ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042619
Parties:
| Complainant | Respondent |
Parties | Patrick Hill | Ger Conroy, Fitness Ltd t/a Fitcore |
| Complainant | Respondent |
Representatives | Mr D O’Riordan , Solicitor, of Sherwin O’Riordan, Solicitors | Mr William Wall & Andrea Montanelli of Peninsula Business Services Ireland |
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-00053118-002 | 05/10/2022 |
Date of Adjudication Hearing: 28/08/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 & Section 7 of the Terms of Employment (Information) Act, 1994 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.
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 Oath / Affirmation was administered to all witnesses present. The legal peril of committing Perjury was explained to all parties.
No issue regarding confidentiality arose.
As this complaint had been part of a wider series of complaints, which had been withdrawn, it was agreed that the Adjudicator would issue a finding, in this specific case, drawing on the very extensive papers submitted.
Background:
The case in contention concerned a Gym Instructor/Head of Fitness and a Gym/Fitness centre.
The Complainant alleged that he had never been informed of any changes to his working conditions while in employment. He had also never received a Contract of Employment until 2019 when he had been some two years in the job. The employment was from mid-2016 until the 13th January 2023. The rate of pay was stated by the Complainant to have been €232 for a 22-hour week. |
1: Summary of Complainant’s Case:
The Complainant, who was represented by David O’Riordan, Solicitor, alleged that he had never received a proper Contract of Employment until mid-2019 some two years after his commencement. It was also alleged that the withdrawal of his Pension entitlement in 2020 was never advised or agreed with him. Both situations were contrary to the Act. |
2: Summary of Respondent’s Case:
The Respondent, represented by Mr Wall of Peninsula, accepted the deficiencies in the contract issue but stated that this was commonplace in the Gym Sector. Mr Wall pointed out that the Complainant had suffered no detriment of any form. He cited Labour Court case law supporting the Argument that no redress was warranted where no detriment had been suffered. As regard the pension situation this had been a requirement of the Government Wage subsidy scheme. A copy of the relevant regulation was presented in evidence. |
3: Findings and Conclusions:
The Terms of Employment (Information) Act, 1994 is a Statute passed into Law by the Houses of the Oireachtas. Section Three sets out the format for Contract of Employment and a timeline for delivery. Even allowing for the case law submitted, a breach of the Act, the denial of a statutory right, requires some compensation. However, the case law can also indicate that a lesser award of compensation might be warranted. In this case a Compensation lump sum of €250 is deemed appropriate. As regards the Pension situation the Respondent was carrying out a Government provision and no fault can be attached to them in this regard.
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4: Decision:
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.
CA: 00053118-002
The complaint is deemed Well Founded
A Compensation Lump Sum of €250 is awarded to the Complainant for breach of Section Three of the Act.
This is not remuneration of any form.
Dated: 27th March 2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Terms and Conditions of Employment, no contract provided in proper time. |