ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026246
Parties:
| Complainant | Respondent |
Anonymised Parties | Security Guard | Security Service provider |
Representatives | none | Ruth Heenan IBEC |
Complaint:
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-00033176-001 | 17/12/2019 |
Date of Adjudication Hearing: 10/12/2020
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 employee’s employment with the employer) 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 2018 (s.7) amended Section 3 of 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 (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide core details after one month of continuous service can lead to an award of four weeks remuneration.
The balance of Terms outlined in the 1994 Act have to be detailed within the two-month period already specified.
The complaint was made on the 17th of December 2019 so the relevant reference period for contravention of the Act is six months before that date. The Complainant herein is still an Employee with the Employer.
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:
This is a singular complaint. I understand that there may well be other issues between the parties but that these have gone to mediation. |
Summary of Complainant’s Case:
The complainant gave evidence with the assistance of a very able translator. The Complainant believed that his terms and conditions of employment were not preserved from his previous employment and his position had become more precarious as a result. |
Summary of Respondent’s Case:
The Respondent was represented by IBEC and I was provided with a submission in the course of the hearing which had already been forwarded to the Applicant. The Respondent says it has tried to facilitate the Complainant. |
Findings and Conclusions:
I have carefully listened to the evidence adduced in this matter. This is a nett issue concerning the receipt or otherwise of the terms and conditions of employment. There are clearly other issues as between the parties, but my jurisdiction is limited to the alleged contravention of the Terms of Employment (Information) Act, 1994. The Complainant works as a security guard and has been rolled over in this position by way of Transfer of Undertaking twice since he started this work in 2011. The last Transfer was the takeover by the Respondent in March of 2017. I was provided with the information package that was circulated to all employees at the time of the Transfer and I heard the evidence of the HR Manager CM (assisted by the branch Manager) concerning the approach taken by the Respondent company. She was clear that unless otherwise asked or stated each employee’s Contract of Employment was preserved and the terms and conditions remained the exact same. The policy was not to re-issue new Contracts of Employment (in the name of the new Respondent) to each of the Employees as this tended to unnerve the workforce (in this instance up to 300 persons being absorbed into the Respondent company). I was told that there was an old Contract of Employment – going back to the first employment on file. I would be concerned that there was no evidence of any attempt made to ensure that the Plaintiff understood the content of the package and the general approach. It seems that, unless specifically asked, no translation service is provided. The Complainant gave evidence of what his expectations were if the terms and conditions were indeed being preserved. It seems over time there was a divergence in, for example, the number of hours the Complainant could expect to be rostered for in a given week. The Respondent advised that over a two-week period the Complainant was being given the expected number of hours. There are clearly issues between the parties. Over the course of his employment (from 2011) it seems possible that the Complainant’s contractual terms had modified to meet organic day-to-day requirements and that this might have been arrangements agreed at a local level (with line Managers). Therefore, the terms and conditions set out in the early Contract of employment may no longer exactly represent what he was doing from week to week. I understand that in December of 2019 the HR rep travelled to Cork to meet with the Complainant who might have been out on sick leave at that time. The issue of the Complainant’s historic expectation was being discussed, and the Complainant advised that he wanted sight of his Terms and conditions of Employment as is his right. The HR Manager gave evidence that she immediately put in train the preparation and printing up of an up to date Contract of Employment with the Respondent Employer which would, of necessity, contain all the terms and conditions required under Terms of Employment (Information) Act, 1994. This was sent to the Complainant on the 19th of December (in compliance with the Act) but not before the Complainant had issued this Complaint on the 17th of December. I am satisfied that the Respondent, when asked specifically by the Complainant to provide him with a written statement of his terms and conditions of employment, received one. I note that this was some two and a half years after the Transfer of Undertaking and after a period of disruption for the Complainant who clearly felt his customary terms and conditions were not being acknowledged. This has given rise to some distress on the part of the Complainant |
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-00033176-001 - I consider the complaint to be well founded. I note a Statement of Terms has been provided. In addition, I direct a payment of compensation in the sum of €100.00 which is just and equitable in all the circumstances.
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Dated: 12th January 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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