ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030676
Parties:
| Complainant | Respondent |
Parties | Tom Griffin | Alan Hennessey & Breifne Hanratty T/A Munster Sealant Services |
Representatives |
| Tom Ryan Peninsula |
Complaints:
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-00040873-001 | 09/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00044001-001 | 11/05/2021 |
Date of Adjudication Hearing: 26/01/2022
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
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. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. The Respondent confirmed that it is a business partnership of two people as named.
Background:
The Complainant was employed with the Respondent as a general operative from 29 November 2018 to August 2020. His weekly wage for a 39-hour week, based on €15 per hour, was €585 gross. The Complainant submits, in two complaints, that he did not receive his terms of employment under the Terms of Employment (Information) Act 1994. The Respondent denies both complaints, submitting that one is out of time, and that the Complainant received a contract of employment with full terms at the commencement of Employment. Respondent’s Preliminary Issue – CA-00044001-001 The Respondent submits that this claim is out of time because the Complainant’s employment ended in August 2020 and the complaint was received by the Workplace Relations Commission on 5 May 2021, which was 10 months since the cessation of employment. Complainant’s Response – Preliminary issue CA-00044001-001. The Complainant submits that he had further issues that he needed to put in his complaint form, which he had omitted from his original complaint, CA-00040873, and he is therefore pleading ‘reasonable cause’ in support of his application to extend the time limit by a further 6 months. Findings and Conclusion on the Preliminary Issue: CA-00044001-001 In deciding the on the Respondent’s preliminary point case, I must first establish as to whether there is merit in the complainant’s application to extend the time limit for submission of his claim. Section 41 (1) of the Workplace Relations Act, 2015 provides: (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer. Subsections (6) and (8) further provide the regulation on time limits for submission of claims and whether a time limit can be extended for a further six months: (6) 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 referred to in subsection (6) or (7) (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 applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) as follows; “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.” In this instant case I do not accept that the Complainant’s contention that forgetfulness on his part fulfils the test of being ‘agreeable to reason’, as laid out in Cementation Skanska Having considered the evidence put forward by the Complainant in applying for an extension of time, I conclude that the reason does not offer an excuse for the actual delay therefore I find in favour of the Respondents application that the complaint is out of time. However, the reality of the situation is that this is a technical issue with little or no perceived prejudice for the Complainant, because the core of his complaint i.e. that he did not receive a copy of his terms of employment within two months since commencement of employment, particularly with regard, to his place of employment, is contained within his original complaint of CA-00040873 |
Summary of Complainant’s Case:
CA-00040873-001 Terms of Employment (Information) Act 1994 The Complainant submits that he did not receive a written copy of his terms of employment as laid out under Section 3 of the Terms of Employment (Information) Act 1994. He submits that his place of work is not specified correctly in that the address of the Respondent is specified but in reality, he does not work there but travels extensively throughout the country. He also submits that his experience of travelling and the use of his personal car is not adequately covered in the contract he received. This causes him significant hardship. He accepted in cross examination that he had received and signed a contract of employment at the relevant time. |
Summary of Respondent’s Case:
CA-00040873-001 Terms of Employment (Information) Act 1994 The Respondent witness and business partner, Breiffne Hanratty gave evidence that the requirements of the business, which in the main concerned pharmaceutical plants, dictated that the Complainant needed to travel extensively. He was paid expenses for this. The witness gave further evidence that the Complainant signed for the terms of his employment which were extensively laid out in his contract. The Respondent exhibited a copy of the contract. |
Findings and Conclusions:
The relevant part of the legislation is contained at Section 3 of the Terms of Employment (Information) Act 1994 (hereinafter “The Act”). (1) 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, that is to say—… (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places, Both the Respondent and the Complainant accepted that the Contract of Employment contained the following description of the place of work: You will normally be required to work from the Loft Enterprise Park, Ballinrea Road, Carrigaline. You will not be required to work outside Ireland for a period, or periods, exceeding one month. The Respondent argued that this term of the contract, amongst the other terms as signed for by the Complainant, fulfilled its obligation under the Act. The Complainant argued that the term of the contract suggests that his place of employment was at the headquarters in Carrigaline. However, given the nature of the work involved, any reasonable reading of this statement suggests that the Complainant was required to work at different locations throughout the country. I am also satisfied that the Complainant was fully aware of the nature of the work, and the requirement for travel to various sites, at the commencement of his employment. The actual amount of travel became a matter of dispute between the Complainant and the Respondent, upon which the Complainant gave copious evidence; this was not a matter for adjudication. Having heard the submissions and evidence from both sides, I conclude that the Complainant did receive his written term regarding his place of work and, further, that he had received his full written terms under the Act from the Respondent. I therefore find that the complaint was not 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-0040873- 001 Complaint seeking adjudication under Section 7 of the Terms of Employment (Information) Act 1994: I find that the complaint was not well founded for the reasons outlined above CA-00044001-001: Complaint seeking adjudication under Section 7 of Terms of Employment (Information) Act 1994: I find that the complaint was out of time therefore I do not have jurisdiction to hear the complaint. |
Dated: 14th February 2022
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Terms of Employment (Information) Act 1994, Time Limits. |