ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016246
Parties:
| Complainant | Respondent |
Anonymised Parties | A Meat Factory Operative | A Meat Processors |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00021115-001 | 13/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00021115-002 | 13/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00021115-003 | 13/08/2018 |
Date of Adjudication Hearing: 17/12/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977 - 2015, these complaints were assigned to me by the Director General. I conducted a hearing on December 17th 2018 and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
Background:
The complainant is a meat factory operative and the respondent is a registered employment agency. In February 2017, the complainant said that he met the managing director of the company, (“MD”) and that he was offered an assignment in Norway. He started work in a meat processing plant there on February 27th 2017. He worked in Norway until December 2017 and in January 2018, he went to a meat factory in Sweden. In June 2018, he went back to Norway. The complainant is from Brazil and when he was working in Norway, he got to know another Brazilian employee (“BE”) who had been there for 27 years. BE remarked that the complainant was a good worker and that he should consider coming to work directly for the Norwegian company, which I will refer to as “Norway Meats.” The complainant said that he approached the owner and asked him if he could come to work directly for Norway Meats. The owner said that he would offer him a job as long as MD approved. On June 11th 2018, at a meeting in MD’s car in Norway, the complainant told his boss that he would like to move to Norway and become a direct employee of Norway Meats. MD didn’t approve and he told the complainant that if he took up this offer, he would remove his entire agency workforce from Norway Meats. MD dismissed the complainant and his last day at work was June 15th 2018. The complainant claims that his dismissal was unfair. He also claims that he was dismissed without notice and that, while he was employed by the respondent, he was not issued with a statement setting out the terms and conditions of his employment. |
Preliminary Issue: Jurisdiction
Respondent’s Submission on the Issue of Jurisdiction Section 2 of the Unfair Dismissals Act 1977 sets out the categories of persons who are excluded from making a complaint under the Act. Subsection (3) deals with the issue of where the employee resides: (3) (a) This Act shall not apply in relation to the dismissal of an employee who, under the relevant contract of employment, ordinarily worked outside the State unless— (i) he was ordinarily resident in the State during the term of the contract, or (ii) he was domiciled in the State during the term of the contract, and the employer— (I) in case the employer was an individual, was ordinarily resident in the State, during the term of the contract, or (II) in case the employer was a body corporate or an unincorporated body of persons, had its principal place of business in the State during the term of the contract. (b) In this subsection “term of the contract” means the whole of the period from the time of the commencement of work under the contract to the time of the relevant dismissal. In their written statement submitted in advance of the hearing, the respondent stated that they are a provider of services in the meat industry in countries mainly outside Ireland. During his service with the respondent, the complainant was assigned to work on contracts in Norway and Sweden. Counsel for the respondent, Mr Rafter, argued that I have no jurisdiction to hear these complaints because the complainant is not ordinarily resident in Ireland. He presented a detailed submission on the issue of jurisdiction, based on the premise that, while the respondent is a body corporate with its principal place of business in Ireland, the complainant has not discharged the burden of proof to establish that; (a) He was domiciled in Ireland from the commencement of his employment to the date of his dismissal or, that, (b) He was ordinarily resident in the State during those times. Domiciled in Ireland The complainant is a Brazilian native and, arguing that his permanent home was not Ireland, Mr Rafter referred to the Supreme Court case of DT & FL and the Attorney General, in an unrecorded judgement of Mr Justice Keane on November 23rd 2003. In this, a family law case, the judge found that, “… a home set up in a particular place for an indefinite period may depend upon the continuance of circumstances which are themselves indefinite as to likely duration. In my view a home set up in the latter basis does not have the element of permanency as so defined which is an essential indicator of a change of domicile.” From the commencement of his employment, the complainant worked in Norway, and at the end, he worked in Norway. He also worked in Sweden for a portion of the time he was employed by the respondent. It is the respondent’s case that the complainant cannot maintain a claim that his domicile of choice was Ireland to bring himself within the protection of the Unfair Dismissals Act. Ordinarily Resident in Ireland Some time after he commenced employment with the respondent, the respondent was issued with a PAYE Exclusion Order for the complainant. This document is issued by