ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00031261
Parties:
| Complainant | Respondent |
Anonymised Parties | Fitter | Construction company |
Representatives |
| Managing Director |
Complaints:
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-00041664-003 | 22/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00041664-004 | 22/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00041666-003 | 22/12/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00041666-004 | 22/12/2020 |
Date of Adjudication Hearing: 01/07/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and having conducted an investigation into the said trade dispute as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation to the parties to the dispute which will set forth my opinion on the merits of the within dispute.
It is noted that the Complainant herein is alleging that fair procedures were not followed and that he was unfairly dismissed on the 18th of December 2020. It is further noted that the complainant/worker has less than one year of service with the Employer. In such circumstances, Section 20(1) of the Industrial Relations Act of 1969 allows the worker to refer the dismissal to the WRC as a dispute under the Industrial Relations Acts.
In addition to the Industrial Relations issue raised and in accordance with Section 41(4) of the Workplace Relations Act, 2015 the employee has made one further complaint.
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.
This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms. The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms.
The complaint was made on the 22nd of December 2020 and within six months of the last contravention of the Act – the last date of employment being the 18th of December 2020. The Complaint was therefore was brought within time and I have jurisdiction to hear same.
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:
A Workplace Relations Complaint Form issued on the 22nd of December following the termination of the employment Contract. |
Summary of Complainant’s Case:
The Complainant came to work for the Respondent as a fitter in early November 2020. The complainant noticed his wages were not being credited into his account and raised this fact with the Employer. |
Summary of Respondent’s Case:
The Employer had stalled payments in circumstances where he believed there was an issue of off-set against a previously held debt. |
Findings and Conclusions:
I have carefully listened to the evidence adduced. There is clearly an employment and/or commercial relationship between the parties that pre-dates the period of time that has given rise to this complaint form issuing. So for example, at one point in the past the Complainant owned a company and engaged the Respondent Director. The parties herein are agreed that the Complainant and his father commenced employment with the Respondent company (represented at the hearing by a Mr. AU). The hourly rate and the expected number of hours to be worked is agreed. The Complainant was engaged as a fitter and worked various sites for the Respondent. This employment commenced on the 9th of November 2020. I accept that there is no evidence of a formal Contract of employment having been prepared and signed in the course of this short employment. However, it is noted that the parties had parted company before the expiration of the two month period stipulated in the Act. However, I do also note that no written statement of the core requirements was provided within the five working days and the Complainant’s case is therefore well founded. The Complainant says he worked week numbers 48, 49 , 50 and 51 of the calendar year. He says he got the relevant payslips but that his bank account was not credited with wages for two of the weeks. He raised the issue with AU on a Friday and it seems that AU was proposing that monies should be withheld so as to make provision for an old debt he says was owed to him (the employer) by the Complainant and his father from a previous commercial/employment relationship they had had. The Complainant did not agree with this and rejected the proposal. On the next day – Saturday – AU wrote tot the Complainant saying he did not want him back. The employment was terminated. I accept that this was very difficult for the complainant as this happened within weeks of Christmas. I have no evidence that the withheld monies were ever paid. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00041664-003 - This complaint is well founded and I require the Employer to pay to the Employee the sum of €200.00 Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts CA-00041664-004 - Having already articulated my opinion on the merits of the within dispute, I am recommending that the Respondent pay to the Complainant the sum of €1,500.00 within four weeks of the date of this decision. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00041666-003 - I make no recommendation in circumstances where this is a repetitive claim Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts CA-00041666-004 - - I make no recommendation in circumstances where this is a repetitive claim |