ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00047162

Parties:

Complaints:

Date of Adjudication Hearing:  08/01/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following 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.

Background:

The Complainant worked as a General Operative for the Respondent.  His complaints are that he did not receive written terms of conditions of employment or core terms as provided for in the Terms of Employment (Information) Act 1994.  He further contends that he suffered penalisation by being fired from his job for raising issues in relation to Safe Pass and PPE.

Summary of Complainant’s Case:

The Complainant made a written submission and gave sworn evidence summarized as follows:

Terms of Employment Information Act 1994 (CA-00058177-001)

The Complainant repeatedly asked Mr I (Line manager) for a Contract and his reply was that the person handling this (Ms V) didn’t have time to prepare it but he would get it the following week.

He disputes the Employer’s statement that his terms and conditions of employment along with a 3 month contract have always been available within the office for him to collect.   He strongly disputes that he was on a 3 month contract as he was told it was a permanent job.  He strongly disputes the Respondent’s assertions that they tried to give him his contract.  He was in the office and canteen daily and Ms V never tried to give him a contract. 

The reason he received a contract after his employment ended was that he requested his file under GDPR.   He also noted that when they sent out the contact on receipt of this request that they had not signed the contract. It was also at this point the only time he realized that it was a 3 month contract.

Penalisation – (CA-00058177-002)

The Complainant believes he was penalised by being let go for looking for his safe pass and other entitlements.

it is accepted by the Company, as per their letter dated 17th July, that he was told to go on to site using another person (J’s) Safe Pass.   The company knew he had no Safe Pass as he told them on the 21st April.  On the 30th June he again raised this issue with Mr I and was told that they will give him a contract next week and that they will send him on safe pass training as soon as possible.

He knew that the Company were not happy that he kept asking for a Safe Pass, protective clothing that would fit him,  or his Contract of Employment and they told him that he didn’t need to tell them and ask them 100 times, and they told him that he didn’t need to worry about that and that they would provide him with the right size uniform, safe pass and contract.

After asking again on the 30th June he attended a BBQ on the afternoon of Sunday 2nd July, with his family at the house of Manager Mr I.  He asked him about work the next day and he told him he would call him later. When he spoke to him by phone later he was told that “they don’t have work for you anymore”. He asked him if he was fired and he said yes “but that I didn’t have a contract anyway so I wasn’t officially employed”.  On the 7th July I’s wife messaged his wife to say that she was sorry that I told him not to come to work anymore.

He asked him in this phone call if he should look for other work and he said yes.

He feels that the Company penalized him for asking for a Safe Pass and for asking that he follow the Health and Safety rules in Ireland.    They did not like him asking for a Safe Pass or stating that his protective gear did not fit him properly

Terms of Employment Information Act 1994) (CA-00058177-003)

The Complainant set out the history of his employment, beginning when he met with Manager Mr I and two Directors.  He was told he would be working 45 hours per week and the job was permanent.

Even though he asked for more information about his working week he was never given core terms of employment or any contract setting out what he could or should expect in terms of working hours and was never told this position was a Contract. He was told that it was permanent. He worked different hours each week.  

The Complainant gave sworn evidence that he was never offered a contract of employment.  He stated that he was given the job on a permanent basis.  He stated that it was never to be a 3 month contract as he was clear he needed a full time permanent job.  He stated that he told his Manager Mr I that he did not want to pretend to be another employee (J) when he had to use his Safe Pass.  He was always asking for a contract.   His PPE did not fit him.  He was unhappy about the Safe Pass issue.   He was fired on Sunday evening 5th July 2023 when his Manager spoke to him on the phone and said they had no more work for him.

Summary of Respondent’s Case:

The Respondent provided a written submission summarised as follows:

The Complainant commenced employment on 21st April 2023.  His employment ended on 2nd July 2023.  His wages were €701.25 gross per week.   The Respondent wholly refutes the complaints lodged by the Complainant on 9th August 2023.   The Complainant was unable to produce an Irish Driving licence and the Respondent could not offer him alternative work when he was laid off temporarily on 2nd July 2023.  When he was put on temporary lay-off he came into the office, returned his PPE and asked for a reference.

CA-00058177-001 Terms of Employment Information Act 1994

It is submitted that on several occasions, the Complainant was supposed to sign his written contract but for various reasons, including he was out sick, and on one occasion had to go home because his wife was sick, he did not sign the contract.

CA-00058177-003  Terms of Employment Information Act 1994

The Respondent refers to the Labour Court decision in Philmic v Petraitis subsequently upheld by the High Court which found that there was no detriment caused and compensation was set at nil.  It is argued that in this case, the Complainant had access to an Employee handbook, readily available in the canteen.

CA-00058177-002 - Penalisation

The Complainant has brought a claim of penalization under Section 28 of the Safety, Health and Welfare at Work Act 2005.  The Respondent denies that the Complainant was penalized when he allegedly requested a safe pass.  He never asked either Director of the Respondent for a safe pass.  The Complainant and his Manager discussed the issue of safe pass.  The Respondent is safety conscious and would not allow the Complainant to work on a site without a Safe Pass. 

