ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00024060

Parties:

Complaint(s):

Date of Adjudication Hearing: 29/11/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following 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:

This Complaint referred to the non-provision of a written statement of his terms and conditions of employment by the Respondent which led to difficulties in the Complainant seeking proper payment of his wages and in other employment matters. The Respondent did not attend the hearing.

I am satisfied the Respondent was properly notified by the WRC of the date and time for the hearing.

Summary of Complainant’s Case:

The Complainant, a Polish National, was employed as a Machine Operator on 3rd January 2015. He was initially working on a construction site in Dublin and his work changed to Galway. He was subsequently laid off for a month in April 2018 on the basis there was no work available, and after a return to work in May 2018 he was again laid off at the end of July 2019. The Complainant sought information on his situation from the Respondent but to no avail and submitted a RP9 but this was not responded to.

The Complainant submitted that he never received written notification of his terms of employment despite seeking this from the Respondent. He maintained this left him in a vulnerable situation where he could not establish a proper rate of pay that he should have received, and where he maintained that as a consequence he had worked hours he was not paid for.

He submitted some pay slips which indicated in general he was paid €734 per week, however this did not reflect his overtime. He maintained his wages were €18.29per hour for an average 45 hour working week. The failure to be provided with a written contract of his terms and conditions of employment had impacted on his ability to assert his rights and entitlements.

Summary of Respondent’s Case:

The Respondent did not attend the hearing or make a submission in response to the complaint.

Findings and Conclusions:

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.      

Based on the evidence provided I am satisfied that the Respondent has not met its obligations under section 3 of the Act in that it had not provided a detailed statement of the terms and conditions of employment to the Complainant on his appointment.

I find that the Complainant as a Polish National was particularly disadvantaged as a consequence of the failure of the Respondent to provide him with a written statement of his conditions of employment. The absence of this notice contributed to difficulties the Complainant experienced in subsequently asserting his rights. I find this breach to have been particularly injurious and distressing for the Complainant who was clearly frustrated with how he felt the Respondent had treated him.

Based on the evidence provided I am satisfied that the Respondent has failed to meet its obligations under sections 3 and 5 of the Terms of Employment (Information) Act, 1994.

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.

In accordance with Section 7 of the Act I find that the complaint is well founded and that the Respondent has failed to provide the Complainant with a written statement of his terms and conditions of employment. I find it totally unacceptable that an employer should treat an employee in this manner, and where the employee as a foreign national is more likely to be disadvantaged under such circumstances. I also find it disappointing and gratuitous for an employer to ignore legislation which has been in existence for twenty-five years. I can only conclude that the Respondent chose to ignore its statutory obligations for the sole purpose to take advantage of the employee in question.

I therefore order the Respondent to pay to the Complainant compensation of four weeks earnings at €734 per week amounting to €2,936.

Dated:   18th September 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: