parties

A Tyre Fitter

A Tyre Fitting Company

Representatives

Appeared in Person

Seamus Hickey, Solicitor

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973(Closed by WRC on 23 January, 2018)

CA-00016652-001

05/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016652-002

05/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016652-003

05/01/2018

The Complainant worked as Tyre Fitter from 8 August 2017 until 4 October 2017. He worked a 47-hour week for 9.25 euro per hour. The Complainant has submitted three complaints regarding minimum notice, annual leave and provision of a contract of employment. The Respondent has disputed the claims. On January 23 ,2018, the WRC closed the first complaint as the complainant had not worked for the same company for a minimum of thirteen weeks. As both parties agreed on the dates of employment, this decision is framed on two complaints, that of annual leave and terms and conditions of employment.  

The Complainant presented his own case and made oral submissions on the outline of the case. He submitted that he was the only Irish person who fitted tyres at the respondent business. The Complainant submitted that he had not received notice on the termination of his employment. He had been paid monthly and expected to start new employment in the security Industry but it had not worked out.

CA-00016652-002

The Complainant submitted that he was owed annual leave at cessation of employment. He had not received details of his annual leave but contended that he was owed 400 euro. He had taken time off to attend two occasions in the final week of his employment.

CA -00016652-003

The Complainant submitted that he had not received a statement in writing of his terms and conditions of employment before he left. The Complainant submitted that he had worked for a period of 9 weeks and the Legislation had been breached.

The Respondent operates a Tyre Company and hired the complainant without experience in the field. The owner of the business told the hearing that on the Monday of the week prior to the complainant’s departure he had been approached by the complainant for a Reference which he produced. The Complainant had the following Monday and Tuesday off to attend to personal business. On the Wednesday evening, the complainant was last to leave and the owner asked him how he had got on at the interview the previous Monday? . The Complainant told him that he was leaving as the new employer would pay weekly. The Respondent passed the complainant a copy of his P45 at the hearing. The Respondent also submitted that the complainant had been treated fairly and benefitted from receiving subs in his wages. The claims were denied.

CA-00016652-002

The Respondent outlined that the complainant had received 4 days’ annual leave during his employment and undertook to submit records. The records were submitted post hearing and forwarded to the complainant. The records displayed a marking over 4 days of leave, September, 9 and 30 and October 3 and 4, 2018.

The Respondent explained that they applied the 8 % rule which amounted to 3.9 days and had not counted the Tuesday

CA-00016652-003

The Respondent exhibited a template of a contract of employment and submitted that the complainant had left employment prior to the time allocated under the Legislation. The Respondent had intended issuing a written statement. The matter had not been discussed during the employment.

The Respondent used the period of the two-month timeframe to ascertain whether employees were working out. The complainant had no previous experience in the field.

I have considered the submissions of both parties in this case. The period of employment was short in this case and the circumstances of the termination were disputed. I heard evidence from both parties on the first claim without realising that the matter had been disposed of by the WRC on employment tenure. That matter is closed, I apologise for the misunderstanding.

CA-00016652-002

I have considered the complainant’s contention that he was owed annual leave as cesser pay. I have taken account of the Respondent response and on the records submitted. These records were copied to the complainant and a response received on July 17,2018. The Complainant confirmed that he had taken a day off for a personal event and had attended for work on October 4, 2017. I note that the complainant had not raised this issue as a grievance on the conclusion of his employment.

I find that based on the evidence adduced, the complainant received his annual leave entitlement during his employment and a viable claim under Section 23 of the Act does not arise. I find that the claim is not well founded.

CA -00016652-003

I have considered both party’s submissions both oral and written. Section 3 of the Act sets out the obligations of an employer in this instance.

Written statement of terms of employment.

3

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—

Both parties accept that that the complainant was not in receipt of the statement during his employment. I received a copy of a hybrid contract of employment in two languages which served as a template to demonstrate that contracts were utilised at the respondent business.

The complainant commenced work on 8 August and left employment on October 4, 2017. He left before the time limits governing the statutory obligation to provide the written details in accordance with Section 3 had expired. I have considered the complainant’s contention on 9 weeks but the Legislation sets out a two-month period. The employment relationship did not traverse the two-month timeframe.

I have taken some issue with the Respondents linking of suitability prior to issuing contracts and I can only suggest that best practice would indicate that the written terms should issue as close as practical to the start date. This enables both parties to have a clear picture of what is required by both parties from the outset.

I have found that the complaint is not well founded.

Annual Leave, Written Terms of Employment