Complainant

Respondent

Parties

Kamil  Wiernicki

First Up Slu

Representatives

none 

Anthony Brady, Construction Industry Federation

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-00040314-001

08/10/2020

At the start of the hearing I explained the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant 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 parties I would be prepared to continue with the hearing without evidence being taken but I would consider what to do if a serious and direct conflict arose. Both parties confirmed they understood what I had said and that they were happy to continue with the hearing.

The complainant was employed by the respondent from 7 May 2018 as a general operative. He submits his manager called him on Sunday, 13 September 2020 telling him the respondent had no work for him. He was not given him a lay-off letter and he was without work from day-to-day and he was not being paid. He says this is in contravention of the Terms of Employment (Information) Act.

The respondent says the complainant was placed on a period of temporary lay-off from 30 March to 22 June 2020 due to the Covid-19 pandemic. In September 2020 the respondent faced a period of shortage of work. As there was no viable alternative, and in line with his contract of employment, the complainant was placed on a period of temporary layoff on 13 September for the period 14-23 September 20320. The complainant’s contract of employment, under ‘Reduced Work’ states: The Company reserves the right to lay you off from work or reduce your working hours, where due to circumstances beyond its control, it is unable to maintain you in employment or in full-time employment. You will reserve as much notice of such layoff or short time as it is reasonably possible to give.”

On 23 September the complainant was requested to return to work the following day, but he was unable to do so as he was going on pre-booked leave on 25 September and had an appointment with social welfare on 24 September. When he was available for work the respondent had a shortage of cladding projects and the complainant refused to return to carry out different general operative duties. In these circumstances he was placed on temporary layoff from 22 October 2020. He resigned on 11 January 2021 without returning to work.

This claim is made under the Terms of Employment (Information) Act 1994 and the complainant submits he was not correctly informed of a change to his terms of employment, whilst the respondent submits they informed the complainant of layoffs in accordance with his contract of employment. The sequence of events is set out above.

The Terms of Employment (Information) Act requires employees to “give or cause to be given to the employee a statement in writing” setting out particulars of the employee’s terms of employment. Section 5 (1) states: “whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 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.”

The complainant was provided with a contract of employment which he signed on 19 August 2019. This contract contained a paragraph on ‘Reduced Work’ which states: “The Company reserves the right to lay you off from work or reduce your working hours, where due to circumstances beyond its control, it is unable to maintain you in employment or in full-time employment. You will reserve as much notice of such layoff or short time as it is reasonably possible to give.”

What happened is that the respondent implemented this provision. They did not change any ‘particulars’ in the complainant’s contract of employment. I therefore conclude the respondent did not contravention the legislation and find the complaint is not well founded.

For the reasons given above I find the complaint is not well founded.

Terms of employment layoff not well founded