Complainant

Respondent

Anonymised Parties

A Steward

An Events Company

Representatives

Peter Ryan RA Consulting

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-00052569-001

01/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00052569-002

01/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00052569-003

20/10/2022

The Complainant began his employment with the Respondent in November 2015 and worked as a part-time Steward at indoor and outdoor venues around Dublin. He stated both that he did not receive a written statement of his terms and conditions of employment and was unfairly dismissed by the Respondent following an epileptic fit in May 2022.

The Complainant stated that he suffered an epileptic fit for the first time ever while working at an event on 14 May 2022. He further stated that the medical team who helped him on the night accused him of being on methadone which he disputed and alleged that they allowed him to leave the event unassisted. He stated that he received a call from the General Manager of the Respondent the day after to inquire about his well-being. Further to this, the Dublin manager telephoned him a few days later and told him that there was no work for him and accused him of being under the influence. He also stated that he heard from several work colleagues in the days after the incident of 14 May 2022 that he had been on methadone which was untrue and caused him great upset.

The Complainant also alleged that he sent a Whatsapp message to the Dublin manager on 26 May 2022 inquiring about work and requested that he get the girls in the office to fix the IT booking system. He stated that the Dublin manager telephoned him a few days after and informed him that he couldn’t give him any more work. He further asserted that he sent an email to the Respondent on 19 September 2022 wherein he told them that he was both clean as well as available for work and that the rumours that had been spread about him using drugs were untrue.  When asked in cross examination who he had sent this email to, he stated that he could not recall but that he had taken the email address from the Respondent’s website.  

The Complainant also stated in his direct evidence that he did not receive a contract of employment.

The Respondent’s Dublin manager stated that while working at an event on 14 May 2022, he tried to contact the Complainant via radio to assist with directing and moving people away from the top of the escalator but got no response from him. He stated that having asked several staff members and the supervisors if they had seen the Complainant, he was informed that the Complainant had gone to the toilet. The Dublin manager thereafter called the Complainant on the radio several times but got no response from him.  He stated that another employee eventually managed to contact the Complainant by mobile phone, but that he was incoherent and incomprehensible. He stated that he eventually found him standing in the doorway leading to the toilets and tried to have a conversation with him but as he was speaking incoherently, the Dublin manager believed that he was under the influence of alcohol or drugs.

The Complainant then agreed to be seen by medics who were also concerned that he was under the influence of something and took him to the medical room for further tests. The decision was made that the Complainant had to leave site and as soon as he was fit to do so. The Dublin manager then escorted the Complainant to the canteen area to collect his personal items and informed him that he was standing him down for welfare reasons and that he would be cancelling his next few shifts as he needed to get some rest.

The Respondent’s General Manager then telephoned him the following day, 15 May 2022, and also called him again approximately two weeks later to encourage him to return to work. The Dublin Manager also stated that he called the Complainant the following month, in June 2022, to inquire about his well being and informed him that he would need to supply a fit to return to work certificate before the Respondent would allow him to resume his duties. He further stated that no such certificate was provided by the Complainant. The Respondent’s Dublin manager also denied that the Complainant had sent an email to the Respondent on 19th September 2022 as he had alleged.

CA-00052569-001:

Section 3 of the Act imposes an obligation on employers to provide their employees with a written statement of terms and conditions relating to their employment within two months of commencing employment. 

Specifically, section 3 of the Act provides:

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.

Findings

This is a complaint pursuant to the Terms of Employment (Information) Act regarding the section 3 requirement to provide an employee with a statement of the terms of their employment. It also requires that the document is signed by the employer and retained on file for at least a year after the ending of that employee’s employment. It is a requirement that transposes EU law, the Written Statement Directive of 1991 (91/533/EC and latterly, Directive 2019/1152). The requirement set out in section 3 has been law since 16 May 1994. 

Although the Respondent highlighted that the Complainant received a statement of his terms of employment after he had returned to the Respondent’s employment in April 2023, it was accepted that he had not received a copy when he referred this complaint to the WRC on 1 September 2022. Accordingly, I find that this complaint is well founded.

CA-00052569-002:

The Law

The Act at Section 1 defines “dismissal”, in relation to an employee, as—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

Analysis

In making my decision, I note that the Respondent disputed that the Complainant was dismissed while the Complainant asserted that he was. As the Complainant did not suggest that he terminated his contract of employment however, as envisaged in section 1(b) of the Act above, I must consider whether he was dismissed by his employer as he asserts.

Firstly, I should highlight that even if I accept that the Dublin manager told the Complainant, there was no work available for him on two occasions, as the Complainant stated that he did, there was no direct evidence presented by the Complainant to suggest that either the Dublin manager or any member of the Respondent’s management team dismissed him. I also note that the Complainant worked part-time on a ‘as required’ basis in accordance with the Respondent’s clients’ needs and concert/event calendars and that, as there was no guarantee of work on any specific time or day, there were often periods where there was no work. I also noted the evidence of the Dublin manager, which was not challenged in cross-examination and which I found to be wholly credible, that he informed the Complainant in June 2022 that he would be allowed to resume his duties once a fitness to work certificate was provided by him. I further note that the Complainant did not furnish any such certificate to the Respondent, prior to his alleged dismissal. Finally, while the Complainant asserted that he sent an email to the Respondent on 19th September 2022, I note that even if he did so, this email was sent after he submitted his unfair dismissal complaint to the WRC and I find that it is therefore not relevant evidence for the purposes of this decision.

Considering all of the foregoing, I find that the Complainant was not dismissed by the Respondent.

CA-00052569-001: I find that this complaint is well founded as set out above and decide that the Respondent should make a payment of €500 in respect of the breach of the legislation.

CA-00052569-002: I find that the Complainant was not unfairly dismissed for the reasons set out above.

CA-00052569-003: This complaint was withdrawn.