ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046531
Parties:
| Complainant | Respondent |
Anonymised Parties | A Caretaker | A Property Management Company} |
Representatives | Georgina Perryman of Citizens Information Services | Unrepresented at Hearing / Did not attend. |
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-00057327-001 | 23/06/2023 |
Date of Adjudication Hearing: 22/11/2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act, 1994following the referral of the complaint to me by the Director General, I inquired into the complaint.
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 normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.
The issue of anonymisation in the published finding of the WRC was considered but not deemed necessary.
Linked Case/Complaint
This case Adj 46531 is linked to a Redundancy Act ,1967 Complaint, CA-00056345-002 and a Section 12 / Minimum Notice & Terms of Employment Act, 1973 Complaint, CA-00056345-001 – both under Adj 45571. Both cases were heard simultaneously.
Background:
The Complainant was employed as a Caretaker by a Property Management Company. The employment began on the 20th March 2017 and ended on the 27th January 2023 on alleged Redundancy grounds. The Complainant alleged that he had never received any written contract of employment as provided for in the Terms of Employment (Information) Act, 1994.
The rate of pay was stated to have been €2,700 gross per month for a 40-hour week. |
1: Summary of Complainant’s Case:
1:1 CA-00057327-001 The Complainant alleged that at no stage during his employment did he ever receive a Written Contract, or a Statement of Terms and Conditions as required by Section 3(1) of the Terms of Employment (Information) Act, 1994. In oral testimony, the Complainant Representative stated that in a phone call of the 1st June 2023 with Mr R, the Employer/Respondent Representative, he, Mr R confirmed this. Ms Perryman, the C Advice Spokesperson, was reminded that she was under sworn Oath. She confirmed that the phone call had taken place as reported. |
2: Summary of Respondent’s Case:
He Respondent did not attend or give any direct Oral Testimony. His views could only be assumed from correspondence/records of phone calls from the Complainant. |
3: Findings and Conclusions:
Ms Perryman from Citizens Advice gave persuasive, sworn, Oral Testimony. It could not be challenged by the non-attendance of the Respondent. Accordingly, on the balance pf probabilities, the Complainant did not receive a Written Contract or Statement of Terms and Conditions as required by Law. Section 3(1) of the Act (as then in place) stated that 3.— (1) An employer shall, not later than two 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— (The Act continues to list details required – Adjudicator comment) Accordingly, a breach of the Act by the Respondent was evident. |
4: Decision:
CA-00057327-001
Section 41 of the Workplace Relations Act 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.
Section 7(2)(d) of the Act is applicable.
- d) In relation to a complaint of a contravention under section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, ] and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.
Accordingly, it follows that an award of two weeks’ pay is made in favour of the Complainant. This is a Compensation award for Breech of a Statutory Duty and is not renumeration.
(An award of the full four week’s pay allowable was not made in lieu of stated good relationship with the Respondent and his maintaining the Complainant on full pay during periods of short working in the late Autumn/early Winter of 2023.)
Dated: 01/02/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Terms of Employment (Information) Act,1994 |