ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00022959

Parties:

	Complainant	Respondent
Anonymised Parties	A School Caretaker	A School under the auspices of the Board

Representatives

Self-Represented

Niamh Ní CheallaighIBEC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00029572-001	10/07/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00029572-002	10/07/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00029572-003	10/07/2019

Date of Adjudication Hearing: 25/09/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015;Section 7 of the Terms of Employment (Information) Act, 1994 ;Section 11 of the Minimum Notice & Terms of Employment Act, 1973& Section 13 of the Industrial Relations Acts 1969following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The issue in contention concerns the ending of the employment of the Complainant in a Secondary School under the auspices of the E & T Board.

1: Summary of Complainant’s Case:


Act	Complaint/Dispute Reference No.	Summary of Complaint.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00029572-001	The Complainant commenced employment in October 2018. All went well until late January 2019 when he was informed that his employment was ending. He met with the Principal who informed him that there was no application form from him on line on the E&T B Application system. As it was taken that he had not applied for the position the vacancy was given to another candidate. This was a complete misunderstanding – the Complainant had applied for the position. He had an e mail confirmation from the Website, and it was commonly known in the School that he was an applicant.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00029572-002	During his employment he never received any formal communication in writing of his T&Cs of employment.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00029572-003	The Complainant did not receive his Statutory Notice pay on leaving the employment.

2: Summary of Respondent’s Case:


Act	Complaint/Dispute Reference No.	Summary of Respondent response.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00029572-001 Unfair Dismissal under the IR Act,1969.	The position under consideration was a part time week to week role which existed while the formal process of Recruitment to fill the position permanently was underway. This was always made clear to the Complainant. In early October 2018 the School Principal informed the Complainant that the Vacancy was available and that he should apply immediately. He replied that he had already “Applied on line”. The Principal searched the IT Portal but could find no application. She asked the Complainant to bring in his confirmation from the IT Portal. This was not forthcoming. On the 25^th October the vacancy was re-advertised and now open to ordinary Written Applications. She offered to assist the Complainant with his application. He did not apply but continued to refer to his “Confirmation e mail”. On the holding of interviews in November the Principal again queried why there was no application and went as far as offering to facilitate the Complainant with an additional Interview time slot. No application was received -the IT System was searched again but to no avail. The “Confirmation E mail” that the Complainant was relying on was an acknowledgement from the IT Portal that he had registered his details and was not a formal job application confirmation. It had always been open and had been requested by the Principal on several occasions for the Complainant to bring in his email for her examination. It this had happened the matters could have been cleared up in good time for a proper Job Application. This never happened and the Board proceeded to appoint another candidate who had properly applied.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00029572-002 T&Cs of employment	It was acknowledged that the Complainant had not received a T &Cs document despite being employed for more than two months. This had happened as the employment was purely on a week to week basis while the formal Recruitment competition was under way. Any breach of the Act was minor and of a Technical nature.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-000295 72-003 Statutory Notice	It was accepted that Notice was due and was in the process of being paid.

3: Findings and Conclusions:


Act	Complaint/Dispute Reference No.	Adjudication Recommendation and Decisions
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00029572-001 Unfair Dismissal under the IR Act,1969.	The Parties gave considerable oral evidence in addition to a formal written statement from the Respondent. The chief Respondent witness was the School Principal, Ms X. She outlined how she had at all times tried to get the Complainant to submit a formal job application. I found her evidence credible. The Complainant had been told on at least two occasions that there was no Application of file from him. He had failed, despite repeated requests, to bring in to her the Job Portal E mail, the alleged “Confirmation” which would immediately have clarified matters. In a case of doubt such as this the Complainant could easily have filled out a standard written application but appeared not to have done so. For reasons that were not clear to me at the Oral Hearing he had failed to properly apply for the position. The Board had no choice but to go to a Candidate that had applied properly. Accordingly, this claim fails and must be set aside as Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00029572-002 T&Cs of employment	It is accepted that a Technical breach of the Act took place. For breach of his statutory rights I award Compensation of €100 Euro to the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-000295 72-003 Statutory Notice	As it was accepted by the Respondent that Statutory Notice was due and was being paid. For the Record I consider the claim for one week’s notice pay a Well-Founded Complaint.

4: Decisions and Recommendation:

Section 41 of the Workplace Relations Act 2015; Section 7 of the Terms of Employment (Information) Act, 1994 ;Section 11 of the Minimum Notice & Terms of Employment Act, 1973& Section 13 of the Industrial Relations Acts 1969requires that I make a Decision and or Recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Act	Complaint/Dispute Reference No.	Summary Recommendation & Decisions. Please refer to Section Three above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00029572-001	Complaint is Not Well Founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00029572-002	Complaint is Well Founded. A technical breach has occurred. Compensation of €100 is awarded to the Complainant
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00029572-003	The Complaint is Well Founded. Respondent has indicated that a Payment of the proper amount is being made.

Dated: 3^rd December 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee