FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : YUPON LTD - AND - MARTINS LACPLESIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Recommendation R-159190-TE-15/EH.
BACKGROUND:
2. The Worker appealed the Recommendation of the Adjudication Officer to the Labour Court in accordance with Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012 on 9th May, 2016. A Labour Court hearing took place on 23rd June, 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Martins Lacplesis against the Adjudication Officer’s Decision r-159190-te-15/EH in claims against his former employer Yupon Limited under the Terms of Employment (Information) Act 1994 (“the Act”). The Adjudication Officer upheld the Complainant’s claim in part and awarded compensation of €350.00.
The parties are referred to in this Determination as they were at first instance. Hence, Mr Martins Lacplesis is referred to as “the Complainant” and Yupon Limited is referred to as “the Respondent”.
Background
The Complainant was employed as a Sous Chef from 30thApril 2014 until 31stMay 2015. He was paid €34,000 per annum. The Complainant was issued with a statement of terms and conditions of employment within the meaning of the Act on 30thApril 2014. The complaint was referred to the Workplace Relations Commission on 3rdSeptember 2015.
Mr Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted that the aforementioned statement of terms and conditions did not fully comply with the requirements of the Act in the following respects:-
- i.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;
- ii.The statement failed to set out breaks requirements in compliance with S.I. 49/1998.
iii.The statement failed to reference pensions and PRSA arrangments;
iv.The statement failed to specify the Complainant’ s hours of work;
v.The statement failed to specify a pay reference period for the purposes of the National Minimum Wage Act 2000 and failed to provide a statement that the Complainant may, under Section 23 of the National Minimum Wage Act 2000, request from the Respondent a written statement of his average hourly rate of pay for any pay reference period;
vi.The Employee Handbook was not issued to the Complainant.
Mr Grogan in his submission to the Court disputed the Court’s reliance on examining what practical implications, if any, the Complainant incurred resulting from the Respondent’s alleged failings under the Act. He contended that this issue was irrelevant as the Complainant had a statutory right to receive a statement from the Respondent as stipulated under the Act. He disputed the Court’s findings inIrish Water v Patrick HallTED161 where the Court had addressed the issue of “practical significance”:-
- “The Court is satisfied that, in the circumstances of this case, any deviations that may have occurred from what the strict letter of s. 3 of the Act, or from what the statutory instrument at issue prescribes, are so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule. There can be no doubt that the Respondent provided the Complainant with all the information that he required in relation to the essential elements of the terms and conditions attaching to his particular employment. What is complained of is a failure to provide information on matters that had no practical significance in the context of the employment that he was offered and accepted”
- “I have read the employee handbook (Issue O), understand its contents and accept that it forms part of my contract of employment, I will keep myself informed of its contents”
In response to the Complainant’s claims under the Act, the Respondent submitted as follows:-
- i.The Statement of Main Terms of Employment furnished to the Complainant stated that the leave year was from January to December and submitted that if there was a breach then it was purely a technical point and that he had not been negatively impacted by it;
- ii.It accepted that the Staff Handbook did not set out break entitlements, however, it told the Court that the Complainant received his break each day from 10.30 to 11.00am;
iii.The Respondent accepted that the Staff Handbook did not refer to Pension/PRSA;
iv.The Respondent stated that the Complainant’s hours did not vary; he worked from 6.00am to 2.00pm every day as these were the hours that suited him.v.The Statement of Main Terms of Employment did not give details of his pay reference period for the purposes of the National Minimum Wage Act 2000, however, it was contended that this had no practical implications for the Complainant as he was earning significantly higher than the national minimum wage.
vi.The Complainant was brought through the Staff Handbook and informed that hard bound copies were available for him in the office and were easily accessible.
Finally, the Respondent told the Court that since the Adjudication Officer’s Decision, it had made a number of changes to ensure it was complying with its obligation under the Act.
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,
- (i) incapacity for work due to sickness or injury and paid sick leave, and
(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 full names of the employer and the employee,
- (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.
- (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.
- 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.
Conclusions of the Court
The Court has considered each of the complaints raised by the Complainant and has concluded as follows:
(i)The Leave YearAs this Court held in Irish Water, 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 suggested 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. Therefore the Court does not find that the Respondent was in breach Section 3 (1)(j) of the Act.
(ii)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 Staff Handbook was silent on break entitlements, therefore, the Court concurs with the Adjudications’ Officer’s finding that the Respondent did not comply with the requirements under S.I. 49/1998.
(iii)PRSA/Pension
The Staff Handbook was silent on PRSA/pension, therefore, the Court concurs with the Adjudications’ Officer’s finding that the Respondent did not comply with the requirements of Section 3(1)(k)(ii) of the Act.
(iv)Hours of Work
The statement did not provide details of the Complainant’s hours of work. Therefore the Court concurs with the Adjudications’ Officer’s finding that the Respondent did not comply with the requirements of Section 3(1)(i) of the Act.
(v)Pay reference period and statement of average earnings for the purpose of the National Minimum Wage Act 2000.
The contract furnished to the Complainant did not contain such statements. Therefore the Court concurs with the Adjudications’ Officer’s finding that the Respondent did not comply with the requirements of Section 3(1)(g) and (ga) of the Act. However, as the Complainant’s salary was significantly higher than the national minimum wage statements of the type envisaged by Section 3(1)(g) and(ga) of the Act could have no practical significance in the circumstances of the Complainant.
(vi)Staff Handbook
The Court concurs with the Adjudication Officer’s finding that the Complainant was given an opportunity to review the Staff Handbook which he signed and for which a copy was accessible to him. Therefore the Court does not find that the Respondent was in breach Section 3(1) of the Act.
It appears to the Court that the breaches of the Act complained of are technical and insubstantial in nature. The Complainant accepted the statement of his conditions of employment as proffered and signed and dated it. He also accepted that, while he was not provided with a copy of the Staff Handbook, he was aware of it and it had been brought through it.
Redress
In this case the redress sought by the Complainant is an award of compensation and has appealed the quantum of the award decided by the Adjudication Officer. Mr Grogan submitted that the award did not have a dissuasive effect as required by the judgment of the CJEUSabine 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:-
- “That case 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.
The Court held inIrish Waterthat“compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances”. In the instant case, taking all factors into account, the Court can see no reasonable or justifiable basis upon which it could interfere with the level of compensation awarded by the Adjudication Officer.
DETERMINATION :
The Court determines that the Respondent must pay the Complainant the sum of €350 as compensation in respect of the breaches of the Act. This payment should be made within six weeks of the date of this Determination. Accordingly, the Court upholds the Adjudication Officer’s Decision and rejects the Complainant’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th July 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.