Complainant

Respondent

Anonymised Parties

Keyholder/Sales Assistant

Shop

Representatives

Barry Crushell of Crushell & Co Solicitors

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-00042042-001

19/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00042042-004

19/01/2021

The respondent did not attend the hearing and there is indication that he had engaged with the Adjudication Service in relation to these complaints prior to the hearing. As the respondent had not responded to the invitation for the hearing the concierge for the remote hearing called him two or three times before the hearing but got no reply. After the hearing the concierge missed a phonecall from the respondent, who left a voicemail saying that he thought the hearing was at 11.00am instead of 9.00am. I can see no reason why the respondent would have thought the hearing was at 11.00. Furthermore, he did not follow up with an email to explain why he had missed the hearing. In these circumstances I am satisfied the respondent was aware of the complaints and was on notice of the hearing.

At the start of the hearing I explained to the complainant the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant that in most cases WRC hearings are now held in public and decisions will not be anonomised. I also clarified that evidence should be taken on oath where there is a serious and direct conflict in that evidence. I told the complainant and her representative I would be prepared to continue with the hearing without evidence being taken on oath as the respondent was not present, and no such conflict could arise.

I further explained, the judgement does not apply to disputes taken under the Industrial Relations Acts, which will continue to be held in private. Also, the requirement to take evidence on oath where there is a serious and direct conflict is not applicable to these disputes. As this hearing dealt with overlapping complaints that are covered by the judgement and a dispute taken under the Industrial Relations Act I advised the complainant and her representative that it was my intention to issue one decision/recommendation which would be published in an anonymised format.

The complainant and her representative confirmed they understood what I had said and that they were happy to continue with the hearing.

CA-00042042-001: Terms of Employment (Information) Act, 1994 – the complainant submits she worked for the respondent from 6 October 2018 until she resigned on 28 April 2019. She was not issued with a contract of employment setting out her terms of employment. Because of irregularities in her employment; such as being paid erratically, weekly or monthly, in cash or by cheque, no pay slip setting out deductions, she asked the respondent for a contract of employment on a number of occasions. This was one of the reasons she resigned.

CA-00042042-004: Industrial Relations Act, 1969 - the worker did not receive a P.60 at the end of 2018, as required by the Social Welfare Consolidation Act, 1993. When she left the employer’s employment she was not given a P.45 and when she contacted Revenue it became clear the employer had not provided them with the statement of employment that is required. The worker has been seriously affected by the employer’s failure to comply with the requirements of the Social Welfare Consolidation Act, 1993, as she was unable to provide proof of her employment in 2018 and 2019. Because of this she says she lost a Scholarship with the University of Bologna. Also, she now lives in Sweden and there have been serious implications for her because she cannot prove her tax affairs are in order for 2018 and 2019, through no fault of her own. She has not been able to receive the Swedish equivalent of a PPS number and it has made it very difficult to set up her own company in Sweden.

The respondent did not attend the hearing and provided no written statement.

CA-00042042-001: Terms of Employment (Information) Act, 1994 – I accept the complainant’s evidence and conclude she was not issued with a written statement setting out her terms of employment, in contravention of the legislation. The complainant was seriously disadvantaged by not being given this statement; she wanted to regularise her employment and needed this statement as a starting point to establish her entitlements. I find this complaint is well founded and I award redress against the respondent of the maximum allowable; this is four weeks wages; €1,440.

 CA-00042042-004: Industrial Relations Act, 1969 – the employer chose not to engage in this dispute so I cannot give any indication of their position. However, I accept what the worker said, both in relation to the employer’s failure to comply with their statutory obligations to provide Revenue with a record of the worker’s employment with them and in the effects this has had on her. In the circumstances the only recommendation I can make is for the employer to comply with their statutory obligations immediately.

CA-00042042-001: Terms of Employment (Information) Act, 1994 – for the reasons given above I find this complaint is well founded and I award redress against the respondent of the maximum allowable; this is four weeks wages; €1,440.

 CA-00042042-004: Industrial Relations Act, 1969 – as stated above I accept what the worker said, both in relation to the employer’s failure to comply with their statutory obligations to provide Revenue with a record of the worker’s employment with them and in the effects this has had on her. In the circumstances I recommend the employer comply with their obligations immediately.