the Revenue Commissioners to an employer to instruct them not to deduct tax or USC from an employee’s wages. On the PAYE Exclusion Order, the complainant’s address is given as Riskatunveien 38F, Hommersak 4310, Norway. From the evidence of the complainant’s payslips submitted at the hearing, it is apparent that he paid tax in Norway. Mr Rafter argued that the purpose of the complainant’s residence in Norway was clear, which was to work with the respondent. He referred to the High Court case of Chubb European Group PLV v The Health Insurance Authority [2018] IEHC 609. The finding in this case was that, “the words ordinarily resident should be construed according to their ordinary meaning and … by the general intention of the legislation in which they occur and, of course, with reference to the facts of the particular case.” Mr Rafter submitted that, in relation to the protection provided by the Unfair Dismissals Act, the term “ordinarily resident” should relate to employees linked in some “real or substantial way with the State.” Referring to the case of R v Barnet London Borough, ex parte Shah [1983] 2 AC 309, Mr Rafter quoted the words of Mr Justice Scarman, where he stated, “All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled…” On this basis, Mr Rafter argued that a person volunteering themselves to work in a country other than Ireland can only be construed as “ordinarily resident” in that country. Tax Legislation The respondent submitted that it would be wrong to simply apply the Revenue Commissioners’ definition of “ordinarily resident” in the State to determine the complainant’s entitlement under the Unfair Dismissals Act. Mr Rafter argued that the Taxes Acts have a fundamentally different purpose, compared to the Unfair Dismissals Act, and that if I reached a conclusion on the basis of the definitions set out in the tax laws, I would be going against the test established by the Supreme Court test as to how the term “ordinarily resident” is to be interpreted in different statutes. The Complainant’s Submission on the Issue of Jurisdiction Mr Cawley said that the complainant came to Ireland from Brazil in 2000 and was now an Irish citizen. He said that the complainant meets the “ordinarily resident” test established by the Revenue Commissioners for deciding if a person is employed in Ireland. Mr Cawley said that the respondent is an Irish-registered employer and the complainant was registered with them as an employee. When he was working abroad for the respondent, Mr Cawley said that the complainant maintained a home in Tullamore, County Offaly, where his family lived and where he went between assignments. Mr Cawley set out the complainant’s assignments from the commencement of his employments: 27 February 2017 – 3 December 2017: Norway (based on a six-month contract which was extended) 3 December 2017 – 6 January 2018: Home in Ireland 7 January 2018 – 25 May 2018: Sweden 26 May 2018 - 3 June 2018: Home in Ireland 4 June 2018: Norway The end date of the complainant’s last assignment in Norway was intended to be December 3rd 2018, but he was dismissed on June 15th 2018. Referring to what he described as the leading case of Levene v IRC [1928] UKHL1, Mr Cawley referred to the fact that the plaintiff in that case, who was a mariner, had his home in Glasgow, but spent most of his life at sea. He was found to be ordinarily resident in Glasgow. Referring to Mr Levene’s work at sea over many winters and his habitual return in summer, Lord Sumner commented that “he changed his sky, but not his home.” In the same decision, Lord Warrington remarked that “ordinarily resident … seems to me to have no such technical or special meaning. In particular, it is in my opinion impossible to restrict its connotation to its duration.” Mr Cawley also referred to the case of R v Barnet London Borough, ex parte Shah [1983] 2 AC 309, which was cited by Mr Rafter. Quoting Lord Scarman, Mr Cawley submitted that “ordinary residence is established if there is a regular habitual mode of life in a particular place, for the time being, whether of short or long duration, the continuity of which has persisted apart from temporary or occasional absences.” In conclusion, Mr Cawley submitted that there is a distinction between the circumstances in which a person decides to permanently move from an area and when they are temporarily absent from their place of residence. If they are temporarily away, they remain ordinarily resident in their originating place and they do not acquire residence in the area where they are staying temporarily. Findings on the Issue of Jurisdiction In my deliberations on the issue of the complainant’s entitlement to make a complaint under the Unfair Dismissals Act, I have considered the following: 1. The complainant was recruited in Ireland by the respondent, an employment agency and a corporate body, with its principal place of business in the State. The main business of the employment agency was to provide employees on contract to meat processing companies outside Ireland. 2. The complainant is a Brazilian national and has been a resident in Ireland since January 2000. He has a family in Ireland and he rents a house here. In his evidence at the hearing, he said that he is an Irish citizen. 3. Before he was employed by the respondent, since 2000, the complainant was employed in Ireland. 