TED202

Background

The Complainant was employed by the Respondent as a Counter Assistant from 29^thJune 2017 until his resignation on the 15^thFebruary 2018. The Complainant lodged a number of claims under various pieces of legislation with the Workplace Relations Commissions (WRC) on the 21st May 2018. The Adjudication Officer issues the decisions on the 15^thFebruary 2019. The Complainant appealed the decision to the Labour Court on the 7^thMarch 2019. On receipt of submissions from both parties the court convened a case management hearing on the 20^thJune 2019. Both parties were represented at the hearing and agreed to make further submissions to the Court on specific issue. Following the case management, the Respondent representatives advised the Court that they were coming off record and that all correspondence should go directly to the Respondent.

A date was set for the full hearing of the case. In advance of the hearing date the Respondent advised that they would not be attending the hearing as the company had ceased trading on the 20^thMay 2018. The Respondent could offer no explanation as to why this had not been brought to the Court’s attention at the case management hearing which they attended with their legal representative. The Respondent on the 30^thSeptember 2019 submitted an unsigned copy of abridged Financial statements for the year ended 31^stOctober 2018 showing accumulated losses and advising that the Respondent was insolvent. The Complainant was provided with a copy of the correspondence received from the Respondent. In response the Complainant informed the Court that they had driven past the Respondent’s premises and it was still operating. The Complainant also submitted a copy of an extract from the Companies Registration Office which did not record the company as having ceased trading. The scheduled hearing took place on the 11^thDecember 2019 and the Respondent did not attend

Complainant’s case

It is the Complainant’s case that the Respondent did not provide him with written term and conditions of employment during his term of employment. In his evidence to the Court the Complainant stated that the document contained in appendix two of the Respondent’s submission was never given to him. It was his evidence that he first became aware of that particular document when the Respondent submitted it as part of the Adjudication Officer hearing at first instance. It was his evidence that he was never given that copy or any copy of his terms and conditions of employment and that the document that the Respondent was relying on was created after he had left. The Complainant submitted to the Court a copy of a letter from the Office of the Revenue Commissioners advising that the Revenue Commissioners were notified on the 26^thJune 2018, four months after he had left, and at a time when the Company had allegedly ceased trading to commence and cease employment for the Complainant with the Respondent’s company for the period 25^thJune 2017 to the 15^thFebruary 2018.

It is the Complainant’s submission that the breach of the Act by the Respondent in failing to provide him with his terms and conditions of employment was a serious breach and the compensation awarded should reflect the seriousness of the breach.

Respondent’s case

While the Respondent did not attend the Court hearing they did make a submission. In their written submission the Respondent relied on a document titled Written Statement of Terms of Employment which contained what appears to be the signature of the Respondent and a date of 29th June 2017.

Discussion.

The Court have considered the evidence of the Complainant and the submission of the Respondent notes that because the Respondent did not attend the hearing it was unable to establish the provenance of the document they sought to rely on or the fact that it had been given to the Complainant. The Court hadviva volceevidence form the Complainant that he did not receive the document. The Court determines that on the balance of probabilities the Complainant was not given a copy of his terms and conditions of employment and therefore, his appeal must succeed. The Court determines that the appropriate award is four weeks salary being €420 X 4 weeks giving a total of €1680.

Determination

The Court Determines that the appeal succeeds and determines that compensation equal to four weeks salary being a sum of €1680 should be paid. The Decision of the Adjudication Officer is varied accordingly.

The Court so Determines.

Signed on behalf of the Labour Court



Louise O'Donnell
TH______________________
7 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.