FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : KEEGAN PRECAST LTD (REPRESENTED BY MS DO�REANN N� MHUIRCHEARTAIGH B.L., INSTRUCTED BY MALONE & MARTIN SOLICITORS) - AND - JURIJ BONDARENKO (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Haugh Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. An appeal of a Rights Commissioner's Decision no r-151229-te-14/EH.
BACKGROUND:
2. The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 11th November 2015 in accordance with Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court hearing took place on 11th April 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Keegan Precast Limited against the Decision of the Rights Commissioner in a claim by Mr Jurij Bondarenko under the Terms of Employment (Information) Act 1994 (‘the 1994 Act’). In this Determination Jurij Bondarenko is referred to as the Complainant and Keegan Precast Limited is referred to as the Respondent.
This appeal was conjoined with a number of other appeals involving the same parties under:
•the Organisation of Working Time Act 1997, which appeal was withdrawn by the Respondent before the hearing date;•the Unfair Dismissals Act 1977 in which the Court issued Determination UDD168;
•the Payment of Wages Act 1991 in which the Court issued Determination PWD1610;
•the Industrial Relations Act 1969 in which the Court issued Recommendation LCR21218.
The Rights Commissioner issued his decision under the 1994 Act in favour of the Complainant on 30 September 2015. The Respondent’s appeal therefrom was received by the Court on 11 November 2015.
It is common case that the Complainant commenced employment with the Respondent as a General Operative on 4 July 2005 but received no written statement of terms or conditions until he was issued with a written contract of employment on 10 December 2008.
The Complaint
The Complainant submits that the aforementioned contract does not comply with the requirements of the 1994 Act in the following respects:
•It contains no reference to the applicable pay reference period for the purposes of the National Minimum Wage Act 2000;•The Respondent failed to identify its preferred PRSA provider;
•The contract does not specify the times at which the Complainant should avail himself of his rest breaks during the working day; and
•The contract does not expressly make provision for weekly rest breaks.
The Parties’ Positions
The Respondent submits that the Complainant is prevented by the operation of promissory estoppel from pursuing the within complaint as he did not complain to the Respondent at any stage after receiving his contract that it failed to meet the requirements of the 1994 Act and, in any event, the Complainant had not suffered a detriment arising from any failure on the Respondent’s part to ensure the written contract was fully compliant with the 1994 Act.
When questioned by the Court, counsel for the Respondent was unable to identify any authorities that supported her novel submission to the Court that the Complainant was barred from pursuing a statutory remedy by reason of the operation of promissory estoppel. The Court is of the view that the approach advocated by counsel for the Respondent has no basis in law or equity.
Nevertheless, it is also the case that no evidence was proffered on the Complainant’s behalf to indicate that he had ever approached the Respondent on any date following receipt of the contract in December 2008 and before his dismissal in July 2014 with a request that he be provided with any further information that he (the Complainant) considered necessary. Had the case been otherwise, it is quite likely that the matters now complained of could easily have been rectified by a straightforward request to do so.
Discussion
The Court has examined, in some detail, the contract which issued to the Complainant in 2008 having regard to the requirements of the 1994 Act. The Court finds that the complaints herein are well founded but only in a technical sense. The Court, therefore, finds that an award of compensation is not justified in the circumstances of this case.
The Rights Commissioner’s decision is, therefore, overturned and the appeal succeeds.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
3rd May, 2016.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.