4. The final line of a statement headed “Terms of Employment” which Mr Rafter said was issued to the complainant states as follows: “This employment is an Irish employment and all employees pay their tax and social insurance based on the rules applicable in Ireland for this employment. All employees are therefore protected by the provisions of Irish employment law, however, employees will also benefit from our obligations under any collective agreement listed above which is more favourable to the employee.” 5. The complainant was registered with the Revenue Commissioners as an employee and the respondent was registered with the Revenue Commissioners as his employer. 6. While he was employed by the respondent, pay-related social insurance contributions were deducted from the complainant’s wages and submitted to the Revenue Commissioners. He paid tax to the Norwegian tax authorities; 7. When he was employed by the respondent, the complainant stayed at rented accommodation provided by his employer, for which an amount was deducted from his wages. His wife and children did not travel to Norway or Sweden. From this, it appears that he had not established an individual place of residence in Norway. Conclusion I have examined the case law submitted by both sides and it is apparent that the term “domicile” often depends on the individual circumstances of the case under consideration. The family law precedent of DT & FL and the Attorney General submitted by the respondent, is not helpful, because the context is dissimilar from the case under consideration here and different issues are at stake. Both sides submitted quotes from the judgement in the case of R v Barnet London Borough,, demonstrating that quotations may be gleaned from a single judgement to suit opposing sides of an argument. It is my view that, when he was an employee of the respondent, the complainant was domiciled in Ireland. I have reached this conclusion because he emigrated from Brazil to Ireland in 2000 and he established a home with his family here. He was recruited in Ireland. When he had breaks from his employment in Norway and Sweden, he returned to his home in Ireland. In the PAYE Exclusion Order submitted by the respondent, the employer was instructed by the Revenue Commissioners not to deduct tax or USC from the complainant’s earnings because he was not resident in Ireland for tax purposes. This is not an indication that he was not resident in Ireland, but simply that he did not work the required number of days in Ireland to make him liable for tax and USC. The complainant paid tax in Norway and he remained liable for social insurance contributions in Ireland. A PAYE Exclusion Order would not have been issued by the Revenue Commissioners if the employee in question was not ordinarily resident in Ireland. The statement headed “Terms of Employment” is clear with regard to the respondent’s intention that the complainant was an Irish resident employed abroad by an Irish company and that he was entitlement to the protection of Irish employment legislation. In conclusion, I am satisfied that the complainant is not excluded by the terms of section 2(3) of the Unfair Dismissals Act and that, during the term of his contract, 1. He was ordinarily resident in Ireland; 2. He was domiciled in Ireland; 3. He was employed by a body corporate with its principal place of business in Ireland. Having reached this conclusion with regard to jurisdiction, I will now proceed to consider the complainant’s case that his dismissal was unfair, that he was dismissed without notice and that he did not get a statement setting out his terms and conditions of employment. |
CA-00021115-001:
Complaint under the Unfair Dismissals Act 1977
Summary of Respondent’s Case:
In a written paper in advance of the hearing, the respondent made the following submission: The respondent is a provider of services in the meat industry in countries mainly outside Ireland, including Norway and Sweden where the complainant was placed on a series of fixed-term contracts. It is the respondent’s case that the complainant either intentionally or recklessly breached the terms of his contract by approaching the company in Norway seeking a different contractual relationship with them, from the contract he had with the respondent. In this way, the respondent said that the complainant sought to affect the contractual relationship between the respondent and the Norwegian company and the effect of this was detrimental to that relationship. The effect of the complainant’s actions was to seek to reduce the contract that the respondent had with the Norwegian company. It is the respondent’s case that, by seeking to work for the Norwegian company, the complainant repudiated his contract with the respondent, and he declared that he no longer wanted to work for the respondent. The effect of this was that the respondent would have to look for another employee to replace the complainant so that he could honour his relationship with the Norwegian company. The effect of the complainant’s action was, according to the respondent’s submission, a fundamental breach of trust between him and his employer. The respondent could not trust the complainant to carry out his work and their relationship was undermined. The effect of the complainant’s action was so serious, that he could not be permitted to complete the fixed-term of his contract and his conduct justified immediate dismissal. The