Complainant

Respondent

Anonymised Parties

A Kitchen Porter

A restaurant

Act

Complaint 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-00021268-001

22/08/2018

This is a claim in respect of a written statement of terms of employment, where he complainant is a Polish National. The Respondent named on the complaint form did not correspond to the name listed on the written statement of terms of employment presented at the hearing by the Respondent. I wrote to the Respondent seeking clarification of the legal title immediately post hearing. The Respondent confirmed the correct legal title and I have amended this on consent. This communication has been copied to the complainants Union.

A Preliminary issue arose at the outset of the case where the complainant was not present at hearing. The Complainants nominated representative explained that he was not resident in Poland and was not available for the hearing. He sought to proceed.

The Respondent Solicitor was present at hearing in the company of both proprietors of the business. He registered his disquiet at this development as the case required to be led by best evidence, which would be impossible in the complainant’s absence. He would not be able to test evidence by cross examination. His clients were disadvantaged by the complainant’s failure to appear.

For my part, I noted that the complainant had not sought a postponement or adjournment prior to the hearing. I decided to hear from the parties and to reflect on what I heard. The case proceeded on that basis.

The Complainant was represented by his Union in his absence. A written submission was read into the record. The Union outlined the case that the complainant had been hired by the Respondent as a kitchen Porter and worked from 5 December 2017 to 23 January 2018. He worked a 35-hour week for a gross pay of €334.25 per week.

The Union submitted that the complainant had experienced a negative interaction with a named boss. She shouted at him, which he sought to address, unsuccessfully.

The Union submitted that the complainant was not provided with a written statement of his terms of employment in accordance with Section 3 of the Act. The Complainant had found the working environment to be untenable and left in March 2019.

The Union opened a claim for compensation addressed to the Respondent dated 5 June 2018. He sought an apology from the respondent and compensation for the lack of a written contract. This was rejected by the Respondent.

On 17 September 2018, the Respondent Solicitor wrote to the WRC suggesting that a Terms of Employment had in fact issued to the complainant. The Union did not accept the veracity of this statement as the document did not record the complainant’s signature. The Union argued that as a Foreign worker, the complainant had no knowledge of how to raise his concerns, the complainant wishes to receive an apology and an award of compensation.

The Complainant had not submitted any pay slips or details of P45 or P60.

The Respondent is an established Restaurant business. The Complainant worked there from 4 December 2017 to 21 March 2018 the Respondents Solicitor submitted that the claim was unfounded as the complainant had been provided with a written statement of terms of employment on 14 January 2018. This was the habitual practice of the Respondent who usually waited several weeks post commencement of employment to assess suitability, but always issued the statement during the statutory time limits referred to in Section 3 of the Act. The Respondent took issue with the complainant’s recollection of his negative experiences at work, calling these recollections “delusional “

The owner of the business gave evidence that he had been in business for over 20 years. He outlined that the complainant had joined his employment and was assigned to the wash up area. He outlined that after 3-4 weeks it was his standard practice to issue a pre-prepared written statement of terms of employment providing “things worked out “

Wages were paid on a Sunday evening and he recalled handing the complainant the written statement presented at hearing when he presented for work. He told him to read through it. A WRC Inspectorate vested the premises unannounced at 8 pm that evening and all staff were interviewed, including the complainant.

No issues were raised by the complainant or the WRC Inspectorate on the topic of a written statement of employment.

The Respondent confirmed that the complainant was provided with the obligatory written statement within the statutory time limit. He had not secured a record of the complainant receiving this document.

During cross examination, the respondent confirmed that the complainant had been paid in cash with pay slips. In seeking to establish whether the Respondent was aware of the complainant’s grievance, he rejected that the complainant had not complained about his treatment. He confirmed that no issues had been raised in relation to the statement.

I have considered this claim. I have read the Union submission and considered both oral presentations of the representatives of the parties in addition to the direct evidence given by the Respondent. I have also analysed the written statement presented at hearing and checked against the corresponding sections of the Act prior to March 4, 2019 when Section 3 was amended.

I have amended the legal title of the Respondent on consent. There is a slight discrepancy with both parties’ recollections of the start and finish dates of employment.

This claim was presented to the WRC on 22 August 2018. A period of mediation followed, and the parties were invited to adjudication on May 15, 2019. I am not happy that the complainant chose not to attend the hearing. His attendance was required to facilitate taking of evidence and participation in cross examination. This was particularly relevant in this case given the disputed facts presented. I would like to have seen more ownership by the complainant of his complaint. This is no criticism of the Union, who prepared well for the case, albeit attended alone.

I found that the Respondent was very credible in his evidence of providing the written statement to the complainant within the statutory time limits. I appreciate that he was overwhelmed by the unannounced workplace inspections, but he assured the hearing that he had not been found to have a case to answer here. The Respondent referred to the statement being presented on a Sunday. The date referred to in submissions was January 14, 2018. These dates coincided.

I have found the document presented at hearing to be compliant with the obligations placed on the respondent in accordance with Section 3 of the Act. It is not a statutory requirement for the complainant to place his signature on the document. It would, of course amount to best practice if the Respondent had recorded a signature for receipt of the document.

In the absence of the complainant, I have made my findings based on the information presented at hearing. I am satisfied that the complainant was given every opportunity to attend the hearing in his own case and chose not to attend.

I have, therefore accepted Respondent evidence and cannot establish a breach of Section 3 of the Act. The question of poor staff relations is outside the scope of this legislation.

I have found the claim to be not well founded.

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.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in relation to the Complainant in accordance with Section 3 of the Act.

I have not established that the Respondent has contravened Section 3 of the Act. The claim is not well founded.

Statement of Terms of Employment