ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051856
Parties:
| Complainant | Respondent |
Parties | Eleanor Ryan Carroll | Ryans Lounge Ltd |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
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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-00063445-001 | 14/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00063445-004 | 14/05/2024 |
Date of Adjudication Hearing: 10/09/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
In addition to the foregoing, The Employment (Miscellaneous provisions) Act of 2018 (s.7) amended Section 3 of the Terms of Employment Act 1994 so as to oblige Employer’s to provide a new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide the core details after one month of continuous service can lead to an award of four weeks remuneration. The 2018 Act came into effect on the 4th of March 2019.
The balance of Terms outlined in the 1994 Act have to be detailed within the two-month period already specified.
This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms.
The complaint was made on the 14th of May 2024 and I can consider such contravention of the Act which is alleged to have occurred within the six-month period prior to that date. The Complainant was in employment from the 22nd of January 2024 and the Statement of Terms should have been provide before the 21st of March 2024. The complaint has therefore been brought within the appropriate timeframe and I have the jurisdiction to her the complaint.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.
In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted fairly, and in accordance with the principles of natural justice.
The hearing was not conducted in public as it included a dispute brought under Section 13 of the Industrial Relations Act of 1969. This was not capable of being treated separately. Where the evidence concerned the claims for Statutory Rights the parties did make formal declaration and affirmation to tell the truth.
The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 14th of May 2024.
At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.
I am not required to provide a line-by-line assessment 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 that a
“…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…”.
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Summary of Complainant’s Case:
The Complainant was not represented and made her own case. The Complainant presented no corroborative evidence in terms of witnesses or documentation. The Complainant primarily relied on the comprehensive submission/narrative set out on the workplace relations complaint form. The Complainant alleges that she was not provided with a Contract of Employment at any time in the course of her employment. As the Complainant set it out in her workplace relations complaint form:- “I did not receive a contract at any stage during my employment. I did not receive any information regarding my employment in writing and therefore was left with no knowledge of my terms of employment. I was not informed if I was to be full-time permanent or fixed-term, on a probationary period, what my holiday entitlements were, if I would be required to work public holidays or extended/late hours, sick pay entitlements, break times, rate of pay, scale of increments, management structure or team leadership structure, grievance procedure or safety at work procedures. I was not given any information regarding end of employment procedure.” Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Summary of Respondent’s Case:
The Respondent entity was represented by its two Directors. The two witnesses gave evidence that they did not present the Complainant with a Contract of Employment and fully accepted that it was their obligation to provide the Complainant with a Statement of her Terms and conditions of employment or a Contract of Employment within two months of the commencement of Employment. The Respondent witnesses stated that it was a very busy time in the premises with ongoing construction work being carried out. All evidence was heard following an Affirmation. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
The Complainant must succeed in her complaint under the Terms of Employment (Information) Act, 1994. As discussed in the course of the hearing, the Complainant had brought a further complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012. The Complainant agreed that this was not a piece of legislation which correctly identified her workplace obligations. She had merely used it as a conduit to make her further points. These points were : (Note: I was not a mobile employee)I have never seen any records relating to my own work times (other than a roster), holiday entitlements, public/bank holidays or break times. I was never informed in writing of my break times. I took 30 minutes as my first break (timed on my phone) and 10 minutes as my second break as I was not sure if I was allowed 15 minutes. I was never informed of any lists or records containing my work conditions or entitlements regarding payslips, personal information/documentation relating to my employment, holiday entitlements or pay rates. I hold a current and valid HACCP certificate and other certification regarding food safety and hygiene. I was never requested to show proof of this nor provide a copy of my certifications. At no time was I requested to read/sign any GDPR agreements. Also, I received my roster via WhatsApp for 11 weeks of my employment. Out of these 11 weekly rosters I did not receive a minimum of 24 hours notice for 5 rosters (I received an average of 35 hours notice for the other 6 rosters). The rosters are hand written into a school copybook and left under the sweet counter and I am not aware of any other recording/filing of rosters. Clearly some of these matters are more appropriately for the inspection services. I am satisfied that the failure to provide certain terms and conditions of employment are already provided for under the complaint under the Terms of Employment (Information) Act, 1994. The issues raised herein are repetitious and/or misconceived.
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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.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00063445-001 -The complaint herein is well founded and I award the Complainant €2,000.00. Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 CA-00063445-004 – The complaint herein is not well founded and fails.
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Dated: 12-11-24
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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