respondent argued that its reputation could be seriously damaged if contracted workers did not complete their individual terms because, as their employer, the respondent would not be able to negotiate contracts with clients as they would be considered to be unreliable. In their submission, the respondent said that, without the action of the complainant, the dismissal would not have occurred. Were it not for the approach made by the complainant to the Norwegian company, and the attempt to end the contract between it and the respondent, the complainant could have completed his obligations to the end date of his contract. It is the respondent’s case that the complainant’s conduct, “an antecedent breach of his contract” was the cause of his dismissal. If he had not acted in such a way, he may still be working for the respondent in Norway and Sweden. On this basis, due to his conduct, the respondent’s case is that his dismissal “must de facto be a fair dismissal.” The respondent’s submission refers to a text message sent by the complainant to the respondent’s managing director, MD, on August 19th 2018, six days after the submission of this complaint to the WRC. In the text message, the complainant wrote: “Hi (MD) l'm writing to you because you may not answer the phone. I wanted to talk to you about what happened between us a while ago and I wanted to say l'm sorry about it. I didn't expect your reaction and I became nervous. I talked to (owner of Norway Meats) today and he said that they can take me back anytime with your approval. You know me and know my work and I am really hoping you would give me a second chance. I am in a difficult situation. I assure you that if you approve I won't disappoint you. I am willing to put what happened behind me. If you approve I will ask for the case to be removed and I will be really grateful if you think about and agree. Once again my situation is very difficult and I really need this job. Thank you from (Complainant).” It is the respondent’s case that the complainant’s objective is to achieve employment in the factory in Norway and that these complaints are an effort to get MD to agree to this. The respondent’s submission says that this text message underlines the fact that the complainant intended to repudiate his contract when he approached the Norwegian company in June 2018. The respondent’s position is that these complaints are a “means to achieve a forced consent to work” in Norway. They argue that this amounts to using litigation to obtain a gain or contract that interferes with an existing commercial arrangement and as such, it amounts to “tortious interference in economic relations.” It was argued that these complaints are designed to harm the respondent so that MD will agree to do something that is not in his interest. |
Summary of Complainant’s Case:
In his evidence, the complainant said that his friend in Norway, BE, advised him to ask the owner of Norway Meats for a job. He said that he spoke to the owner, who agreed to employ him if MD approved. He described his meeting in MD’s car at which he told him that the owner of Norway Meats said that he would give him a job, if MD approved. When he was asked by his solicitor what he was planning to do if MD said “no,” the complainant said that he would “stay with him.” On June 11th 2018, when he was talking to him in his car, the complainant said that MD got angry and said, “you’re putting a knife in my back.” He said that MD didn’t give him a chance to explain his plans. MD’s response to his request for approval was, “you’ll never work for (Norway Meats).” June 11th 2018 was a Monday and MD told the complainant that he was to finish up on Friday. The complainant said that after their discussion in the car, he tried to contact MD twice by phone, but he didn’t answer. That weekend, as he was no longer employed by the respondent, the complainant had to move out of the accommodation arranged by the respondent for which rent was deducted from his wages. He had no money to pay for a flight home and he stayed in the home of a friend for two weeks, waiting for his wages to be transferred to his bank at the end of June. His final payslip which was submitted in evidence shows that, on June 29th 2018, he received €1,273 for two weeks’ wages in June and €153 as holiday pay. In cross-examining by Mr Rafter, the complainant said that about 20 minutes after his conversation with BE, who told him he was a good worker and recommended that he come and work for Norway Meats, he went to speak to the factory-owner. The factory-owner said, he would take him on if MD approved and that getting a job with Norway Meats “depends on (MD).” When he was asked if he understood why MD wouldn’t be happy if he went to work for Norway Meats, the complainant said that he didn’t get a chance to explain his intentions. He just said, “you will never work for (Norway Meats).” He then went back to work for his last four days. The complainant gave evidence at the hearing with regard to his employment since he was dismissed. He said that he took up a new job at the beginning of July 2018 and he worked there until the end of September. He worked in France for a month in October 2018. He was unemployed for two weeks and then he started work in the Netherlands in November 2018. In his current job, he earns around €27,000 per year. On his complaint form, the complainant indicated that his annual salary with the respondent was €50,000; however, the payslips that he produced in evidence show that after 24 weeks of employment in 2018, his cumulative earnings were €17,971, indicating an annual salary closer to €40,000. |
