TED161

Background

The Complainant was employed by the Respondent in the role of Project Finance Lead. Following an interview for the post, the Respondent wrote to the Complainant by letter dated 25^thJuly 2014 offering him employment with effect from 11^thAugust 2014. Under cover of that letter the Complainant was furnished with a document headed “Terms and Conditions of Employment. Project Finance Lead – West”. This document set out the terms and conditions applicable to the employment being offered. It was intended to comply with the Respondent’s obligations under the Act.

The letter dated 25^thJuly 2014 concluded with an invitation to the Complainant to contact a named person if he wished to discuss or seek clarification on any matter relating to the terms and conditions of the employment. The Complainant signed and returned the document without raising any issue in relation to its content.

The Complainant’s contractual salary was fixed at €78,000 pa. He also had the possibility of receiving what is described as an additional award of 14% of salary.

The Claims
Following the termination of the Complainant’s employment he instituted proceedings before a Rights Commissioner / Adjudication Officer, claiming that the document containing the particulars of his terms and conditions of employment, with which he had been furnished, did not comply with s. 3 of the Act.

The Rights Commissioner / Adjudication Officer found that there has been a technical contravention of the Act in that the statement did not particularise the times and duration of the rest periods and breaks to which the Complainant was entitled in accordance with S.I.49 of 1998. The Rights Commissioner directed that the Respondent furnish the Complainant with a revised statement containing these particulars. The Respondent did not cross-appeal against that finding and has complied with the direction of the Rights Commissioner / Adjudication Officer.

The Complainant appealed to this Court. The only redress sought by the Complainant in his appeal is an award of compensation.

The Appeal
In grounding his appeal the Complainant contends that the statement with which he was provided did not comply with the Act in the following respects: -

• 
  1. The address of the Respondent was not provided

  2. The statement did not specify the pay reference period for the purpose of the National Minimum Wage Act 2000 (the Act of 2000).

  3. The statement did not expressly state that the employee may request a statement of his average earnings pursuant to s.23 of the Act of 2000.

  4. The statement provides that the leave year is to run in tandem with the calendar year whereas the Organisation of Working Time Act 1997 provides that a leave year runs from 1^stApril to 31^stMarch.

  5. The statement did not comply with S.I 49 of 1998 in that it did not specify the times and duration of rest period and breaks.

The Complainant did not give evidence and his case was advanced on his behalf by his solicitor by way of submissions only. It is accepted that the Complainant did not suffer any monetary loss or any other form of material detriment or prejudice in consequence of the claimed contraventions of the Act. His claim is based solely on his complaint that the Respondent did not provide all of the information that the law obliged it to provide.

The Respondent denies that it contravened the Act in the manner alleged. It further submitted that if there were contraventions (which is denied) they were due to inadvertence and had no practical significance for the Complainant. The Respondent accepts that S.I. 49 of 1998 was not technically complied with but it pointed out that this omission was corrected following the recommendation of the Rights Commissioner. On that point, the Respondent relies on the absence of any detriment to the Complainant flowing from the omission from the statement of a reference to the time and duration of rest periods and breaks in accordance with sections 11, 12, and 13 of the Organisation of Working Time Act 1997.

The Law
Section 3 of the Act, as amended, provides: -

• Written statement of terms of employment

  (1) 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, that is to say—

  • (a) the full names of the employer and the employee,

    (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of theCompanies Act, 1963),

    (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

    (d) the title of the job of nature of the work for which the employee is employed,

    (e) the date of commencement of the employee's contract of employment,

    (f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

    (fa)a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order

    (g) the rate or method of calculation of the employee's remuneration, and the pay reference period for the purpose of the National Minimum Wage Act 2000

    (ga)that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section

    (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

    (i) any terms or conditions relating to hours of work (including overtime),

    (j) any terms or conditions relating to paid leave (other than paid sick leave),

    (k) any terms or conditions relating to—

    • (i) incapacity for work due to sickness or injury and paid sick leave, and

      (ii) pensions and pension schemes,

      (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

    (m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.
  (2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

  (3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

  (4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

  (5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

• • (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

    (b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

  (7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

• In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

• An employer shall be obliged to notify an employee to whom this Directive applies, hereinafter referred to as 'the employee', of the essential aspects of the contract or employment relationship.

Each of the Complaints Considered
The Court has considered each of the complaints raised by the Complainant and has concluded as follows:

• 
  1.Failure to provide the Respondent’s address.

  The statement provided to the Complainant clearly does contain details of the Respondent’s registered address. That was accepted on behalf of the Complainant in the course of the hearing.

  2.The statement did not specify the pay reference period for the purpose of the National Minimum Wage Act 2000.

  • 
    The document furnished did not contain such a statement. However, the Complainant’s contractual salary was set at five times the national minimum wage. A statement of the type envisaged by s.3(1)(g) of the Act could not have had any practical significance in the circumstances of the Complainant. Nor is it suggested by him that the omission of such a statement had any practical significance in the circumstances of his employment.
  
