ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028660
Parties:
| Complainant | Respondent |
Parties | Wing Ann Ng | Great Dublin Capital Ltd. Cosmo |
Representatives | Self- represented | 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-00036047-001 | 07/05/2020 |
Date of Adjudication Hearing: 25/05/2021
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
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. On this date I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The complainant agreed to proceed in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
I gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
An interpreter attended the hearing with the complainant.
Background:
This is a complaint of an alleged breach of section 5 of the Terms of Employment (Information) Act, 1994 in that the respondent failed to notify the complainant in writing of a change in his conditions of employment. The complainant has worked with the respondent as a chef since 12/9/2016. He works 48 hours a week. He earns a monthly salary of €2,200 He submitted his complaint to the WRC on the 7 May 2020. |
Summary of Complainant’s Case:
Since the commencement of his employment in September 2016, the complaint had enjoyed free rent, living over the respondent’s restaurant. In May 2020, the respondent verbally informed the complainant that he was terminating this arrangement and that the complainant would have to pay a rent of €338 per month. If he was unwilling to do so, he would have to vacate the respondent’s premises by the end of May 2020. The complainant advised that he has a written contract of employment. It is devoid of any reference to rental arrangements. The agreement concerning the provision of free rent was a verbal agreement. The respondent failed to inform the complainant in writing of this change in his terms of employment. |
Summary of Respondent’s Case:
I verified that the respondent was on notice of the adjudication hearing. I waited some time to accommodate a late arrival, but no one joined the meeting on behalf of the respondent. Nor was any submission made on his behalf. |
Findings and Conclusions:
The complainant states that he has a written contract of employment and did not identify any deficiencies in the particulars which the employer is obliged to provide by virtue of section 3 of the Act of 1994 as amended. His submission was confined to an alleged breach of section 5 of the Act of 1994 as amended. The relevant provision, section 5, states “1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) 1 month after the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure”. In order to uncover a breach of section 5, I must identify which, if any, of the particulars set out in section 3 of the Act of 1994 were altered. The particulars of the terms of an employee’s employment set out in section 3 of the Act of 1994, and which an employer must furnish to an employee contain no reference to rent. This element of the terms of the employment of the complainant do not come within the ambit of Section 3 of the Act nor enjoy the protection of that section. Section 5 of the Act does not apply to a term of employment outside of the confines of section 3. Therefore, section 5 cannot be activated in the instant case. I explained the scope of section 5 to the complainant. The complaint is misconceived. I do not find this complaint to be well founded. |
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.
I do not find this complaint to be well founded. |
Dated: 11th August 2021
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Scope of section 5. |