ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001421
Complaint(s)/Dispute(s) for Resolution:
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
Date of Adjudication Hearing: 11/05/2016
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The complainant did not receive a statement in writing on his terms of employment from his employer in direct contravention of Section 3 of the Terms of Employment (Information) Act, 1994. The complainant commenced employment with his employer on the 30th January, 2015 and his employment was terminated on the 5th January, 2016.
The complainant, not having been furnished with a statement, was therefore unaware of company procedures and did not know what notice period he was entitled to.
Respondent’s Submission and Presentation:
The respondent employed the complainant on 5th January 2015 and posted a contract to him in February 2015.
In November 2015 the respondent company underwent restructuring as a result of which, in line with TUPE regulations, all employees were issued with letters of comfort and new contracts of employment.
The complainant failed to sign and return either of these contracts.
Without prejudice to the above points the respondent is of the view that the complainant was not at any loss nor was he otherwise materially prejudiced by the absence of a statement and therefore should not be compensated.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
What requires to be decided in this case is whether or not the complainant was issued with a statement of employment in conformity with the requirements of the legislation and, if not, what (if any) compensation should be awarded.
Legislation involved and requirements of legislation:
Section 3 (1) of the Terms of Employment (Information) Act 1994 states:
“An employer shall, not later than 2 months 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 (5) of the Act states:
“A copy of the said statement shall be retained by the employer during the period of the employee’s employment and for a period of 1 year thereafter.”
Section 5 (1) of the Act requires that any changes to the particulars of the statement shall be notified in writing to the employee “not later than 1 month after the change takes effect”.
The complainant was employed by the respondent as a refuse collector commencing on 30th January 2015 at a weekly wage of €342.90 plus €12.57 meal allowance. On 26th September the complainant suffered an injury at work and was unable to resume employment. The respondent terminated his employment on 5th January 2016.
In evidence a director of the respondent stated that back in February 2015 he dealt personally with the company’s administration and had posted out a contract to the complainant that month. The complainant had not signed or returned the contract. Some months later the company was restructured and on 30th September 2015 all employees, including the complainant , were given notice of this as required by TUPE regulations. At this time the respondent engaged a person to deal with the administrative and office duties. That person sent amended contracts to all employees in November requesting that they be signed and returned. A tracker system in Excel format was employed to keep track of employee compliance with a number of legal requirements including the signing of contracts. This showed that the contract had been sent to the complainant but not returned.
The complainant stated in evidence that he had not received either of the contracts but agreed that he had received the TUPE correspondence. It was also argued that not being in possession of details of his employment meant that he was unaware of company procedures and that ,in particular, not knowing what his notice entitlement was under his contract precluded a claim under unfair dismissals legislation.
The respondents produced a generic contract but not one with the complainant’s name on it. They were queried in relation to a possible covering letter to accompany the second contract in November. The respondents did not have such a document at the hearing but forwarded what was stated to be that letter about a week later. The complainant’s representative objected to the letter being taken into consideration. Having regard to all the circumstances I have decided to disregard it.
I have carefully considered all the evidence and submissions before me. I find that the respondent has failed to prove that a statement of employment as specified in the legislation was issued within the 2 month timeframe commencing on the date of employment. I find that on the balance of probabilities a statement did issue in November to the complainant and in this regard I am taking into consideration the TUPE advice letter which the complainant accepts he received and the evidence of the Excel sheet which was drawn up specifically to monitor compliance with a number of requirements. I do not therefore accept that the complainant was unduly prejudiced in the manner submitted on his behalf.
I therefore declare this complaint to be well founded. I order the respondent to pay the complainant compensation equivalent to 2 weeks’ wages. I note that the Minimum Wage rate increased to €9.15 per hour on 1st January 2016 and that that therefore produces a basic weekly wage of €356.85.
Dated: 27th July 2016