ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00047333

Parties:

	Complainant	Respondent
Anonymised Parties	A Commis Chef	A Restaurant

Representatives

Self-Represented

Director

Complaint(s):

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-00058393-001	21/08/2023

Date of Adjudication Hearing: 15/11/2023

Workplace Relations Commission Adjudication Officer: Christina Ryan

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of a remote hearing on the 15th November 2023 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

At the adjudication hearing the parties were advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021 hearings before the Workplace Relations Commission are now held in public and, in most cases decisions are not anonymised. However, this case concerns a minor. In accordance with the longstanding practice of the WRC, I have exercised my discretion and have anonymised the parties in order to protect the identity of the minor.

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants gave evidence under oath/affirmation.

I allowed the right to test the oral evidence presented by way of cross-examination.

The Complainant represented himself and was accompanied by his mother. On the Respondent’s side the Director attended the hearing as did the Manager of the restaurant where the Complainant worked. The Director was the main spokesperson for the Respondent.

The Respondent confirmed the correct legal name for the Respondent which is cited in this Decision.

The parties’ respective positions are summarised hereunder followed by my findings & conclusions and decision. I received and reviewed documentation from both parties prior to and during the course of the hearing. All evidence and supporting documentation presented by both parties have been taken into consideration.

Background:

The Complainant commenced employment with the Respondent on the 15th November 2022 and his employment ended on the 19th June 2023.

On the 21st August 2023 he submitted a complaint to the WRC under the Terms of Employment (Information) Act 1994.

Summary of Complainant’s Case:

The Complainant gave evidence that he never received a statement of his terms of employment in writing.

Summary of Respondent’s Case:

The Respondent accepted that the Complainant was not furnished with a statement of his terms of employment in writing. It submitted that all of its employees had contracts of employment in accordance with section 3 of the Terms of Employment (Information) Act 1994 but that due to an oversight the Complainant was not furnished with one.

Findings and Conclusions:

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Section 3 of the Terms of Employment (Information) Act 1994 as amended (hereinafter referred to as “the 1994 Act”) sets out the terms of employment which an employer must provide to an employee in written form.

The Complainant commenced employment with the Respondent on the 15th November 2022 and his employment ended on the 19th June 2023. He gave evidence that he was never furnished with a contract of employment or a statement in writing of his terms of employment.

The Respondent’s Director and Manager gave evidence on behalf of the Respondent. They both presented as honest and credible witnesses. It was accepted by the Respondent that the Complainant did not receive a statement in writing of his terms of employment. The Respondent submitted that the failure to furnish the Complainant with a written statement of his terms of employment as required by section 3 of the 1994 Act was due to an oversight on its part. The Respondent provided contracts of employment to all its employees however they failed to furnish the Complainant with one as the Manager was on maternity leave and it was not dealt with promptly and subsequently overlooked. The Respondent confirmed that it had reviewed its policy, updated contracts of employment and had introduced a process to ensure that the issuing of contracts of employment was in accordance with the 1994 Act.

The parties were informed that section 7 of the 1994 Act provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded.

The Complainant gave evidence that his weekly gross pay was €547.50 and his weekly net pay was €518.11, being the figures set out in his WRC complaint form.

The Respondent submitted that the weekly gross and net rate of pay cited in the Complainant’s WRC complaint form were incorrect. During period from the 15th November 2022 until the 19th June 2023 the Complainant worked a total of 30 weeks and his gross wages amounted to €7,579.30 and therefore his average weekly gross pay was €252.64.

Given the conflict in evidence between the parties regarding the Complainant’s gross and net weekly pay I afforded the parties an opportunity during the hearing to submit the Complainant’s payslips which the Complainant and the Respondent duly did. I have considered the payslips submitted by the parties to the WRC and I resolve the conflict in evidence in favour of the Respondent on the basis that the weekly figures set out in the Complainant’s WRC complaint form are unsupported by any evidence and are at odds with the figures set in the pay slips submitted by the parties whereas the Respondent’s oral evidence and written submissions were supported by the documentary evidence submitted by the Complainant and the Respondent. I find that the Complainant’s average weekly net pay was €247.00.

Taking into consideration the evidence of the Complainant and the witnesses on behalf of the Respondent and the written and oral submissions made by and on behalf of the parties I find the complaint to be well-founded and direct the Respondent to pay to the Complainant compensation of one weeks’ wages.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I decide that this complaint is well founded for the reasons set out above and order the Respondent to pay to the Complainant compensation of €247.00 being a sum that is just and equitable having regard to all the circumstances.

Dated: 15/12/2023

Workplace Relations Commission Adjudication Officer: Christina Ryan

Key Words: