FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : CERBERUS SECURITY LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - SAFWAN BOUSTANY (REPRESENTED BY INDEPENDENT WORKERS UNION) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. An appeal of an Adjudication Officer's Decision no r-158865-te-15JOC
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 30th May 2016 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court hearing took place on the 4th October 2016. The following is the Decision of the Court.
DETERMINATION:
This matter comes before the Court as an appeal of a decision by an Adjudication Officer in a complaint made by Safwan Boustany (the Claimant) against his former employer Cerberus Security Ltd (the Respondent) under the Terms of Employment (information) Act, 1994.
The Adjudication Officer found that the complaint was well founded and awarded the sum of €600 in compensation.
The case
It is common case that the Claimant commenced employment with the Respondent in May 2011. The Respondent supplied the Claimant with a written Statement of Employment in October 2011.
The Act at Section 3 in relevant part provides as follows:
- 3.—(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,…
The within complaint was made to the Workplace Relations Commission some years after the event.
Position of the Respondent
The Respondent contends that the breach of the Act, which is acknowledged, was minor and technical in nature. The Respondent submitted that the Claimant suffered no detriment as a result of a three month delay in the supply to him of his written statement of employment.
The Respondent contended that the Court should regard the matter as de minimis and, in accordance with its recommendation inIrish Water v Patrick Hall(TED161) should award no compensation.
Position of the Claimant
The Claimant submitted that an acknowledged breach of the Act has occurred and contended that the award made by the Adjudication Officer was correct and should stand.
Discussion
The Court does not accept that the facts of the case referred to by the Respondent (TED 161) are such that it is authority for the proposition that the breach in the within case should not attract compensation as provided for in the Act. The Court held inIrish Water v Patrick Hall (TED161) that, because of his particular circumstances, no conceivable detriment could accrue to the Claimant in that case as a result of the specified breach of Section 3 of the Act. The Court in the within case takes the view that the requirement to supply a statement within two months of commencement of employment is an important one which provides the basis for an employee to have the clarity as required by the Act as regards his or her terms of employment. The Claimant in this case was without that clarity for the first five months of his employment.
The Court nevertheless accepts the proposition that the breach in the within case was minor in nature and was such as to mean that no actual loss or tangible detriment was suffered by the Claimant.
The Court finds that the complaint is well founded.
Determination
The Court determines that the Respondent was in breach of the Act at Section 3 and the complaint is well founded. The Court orders the Respondent to pay the sum of €300 in compensation to the Claimant being the amount which the Court considers just and equitable having regard to all of the circumstances. The decision of the Adjudication Officer is varied.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
12th October, 2016Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.