ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005705
Parties:
| Complainant | Respondent |
Parties | Cleaning Supervisor | Cleaning Company |
Representatives | Lauren Martin Martin & Gately Solicitors | Judy McNamara IBEC |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00007423-001 | 05/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00007423-002 | 05/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00007423-003 | 05/10/2016 |
Date of Adjudication Hearing: 17/05/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Location: Lansdowne House, Dublin 4
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 39 of the Redundancy Payments Act, 1967 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background: The Complainant transferred under a Transfer of Undertakings Regulation to the Respondent Company on 24th November 2011 as a General Operative earning €9.75 an hour and working 39 hours a week. In 2013 the Complainant was promoted to a position of Supervisor with the Company and is now paid €10.75 an hour. The Complainant referred a complaint to the Workplace Relations Commission on 5th October 2016 alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act, 1994 – had breached the Transfer of Employment Regulations S.I. 131 of 2003 and had breached the Redundancy Payments Act , 1967. A Hearing was scheduled for 12th January 2017 but was adjourned at the Complainant’s request as his Solicitor was not available. A further Hearing was scheduled on 30th March 2017 but was again adjourned at the Complainant’s request as the Interpreter did not attend. A further Hearing was then scheduled for 17th May 2017. The following complaints were withdrawn at the Hearing on 17th May 2017 – CA-00007423-001 Transfer of Undertaking Regulations and CA-00007423-002 Redundancy Payments Act, 1967 |
Summary of Complainant’s Case:
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994. The Complainant stated that he had not been provided with a written statement of his Terms and Conditions of Employment by the Respondent Company. The Complainant argued that Section 3 of the Act confers an obligation on the Employer to, not later than 2 months after the commencement of an employee’s employment to give or cause to be given to the employee a statement in writing. Section 5 (1) of the Act provides that where a change is made to this written statement, the Employer shall notify the employee in writing not later than one month after the change takes effect and Article 3 of S.I. 49 of 1998, confers an obligation on an employer to, not later than two 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 setting out the rest periods and breaks referred to in sections 11, 12 and 13 of the OWTA of 1997. The Complainant argued that he was not given these required statements within two months or at all. The Complainant referred to the time limits under Section 41 (6) and (8) of the Workplace Relations Act, 2015 and argued that the breach of the Act was continuing and does so until the Respondent complies with the Act. |
Summary of Respondent’s Case:
The Complainant was one of a number of employees who transferred to the Respondent Company under the Transfer of Undertaking Regulations, on 24th November 2011. His Contract of Employment with the named Transferor, transferred with him to the Respondent Company, in accordance with the Regulations. In 2013 the Complainant was promoted to Supervisor and he was moved to another named Site in this role. The Respondent argued that the Adjudication Officer was precluded from hearing the complaint as the complaint was filed with the WRC in contravention of Section 41 (6) and (8) of the Workplace Relations Act, 2015. The Complainant was lodged on 5th October 2016 and Section 41 (6) of the Act of 2015 provides that an Adjudication Officer shall not entertain a complaint after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or per Section 41 (8) an extension of a further six months if the Adjudication Officer is satisfied that the delay was due to reasonable cause. |
Findings and Conclusions:
Preliminary Issue – Time Limits – Section 41 (6) and (8) of the Workplace Relations Act, 2015 Section 41(6) of the Workplace Relations Act, 2015 provides as follows – “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period of referred to in subsection (6)….(but not later than 6 months after such expiration) as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause” The complaint was referred to the WRC on 5th October 2016 and the complaint relates to the Transfer of Undertaking of 24th November 2011 and the Complainant’s promotion to Supervisor in 2013. I find that these complaints do not comply with Section 41(6) of the Act of 2015. The Complainant did not seek an extension of time under Section 41(8) of the Act of 2015 but instead argued that the breaches of the Act of 1994 were ongoing and remain ongoing in circumstances where the Respondent Company fails to comply with the Act of 1994, Sections 3 and 5 and S.I. 49 of 1998. The Interpretation Act 2005 at Section 5 provides as follows: (1) In construing a provision of any Act…..,.- (a) that is obscure or ambiguous, or (b) that on a literal interpretation would be absurd or would failto reflect the plain intention of – (i) in the case of an Act to which paragraph(a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or (ii) in the case of an Act under paragraph (b) of that definition relates, the parliament concerned, the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole. I find that Section 41 (6) and 41(8) is neither obscure or ambiguous and therefore I do not find that the complaint is ongoing and continuing. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is not well founded.
Dated: 31/08/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Breach ongoing in relation to Section 3 and 5 |