ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00038799

Parties:

	Complainant	Respondent
Parties	John O'Donoghue	Interlink Ireland Ltd

Representatives

Self Represented

HR Manager

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-00049800-001	21/04/2022

Date of Adjudication Hearing: 25/05/2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and 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

Background:

The Complainant submitted a complaint that he had not received written terms and conditions of employment within two months of commencing employment and the Respondent was therefore in breach of the Act.

Summary of Complainant’s Case:

The Complainant commenced employment as a Driver on January 4th 2021.

He advised, in evidence, that no contract was given to him for over a year.

He advised he has been doing the same route and hours since he commenced employment.

He advised he had a one to one meeting on May 12th 2022 with the HR/Finance Manager and was asked to sign a contract then. He did not agree to certain terms in the proposed contract and did not sign the contract offered to him.

The Driver advised he was in dispute with the Respondent over a deduction they wished to make regarding damage to a company vehicle.

Summary of Respondent’s Case:

Ms. Edel O Connor (HR/Finance Manager) gave evidence to the Hearing that discussions were held by two Line Managers with the Complainant when he commenced employment (after a period working for a third party) and they gave the Complainant a copy of his contract. However, these two Managers no longer worked for the Respondent and were not present to give evidence. She advised of an email dated January 12th 2021 to the two Managers regarding giving the contract and handbook etc to the Complainant. She advised the contract was uploaded to a HR system on February 12th 2021 and the Complainant asked to review it. She advised the Driver was involved in an issue where he did not apply the handbrake causing 851 Euros damage to a Company vehicle but she had offered to forget this deduction if the Complainant had signed the contract given to him but he refused. The Respondent advised that there no signed contract by the Employer or Employee to produce as evidence.

Findings and Conclusions:

The Law;

“3.—(1) An employer shall, not later than 2 months 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, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) 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,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made……

4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

As no evidence was supplied to the Hearing that Section 3 (1) and 3(4) of the Act had been complied with by the Respondent I find in favour of the Complainant. The maximum award under Section 7 of the Act is 4 weeks pay and I award the Complainant four weeks pay of 2108 Euros.

As a side note, as Adjudicator, I was surprised at the lack of engagement over time from both Parties to attempt to resolve the three issues between them;( a) this complaint (b) agreeing a contract of employment and (c) the issue of the damage to the van. It appeared totally possible to me that all issues could be resolved between the Parties, with compromise on both sides, fairly quickly if they choose to engage more actively with each other and I encourage them, although not as part of my Findings, to do so.

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 find in favour of the Complainant and award him 2108 Euros.

Dated: 19th June 2023

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Terms and conditions of employment