Complainant

Respondent

Parties

Philip Matthew  O'Malley

Cleaning Machines Green Clean Ltd.

Complainant

Respondent

Anonymised Parties

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Representatives

In person

Niamh Comerford of Cleaning Machines Green Clean Ltd.

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-00044826-001

28/06/2021

In this complaint the Complainant asserts that he was offered a job by the Respondent in June 2021 but the Respondent failed to give effect to that job offer and hired someone else a week later.

The Complainant gave evidence under affirmation as follows:

The Respondent advertised a job vacancy of an administrative assistant/ book-keeper, to work for the Respondent, remotely.

The Complainant applied for the post and, in or around late May 2021 he spoke on the phone with the owner of the business, Mr. Seamus Kavanagh. Mr. Kavanagh seemed happy to appoint the Complainant and said he was suitable for the role. He told the Complainant that Ms. Niamh Comerford, a manager with the Respondent, would be in contact with him. Mr. Kavanagh subsequently texted the Complainant clarifying which computer that the Complainant would require and asked if he had installed the stronger broadband within his home to facilitate working remotely,  and he asked if the Complainant’s commencement date could be May 31 2021. The Complainant spent money upgrading his broadband to allow him to do the work. From these text exchanges the Complainant fully understood that he had been given the job.   

When the Complainant spoke to Mr. Kavanagh initially, he advised him that his aunt/godmother, who lived in England, was very ill with Covid and were she were to pass away, that he would need to go to the UK to arrange her funeral. Mr. Kavanagh appeared to accept this.

In late May early June 2021, the Complainant also communicated with Ms. Comerford by text. He provided these texts to the Adjudication hearing as proof that he had been appointed to the role.  For example, Ms. Comerford provided him with the Respondent’s accountant details and discussed with him company provision of lap-top and materials to allow him to work from home.

Very soon after this, the Complainant’s aunt/godmother died and the Complainant sent a Whatsapp message to Mr. Kavanagh saying that he needed to go the UK to arrange her funeral. Her funeral was on 8 June 2021. He later sent an email to the Respondent on 13 June 2021 that he would return on 17/18 June and would start work on 21 June 2021. He received no response.

On his return from the UK he contacted the Respondent and received a WhatsApp message from Mr. Kavanagh that he was no longer being considered for the role.

He brought this complaint under the Terms of Employment (Information) Act 1994, as amended.

Ms. Comerford was given the opportunity to cross-examine the Complainant but declined.

Ms. Niamh Comerford, a manager with the Respondent gave evidence under affirmation as follows:

Mr. Kavanagh was unavailable to give evidence to the Adjudication hearing.

The registered name of the Respondent was corrected to Cleaning Machines Green Clean Ltd.

The Complainant never in fact started working for the Respondent.

Discussions (by phone and text) had taken place about him working for the Respondent, at the end of May and start of June 2021 but this was before he had actually commenced working for the Respondent. The phone and text discussion were all in preparation for the Complainant starting work, which ultimately did not happen.

The Complainant left to go the UK and there was no between then and when an email received from him dated 15 June 2021. In the meantime, the management of the Respondent decided that they would not the fill the role after all and that Ms. Comerford would keep doing the book-keeping administration instead.  The Complainant hadn’t contacted them for a week when they decided this.  

Ms. Comerford was not party to the phone discussions that the Complainant had with Mr. Kavanagh in late May early June 2021 however it was undisputed that the Complainant never actually commenced working for the Respondent.  

The Complainant was given the opportunity to cross-examine Ms. Comerford but he declined.

Complaint and Defence

This is a complaint brought under the Terms of Employment (Information) Act 1994 and I am confined to consider whether there has been a breach under that Act.

The Complainant contends that the Respondent allowed him to believe that he would be working for them but following a bereavement - which necessitated him going to the UK to make the funeral arrangements for his aunt (there being no one else to do that) - his job offer was rescinded.

The Respondent evidence is that all the discussions, by phone and text were in preparation for an employment relationship that never in fact materialised. The relationship was never formalised, the Complainant never received anything in writing from the Respondent and the Respondent changed its mind about recruiting anyone for the role.

Onus

The onus is on the Complainant to prove that a breach occurred under the Terms of Employment (Information) Act 1994.

The 2018 Employment Miscellaneous Provisions Act) amended the Terms and Conditions of Employment (Information) Act 1994 whereby (section 3 (1A)) states:

“an employer shall not later that 5 days after the commencement of an employee’s employment with the employer, give...to the employee a statement in writing…of the terms of the employee’s employment”

However, the WRC jurisdiction to investigate a complaint under section 3 (1A) of the Terms of Employment Information Act (pursuant to section 7 (1A) is not permitted unless the employee in question has been in the continuous service of the employer for more than one month.

Section 7 (1A) is clear that an employee is not entitled to present a complaint, in respect of a contravention of section 3 (1A) unless he has worked for the employer (continuous service) for one month.

It is common case that the Complainant was not employed by the Respondent for a continuous period of one month before he brought this complaint.

Observations

I observe that what happened to the Complainant was regrettable. The Complainant was led to understand that he would be employed by the Respondent, he suffered financial loss by investing in broadband coverage to enable him to work for the Respondent.  It was not until he returned from his aunt’s funeral in the UK , that the Respondent told him that he would not be working for them and then, no reason for this was provided to the Complainant, which was disrespectful.

Findings

However, in terms of the complaint that is before me, my jurisdiction under the Terms of Employment (Information) Act is circumscribed. The 1994 Act is clear. It requires that one month of employment be served before an employee has an entitlement to present a claim under section 3(1A) of the Act. For other complaints under the 1994 Act, two months service is required. There is no discretion within the Act to allow a disapplication of this jurisdictional provision. As a result, I do not have the jurisdiction to consider this complaint.

For reasons stated above, there being no jurisdiction to consider this complaint I find that this complaint is not well founded.

This complaint is not well founded

Section 3 (1A) and Section 7 (1A) of Terms of Employment (Information) Act 1994, as amended.