Complainant

Respondent

Anonymised Parties

Employee

Hotel

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-00013849-001

11/09/2017

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994 and has submitted that she did not receive a statement in writing in relation to her terms of employment (CA-00013849-001)

The Complainant was employed as an accommodation assistant by the Respondent Company on or about the 29th May 2017. The Complainants gross pay was €433.00 per week (€409.00 net) and worked 35 hours per week.

Ultimately, the Complainant decided to leave her employment on or about the 12th September 2017 (as per her resignation letter) and cited her reasons as being in relation to difficulties with transport and the number of hours required to work.

The Complainant in the course of her evidence indicated that upon commencing her employment she did not receive any contract of employment. Although an undated and   unsigned Contract of Employment between the Complainant and the Respondent Company was provided, in the course of this hearing, the Complainant denies ever having sight of same.

A letter dated the 5th June 2017 from the HR Manager of the Respondent Company to the Complainant indicated that further to recent discussions, the Complainant would be appointed to work night shifts on a periodic basis. This letter concluded with the request that the Complainant conform she was in agreement with this proposal and sign appropriately. The Complainant signed and dated this letter on the 13th June 2017.

The Complainant, in the course of her evidence, did not recall meeting the HR manager during her employment but only after her resignation at a meeting on or about the 21st September 2017.

On the 27th June 2017, the Complainant had a meeting with her line manager called a “job chat”, which was the usual policy following a new employee commencing employment. This is a forum whereby the Complainant could address any issues since commencing employment. The Complainant accepted this meeting took place and the job chat form does not record that she had any issues in relation to the matters the subject of this hearing. Accordingly, she signed the aforementioned job chat form that was used on the day.

Ultimately, the Complainant sent a resignation letter dated the 15th September 2017, indicating that this was her formal resignation and her last day of work would be the 12th September 2017. In the course of this letter, she stated that she would like to take this opportunity to thank the Respondent Company for the knowledge and experience she has gained by working there.

Following her resignation , the Complainant met with the Respondent Company on the 21st September 2017 in relation to pay and may have mentioned that she had not received a contract of employment at the commencement of her employment.

This Complaint was received by the Workplace Relations Commission on the 11th September 2017.

The Respondent Company outlined the background to the opening of this particular hotel and that the hotel primarily services both a mixture of both leisure and corporate business and employed approximately 180 individuals.

Specifically, in relation to the Complainant, the Respondent Company submitted that her employment had commenced on the 29th May 2017 and her contract of employment was issued with the aforementioned letter of the 5th September 2017 which was ultimately signed by the Complainant.

The contract of employment was created by the HR manager on the 9th June 2017 and, in that respect, he provided a computer printout/screenshot to show that a “shift sequence letter” in relation to the Complainant had been created on the 9th June 2017 and modified on the 13th September 2017. This shift sequence letter is located in the “Contracts\Offer Letter” folder.

The Respondent Company submitted that in relation to the job chat conducted on the 27th June 2017, no issues were put forward by the Complainant and therefore the meeting was positive in nature and, significantly, there was no mention of the allegation that her contract of employment had not been provided.

Similarly, the Respondent Company submitted that the Complainants resignation letter is non contentious and thanks the Respondent Company for the opportunities and experience.

The Respondent Company contends that the contract of employment was issued on the 9th June 2017 and the fact that the Complainant did not return this document as signed was outside of their control and they had complied with requirements of the Terms of Employment (information) Act, 1994, at all times. The Respondent Company submits they can display said contract was created in a timeline consistent with this submission.

The Respondent Company submit that if the Complainant did not receive said contract, which is denies, then she had opportunities to bring this to their attention, either at the job chat on the 27th June 2017 or avail of the Respondent Company’s grievance procedure.

This grievance procedure provided that if an employee has a grievance then they should approach their manager/supervisor who will discuss the matter with them or discuss said grievance with deputy general manager/operations manager or HR manager. It was submitted that training was provided to the Complainant in the use of the grievance procedure at her company induction on the 6th June 2017.

The Respondent Company submitted , in citing Grant Engineering -v- Denis Delaney (TED 1728) and Patrick Hall -v- Irish Water (TE15/6), that in relation to the Complainants short employment she did not suffer any detriment whatsoever in that period arising out of any alleged defects and therefore no compensation is justified.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

The Terms of Employment (information) Act, 1994-2014, provide that an employer is obliged to provide an employee with a written statement of terms of employment within the first 2 months of the commencement of employment (Section 3). However, this requirement does not apply to an employee who has been employed for less than a month.

Specifically, Section 7 provides:

7.—(1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4, 5 or 6, if the employer concerned has—

(a) complied with a direction under section 6A given in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015 or

(b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of 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.

In the circumstances of this case, I am satisfied that the Respondent Company did provide the Complainant with a written statement of her terms of employment on the 9th June 2017 pursuant to Section 3 of the Terms of Employment (Information) Act. In that regard, I am persuaded by the submissions of the Respondent Company and the supporting documentation. The Complainant had the opportunity on a number of occasions to bring the alleged failure of the Respondent to comply with the terms of Section 3 of the aforesaid act but never brought this to the attention of the Respondent Company.

Accordingly, pursuant to Section 7 (2)(a) of the Terms of Employment (information) act, 1994-2014, I declare that the Complaint is not well founded.    

I find that the Complaint (CA-00013849-001) made pursuant to Section 7 of the Terms of Employment (information)Act, 1994, fails

Terms of Employment