ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031890
Parties:
| Complainant | Respondent |
Parties | James Brophy | David Daly |
Representatives | Self-Represented | Self-Represented |
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-00042308-001 | 03/02/2021 |
Date of Adjudication Hearing: 06/09/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed and availed of.
No issues were raised regarding Confidentiality.
Regrettably the preparation of the Adjudication decision was delayed due to a Covid situation.
Background:
The complaint concerns a HGV driver who alleged that his former employer had not provided him with a written statement of his terms of employment & working conditions.
The employment had commenced on the 15th January 2018 and ended on the 10th June 2020.
The rate of pay was stated to be €650 net per week for an average week of 60 hours. |
1: Summary of Complainant’s Case:
The Complainant gave a Sworn Oral Testimony. During his period of employment with the Respondent Company he was never provided with any statement of terms of employment in writing. Under questioning from the Employer, he maintained this view. |
2: Summary of Respondent’s Case:
The Respondent Employer gave a written submission and a sworn Oral Testimony. He stated that he had given two typed copies of a Statement to Complainant two weeks after he had started work. The statement was left in the cab of the Complainant’s vehicle. Despite numerous reminders the Statement was never signed or returned it. It was the Employer’s belief that this was due to the Complainant being unhappy with the two weeks employee side notice of resignation requirement in the Contract. The Complainant gave the Employer less than 24 hours’ notice of his intention to resign. On return of his vehicle the Contact was found unsigned in the cab. Regrettably the Unsigned information document had been mislaid since the Employee resignation in June 2020. Under sworn Oath the Respondent Employer maintained that he had provided the Contract. Cross examination from the former employee did not change this position. |
3: Findings and Conclusions:
3:1 Relevant Law The relevant Legislation is Section 3 and Section 7 of the Terms of Employment (Information) Act, 1994. Section 7 provides for an Adjudication Officer to declare a Complaint “Well founded” or was “ Not Well Founded”. Reviewing all the evidence, both Written materials and Sworn oral Testimony, I had to come to the view, on the balance of probability, that the Respondent version was more likely to be probable. The Respondent gave a clear professional version of events. Accordingly, the Adjudication decision has to be that the Complaint is “not well founded”.
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4: Decision:
CA: 00042308-001
Section 41 of the Workplace Relations Act 2015 and Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.
Having reviewed all evidence presented I deem the complaint to be Not Well Founded.
The complaint is not successful
Dated: 30th January 2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Terms of employment information. |