Complainant

Respondent

Parties

Marek  Wieczorek

Maurice Martens t/a Metal Urges

Complainant

Respondent

Anonymised Parties

Representatives

John Galvin, John Galvin Solicitor

 Maurice Martens

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967.

CA-00055305-001

28/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00055307-001

28/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055307-002

28/02/2023

The Complainant is a Tattoo Artist and worked for the Respondent from 01/07/2013 until 05/11/2022.  He worked fourteen hours per week over two days and was paid €14.30 per hour.  The Complainant believes that he was made redundant when the Respondent wanted to change his work arrangements which would be clearly unsuitable for him.  The Respondent denies that the Complainant was made redundant as there was work available for him.  The Complainant also submitted a complaint that he did not receive any written details of his terms and conditions of employment and he was not paid for notice or annual leave when his employment was terminated.

It was submitted on behalf of the Complainant that he was dismissed without notice and without receiving his holiday pay entitlement.  The circumstances of this dismissal constitute a redundancy situation and the Complainant is seeking a redundancy payment.  The Respondent wished to change the Complainant’s working arrangements knowing that what was proposed was unsuitable and he was also expected to change his employment status from employee to that of self-employed.  As part of this arrangement, he was also expected to cease doing any work from home.  The Complainant gave evidence on affirmation that any work he done from home was for friends and family and he did not poach clients from the Respondent.  The Complainant was given no time to consider the proposals put forward and was expected to make an immediate decision.  The Complainant was aware that the Respondent was recruiting younger people who would be paid less than the Complainant. 

The Complainant’s representative submitted that the Complainant was put in an impossible situation.  He was happy to work two days per week for the Respondent and claim social welfare for the other three days as this suited his domestic situation.  The Respondent was aware of his domestic commitments and knew that what he proposed would not suit.

The Complainant also submitted a complaint that he never received a statement in writing of his terms and conditions of employment from the Respondent.

The Respondent is the owner of a tattoo parlour.  The Respondent,  Mr Maurice Martens,  gave evidence on affirmation.  He also provided a written submission to the hearing.  Mr Martens outlined that he knows the Complainant since 2005 and taught him English and gave him a job in his tattoo shop.  The Respondent acknowledged that the Complainant is a skilled tattoo artist. This employment ceased in 2007 and he met up with him again in 2013 and negotiated his return to work as a tattoo artist, initially on a two days per week arrangement.  He regularly offered the Complainant additional work, but he was not interested.  Mr Martens then set about establishing a tattoo apprenticeship. The arrival of the COVID-19 pandemic brought about changes and the Respondent now works full time.  The Respondent submitted that when he spoke to the Complainant on 05/11/2022 he was concerned about the work the Complainant was doing at home and he was using the tattoo studio as a front door to his home studio and taking clients from him.  The Respondent outlined that he wanted the Complainant to work full time and cease working from home and claiming social welfare or if these were not acceptable, he could rent a tattoo chair in the studio and register as self-employed.  The Respondent noted that the Complainant had no intention of working full time and he requested a letter from him for social welfare purposes.  This was the end of his employment.  The Respondent confirmed that there is work available for the Complainant.

The Respondent acknowledged that the Complainant was not paid holiday pay and the system was that this was paid at Christmas as a bonus payment.  The Respondent acknowledges that the Complainant is owed this money.

The Respondent did not contest the complaint that the Complainant was never given a written statement of his terms and conditions of employment.

CA-00055307-001:  The Complainant is seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967. 

Section 7(2) of the Redundancy Payments Act, 1967, states:

For the purposes of subsection (1), an employee who is dismissed shall be taken to have been dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

(a)    The fact that his employer has ceased, or intends to cease, to carry on the business in the place where the employee was so employed, or

(b)    The fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Redundancy occurs where an employee’s position ceases to exist, and the employee is not replaced.  Any employee aged 16 or over with 104 weeks’ continuous service with an employer is entitled to a statutory redundancy payment in this situation.  In this case it is not disputed that the Respondent did not intend to cease to carry on the business for the purpose of which the Complainant was employed.  The Respondent confirmed at the hearing the Complainant was an employee since a date in July 2013.  In those circumstances the complaint was in continuous service. The evidence of the Respondent is that there was work there for the Complainant.

Having considered the evidence and circumstances in the context of the definitions outlined in the Act I find that the Complainant was not dismissed by reason of redundancy and is not entitled to a statutory redundancy lump sum.

CA-00055307-002:  Terms and Conditions of Employment: This is a complaint pursuant to the Terms of Employment (Information) Act, 1994.   The Complainant submits that he did not receive a document which complies with Section 3 of the Act.  Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’ s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’ s employment, that is to say: 

(a) the full names of the employer and the employee; 

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014); 

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; 

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000; 

(e) the number of hours which the employer reasonably expects the employee to work — 

(i) per normal working day, and 

(ii) per normal working week.

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than two months after the commencement of the employee’s employment.  These are not relevant to this case.

The 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.

Neither party provided any evidence of a document which was signed and dated by the Respondent.  In that context it was not disputed that no such document was ever issyed. There is no requirement for the Complainant to sign such a document. As there is an onus on the Respondent to provide a signed and dated copy and to retain such a document for at least a year after the employment ends, I find that there was a contravention of the Act during the relevant period.  In circumstances where I consider the complaint to be well founded, I may require a statement to 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.  Given the circumstances of this case there is no longer a requirement to provide the terms.  I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.2 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should be applied.  I therefore order that the Respondent pay the Complainant the sum of €800.80 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

At the hearing the Respondent confirmed that the Complainant is due holiday pay.  As there is no complaint under the Organisation of Working Time Act before me, I note that the Respondent gave evidence on affirmation that the Complainant is still due holiday pay and he is willing to pay this.  This holiday pay is not included in the award made under the above complaint, i.e., CA-00055307-002.

Redundancy.  Terms and conditions of employment.