ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010241
Parties:
| Complainant | Respondent |
Anonymised Parties | A Waitress | A Restaurant |
Representatives | The Complainant attended the Hearing in person and was not represented | The Respondent did not attend or was not represented at the hearing |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 –Withdrawn | CA-00013325-001 | 27/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00013325-002 | 27/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – Withdrawn | CA-00013325-005 | 27/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 – Withdrawn | CA-00013325-006 | 27/08/2017 |
Date of Adjudication Hearing: 30/01/2018
Workplace Relations Commission Adjudication Officer: Enda Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
The Complainant confirmed to the Workplace Relations Commission by e-mail on 25th January, 2018 that Complaint Ref. Nos. CA-00013325-001 under the Minimum Notice and Terms of Employment Act 1973, CA-00013325-005 under the Organisation of Working Time Act 1997 and CA-00013325-006 under the Payment of Wages Act 1991 were being withdrawn. Therefore, the only complaint before me for adjudication relates to CA-00013325-002 under the Terms of Employment (Information) Act 1994.
The WRC received an e-mail from the Respondent’s representative on 26th January, 2018 seeking a postponement of the hearing which was scheduled to take place on 30th January, 2018. It was indicated by the Respondent’s representative that the postponement was being sought on the basis that the Respondent was scheduled to attend hospital for surgery on 29th January, 2018. The Respondent’s representative was informed by the WRC by return e-mail on 29th January, 2018 that the postponement of hearing arrangements is only granted in exceptional circumstances and an application for same must be submitted in writing and accompanied by the relevant supporting documentation. The Respondent’s representative was requested to provide supporting documentation to enable the WRC to consider the request for a postponement of the hearing. The Respondent’s representative was advised by the WRC to use only the pru@workplacerelations.ie e-mail address for further e-mail correspondence.
I checked with the WRC Post Registration Unit prior to the commencement of the hearing on 30th January, 2018 to enquire if the Respondent’s representative had submitted the requested relevant supporting documentation in relation to the request for a postponement. I was informed that the Respondent had not submitted any further correspondence or supporting documentation to the pru@workplacerelations.ie mailbox. The Complainant was in attendance at the hearing venue for the scheduled stating time of 10:00 a.m. Neither the Respondent nor its representative attended the hearing on 30th January, 2018. In the circumstances, I decided to proceed with the hearing as I was satisfied that the Respondent’s representative was fully aware that the request for a postponement had not been granted.
It subsequently transpired following the hearing that the Respondent’s representative had sent an e-mail to a named official in the WRC’s Post Registration Unit at 8:25 a.m. on 30th January, 2018 making a further application for a postponement of the hearing. This e-mail was sent to the individual work e-mail address of the named official despite it clearly being stated in the previous communication to the Respondent’s representative from the WRC on 29th January, 2018 that any further e-mail correspondence should be directed to the pru@workplacerelations.ie mailbox. The Respondent’s representative did not submit any relevant documentation in support of the application for a postponement on medical grounds. This e-mail was only brought to my attention after the hearing had taken place on 30th January, 2018.
In the circumstances, I find that the Respondent’s non-attendance at the hearing on 30th January, 2018 without any acceptable explanation to be unreasonable in the circumstances.
Background:
The Complainant claims that the Respondent failed to provide her with a written statement of her terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994. |
Summary of Complainant’s Case:
The Complainant was employed by the Respondent as a Waitress from 26th November, 2016 until 7th May, 2017 when her employment was terminated. The Complainant was normally expected to work 10 hours per week and was paid €8 per hour. The Complainant claims that she did not receive a written statement of her terms and conditions of employment at any point during her period of employment with the Respondent. The Complainant claims that she was dismissed from her employment by way of a Facebook message on 7th May, 2017 and that she was not given any reason for her dismissal. |
Summary of Respondent’s Case:
The Respondent did not forward any written submissions in response to this complaint and did not attend the oral hearing. |
Findings and Conclusions:
CA-00013325-002 – Complaint under the Terms of Employment (Information) Act 1994 This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act. Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “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 …… “. The Complainant adduced evidence that she was not provided with a written statement of her terms and conditions of employment by the Respondent during her period of employment. I have found the Complainant to be a credible witness. Based on the uncontested evidence of the Complainant, I find that the Complainant was not provided with a written statement of her terms and conditions of employment at any stage during her period of employment. In the circumstances, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. |
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.
CA-00013325-002 – Complaint under the Terms of Employment (Information) Act 1994 In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €240.00 being the equivalent of three weeks’ pay in respect of the contravention. |
Dated: 5th April, 2018
Workplace Relations Commission Adjudication Officer: Enda Murphy
Key Words:
Terms of Employment (Information) Act 1994 – Section 3 – Failure to provide written statement of terms and conditions – complaint well founded – compensation awarded. |