Complainant

Respondent

Anonymised Parties

A Bar Man

A Pub Business

Representatives

David Cowhey , Solicitor

David Gaffney, Solicitor

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-00022949-001

31/10/2018

This case around the provision of a statement of terms of employment. Consensus prevailed amongst the parties on the omission to present same within the statutory time limit.

The Complainant commenced work as a Bar man with the Respondent business on September 1. 2011. He worked a 16-hour week in return for €160.00 gross pay. His Solicitor submitted that the complainant had never been presented with a written statement of his terms and conditions. He maintained that no such document existed. The Complainant is presently on sick leave since October 2017.

The Complainant submitted that he had received a draft terms of employment document, which was not acceptable.

At the hearing, the Respondent confirmed that complainant had not been provided with a written statement of terms of employment within the statutory period. The Complainant was then presented with a 27-component document by the Respondent and undertook to engage in discussions with the Respondent on the document going forward.

The Complainant submitted that the omission to provide the statutory document on terms of employment had disadvantaged the complainant as no tangible foundation to his employment was in being , this in turn declared him vulnerable in security of employment.

The Respondent operates a Pub Business and fully accepted that the statement of terms of employment had not been provided within the statutory time frame. The Respondent pro-offered a document titled Terms and Conditions of Employment at hearing and undertook to engage with the complainant on a going forward basis on this.

The Respondent submitted that the Respondent ought not be fixed with maximum compensation in the case as the complainant had not suffered a detriment. In addition, a recent WRC Inspection had not yielded a negative result.

I have considered both parties stated positions in the case. While the introduction of the extensive document on terms of employment was submitted at hearing, this was radically outside the statutory time frame of November 2011.I accept that the Respondent has not submitted it to address this timeframe but rather on a going forward basis and I urge the parties to conclude these discussions promptly.

Section 3 of the Terms of Employment (Information) Act 1994 sets out a prescriptive listing of what ought to be incorporated in a statement of terms of employment within the early days of employment. I accept the Complainants submission that this continuous omission of a foundation document of employment raised an enduring uncertainty in his employment. That is not what the Legislature intended as it embraced the wording of the Council Directive No. 91/533/EEC of 14 October 1991.

On that basis, while I have heard the Respondent submissions, I have established a continuous breach of Section 3 of the Act. I find  the claim to be 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 make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the claim well founded and I order the Respondent to pay the complainant 4 weeks wages, €640.00 in compensation for the continuous breach of Section 3 of the Act.

Provision of Statement of Terms of Employment