ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021956
Parties:
| Complainant | Respondent |
Anonymised Parties | {A Radio Controller} | {A Cab Business} |
Representatives |
| Lisa Weatherstone |
Complaints:
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-00028736-005 | 29/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00028736-006 | 29/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00028737-005 | 29/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00028737-006 | 29/05/2019 |
Date of Adjudication Hearing: 23/10/2019
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint
Background:
The Complainant is employed with the Respondent since 1st February 2006, and she works twenty hours per week. |
Summary of Complainant’s Case:
CA-00028736-005 The Complainant never received a statement of her terms and conditions in writing. When she asks for her contract, her employer is trying to change her role. He is asking her to clean the office which was never part of her duties. CA-00028736-006 The Complainant’s employer is moving the base from his location to another company. He is trying to change her shift from nights to days. She has not been given any written notice of these changes to her terms and conditions, nor has there been any negotiation. She says she was treated differently as a result of her refusal to relocate for this reason. She was never given any notification in writing. She was asked to produce a fit for work certificate in August 2018, this was not needed previously. She was sent home from work and only paid for the hours worked. She has been on sick-leave since July 2018. CA-00028737-005 & CA-00028737-006 |
Summary of Respondent’s Case:
CA-00028736-005 & CA-00028736-006, CA-00028737-005 & CA-00028737-006 The Respondent is a taxi business. The Complainant is employed for 20 hours per week as a Radio Controller. In March 2018 the owner notified staff there was potential for the Respondent to merge with another company which would involve relocation of the Complainant to another office. This was to ensure the future employment of all staff and keep the Respondent open. The Complainant appeared initially to be in agreement but later backtracked and took issue with the move and change of working hours. The merger did not occur and the Complainant remains on her original hours at her place of work. The Complainant has been on sick-leave from 16th July 2018 to 27th August 2018. She has not attended work since 7th December 2018. The Respondent accepts that the Complainant did not receive a contract of employment and says she was not prejudiced by this. She never requested a contract of employment. The Respondent submits that the Complainant must demonstrate how she suffered prejudice as a result of not receiving a statement of her terms and conditions and relies on Udalous v South Eastern Vegetable Producers Ltd TE224/2012 approving Archbold v CMC (Ireland ) Ltd which held that awards under this Act are in the nature of compensation, and the Tribunal could determine what payment was just and equitable in the circumstances. The breach is technical in nature and should not attract a monetary award as in the Labour Court decisions in Philmic Ltd t/a Premier Linen Services v Petrailis (TED1616). |
Findings and Conclusions:
I have read and considered the written and oral submissions of the parties. CA-00028736-005 The Complainant claims her employer has breached S3 and S5 of the Terms of Employment (Information) Act 1994. The breach of S3 of the Act is accepted by the Respondent. No attempt was made to address this until July 2019. I accept the Complainant’s evidence that this has caused her concern due to a lack of clarity on her role. The breach continued for a lengthy period. I do not accept the breach is technical in nature and I am mindful of the decision of the Labour Court in Beechfield Private Homecare Ltd v M Hayes-Kelly DWT1919. In relation to CA-00028736-005 I find this complaint is well founded. It is just and equitable that I award four weeks wages of €720.00 euro compensation to the Complainant to be paid by the Respondent for the failure to provide written statement of terms of employment. CA-00028736-006 This complaint was made outside the statutory complaint period of six months, but within 12 months when the Complainant was on sick-leave and I find there is reasonable cause to extend time for the complaint to proceed. The Respondent proposed moving the business in March 2018 and this was announced to staff. I accept this caused uncertainty for the Complainant, particularly as she was not notified in writing of the proposed changes. The move would change her hours and would require working three nights. In addition, the Respondent sought a fitness for work certificate from the Complainant which was a change and caused nine hours of financial loss. However ultimately, the proposed move did not proceed, and the business continues to trade from its place of work. The shifts and hours of the Complainant remain the same. The Complainant has now been furnished with a written statement of her terms and conditions. In the circumstances, I find the complaint is well founded and direct payment of nine hours of financial loss of €81 by the Respondent to the Complainant. CA-00028737-005 This complaint is identical to CA-00028736-005 and is a duplication. The decision has already been made in CA-00028736-005, accordingly I find the complaint is not well founded. & CA-00028737-006 This complaint is identical to CA-00028736-006 and is a duplication. The decision has already been made in CA-00028736-006, accordingly I find the complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
In relation to CA-00028736-005, I find this complaint is well founded. It is just and equitable that I award four weeks wages of €720.00 euro compensation to the Complainant to be paid by the Respondent for the failure to provide written statement of terms of employment. CA-00028736-006 I find the complaint is well founded and direct payment of nine hours of financial loss of €81 by the Respondent to the Complainant. CA-00028737-005 This complaint is not well founded. & CA-00028737-006 This complaint is not well founded. |
Dated: July 23rd 2020
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
Failure to provide written terms of employment, technical breach not found, length of non-compliance relevant to quantum of award. |