Complainant

Respondent

Parties

Zhihua  Yuan

Gaffney Mechanical Limited

Complainant

Respondent

Anonymised Parties

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Representatives

 Mr William Wall, Peninsula

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-00058950-001

21/09/2023

An issue arose at the outset as to whether the Complainant was ever employed by the Respondent. Whilst I had heard other complaints by the Complainant against this Respondent under ADJ-00048138 – nonetheless, I stated I would hear the evidence and submissions on this matter and reserve my decision.  

The Complainant outlined his dealings with regard to his obtaining a work permit and signing a contract of employment with the Respondent on 8 April 2022. He stated that as a result he considered he was employed by the Respondent from April 2022.

The Complainant stated that he arrived in Ireland on 31 December 2022. The Complainant complained that the Respondent treated him in a fraudulent manner by colluding with a recruitment agency to bring him to Ireland, by refusing to arrange a job for him after he came and by not telling him no job was available.  He stated that the Respondent arranged for him to work illegally for another company and that he commenced working for this other company in February 2023.

The Complainant stated that his contract included “fake terms”, that the wages promised were not paid by the other company and that during his employment he did not receive any notice regarding changes to his employment contract.  

The Complainant stated he was seeking compensation for the financial losses he had suffered and the impact on his health.

The Respondent outlined its business. The Respondent stated that it was a stand alone business entity and it rejected the Complainant’s assertions with regard to its purported dealings on behalf of another company and with regard to the matter of work permits and any alleged illegality on its part.

The Respondent stated that in 2022 it applied to the Department of Enterprise Trade and Employment (DETE) – through a recruitment agency – for work permits for a number of workers. The Respondent stated that as part of the process it was required to submit to the DETE a signed statement of the main terms and conditions which would attach to the employment. The Respondent stated that the Complainant’s employment was due to commence on 20 June 2022 however, he did not arrive in Ireland until 31 December 2022. The Respondent stated that as a consequence of general economic pressures it did not hire the Complainant, that he never became an employee of the Respondent and that it did not enter into any contractual relationship with the Complainant after he arrived in Ireland.

It is the position of the Respondent that as the Complainant was never an employee he is not entitled to advance his complaint under the Terms of Employment (Information) Act [1994-2022].

The Terms of Employment (Information) Act [1994-2022] provides as follows:

““employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer…….”

““employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;”

“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, that is to say…..”

"5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.”

Having regard to the foregoing legislative provisions and having considered all the evidence, documentation and submissions I have come to the following conclusions:

·        I am satisfied that the statutory obligation to apply the provisions of the Terms of Employment (Information) Act [1994-2022] – including Section 5 with regard to any purported changes to the contract or statement of terms of employment – is premised on firstly establishing the status of the Complainant as an employee, the status of the Respondent as an employer and generally the existence of an employee/employer relationship;

·        The Statement of Main Terms of Employment was signed by the Complainant on 8 April 2022 and by the Respondent on 13 April 2022. There was a letter of offer of employment to the Complainant from the Respondent of 21/9/2022. Notwithstanding the existence of both these documents I am satisfied the evidence demonstrates that the Complainant did not arrive in Ireland until 31 December 2022 and that he never worked for nor was ever employed or paid by the Respondent. Accordingly, the Complainant has not satisfied the “employee” test/requirement for the purpose of pursuing this complaint against the Respondent under the Terms of Employment (Information) Act [1994-2022].

CA-00058950-001

For the reasons outlined this complaint is not well founded.

Employee/Employer