TE72/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                            CASE NO.

Brinks (Ireland) Limited                                                                               TE72/2013

- Appellant                            

Under

Changiz Durrani

                                                             - Respondent

against the of the recommendation of the Rights Commissioner in the case of:

TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms. O. Madden BL

Members:       Mr. M. Carr

                        Mr. S. Mackell

heard this claim at Dublin on 24^th November 2014

                                         and 28^th January 2015

Representation:

Appellant:       Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S,

                        East Point Business Park, Dublin 3

Respondent:    Dr. Zeldine O’Brien BL instructed by:

Padraig Murray, James Watters Solicitors, Richmond Office Suite,

Richmond Square, Morning Star Ave, Dublin 7

This case came before the Tribunal as an appeal by an employer, the appellant, of the recommendation of the Rights Commissioner under the Terms of Employment (Information) Acts 1994 and 2001 (reference r-126509-te-12/SR).

The determination of the Tribunal was as follows:

Background:

The appellant (employer) company is involved in the security business.  The respondent (employee) was employed as a Security Officer from 29^th July 2011 until his departure on the 19^th June 2013.  He was paid a weekly wage of 220.00.

The employee submitted to the Rights Commissioner that the employer failed to provide him with a written statement of the particulars of his terms and conditions of employment that compiled with Section 3of the Act.  The employee filed this claim on the 1^st October 2012.

The Rights Commissioner recommended, on uncontested evidence by the employee (employee), that the employer was required:

 “to provide the Claimant with an amended statement of the particulars of his terms and conditions that contains a provision that he is entitled to a working week of 40 hours as agreed at his job interview on the 26^th July 2011. In addition I require the Respondent to pay the Claimant compensation in the amount of €200.00.”

The employer appealed the Rights Commissioner’s recommendation.

Appellant’s Position:

The Support Manager (SK) and the National Contracts Manager (CM) gave evidence.  Both stressed the respondent (employee) had received a copy of his terms and conditions of employment when he commenced his employment with the appellant company.  When asked SK said he had not given a further copy of this document to the respondent in September 2012.  CM stated he had not been in attendance at the respondent’s initial interview.

Respondent’s Position:

The respondent gave evidence.  He had been in employment when applying for a position with the appellant company.  On the 26^th July 2011 he attended an interview with the Support manager (SK).  The respondent expressed to SK of his need to obtain more hours of work than he had currently been working for his employer at the time.  He and SK agreed to him working a 40-hour week on a permanent contract of employment.  The respondent told the Tribunal that a zero hour contract was never discussed.  He signed “a few forms” at the time of the interview.  When put to him, he agreed he had signed the appellant’s application form and the New Starter Form but had not received a copy of the terms and conditions of his employment.  SK assured him he would be supplied with a copy of it within two weeks of his interview.  He neither received it nor a copy of the company handbook.  He gave two weeks’ notice to his, then, employer and commenced employment with the appellant company on the 27^th July 2011. 

There were no issues working for the appellant company until September / October 2011 when his hours of work were reduced.   He discussed the issue with SK who told him he would “sort it out”.  In November / December 2011 he emailed the appellant company in respect of his terms and conditions of employment.   

The respondent explained to the Tribunal that at this time he was also in full-time education – 12 hours per week – and therefore was not available to work for the appellant during this time but was available to work nights.  He had not informed the appellant of these restrictions to his availability previously. 

On the 30^th December 2011 he attended a meeting with the appellant’s management, he could not recall with whom, and was informed he was employed under a zero hour contract.  In December 2011 and February 2012 he met and discussed this issue with his Shop Steward and Union Representative who, in turn, contacted the appellant’s management concerning the respondent’s concerns. 

In February 2011 he attended another meeting with management where he was again informed he was employed under a zero-hour contract and was shown a copy of his terms and conditions of employment.  The respondent’s Union Representative requested a copy of it but was informed the respondent was already in possession of one.  Following this meeting the respondent’s hours reduced further.

A series of emails between the respondent’s Union Representative and management sent in August 2012 were opened to the Tribunal regarding the respondent’s terms and conditions of employment.  Further emails from December 2012 regarding the non-payment of hours worked and annual leave were also opened to the Tribunal.  An extensive email from the respondent to management regarding his treatment was read into the Tribunal’s record. 

On the 19^th June 2013 the respondent tendered his resignation by email citing his decision to leave was due to a number of reasons including the bullying, harassment and abuse he endured during his employment, the appellant’s actions and inactions which caused his post-traumatic stress and the result of this was he was now under medical care.  The appellant responded on the 21^st June 2013 inviting him to a meeting on the 5^th July 2013 to discuss the issues.  The respondent did not return to work again.

The respondent gave detailed evidence to mitigate his loss of earnings.

Determination:

The Tribunal have carefully considered the evidence adduced in this matter and vary the Rights Commissioner’s recommendation. Accordingly, the Tribunal awards the sum of

€ 987.40, this being four weeks gross wages, under the Terms of Employment (Information) Acts, 1994 and 2001.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)