ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052092
Parties:
| Complainant | Respondent |
Parties | Daina Cathcart | Glenart Framing & Art Gallery Limited |
Representatives | N/A | N/A |
Complaint:
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-00063711-002 | 25/05/2024 |
Date of Adjudication Hearing: 07/08/2024
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 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.
This matter was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission (the
“WRC”) as a body empowered to hold remote hearings.
Ms. Daina Cathcart (the “Complainant”) attended the Hearing. Mr. Alan McGorrian, the Director of Glenart Framing & Art Gallery Limited (the “Respondent”), attended the Hearing on behalf of the Respondent.
The Hearing was held in public. Evidence was provided on affirmation. The legal perils of committing perjury were explained.
Other Complaints:
At the Hearing, I noted that in her Complaint Form narrative, the Complainant outlined: “I did not, upon commencement of employment or at any point thereafter, receive a written statement of my terms of employment”. I sought submissions on whether there was an additional complaint before me concerning an alleged failure to provide a statement of core terms in writing, in breach of the Terms of Employment (Information) Act 1994. I referred to, inter alia, County Louth Vocational Educational Committee v. The Equality Tribunal [2016] IESC 40, which upheld the flexibility of WRC procedures. By way of submission, the Director of the Respondent stated, inter alia, that he did not wish to concede anything on this point.
I have considered the matter. The Complaint Form narrative refers only to the written statement of terms of employment. As such, I am satisfied that there is only one complaint before me.
At the Hearing, I also explained to the Parties that I did not have jurisdiction to hear any pay-related-matters or the “new concerns” outlined in the Complainant’s email to the WRC dated 28 June 2024. I explained that those matters were not properly before me.
Background:
On 9 October 2023, the Complainant commenced work as a Trainee Picture Framer for the Respondent. The Complainant earned €468 gross per week working approximately 39 hours per week. This came to €12 per hour. The Complainant’s employment was terminated on 14 May 2024.
After the Complainant submitted her complaint to the WRC, the Director of the Respondent contacted the Complainant. He accepted that she had not been paid the 2024 minimum wage of €12.70 per hour and he sought to pay the monies owed to her.
The Complainant is seeking adjudication under section 7 of the Terms of Employment (Information) Act 1994 as amended in relation to an alleged failure to provide her with a statement in writing on her terms of employment. |
Summary of Complainant’s Case:
The Complainant provided written and oral evidence. The Complainant submitted that she worked for the Respondent from October 2023 until May 2024. Her tasks included manufacturing frames; cutting and measuring glass; answering phone calls; and serving the customers. The Complainant stated that she never received a contract from the Respondent. She said that she did not realise how detrimental this would be until she was let go and she did not know her entitlements. She submitted that these entitlements included annual leave; duration of employment; pay calculations; and sick pay. She stated that the lack of contract had a “snowball effect”. The Complainant stated that she was treated “abysmally” by the Respondent. She said that she was given two weeks’ notice “reluctantly”. She said that the employment did not end on good terms. The Complainant stated that she has been sick over this and that she has had to fight for what she is owed. She said that she does not want anyone else to go through this. |
Summary of Respondent’s Case:
Mr. McGorrian, the Director of the Respondent, provided written and oral evidence on behalf of the Respondent. The Director of the Respondent submitted that during the Complainant’s interview, he discussed times and hours with her. He stated that that he took the Complainant’s annual leave and sick leave entitlements as “public knowledge”. He stated that the Complainant was employed on a full-time basis. The Director of the Respondent said that he “has to hold [his] hands up” that he did not provide the Complainant with a written contract. He stated that he is not arguing this point. The Director of the Respondent stated that the employment relationship was about being fair to each other and that it was based on trust and respect. He stated that he ran his business on a personal rather than a contractual basis. He said that there was a downturn in trade and that he had to give the Complainant two weeks’ notice. He said that all monies owed to the Complainant have now been paid. |
Findings and Conclusions:
CA-00063711-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994: The Law: The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1) of the TE(I)A requires an employer to provide employees with a statement in writing concerning aspects of an employee’s terms and conditions of employment within one month of commencing employment. Award: Section 7 of the TE(I)A provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded. In Beechfield Private Homecare Limited v. Ms Megan Hayes Kelly, TED 1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decisionmaker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”. Findings and Conclusion: The Complainant was employed by the Respondent for over seven months between October 2023 and May 2024. It is not in dispute that the Respondent failed to provide the Complainant with a statement in writing on her terms of employment. Consequently, the Respondent was in breach of section 3(1) of the TE(I)A. In the circumstances, I find this complaint well founded. Pursuant to section 7 of the TE(I)A, I order the Respondent to pay the Complainant compensation of approximately two weeks’ remuneration, which is just and equitable having regard to all the circumstances. This amounts to €991. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00063711-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994: For the reasons outlined above, this complaint is well founded and I order the Respondent to pay the Complainant €991 by way of compensation.
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Dated: 3rd of December 2024
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Terms of Employment (Information) Act 1994. |