ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00053590
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | A Nursing / Care Home |
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-00065393-001 | 14/08/2024 |
Date of Adjudication Hearing: 18/12/2024
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, 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.
It was agreed that the case would remain Anonymous with no Parties named.
Issue of correct Respondent.
The Respondent named on the Complaint form -Employer A was taken over by Employer B on the 1st March 2024.
At the request of the Adjudication Officer, Company Managers were requested to clarify with their Principals which Company was actually liable for any award in this case.
By letter/e mail of the 21st January 2025 the Lead Respondent Manager confirmed that Company B had, under TUPE, accepted all liabilities and should be the Respondent in this case.
Background:
The Complainant was originally engaged as a Cleaner on the 25th August 2021. The employment ended on the 26th of June 2024.
The Complainant contended that his Employment Contract was not in keeping with Section 3 of the Terms and Conditions of Employment Act, as amended, 1994.
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1: Summary of Complainant’s Case:
The Complainant gave an Oral testimony supported by a detailed Complaint form. At the termination of his Employment on the 26th June 2024 his contract of employment was not in keeping with Section 3 of the Act specifically the Zero Hours provisions and details of his expected Working Hours. |
2: Summary of Respondent’s Case:
The Lead Respondent Manager acknowledged that on the TUPE process his Employer discovered that the Employment Contract of the Complainant from the initial Company A (dated the 30th August 2021) had not been brought up to date especially on some technicalities such as the Times of Work/ expectation, Zero Hours clauses etc. However, it was worth noting that in February 2022 a guaranteed minimum week of 36 hours had been introduced by the initial Employer. Following the TUPE transfer (1st March 2024) technical issue such as the above had been clarified for all employees. Accordingly in Oral testimony it was conceded that any liability, if any existed, was for the period from the Publication of the amended Legislation to the date of the issue of the new post TUPE Contracts -taken to be in or around the 3rd of July 2024. Complaints from the Complainant in relation to outstanding Holidays had been discussed, in an effort to obtain clarity as to what was being claimed, with the Payroll Department. Actual Communications with the Complaint had proven difficult but if any monies were due, they would be discharged forthwith.
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3: Findings and Conclusions:
The Complainant had a contested ending of employment. His reference of the current complaint CA -00065393-001 under Section 7 of the Terms of Employment (Information) Act, 1994 was not clearly explained. However, under the 1994 Act and especially Section 3 some minor discrepancies arose in the period from the date of the publication of SI No 686 of 2022 (The implementation date of the amendments) on the 20th December 2022 to the issuing of new post TUPE contracts -in or about July 2024). It is worth observing that many of his specific detailed complaints fall due under the Organisation of Working Time Act, 1997. No redress was sought under this Act. Legal Precedent from the Labour Court in cases such as Irish Water v Patrick Hall (TE 15/6 January 2016 rise the question as to whether or not the Complainant was “unduly prejudiced” by any omissions in his stated Terms and Conditions. Unless a major prejudice has been experienced a Redress award can be quite modest. In this case this approach has to be adopted. |
4: Decision:
CA: 00065393-001
Section 41 of the Workplace Relations Act 2015 and 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 of the Terms of Employment (Information) Act, 1994 allows an Adjudication officer to declare a complaint Well-founded and make a redress award as is Just and Equitable but not exceeding four weeks remuneration.
The Complaint is Well Founded.
Considering that the technical breaches were quite minor the amount of redress that is deemed “just and equitable” is deemed to be €150.
Dated: 31st March 2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Terms of Employment Information |