ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040765
Parties:
| Complainant | Respondent |
Parties | Garry O'Sullivan | Tegal Limited t/a Ace-security |
Representatives |
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Complaints:
Act | Complaint 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-00048738-001 | 21/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00048738-002 | 21/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00048738-004 | 21/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00048738-006 | 21/02/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00048738-007 | 21/02/2022 |
Date of Adjudication Hearing: 24/01/2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Procedure:
In accordance with s 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.
A remote hearing took place on 24 January 2023. The complainant was not represented and gave evidence under affirmation. Mr Patrick Hickey for the respondent was not represented and gave evidence under affirmation. At the outset of the hearing, I clarified the complaints before me under the Terms of Employment (Information) Act 1994. The complainant confirmed that four of the complaints were duplicate complaints. The complainant withdrew CA-00048738-002; CA-00048738-004; CA-00048738-006; and CA-00048738-007 at the outset of the hearing.
Background:
The complainant contends that he did not receive a written statement of core terms or a written statement of terms of employment. The hours worked by the complainant were in dispute. |
Summary of Complainant’s Case:
The complainant commenced employment with the respondent on 12 October 2021. Hours of work and location of work were verbally agreed. The complainant requested a written statement of terms on four occasions. The statement was not provided. The complainant submitted that the failure of the respondent to provide written terms was a breach of his statutory rights. The complainant stated he was contracted to work 25 hours on weekdays but then informed the respondent that he could only work over weekends. |
Summary of Respondent’s Case:
The respondent detailed how it was normal practice within the respondent company to issue a written contract of employment. Terms are normally agreed verbally, and then the respondent meets with an employee to give a physical copy of the contract and have it signed by the employee. The respondent accepts that the complainant did not receive a contract of employment. The respondent stated that he intended to issue a written contract to the complainant, however, the opportunity did not arise to meet with the complainant prior to the termination of his employment on 12 January 2022.
The complainant was hired to work two or three shifts a week, however, the complainant then informed the respondent that he could only work over a weekend. The complainant was paid €11.65 per hour. In the five weeks before the complainant was absent, he worked an average of 14 hours per week.
In reply to the complainant, the respondent confirmed that he did not post the contract as it was his intention to meet with the complainant. The respondent stated that he was not aware that terms should be given in writing within a specified period but in any event the complainant had been told verbally of the terms of his employment. The respondent agreed with the complainant that the complainant requested a contract of employment, but a decision had been made to dismiss the complainant at that stage so there was no point in issuing terms of employment. The respondent denied that the complainant requested terms of employment on several occasions. |
Findings and Conclusions:
The Terms of Employment (Information) Act 1994 (as amended) (“the Act”) provides, inter alia, for the issue to new employees of certain statements of terms of employment. Section 3(1A) of the Act requires that an employer notify each new employee, in writing, within five days of commencement of employment, of certain core terms of employment. Section 3(1) of the Act provides: “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 . . . .” It is common case that the employee did not receive a s 3(1A) or a s 3 statement. Section 7(2) of the Act provides that an Adjudication Officer shall, inter alia, declare that the complaint was or was not well founded and order the employer to pay to the employee compensation of such amount as the Adjudication Officer considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration. I find that the complainant worked an average of 14 hours per week. I further find that the respondent contravened s 3 of the Act and the respondent shall pay to the complainant compensation of €652.40 (14 hours x €11.65ph x 4 weeks). *Section 3(1) of the Act now requires an employer to provide each new employee with a written statement of terms of employment within one month of commencement of employment (legislative changes arising from The European Union (Transparent and Predictable Working Conditions) Regulations 2022). |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00048738-001 I find that this complaint is well founded, and the respondent shall pay to the employee compensation of €652.40. CA-00048738-002 This complaint was withdrawn. CA-00048738-004 This complaint was withdrawn. CA-00048738-006 This complaint was withdrawn. CA-00048738-007 This complaint was withdrawn. |
Dated: 30th March 2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Key Words:
Written Statement of Terms of Employment. |