  3.The statement does not expressly state that the employee may request a statement of his average earnings pursuant to s.23 of the Act of 2000.

  Section 23(2) of the Notional Minimum Wage Act 2000 provides: -

  • • An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance withsection 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.
    In the circumstances of the Complainant’s employment (in which his salary was fixed at over 500% of the national minimum wage) this information, if furnished, could have no practical significance. The Complainant was precluded by s.2 of the Act of 2000 from seeking a statement pursuant to s.23 of that Act and any such request, if made, could only be frivolous or vexatious.
  
  4.The statement provides that the leave year is to run in tandem with the calendar year whereas the Organisation of Working Time Act 1997 provides that a leave year runs from 1^stApril to 31^stMarch.
  • 
    Section 3(1)(j) of the Act provides that the statement furnished to the employee must provide information onany terms or conditions relating to paid leave (other than paid sick leave).The statement provided did contain information on the terms and conditions relating to annual leave. If it is suggest that the contractual provisions in the Complainant’s contract of employment in relation to annual leave contravened the Organisation of Working Time Act 1997 that is a matter that could only be adjudicated upon in proceedings under that Act.
  
  5.The statement did not comply with S.I 49 of 1998 in that the statement did not specify the duration of rest period and breaks.
  • 
    The statement provided that the Complainant’s normal hours of work were to be from 9am to 5pm over a 35 hour week. It is perfectly obvious what his rest periods were intended to be. While it is factually correct to say that the statement did not specify the duration or times of breaks it is an affront to common sense and reason to claim that a person in a senior position, such as that in which the Complainant was employed, could suffer any form of detriment from not being told when or for how long he could take a break in the course of his working day. Moreover, the Complainant accepts that he took breaks and that he had adequate rest periods and that he did not suffer any prejudice or detriment in consequence of this omission.

    The Rights Commissioner / Adjudication Officer recommended that the Respondent correct this omission and it was so corrected.

As appears from the above, these complaints are wholly devoid of any substantive merit. The State has already incurred the costs associated with providing the Complainant with a hearing of these complaints at first instance and it is now obliged to incur the cost in time and expense of providing him with a full appeal before a division of the Court. That takes no account of the cost incurred by the Respondent in defending this case, both at first instance and now on appeal. The combined associated costs of processing and hearing these complaints is grossly disproportionate to any value that could have accrued to the Complainant if the technical infringements of which he complains had not occurred. Moreover, the letter of offer furnished to the Complainant dated 25^thJuly 2014 invited him to contact a named person if he wished to discuss or seek clarification on any of the terms proffered. The Complainant signed the statement without demur and returned it to the Respondent. Neither then or at any subsequent time did he request further or better particulars on any matter pertaining to his employment. The Court has no doubt that had he sought further information on any matter pertaining to his employment, including the matters which form the subject of his present complaints, it would have been provided by the Respondent.

In the circumstances of this case that represents an unacceptable squandering of public resources. It is a manifest absurdity to suggest, as the Complainant does, that these contraventions, if such they are, could or should be met with an award of monetary compensation. That is particularly so in circumstances in which the matters now complained of could easily have been rectified by a simple request to the Respondent to provide any further information that the Complainant considered necessary.

De Minimis rule

It is an established principle of the common law that a Court should not squander its resources in dealing with claims that are without substance because the contraventions complained of had no practical consequence for the plaintiff. This principle is encapsulated in the Latin maximde minimis non curat lex(the law does not concern itself with trifles). The classic statement of where this principle should be applied is contained in the judgment of Henchy J. in the Supreme Court’s decision inMonaghan UDC v Alf-a-Bet Publications Ltd. [1980] I.L.R.M. 64, at page 69. Henchy J articulated a generally applicable test in the following terms: -

• “In such circumstances, what the Legislature has, either immediately in the Act or immediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of thede minimisrule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”

Finally, the Complainant’s solicitor calls in aid what he describes as “the principles in Von Colson and Karmann”. The import of the submission on this point appears that even if no measurable loss or detriment was suffered by the Complainant compensation should nonetheless be awarded for a failure to provide a statement that complied with the Act in every particular. The reference tothe principles in Von Colson and Karmannis understood to be a reference to the principles adumbrated by the CJEU (formally the ECJ) in in case C-14/83Von Colson and Karmann v Land Nordrhein-Westfahlen[1986] C.M.L.R 430 on the criteria to be applied in measuring the quantum of compensation to be awarded in cases in which the principle of equal treatment between men and women is found to have been infringed. 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.

Right to Redress
Section 7(2) of the Act provides as follows in relation to redress: -

• A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:
  • (a) declare that the complaint was or, as the case may be, was not well founded,
  (b)

  (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

  (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

  • (c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

    (d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations undersection 17 of the Unfair Dismissals Act 1977,

  and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after a contravention to which the complaint relates, as references to the person who, by virtue of the change, becomes entitled to such ownership.

DETERMINATION:

Signed on behalf of the Labour Court



Kevin Duffy
____8th January 2016______________________
JKChairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.