Complainant

Respondent

Anonymised Parties

Manager

Construction Company

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-00029316-001

26/06/2019

The claimant was employed as a manager with the respondent company from the 1st.March 2017 to the 7th.March 2019. In his complaint form the claimant alleged that he did not receive a statement in writing on his terms of employment and he stated, “I was not furnished with a statement of employment or Contract of Employment by my employer”.

In his direct evidence the claimant stated that it was into mid-May of 2017 before he got a statement and that he refused to sign it as it required him to work for 62 hours per week and he asserted that it was silent on holidays and bank holidays. He said that he made his dissatisfaction known to the manager Mr A and amended the document to reflect what he understood to have been agreed between him and Mr A. The claimant said that his method of payment changed from an annual salary to an hourly rate in January 2019. He had a brief discussion with Mr A about the hourly rate but did not know what he was getting until he got it in writing. He was told on Friday he was being moved to the hourly rate and was paid the hourly rate the following Friday. The claimant said that he advised Mr A what was incorrect in the contract – no name, no commencement date and was unclear about the hours to be worked. The claimant asserted that the respondent had failed to furnish him with the document within the 2 months required under the Act. Under cross examination the claimant said that he amended the document and gave it back to Mr A with amendments. The claimant said he got the contract towards the end of May and he asserted that he definitely did not receive it in mid-April. He said that he had the odd day off and usually worked 55 hours per week – he worked 47.5 hours during the last week of his employment. The claimant said he had a very good relationship with Mr A. When he commenced employment, he was in receipt of €694.63 per week and his finishing salary was €578.12 per week.

The respondent company contended that the claimant was furnished with a contract of employment for review on the 18th.April 2017 - within the required 2 months of commencement. The respondent denied the claimant’s assertions that an alternative agreement had been made between the parties. It was submitted that the claimant worked according to the contract and there was no variation between what happened in practise and the terms of the contract.

Mr B witness for the respondent stated that he did not have a copy of the contract he signed but was adamant that he received it within the first week of starting.

Mr A– witness for the respondent company said that he furnished the contract to the claimant the same day as Mr. B and so he was definite that it was in April 2017. He said that he was unhappy with the changes the claimant had made. He confirmed he altered the claimant’s salary to an hourly rate. Mr A confirmed that he had a verbal agreement on hours with the claimant on a 45-hour week. He stated that new staff got contracts from HR and that the contracts could change depending on the client they were working for.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. I note that the claimant initially asserted that he was never furnished with written terms and that this was inconsistent with his direct evidence where he conceded he was furnished with a draft contract which he amended. While I acknowledge that there was also contradictory evidence advanced by the respondent’s witness Mr. A who accepted that there was a verbal agreement on hours, contradicting the submissions of his representative, I am taking into account the evidence of Mr. B and find on the balance of probabilities that the document was furnished within the 2-month time limit specified in the Act.

I accept the claimant’s representatives contention that the document failed to comply in its entirety with Section 3 – for example the failure to include the name and address of the respondent and the employee and the date of commencement. Accordingly, I am upholding the complaint of a breach of Section 3. I require the respondent to pay the claimant €578.12 for this breach of the Act.

Additionally, I have concluded that no compelling evidence was advanced to indicate that the company complied with the provisions of Section 5 when the claimant was changed from a salary arrangement to an hourly rate and consequently, I am upholding this element of the complaint. I require the respondent to pay the claimant €578.12 for this breach of the Act.