Findings and Conclusions:
The Legal Framework Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(b) of the Act provides that; “…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.” Was the Decision to Dismiss Reasonable and in Proportion to the Conduct? The complainant was not given a letter setting out the reason for his dismissal, but he clearly understands that his employment was terminated when he expressed an interest in taking up a job with Norway Meats. It is the respondent’s case that the complainant was dismissed because, 1. He sought to affect the contractual relationship between the respondent and the Norwegian company; 2. He repudiated his contract and declared that he no longer wanted to work for the respondent; 3. The effect of this was that his employer would have to look for someone to replace him; 4. The relationship between him and his employer was undermined. I will address each of these points in order: 1. The contractual relationship between the respondent’s employment agency and Norway Meats was a commercial one and I assume that it was based on an undertaking to supply operatives in return for the cost of labour plus fees. In a contract such as this, the client determines how many workers and what skills they require and the agency provides them. Agency workers are used to give a client the flexibility to increase and reduce their workforce to meet production needs. Details of the contract between Norway Meats and the respondent were not submitted in evidence, but it is unlikely to have been conditional on the retention of a named employee for a specific timeframe. We know that the complainant was sent home to Ireland from Norway on December 3rd 2017, when he was not required and that he was sent to Sweden on January 6th 2018. We also know that, at short notice, in June 2018, he was dispatched from Sweden to Norway. It is apparent therefore, that the respondent assigned the complainant to whatever factory needed his skills at a particular time and that, while he was one of a number of operatives, it is highly unlikely that he was an identified component of the contract between the respondent and Norway Meats. 2. The respondent claimed that the complainant repudiated his contract by declaring that he didn’t want to work for him any longer. The complainant said that he didn’t get a contract of employment; however, leaving this aside for a moment, his contractual obligations did not extend to that of an indentured labourer. As a free person, the complainant was entitled to leave his job. In any event, the complainant didn’t leave; he was dismissed. The notion that a person could be in breach of his contract of employment because he was thinking about leaving stretches the commitment expected of an employee beyond what could be asked of two people in any relationship. While perhaps disappointing for his employer, thinking about leaving is not a dismissible offence. 3. The respondent said that if he left, he would have to be replaced. I find no cause for dismissal in this argument. 4. Finally, the respondent’s submission states that, because the complainant considered working for Norway Meats, the relationship between them was undermined. While we heard no direct evidence from the respondent, I assume this means that he could no longer trust the complainant to carry out the work he was required to do and to go where he was assigned. The complainant’s evidence is that he was offered a job only on condition that MD approved and, “if he said no, I would stay with him.” The complainant said that he phoned MD twice after he was dismissed, to ask him to change his mind. At the hearing, the respondent submitted a copy of a text message from the complainant in which he apologised about what happened and said, “I’m really hoping you will give me a second chance.” This is hardly the sentiment of someone trying to undermine his employer and I find no substance in the respondent’s argument about the employment contract being undermined. Findings I find that, contrary to section 6(1) of the Unfair Dismissals Act (“the Act”), there were no grounds whatsoever, justifying the dismissal of the complainant. The respondent is also in breach of section 14 of the Act by failing to provide the complainant with a disciplinary procedure and by failing to inform him in writing of the reason why he was dismissed. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Following his dismissal, the complainant had to wait in Norway for two weeks until his final wages were transferred to his bank. To his credit, he started working again at the beginning of July and he has continued in employment, but he earns around €25,000 a year, compared to €40,000 that he earned with the respondent. As I have concluded that the complainant was dismissed unfairly, I decide, that as compensation, the respondent is to pay him €31,500. |
CA-00021115-002:
Complaint under the Minimum Notice and Terms of Employment Act 1973
Summary of Complainant’s Case:
The complainant said that he got four days’ notice of the termination of his employment. In accordance with the Minimum Notice and Terms of Employment Act, as he had completed more than 13 weeks and less than two years of service with the respondent, he was entitled to one week’s notice. |
