ADJ-00020216

Complainant

Respondent

Anonymised Parties

A Social Care Assistant

A Community Program Provider

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-00026719-002

01/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00026719-003

01/03/2019

The complainant submitted complaints on the 1^st of March 2019 under section 7 of the Terms of Employment (Information) Act, 1994 and section 13 of the Industrial Relations Act, 1969.   The complainant submits that he did not receive any contract or statement of his terms of employment he has also submitted a claim in respect of bullying and harassment procedures.   I proceeded to a hearing of these matters on the 23^rd of May 2019.   The respondent was not in attendance at the hearing.   Following the hearing I received notification that the respondent had sought a last-minute adjournment of the matter and this adjournment request was refused.

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

CA-00026719-002

01/03/2019

The complainant submits that he did not receive a contract or statement of his terms of employment.

The respondent was not in attendance at the hearing.

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

Section 3 of the Terms of Employment (Information) Act, 1994 states:

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, ……

Section 5 of the Terms of Employment (Information) act, 1994 obliges the employer to notify the employee of changes to a term or condition within 1 month and states:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

 (a) 1 month after the change takes effect, or  

The complainant advised the hearing that he commenced employment with the respondent on the 28^th of September 2017.   He told the hearing that he received a letter of appointment which stated that he would receive a contract once he agreed a start date.  The complainant provided a copy of the letter of appointment to the hearing.  The complainant told the hearing that he had never received a contract or statement of his terms of employment from the respondent.  The complainant told the hearing that he had no contract or statement of his terms and conditions of employment and added that the respondent had on a number of occasions changed his hours of work and his work location without discussion.  The complainant stated that he had requested a contract but never received one.

I am satisfied from the totality of the evidence adduced and based on the balance of probabilities that the complainant was not provided with a contract or statement of his terms of employment.   Accordingly, I am satisfied that the failure of the respondent to provide any such information in writing amounts to a breach of the Terms of Employment (Information) Act and I order that the Respondent pay the Complainant compensation of €1,000.

I find that the respondent has breached the Terms of Employment (Information) Act and I order that the Respondent pay the Complainant compensation of €1,000.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00026719-003

01/03/2019

The complainant submits that he was bullied and harassed by his manager Ms. N.

The respondent was not in attendance at the hearing.

The complainant advised the hearing that he commenced employment as a social care assistant with the respondent on the 28th of September 2017.  He stated that the respondent provides care for young adults in the 17 to 21 age group with complex needs whom on exiting care are not equipped to make a sustainable transition into adult living.   He stated that the respondent provides community-based aftercare to prepare them for independent living.  The complainant stated that this can take the form of one or more social care workers working with a client in a living situation in accommodation provided by the respondent.  The complainant advised the hearing that the clients involved very often suffered from severe complex psychological issues and sometimes require around the clock assistance and care in a two to one ratio with social care workers.

The complainant advised the hearing that he had made a complaint about a colleague Ms. N following an incident involving a client D to whom they were providing assistance/care and who had sought to be driven home from the assisted accommodation during Storm Ophelia.  The complainant stated that Ms. N had talked the client into going home and encouraged him to go home on that day but that the complainant had refused to drive D home as road conditions were too dangerous due to the storm.  The complainant told the hearing that he had subsequently made a complaint about Ms. N s behaviour the next day and that she was removed from working in that house as a result.

The complainant told the hearing that Ms. N had later been promoted to manager and while in that position she had continuously checked up on the complainant making enquiries as to whether he started work on time and regarding his finishing times.  The complainant stated that he had also been told by others that Ms. N was trying to sack him.

The complainant told the hearing that he had made a complaint about Ms. N in October 2018.  The complainant stated that following this complaint he was called to a meeting with Mr. M on the 8th of November 2018.  The complainant stated that he had later received a copy of the minutes of this meeting and he submits that the minutes do not reflect what had happened at the meeting.  The complainant stated that he complained about the minutes and the record of the meeting and that another meeting was convened with Mr. M.  The complainant stated that he had at this meeting requested a copy of the minutes and was told they would be provided at the end of the meeting once typed up.  The complainant stated that he then asked if he could have the handwritten minutes or if he could take a photograph of the handwritten minutes, but this was refused, and he was told he would receive the typed version once completed.   The complainant stated that Mr. M had told him at this meeting that he was being aggressive and that he did not like the complainant’s attitude.  The complainant stated that following this he would not talk to Mr. M or meet with him anymore as he wanted instead to deal with Mr. B.  He stated that he sent a text to Mr. B which was ignored.  The complainant went on to state that following this he made several complaints to the respondent regarding living conditions in accommodation provided by the respondent for clients while in the care of the complainant.  The complainant stated that he also made complaints regarding pay issues and delays by the respondent in paying him and other staff.  The complainant stated that he was suspended from work with pay from 1^st of February 2019 following an allegation that he had used abusive language to a service manager which was aimed at the management team and also due to an email he sent to all employees on the 31^st of January which the respondent stated was inappropriate and that issues therein should have been addressed directly with the complainants  line manager or with the company director.

The complainant told the hearing that he was called to an investigation meeting on the 21^st of February 2019 and that no outcome of this meeting has issued.  The complainant states that he remains employed by the respondent and is still on paid suspension and that the investigation process has not concluded.  The complainant stated that he is being paid but that his pay has been late and delayed on many occasions but that he received his latest pay a week prior to the hearing. 

The complainant states that he has contacted the respondent enquiring about the current position and whether a decision has been made regarding whether he can go back to work but that he has received no reply.  The complainant stated that he has not heard anything since the investigation meeting but that he is still suspended with pay.

Having regard to all of the circumstances and the evidence adduced at the hearing I note that the first investigation meeting was held on 1st of March 2018 and it appears that matters have not progressed since that date.   Accordingly, having given the issue a great deal of consideration, I recommend that the respondent engage with the complainant with a view to progressing the investigation/disciplinary process and bring the matter to a conclusion as soon as possible in order that the complainant can gain some clarity/certainty about his future employment with the respondent.       

Accordingly, I recommend that the respondent engage with the complainant without delay with a view to progressing the investigation/disciplinary process to bring the matter to a conclusion as soon as possible in order that the complainant can gain some clarity/certainty about his future employment with the respondent.