FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : CORK OPERA HOUSE PLC T/A CORK OPERA HOUSE (REPRESENTED BY MS RACHEL O'FLYNN B.L., AS INSTRUCTED BY BARRY M O'MEARA & SON SOLICITORS) - AND - DERMOT O' DRISCOLL (REPRESENTED BY GAFFNEY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Decision.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court hearing took place on 19th October, 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Cork Opera House Plc t/a Cork Opera House against the Decision of an Adjudication Officer given under the Terms of Employment (Information) Act 1994 (the Act).
In this Determination the parties are referred to as they were at first instance. Hence Cork Opera House Plc t/a Cork Opera House is referred to as the Respondent and Mr Dermot O’Driscoll is referred to as the Complainant.
The claim was referred to the Workplace Relations Commission on 9thNovember 2015. The Adjudication Officer in her Decision issued on 20thMay 2016 found that the Complainant’s complaints were well-founded and she recommended a number of changes to the terms of a draft contract of employment issued to him on 17thDecember 2015.
Background
The Complainant commenced employment as Financial Controller with the Respondent from 25thAugust 2010. His employment ceased on 9thSeptember 2016.
He claimed that the Respondent contravened Section 3 of the Act in two respects. Firstly, he claimed that he was not provided with a statement of the type required by Section 3 of the Act within a period of two months from the commencement of his employment as required by Subsection (1) of that Section. Secondly, he claims that statements which he was provided with in 2015 were not acceptable to him and did not reflect the terms and conditions under which he was actually employed.
Preliminary issues
At the commencement of the proceeding before the Court, Ms Rachel Flynn, B.L., instructed by Barry M. O’Meara & Son, Solicitors, on behalf of the Respondent, raised two preliminary issues:-
- (i)Estoppel – the Complainant in the course of the hearing before the Adjudication Officer had accepted that the contract of employment issued to him on 17thDecember 2015 complied with the provisions of the Act. Therefore, he should be estopped from maintaining his claim.
(ii)Mootness – the Complainant’s employment ceased on 9thSeptember 2016. Therefore, the Decision of the Adjudication Officer and all/any Determination of the Court in respect of matters raised by the Complainant in respect of the date of commencement of employment, working hours, paid leave and changes to his contract of employment are of no consequence nor effect in the absence of an employment relationship.
Mr David Gaffney, Solicitor, on behalf of the Complainant accepted that the Complainant’s employment had ceased with effect from 9thSeptember 2016. He said that the terms of contracts of employment furnished to the Complainant on 27thJanuary 2015, 3rdJune 2015 and 17thDecember 2015 were not acceptable to him and did not form part of the verbal undocumented contract agreed with the Complainant’s employer in November 2010. However, he accepted that the contract included written particulars of the terms of employment as provided for in Section 3 of the Act, albeit not within the two months of the date of the commencement of the Complainant’s employment, as stipulated by that Section.
Ms Flynn admitted that the Complainant was not provided with a statement of the terms of his employment at the commencement of his employment and that the contracts issued in 2015 were not signed by the employer.
Conclusions of the Court
While the Court accepts that the decision of the Court may be moot in circumstances where the Complainant is no longer employed by the Respondent, however, for the sake of completeness, the Court finds that no evidence was presented to it upon which it could be held that the statements furnished to the Complainant in 2015 did not comply with the Act. Consequently, in accordance with section 7(2)(a) of the Act, the Court must declare that aspect of the complaint is not well-founded.
Furthermore, the Court finds that the Respondent was in breach of the Act by failing to provide a statement of the type required by Section 3 of the Act within a period of two months from the commencement of his employment, as required by Subsection (1) of that Section.
Determination
The Court awards the Complainant compensation in the amount of €1,268.75 for the contravention Section 3(1) of the Act found by the Court to have occurred.
The Respondent’s appeal is allowed in part and the Decision of the Adjudication Officer is otherwise overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd November 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.