ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033652
Parties:
| Complainant | Respondent |
Parties | Kenny Doyle | John Slattery & Co Ltd |
Representatives | Self-represented | Stephen Slattery |
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-00044335-001 | 25/05/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00044335-002 | 25/05/2021 |
Date of Adjudication Hearing: 06/04/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Complainant’s Case:
The Complainant was employed by the Respondent for 14 years as Manager/Buyer. He contends that he never received a written contract of employment or written statement of core terms of employment as provided for in the Terms of Employment (Information) Act 1994. |
Summary of Respondent’s Case:
The Respondent agrees that no written statement was provided. However, a Labour Inspection was carried out in 2016 and the Store was found to be in compliance with almost all headings. All new employees since then are issued with written contracts. |
Findings and Conclusions:
A written submission from the Respondent’s solicitor prior to the hearing argued that this complaint was out of time, having been submitted more than six months following the employment of the Complainant. However, in ADJ-00009820 the Adjudication Officer found that the failure of an employer to provide the employee with a written contract is deemed a subsisting breach of Section 3 of the Act. Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship. Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress. The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement. The contravention of section 3 is a subsisting contravention. If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.
In the circumstances, I find the complaint to be well founded. I award the complainant redress that is just and equitable, in this case €2,264 the equivalent of four week’s pay. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that the complaint is well founded and I award the Complainant redress in the sum of €2,264.
Dated: 27th May 2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Terms of Employment (Information) Act, subsisting breach, well founded. |