TED205

1.Appeal of Adjudication Officer Decision No. ADJ-00012560,CA-00016396-003

BACKGROUND:

2.Both the employer and the employee appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(1) of the Terms of Employment (Information) Act 1994 to 2014. A Labour Court hearing took place on 1st September 2020.

The following is the Determination of the Court:

DETERMINATION:

This is a joint appeal against Decision number ADJ-00012560,CA-00016396-003 of an Adjudication Officer in a complaint by Mr Cristian Balasa against his former employer Hydraulic Hose Services Limited t/a Pirtek. The complaint relates to alleged contraventions of the Terms of Employment (Information) Act 1994 - 2014, (the Act) when he was not provided with a written statement of his terms and conditions of employment in contravention of the Act. The Adjudication Officer, in a Decision dated 5th September 2019, found the complaint to be well founded and directed that the Respondent pay the Complainant compensation of €1,200.00.

The parties are referred to in this Determination as they were at first instance. Hence, Mr Cristian Balasa is referred to as “the Complainant” and Hydraulic Hose Services Limited t/a Pirtek is referred to as “the Respondent”.

The Respondent appealed the Adjudication Officer’s Decision on 16^thOctober 2019. The Complainant appealed the Decision on 27^thSeptember 2019.

Background

The Complainant’s employment commenced with the Respondent in October 2007 as a Mobile Service Sales Technician, he ceased his employment on 31^stAugust 2017.He was paid €30,000 per annum plus a commission payment in the event he his sales exceed €10,000 in a calendar month. Commission is paid at a rate of 8% on sales above €10,000.

Position of the Parties and Evidence Tendered

The Complainant gave evidence to the Court. He claimed that he never received a statement of his terms and conditions of employment as specified in Section 3 of the Act. Mr Ken Robinson, Managing Director, gave evidence on behalf of the Respondent. He produced a statement of the Complainant’s terms and conditions of employment dated 4^thApril 2017 which he said was sent to the Complainant on 25^thApril 2017 at his last known address, however, a signed copy was never returned by him. A reminder letter was sent to him on 12^thMay 2017, no reply was received. The Respondent stated that the Complainant did not inform it of his change of address in 2017 and he was on unauthorised leave from January 2017 until 31^stAugust 2017.

The Complainant stated that he never received this contract, and while he changed address in June 2016, he claimed that the Managing Director knew his address and had called to the Complainant’s home on numerous occasions. He contended that the alleged April 2017 contract referred to was only issued when the parties were already in conflict. The Complainant accepted that he did not notify the Respondent when he changed his address.

The Complainant provided the Court with a letter of appointment dated 1st July 2007, which outlined the main terms and conditions of the Complainant’s employment. This was issued by Gawaru Hydraulics Limited t/a Pirtek Services. Mr Ken Robertson told the Court that he took over Gawaru Hydraulics Limited t/a Pirtek Services in 2007. He said that all employees’ terms and conditions of employment were preserved in accordance with the European Communities (Protection of Employee on Transfer of Undertakings) Regulations 2003.

Conclusions of the Court

Having examined the letter of appointment supplied to the Court, the Court is satisfied that it complies with the written statement of terms of employment required by section 3 of the Act.Furthermore, the Court is satisfied that the contract of employment issued on 25^thApril 2017 complies with the requirements of section 5 of the Act, notifying him of any updated changes to his employment as a result of changes to statutory employment rights. The Court notes that for the duration of the Complainant’s employment with the Respondent, three different addresses were supplied to the Court for him. It is clear from the evidence given by the Complainant that he did not notify his employer of the changes made to his address.

Determination

On the basis of the findings set out above, the Court finds the Respondent was not in breach of the Act, therefore the Respondent’s appeal succeeds, and the Adjudication Officer’s Decision is overturned.

The Court so Determines

	Signed on behalf of the Labour Court
	Caroline Jenkinson
H.M.	______________________
18/09/2020	Deputy Chairman