EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Sylwia Matijuk – appellant TE94/2015
V
Clontarf Castle Limited – respondent
against the recommendation of the Rights Commissioner in the case of:
Sylwia Matijuk
V
Clontarf Castle Limited
under
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr J. Goulding
Mr F. Keoghan
heard this appeal at Dublin on 8th January 2016
Representation:
_______________
Appellant(s) : Mr Blazej Nowak
107 Amiens Street, Dublin 1
Respondent(s) : Ms Catriona Forsyth
IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
This case came before the Tribunal by way of an employee appealing the recommendation of a Rights Commissioner under the Terms of Employment (Information) Act 1994 to 2012, ref: r-151504-te-14/JOC.
The decision of the Tribunal was as follows:-
The appellant was employed by the respondent company between 19th June 2014 and 7th November 2014. She submitted that her contract of employment was not fully compliant with the Terms of Employment (Information) Act, 1994 to 2012. The Rights Commissioner found that the complaint was well founded but made no award and instructed the employer to ensure that their contracts of employment were fully compliant with the Act. The employer submitted that it had amended its contracts to comply with this instruction. The appellant is seeking monetary compensation.
The areas of non-compliance in the contract put by the appellant were:
1) The business name of the employer is cited and not the registered company.
2) It does not make reference to section 23 of the National Minimum Wage Act 2000, compliance with which is required for making a valid complaint under that section of the Act. Section 23 allows that “an employee may request from his or her employer a written statement of the employee's average hourly rate of pay…”
3) It does not reference sections 11,12,13 of the Organisation of Working Time Act 1997, which covers rest periods.
4) It does not refer to the annual leave year as defined by the Organisation of Working Time Act 1997. That being a leave year beginning on April 1st.
The appellant referred to the ECJ decision of Sabine Von Colson & Elisabeth Kamann v Land Nordrhein-Westfalen and in particular the following paragraph:
Although directive no 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 penalize 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 .
The respondent acknowledged that the section 23 of the Minimum Wage Act was not referenced in the contract but disputed the other points. The respondent submitted that the appellant had made an application for a written statement of her average rate of pay and this had been provided to her. As such, she was not discriminated against by the lack of citation in her contract. While the company name was not cited as the employer it was on the footer of the offer letter. Rest periods are included in the company handbook which the appellant received and signed for. The company leave year is January to December for administration purposes. The appellant suffered no discrimination because of this.
Determination:
The employer conceded that it was not fully compliant with the Act and has amended its contracts as instructed by the Rights Commissioner. The appellant did not suffer any loss due to the omissions.
The Tribunal upholds the recommendation of the Rights Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)