Summary of Respondent’s Case:
The respondent’s evidence is that the complainant was dismissed for repudiation of his contract and he received four days’ notice. |
Findings and Conclusions:
Section 12 of the Minimum Notice and Terms of Employment Act 1973, as amended, provides that, (1) 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 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention. It is apparent in this case that the complainant is at a loss of one day’s pay, due to the fact that he received four days’ notice of the termination of his employment, rather than his entitlement to one week’s notice. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
As I have found that the complainant did not get his entitlement to a full week’s notice, I decide that the respondent is to pay the complainant €154, equivalent to an estimate of one day’s pay. |
CA-00021115-003:
Complaint under the Terms of Employment (Information) Act 1994
Summary of Complainant’s Case:
The complainant said that he did not receive a statement setting out the terms and conditions of his employment. |
Summary of Respondent’s Case:
In advance of the hearing of this complaint, the respondent submitted three documents with the titles, “Terms of Employment” to the WRC. These purport to be fixed-term contracts issued to the complainant in respect of his first, second and third assignment with the respondent from February 2017 until June 2018. The documents are not signed and the complainant said that the first time he saw them was when they were opened at the hearing of his complaint. The documents contain the following: Name and address of the employer and the complainant; The complainant’s employee number and PPS number; His commencement date; The duration of his contract; His place of work as “Norway” or “Linkoping Sweden;” Pay is stated to be “as per attached schedule,” but no schedule is attached; Pa intervals are stated to be monthly; Hours of work are stated to be “as per attached schedule,” but no schedule is attached; Paid leave is stated to be “as provided by the Organisation of Working Time Act 1997 or (as provided in any collective agreement listed below);” Incapacity for work / sick pay is stated to be “as provided in collective agreement listed below;” Notice is stated to be “as provided by the Minimum Notice Acts 1973 – 2005 or (as provided in any collective agreement below);” Referring to the collective agreement, the documents state as follows: “The statutes in the agreement between (name of the respondent) and Swedish Food Workers Union and its references to the collective bargaining agreement between the Staffing Workers Union organisation and the Swedish Food Workers Union.” A copy of the this collective agreement was not submitted at the hearing and the contracts for the complainant’s assignment in Norway both refer to the collective agreement with the Swedish Food Workers Union. The final line of the documents state as follows: “This employment is an Irish employment and all employees pay their tax and social insurance based on the rules applicable in Ireland for this employment. All employees are therefore protected by the provisions of Irish employment law, however, employees will also benefit from our obligations under any collective agreement listed above which is more favourable to the employee.” |
Findings and Conclusions:
I accept complainant’s evidence that he never received the “Terms of Employment” statements presented at the hearing by the respondent. The respondent produced no evidence that these documents were signed by the complainant in advance of the commencement of the fixed-term contracts or at any stage and I find the complainant’s evidence more credible than the respondent’s in respect of this matter. It is apparent that the respondent in this case ignored his legal responsibilities to this employee with regard to his entitlement to a written statement setting out his terms and conditions of employment. The effect this is to tarnish the employment relationship with uncertainty and to make it difficult for the employee to assert his rights during, and at the termination of his employment. This is precisely what the enactment of the Terms of Employment (Information) Act 1994 is intended to avoid. I find therefore, that, in respect of the complainant’s entitlement to receive a statement setting out his terms and conditions of employment, the respondent was in breach of section 3 of the Terms of Employment (Information) Act 1994. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
As I have concluded that the complaint under the Terms of Employment (Information) Act 1994 is upheld, I decide that the respondent is to pay the complainant compensation of €3,000, equivalent to my estimate of four weeks’ pay. |
For the avoidance of doubt, I have summarised below the awards made under each complaint heading.
CA-00021115-001: €31,500 Reason: Compensation for unfair dismissalCA-00021115-002: €154 Reason: Non-payment of one day’s pay in lieu of noticeCA-00021115-003: €3,000 Reason: Failure to issue a statement of terms of employmentTotal award: €34,654 |
Dated: 19/07/19
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Unfair dismissal, summary dismissal, non-payment of notice statement of terms and conditions of employment, |