PWD163

This is Ms Demenko’s (“the Claimant”) appeal from three decisions of the Rights Commissioner each which is dated 11 December 2015. The Rights Commissioner upheld the Claimant’s claim in part under the Terms of Employment (Information Act) 1994 and awarded compensation of €250.00 in respect of it but dismissed the claims under the Payment of Wages Act 1991 and under the Organisation of Working Time Act 1997. The appeal documentation was received by the Court on 12 January 2016. The appeal hearing took place on 11 February 2016.

Background

The Claimant was employed as a part-time barber at the Respondent’s salon from 14 January 2013 until 17 October 2014. She was paid €10.00 per hour and worked 24 hours per week, Wednesdays through Fridays. The uncontested evidence of the Respondent to the Court was that it was forced, due to difficult trading conditions, to reduce the number of staff employed from 19 (on 1 May 2014) to 10 (on 1 May 2015). In that context, the Respondent issued the Claimant with two weeks’ written notice of termination of employment on 3 October 2014.

Terms of Employment (Information) Act 1994 (“the 1994 Act”)

The Claimant was issued with a statement of terms and conditions of employment within the meaning of the 1994 Act on 4 June 2014, some 18 months after she had commenced her employment with the Respondent. The Respondent did not dispute that it had failed to issue the statement to the Claimant within the two-month period following the commencement of her employment.

The Claimant’s representative submitted that the aforementioned statement of terms and conditions was “defective” (i.e. not in compliance with the requirements of the 1994 Act) in the following respects:

• 1.The statement failed to specify a leave year for the purposes of calculating the claimant’s annual leave entitlements under the Organisation of Working Time Act 1997;

  2.The statement failed to specify a pay reference period for the purposes of the National Minimum Wage Act 2000;

  3.The statement was silent in relation to the arrangements, if any, the Respondent had made to identify a preferred PRSA provider;

  4.The statement had not been dated by or on behalf of the Respondent;

  5.The name of the Respondent company on the statement was incorrect: it was in the format “Dilion and Company Limited” rather than in the correct registered format i.e. “Dilion & Company Limited”.

It appears to the Court that the breaches of the 1994 Act complained of (with the exception of the complaint in relation to the Respondent’s delay in issuing the statement to the Claimant) are technical and insubstantial in nature. The Claimant accepted the statement as proffered and signed and dated it. No evidence was put before the Court that she subsequently sought and was refused clarification or correction of any aspect of the statement.

The representative informed the Court that the appeal under the 1994 Act was confined to the quantum of the award. He submitted that the award made by the Rights Commissioner in respect of the breaches of this Act had been too low and did not have a dissuasive effect as required by the judgment of the (then) European Court of Justice in Case 14/83Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen[1986] C.M.L.R 430.

The import of that decision was recently comprehensively reviewed by this Court in Labour Court Determination DWT15125,C and F Tooling Limited and Jason Cunniffe. Here the Court stated as follows: -

“That case[Von Colson]needs to be understood in the context of the factual matrix in which it was decided. It concerned female social workers who had applied for posts at a male prison in West Germany. The authorities appointed two male candidates with lesser qualifications to those posts. The German Labour Court found that there had been discrimination and awarded the plaintiff's compensation pursuant to s.611a(2) of the German Civil Code. That section purported to implement Council Directive 76/207 on the implementation of equal treatment for men and women as regards access to employment. The Court found that that section only enabled it to award reimbursement of travelling expenses incurred by the Complainants in pursuing their applications for the posts.

• The CJEU pointed out that the Directive did not prescribe the range of sanctions that should be applied in cases where discrimination was found to have occurred. However the Court went on to say that if a Member State chooses to penalise infringements of the prohibition of discrimination by an award of compensation, such compensation has to be adequate in relation to the damage sustained and that it must have a deterrent effect. The Court pointed out that compensation has to be more than merely nominal damages which the German law provided in restricting compensation to the reimbursement of travelling expenses incurred by a candidate who was discriminated against in the filling of the post.
  

  The formulation used by the Court in answer to the third question posed by the referring Court is as follows: -

  • Although Directive 76/207/EEC, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the member-States free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that if a member-State chooses to penalise breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law,in so far as it is given discretion to do so under national law.
  Like every case, the decision in Von Colson is authority only for what it decided. While in the passage quoted above the Court referred to where a Member State chooses to penalise breaches of a Directive with an award of compensation that cannot be taken to mean that a statutory tribunal, such as this Court, can purport to apply a sanction in the nature of punishment for a contravention of the law. In our law, punishment for illegality can only be imposed by the ordinary courts and not by statutory tribunals exercising limited civil jurisdiction. It follows that any compensatory redress awarded by this Court must remain within the bounds of what is capable of being redressed by compensation. That includes any present or future loss suffered by the Claimant as well as any loss, damage inconvenience or expense which flows from the wrong which he or she suffered.”

Having carefully considered the parties written submissions in relation to the appeal under the 1994 Act, the Court sees no reason to disturb the award made by the Rights Commissioner which therefore stands and, in the Court’s view, provides an appropriate level of compensation for the Respondent’s failure to issue the Claimant with the statement of terms and conditions within the time period specified in the statute.

Payment of Wages Act 1991 (“the 1991 Act”)

The Claimant’s representative submitted that the statement of terms and conditions issued to the Claimant provided that the duration of her employment was to be until 31 December 2014; that the Claimant, therefore, had a fixed-term contract; and the Respondent had not reserved the right in the contract to terminate the Claimant’s employment, on notice or otherwise, prior to the expiry of that fixed term.

The claim advanced on behalf of the Claimant was formulated as follows:

• 
  “The employee was dismissed on the 17^thof October. The employee is claiming sum [sic] of €240 per week for the 10 weeks to the end of the Contract being €2,400.”

A review of the statement issued by the Respondent to the Claimant indicates that it does in fact – on page 2 – recite the notice periods provided in the Minimum Notice and Terms of Employment Act 1973. In any event, it is settled law – as accepted by the Claimant’s representative – that an employer is entitled at common law to terminate a contract on giving contractual or reasonable notice and there are circumstances in which an employer may lawfully terminate an employee’s employment – be it fixed-term or of indefinite duration in nature– on giving the longer of contractual or statutory notice as the case may be. The Claimant, as stated, received two weeks’ written notice of the termination of her employment, in circumstances where the Respondent, for economic and commercial reasons, had determined to carry on the business with fewer employees.

The appeal under the 1991 Act fails and the decision of the Rights Commissioner stands.

Organisation of Working Time Act 1997 (“the 1997 Act”)

At the outset of the hearing, the Claimant’s representative withdrew the appeal against the Rights Commissioner’s decision in respect of section 17 of the 1997 Act. (The complaint under the aforementioned section was that the Respondent had failed to give sufficient advance notice to the Claimant of her daily start and finishing times.)

The second aspect of the complaint before the Court under the 1997 Act was expressed as follows:

• 
  “The employee’s contract provides for [sic] up to the 31^stDecember 2014. On that basis she was entitled to the October Bank Holiday, Christmas Day being the 25^thDecember, the 26^thDecember and as the contract provides for up to the 31^stDecember she would also have been entitled to the 1^stJanuary.

  The employee would have been entitled to have her holiday pay calculated up to the 31^stDecember.”

This element of the appeal is also dismissed and the decision of the Rights Commissioner stands.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
22nd February 2016______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.