ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026581
Parties:
| Complainant | Respondent |
Anonymised Parties | Cafe Supervisor | Café owner |
Representatives | Brendan Byrne UNITE Julia Marciniak UNITE | Did not attend |
Complaint(s):
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-00033819-001 | 15/01/2020 |
Date of Adjudication Hearing: 02/03/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
In addition to the foregoing, The Employment (Miscellaneous provisions) Act of 2019 amended the Terms of Employment Act 1994 so as to oblige Employer’s to provide a new Employee with a written Statement of certain core details concerning the employment within 5 working days of the employment commencing. The balance of Terms outlined in the 1994 Act have to be detailed within the two month period already specified.
This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms. The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms.
The complaint was made on the 15th of January 2020 and within six months of the last contravention of the Act – the last date of employment being the 30th of October 2019. The Complaint was therefore was brought within time and I have to hear same..
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
Background:
The Complainant worked as a Supervisor in a café run by the Respondent gentleman. The employment commenced in August 2015 until the business closed down in 2019. |
Summary of Complainant’s Case:
The Complainant gave evidence that she had never been provided with a Formal Statement of the Terms of her Contract of Employment. Not within the first two months of her employment, and not at any other point in her employment. The Complainant confirmed that she had repeatedly requested that her Employer provide her with a Contract of Employment to include the Terms specified under this Act. She never received anything. The Employment ended abruptly when the place of employment was closed down in October 2019. |
Summary of Respondent’s Case:
The Respondent did not attend. I am advised by the Complainant’s representative that the Respondent had made himself available at previous hearings involving co-workers of the Complainant. Based on this fact, I am satisfied that the Respondent is being communicated with at the correct address. In this regard, I note that the Respondent was written to by the Workplace Relations Commission on the 6th of February 2020 and was advised of the time and date of the hearing. He did not indicate he would or would not attend. |
Findings and Conclusions:
The Complainant’s evidence was not challenged. I have no reason not to accept the veracity of her account of the employment. I am satisfied that the Complainant was never provided with a Contract of Employment nor a Statement of the Terms of her Employment. The Complainant gave evidence that she earned €449.00 per week in her employment. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00033819-001 – I find the Complaint herein to be well founded and I direct a payment of compensation in the amount of €1,000.00 which I find is just and equitable in all the circumstances.
|
Dated: 18th September 2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
|