ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048046

Parties:

Complaints:

Date of Adjudication Hearing:  26/03/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation.  All participants who gave evidence were sworn in.  Both parties were offered, and availed of, the opportunity to cross-examine the evidence.

I have taken the time to carefully review all the evidence both written and oral. Much of the evidence was in dispute between the parties.  I have noted the respective position of the parties.  I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Background:

The Complainant contends that he was not provided with written terms of employment as provided for in Section 3 of the Terms of Employment Information Act 1994 and that he was not provided with written core terms as provided for in the Act.

Summary of Complainant’s Case:

The Complainant gave sworn evidence, was examined by his Representative and was cross examined by the Respondent’s Representative.          

The Complainant stated that he was approached by an agent in Brazil (Mr R) and he was told to sign the last page of the contract but he never received the full contract.  He stated that he was offered employment as a Mechanic and that was his initial job.   He stated that he requested the contract from the Respondent by email to HR in April 2022 and in August 2023 but he never received it.  He agreed that he signed the page which was produced in evidence by the Respondent, but he stated that he never received the full contract.   He said he took a photo and returned this to the agent before he took up employment. 

Summary of Respondent’s Case:

The Respondent submits that the Complainant was provided with his written terms of employment as required by Irish law and that this was done before he took up employment in Ireland.  This was in accordance with his work permit for his employment as Meat Processing Operative and his contract of employment was given to the agent in Brazil along with other contracts at the time.             

The Respondent’s Representative provided evidence of HR emails sent in relation to this and other employees’ contracts.  The Respondent contends that this is a vexatious claim that the Complainant is currently in dispute with the Respondent, in connection with which reports have been sent by the Respondent to several Government Agencies.  The claim should be dismissed.

Findings and Conclusions:

CA-00059047-001           Terms of Employment (Information) Act 1994

CA-00059047-002           Terms of Employment (Information) Act 1994

The main complaints are that the Complainant did not receive written terms of employment in accordance with the provisions of the Act.   The evidence was disputed, and the form of employment was also in dispute between the parties.  The Complainant contended that he was employed as a Mechanic, the Respondent contended that he was employed as a Meat Processing Operative. 

My role in adjudicating on the complaints is to decide on the evidence whether the Respondent has breached the provisions of the Terms of Employment (Information) Act 1994.  I have no jurisdiction in this matter to decide what role the Complainant was recruited for by the Respondent. 

CA-00059047-001           Terms of Employment (Information) Act 1994

Section 3(1) of the Terms of Employment (Information) Act, 1994 (the Act) requires that:

“An employer shall, not later than 1 month 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…

The burden of proof under section 3(1) of the Act lies with the Respondent.  At the hearing, the Respondent confirmed that before the Complainant commenced his employment, he was provided with written terms of employment and was required to sign the document.    The document was provided in evidence.  On the balance of probabilities, I do not accept the Complainant’s evidence that he only received one page of that document.  Accordingly, I find that Respondent did not breach the provisions of section 3(1) of the Act in relation to the Complainant.    The complaint is not well founded.

CA-00059047-002           Terms of Employment (Information) Act 1994

Section 3(1A) of the Act requires that:

“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…

Based on the evidence of the Respondent and as found above, I find that the Complainant was given a written contract before he commenced employment and I find that Respondent did not breach the provisions of section 3(1A) of the Act in relation to the Complainant.   The complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00059047-001           Terms of Employment (Information) Act 1994

Based on the evidence and findings I have decided that the complaint is not well founded.

CA-00059047-002           Terms of Employment (Information) Act 1994

Based on the evidence and findings I have decided that the complaint is not well founded.

Dated:   29th April 2024.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: