EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Eduardas Zaboras TE219/2012
- Appellant 1
Vladimiras Andrejevas TE220/2012
- Appellant 2
Regimantas Zaboras TE221/2012
- Appellant 3
Viktors Gurkovs TE222/2012
- Appellant 4
against the recommendation of the Rights Commissioner in the case of:
O’Leary International Limited -Respondent
under
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. D. Donovan BL
Members: Mr. J. Browne
Mr. F. Dorgan
heard this appeal at Wexford on the 10th June 2014
Representation:
Appellant: Richard Grogan, Richard Grogan & Associates, Solicitors,
16 & 17, College Green, Dublin 2
Respondent: Peninsula Business Services Limited, Unit 3, Ground Floor, Block S,
East Point Business Park, Dublin 3
The decision of the Tribunal was as follows:-
This case came before the Tribunal by way of the employees appealing against the determinations of the Rights Commissioner ref: r-116711-te-MMCG, r-107686-te-11 MMCG, r-108476-te-11 MMCG and r-113018-te-11 MMCG.
Background:
The appellants were employed by the respondent as truck drivers. They claimed the employer (respondent) was in breach of Section 3of the Terms of Employment (Information) Act, 1994.
Determination:
Appellant 1 did not attend the hearing and the Tribunal were satisfied that he was properly notified of the time, date and location of the hearing in the Talbot Hotel, Wexford.
Accordingly, his appeal under the Terms of Employment (Information) Act, 1994 and 2001 is dismissed.
Appellant 2, 3 and 4 attended the hearing.
The appellant employees claimed that the respondent employer breached the Terms of Employment (Information) Act 1994 as follows:-
- The statement in writing required to be given to the appellant employee pursuant to section 3 of the Act of 1994 did not contain the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000 as is required by section 3(1)(g) of the Act of 1994.
- The statement in writing required to be given to the appellant employee pursuant to section 3 of the Act of 1994 failed to state that the appellant employee may, under section 23 of the National Minimum Wage Act, 2000, request from the respondent employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section as is required by section 3(1) (ga) of the Act of 1994.
- The statement in writing required to be given to the appellant employee pursuant to section 3 of the act of 1994 did not contain particulars of the times and duration of rest periods and breaks referred to in sections 11, 12 and 13 of the Organisation of Working Time Act 1997 that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks as is required by article 3(1) of the Terms of Employment (Additional Information) Order 1998 (SI 49/1998).
- The statement in writing required to be given to the appellant employee pursuant to section 3 of the Act of 1994 stated that the leave year was from January to December rather than stating that the "leave year" means a year beginning on any 1st day of April.
Having considered the evidence of the parties and the submissions the Tribunal finds as follows:-
That there was a breach by the respondent employer of section 3(1)(g) and (ga) of the Act of 1994. However. taking into consideration the comprehensive contract and additional information provided to the appellant employees the respondent employer complied with the spirit of the Terms of Employment (Information) Act 1994 and accordingly the Tribunal does not exercise its jurisdiction to grant compensation to the appellant employee.
That there was no breach of article 3(1) of the Terms of Employment (Additional Information) Order 1998 (ST49/1998) as the Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004 provide at Article 6 that “Mobile Workers are exempted from the application of sections 11, 12, 13 and 16 of the Act. The appellant employees are mobile workers for the purposes of the Regulations of 2004.
That there was no breach in any misstatement of the leave year as there is no requirement in section 3 of the Terms of Employment (Information) Act 1994 requiring the respondent employer to specify the leave year. Rather section 2 of the Organisation of Working Time Act states that a leave year is a year beginning on the 1st April.
Accordingly, the Tribunal affirms the determinations of the Rights Commissioner dated the 5th September 2012.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)