September 01, 2019
Employee awarded €400.00 from Employer for not receiving a Contract of Employment
Adjudication Reference: ADJ-00020808
Background:
The Complainant was employed with the Respondent company from August 2018 to March 2019. He was never provided with a formal Contract of Employment.
Summary of Complainants Case:
The Complainant’s case is so made.
Summary of Respondent’s Case:
The Respondent agrees that it had not yet provided the Complainant with the Statement of the Terms and Conditions of Employment as required under the Act. In defence the Respondent indicated it is a small company and the Complainant left his employment unexpectedly shortly after he was engaged.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that a decision to be made in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Given the circumstances the complaint is well founded and the Complainant is awarded compensation in the amount of €400.00.
Adare Human Resource Management Commentary:
Section 3 of the Terms of Employment (Information) Act, 1994 outlines 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 of the terms of the employee's employment…”.
Since the introduction of the Employment (Miscellaneous Provisions) Act 2018 in March 2019, an Employer must now also provide the following core terms to an Employee in a written statement within five days from his/her start date:
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full names of the employer and employee;
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address of the employer;
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where the contract is temporary, the duration of the contract or if it is for a fixed term, the date on which the contract expires;
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the rate or method of calculation of the employee's remuneration and pay reference period; and
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the number of hours per day and per week which the employer reasonably expects the employee to work.
It should be noted that this requirement is in addition to the obligation to provide an Employee with a written statement of terms of employment within two months of his/her start date, however all legal obligations can be adhered to by issuing an Employee with a contract of employment on their first day of employment.
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Complainant awarded redundancy entitlement even though he was offered other work alternatives
Adjudication Reference: ADJ-00019051
Background:
The Complainant has brought forward three complaints;
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The Complainant was entitled to a statutory redundancy payment when the site he worked in closed down and he was not offered a reasonable alternative;
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The Complainant was not furnished with written terms and conditions of employment; and
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The Complainant did not receive minimum notice.
Summary of Complainants Case:
The Complainant commenced his employment in 2004. From 2006, he worked on a particular site where he remained for the duration of his employment until 31st July 2018 when the site closed. He had worked a regular 39-hour week. The Respondent took over the security contract and a transfer of undertakings occurred for the Complainant’s employment 2010. The Complainant was offered totally unsuitable alternatives. He considered one site being a dangerous hazard, having to work nights, with no mobile phone reception and no facilities. He was also then offered other sites, these were either a long drive via dangerous roads or not full-time positions. The Complainant submits given the circumstances he is entitled to redundancy. He further claims that he should have received minimum notice and also claims that he received no written contract.
Summary of Respondent’s Case:
The Respondent denies that the Complainant was not furnished with written terms of employment and a copy of the contract was submitted. The Respondent further contends that the Complainant is not entitled to either redundancy or minimum notice. The circumstances were that when the site closed, the Complainant was given alternative employment and then offered other employment. Some alternatives were discussed with the Complainant but he did not take up the offers.
Decision:
CA-00024699-001 – Terms of Employment
As the written terms of employment was submitted by the Respondent, Complainant’s complaint was not well founded.
CA-00024699-002 – Redundancy
Section 15 of the Redundancy Payments Act, 1967 sets out the grounds of disentitlement to redundancy payment for refusal to accept alternative employment:
“15 (2) An employee shall not be entitled to a redundancy payment if
(a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,
(b) the provisions of the contract, as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before [the termination of his contract]
(c) the offer constitutes an offer of suitable employment in relation to the employee,
(d) the renewal or re-engagement would take effect not later than four weeks after the date of [the termination of his contract], and
(e) he has unreasonably refused the offer”.
The Complainant had worked for the current Respondent for a total of 14 years. The site on which he worked a regular 39 hour week closed in July 2018. He was briefly deployed on what was described by the Complainant as totally unsuitable, involving night hours, no mobile phone reception and having to sit in his car as there was no canteen facility. He was then offered other work which he found unsuitable for various reasons, including driving long distances.
In the circumstances, it was found that the provisions of the new contract would differ wholly or in part from the previous one, and the offers did not constitute offers of suitable employment. It was concluded that the Complainant did not unreasonably refuse the offer of alternative employment. Therefore, the Complainant is entitled to a statutory redundancy payment provided he has been in insurable employment for the period, based on the following:
Date of commencement of employment: 31/07/2004
Date of termination of employment: 31/07/2018
Basic gross weekly pay (based on 39 hr week): €442.65
CA-00024699-003 - Minimum Notice
The circumstances in which the employment ended are outlined above. The Complainant did not make himself available for work and therefore minimum notice is not relevant or appropriate. The Complaint is not well founded.
Adare Human Resource Management Commentary:
The Redundancy Payments Act, 1967 sets out the grounds of disentitlement to redundancy payment if an Employee refuses to accept reasonable alternative employment. What is considered “reasonable” generally is determined by the Employee in question. For example, the change in location for an Employee can be considered unreasonable if the distance is greater than the distance s/he once travelled from their own home upon commencement of their employment.
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Respondent successful as the Complainant took case under wrong Act
Adjudication Reference: ADJ-00019074
Background:
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.
Summary of Complainants Case:
The Complainant (Civil Servant) had sought a promotion in work but for which there were separate criteria; seniority and merit. She was appointed on the basis of seniority but the effective date for appointment was only to July 1st, 2016. Had she been appointed on the merit basis this would have been retrospective to 2013.
She also complained about the conduct of the promotional competition, and various aspects of the marking. She now complains that the failure to appoint her from the date she seeks in 2013 is a breach of the Payment of Wages Act.
Summary of Respondent’s Case:
The Respondent says that this is a dispute about an administrative decision and does not arise under the Payment of Wages Act, 1991 as there has been no unlawful deduction or failure to pay wages properly due to the Complainant. The Complainant’s wages had in fact increased in the period. The Complainant’s promotion was effective from 2016 and she is seeking to have it made effective from 2013.
This is a dispute about personnel procedures and processes within the Respondent’s organisation but cannot be challenged under the Payment of Wages Act, 1991.
Decision:
The net point here is clear from the submissions of the parties. The somewhat confusing narrative about the Respondent’s promotional arrangements, and the Complainant’s experience of the competition do nothing to bring the complaint within the ambit of the Payment of Wages Act, 1991. Most of the Complainant’s submission was irrelevant.
There has been no deduction based on any recognisable interpretation of the provisions of the Act, nor has there been any failure to pay wages that are ‘properly payable’.
The Complainant appears to argue that if her promotion had been approved under different rules, wages at a higher rate would have been properly payable, but the fact is that until the promotion was actually approved, they were not.
There was no contractual obligation to pay wages to the Complainant which was not applied. The Complainant appeared to misunderstand the jurisdiction of the Act as it applied to the facts of her case and the complaint is entirely misconceived.
The complaint fails and is dismissed.
Adare Human Resource Management Commentary:
When any complaint is lodged to the Workplace Relations Commission, it is imperative that Employers understand the specific piece of legislation in which the claim is being brought under as many Employees can interpret this incorrectly. If this is the case, the complaint can be dismissed.