Complainant

Respondent

Parties

Brian  Valdez Sanchez

Heatvale Limited The Yacht Bar And Restaurant

Complainant

Respondent

Anonymised Parties

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Representatives

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-00069072-001

05/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00069072-002

05/02/2025

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave evidence under affirmation.  The hearing proceeded with the assistance of an interpreter provided by the WRC.

CA-00069072-001 Terms of Employment Information

The complainant submitted that he was never provided with a written copy of his terms and conditions in accordance with Section 3(1A) of the Terms of Employment (Information) Act, 1994.

CA-00069072-002 Employment Equality

The complainant stated that he was discriminated against when he was let go having complained about his treatment at work.  He stated that he was cursed at by a more senior employee and that he was not provided with training.

CA-00069072-001 Terms of Employment Information

The respondent submitted that the complainant was provided with a written statement in accordance with the Act and presented a contract of employment at the hearing.

CA-00069072-002 Employment Equality

The respondent stated that the complainant was let go when he verbally abused staff and that his attitude towards staff was not good.  It was submitted that he had no work ethic.

The respondent submitted that the complainant raised issues with his rate of pay but that he was on emergency tax and this accounted for the discrepancy in his take-home pay.

CA-00069072-001 Terms of Employment Information

The respondent presented a copy of a contract of employment at the hearing stating that this was a written statement of the complainant’s terms and conditions of employment.  The complainant stated that he did not receive a copy of this contract.  The respondent witness stated otherwise.

Section 3(1A) of the Act states as follows:

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week;

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) F9[are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

Notwithstanding this difference in evidence, upon consideration of the contract, it became apparent that the contract of employment did not satisfy the requirements of the Act.  I find that the complaint is well founded and that the Act was contravened.

The complainant stated that his hourly rate was €13.50 per hour and that he worked an average of 39 hours per week.  The respondent suggested that the rate of pay amounted to €12.95 and that he worked an average of 35 hours per week.  On balance I prefer the complainant’s account. In circumstance where almost none of the required information was provided to the complainant, I am satisfied that an award of compensation of four weeks salary is just an equitable having regard to all the circumstances of this case.  Accordingly, I award compensation of €2,106 which is equivalent to four weeks salary at €526.50 per week.

CA-00069072-002 Employment Equality

The complainant stated that he was cursed at by a more senior manager, however he doesn’t seem to have raised the issue while he was still in employment and accordingly gave the respondent no chance to rectify matters.  Furthermore, when questioned about the issue at the hearing, the complainant provided a series of texts outlining that he was not being kept on due to being abusive to staff and he was provided with a point of contact for recovering his back money retained due to emergency tax.  He was informed by a more senior staff member that his “bullshit” regarding claims of fraud would not be tolerated and to stop repeatedly contacting a named member of staff.

The respondent suggested that what was presented to the hearing did not amount to discrimination.

Section 85A of the Act deals with the burden of proof and states that: Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Having regard to the evidence presented by both parties, I am not satisfied that the complainant has established facts from which it may be inferred that there has been discrimination in relation to him.  Accordingly, I find that the burden of proof does not shift to the respondent and that the complaint is not well founded.

CA-00069072-001 Terms of Employment Information

Having considered all the written and oral evidence presented to me in respect of this complaint, my decision is that the complaint is well founded, and I award the complainant compensation of €2,106.00 which I consider to be just and equitable in all the circumstances of this case.

CA-00069072-002 Employment Equality

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Terms of Employment Information – Act contravened – award of compensation – Employment Equality – burden of proof not satisfied – no discrimination