The Complainant was laid off, along with one other worker, for one week, from 3rd  July to 7th July 2023.  The Complainant attended at the office on 5th July 2023 and gave back his uniform and requested a reference.

Sworn evidence was given by Manager Mr I.  He stated that efforts were made to get the Complainant to sign his employment contract but each time, something happened to prevent this.  He said that they knew each other through their wives.  He knew the Complainant was looking for work and he knew he had been painting and decorating so he assumed he had a safe pass.  He arranged to have another one given to him temporarily with the intention that the Complainant would go on a course and get a safe pass.  He told the Complainant what conditions he was being employed under, hours of work, 3 month contract and paid breaks.  He stated that the Complainant never stated that he was penalized.

Sworn evidence was given by Director Ms V.  She outlined her involvement in trying to get the Complainant to sign his contract.  She arranged to have him attend the office on 28th April but he was on sick leave.  She wanted to get him set up on mygov.ie for tax purposes but when she was doing this, his wife rang him to come home due to a family emergency.  She gave evidence regarding the circumstances of the temporary lay off.  The Fitting team had to be stood down for the week, due to the absence on sick leave of the Fitter.  So no money was coming in and due to the cash flow problem, the Complainant and another employee had to be laid off for the week.   The Complainant was told this but he came into the office a few days later and requested a reference.  It was deemed that he had secured another job.

Sworn evidence was given by Director Mr K.  He stated that he gave the Complainant his PPE on 23rd April 2023.  The Complainant was to come in on Friday 28th April to sign his contract of employment but he was out sick.  He asked the Complainant for a copy of his driving license.  The Complainant stated that he was in the process of changing from Slovenia to Irish license.  This requirement for a driving license was so that other work such as deliveries could be assigned to him is necessary. He never produced the license.  The Director stated that Safe Pass is not required if there are not 3 contractors on site and most of the work carried out by the Complainant was on residential sites (4 days out of 42 days total work).  The Complainant had to be laid off with another employee just for one week and he was expected back on 10th July 2023.  However, he came in on 5th July, handed back his PPE and requested a reference.  So the Complainant was not let go or penalized for any issue.  The other worker, Mr C came back after the one week lay off.  The sequence of events was the Fitter phoned and said he would not be in on Monday, the cash flow problem was an outcome of that, Mr I. was told to tell the Complainant there was no work for that week.  The Complainant then left the employment of his own accord.  This is an opportunistic claim.   

Findings and Conclusions:

CA-00058177-001 Terms of Employment Information Act 1994

The Act provides at Section 3 that written terms of conditions of employment must be provided to an employee within one month of commencement of employment.  It further provides at Section 3 that basic core terms be provided within 5 days of commencement.  The relevant extracts are as follows:

3. (1)  An employer shall, not later than one 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 …

Section 3 (A) of the revised Act states:

A statement furnished by an employer under section 3, 4, 5, 6, 6E or 6F shall be —

(a) signed and dated by or on behalf of the employer,

(b) in writing, and

(c) transmitted on paper or, provided that the information is accessible to the employee, that it can be stored and printed, and that the employer retains proof of transmission or receipt, in electronic form.

In this instant case, much evidence was given regarding the difficulty the Respondent had in getting the Complainant to sign a contract.  The Complainant refutes this evidence.  Whether the Respondent had made efforts to have the Complainant sign the contract or not, the simple fact remains that the obligation is on the employer to produce the contract, provide it to the employee and the employer must sign it. There is no provision in the Act that obliges the employee to sign it.  The question could be asked, why not simply post the contract to the Complainant if it proved difficult to pin him down as stated in evidence?                                                    

In this case, the Respondent failed to provide the Complainant with the written contract in accordance with the provisions of the Act.  I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €700 compensation.

CA-00058177-003  Terms of Employment Information Act 1994

Section 3 (1) (A) of the Terms of Employment (Information) Act 1994 provides:

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, 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 2014);

(c) 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;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week …

The core terms must be provided within 5 days of commencement and the full written statement within one month.   I find that the Respondent failed to provide core terms within the provisions of the Act.  I find the complaint to be well founded.  I do not require the Respondent to pay further compensation than covered in above CA-00058177-001.

CA-00058177-002–Safety, Health and Welfare at Work Act 2005

Section 27 of the Act provides:

(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion…

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-00058177-001 Terms of Employment Information Act 1994

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €700 compensation.

CA-00058177-003 Terms of Employment Information Act 1994

I have decided that the complaint is well founded.  I do not require the Respondent to pay further compensation than covered in above CA-00058177-001.

CA-00058177-002–Safety, Health and Welfare at Work Act 2005

I have decided that the complaint is not well founded.

Dated:   23rd February 2024.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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