TED1718

In line with the normal practice of the Court, the parties are referred to in this determination as they were at first instance. Hence, Mr Gibbons is referred to as the complainant and Morehamption Foods Ltd is referred to as the respondent.

Background

The complainant was employed by the respondent between June 2014 and June 2017 when his employment terminated. He contends that the respondent failed to provide him with a statement containing particulars of the principal terms of his contract of employment as is required by s.3 of the Act. The substance of his claim is that while he was furnished with a statement, it did not contain particulars in respect to the following matters: -

• 
  •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), as required by s 3(1)(b) of the Act,
  
  •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,
  •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,

• •That the employee may, undersection 23of 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, as required by s.3(1)(ga) of the Act,

• •The complainant also complained that the statement with which he was furnished was not signed and dated on behalf of the respondent, as required by s.3(4) of the Act.

The complainant referred separate complaints to the Workplace Relations Commission in respect of each of the claimed omissions from the statement of particulars with which he was furnished. His complaints were investigated by an Adjudication Officer who issued decision ADJ-00006249 on 5^thMay 2017. The Adjudication officer held that none of the complaints submitted were well founded. The complainant appealed to this Court against that decision by notice dated 8^thMay 2017.

The appeal was heard by the Court on 26^thJuly 2017. At the hearing of the appeal the complainant was represented by Mr Blazej Nowak. The respondent was represented by Ms Mary O’Brien Williams of Tom Smyth Associates,

Position of the Parties

The Complainant

The complainant’s representative told the court that shortly after he commenced employment with the respondent he was furnished with a statement which purported to particularise the terms of his contract of employment. He stated that this statement did not refer to the matters referred to earlier in this Determination. It was put to the complainant that in addition to the impugned statement he received a copy of an employee handbook which contained the particulars which were omitted from the statement. The complainant denied having received a copy of a handbook at the commencement of his employment or at any other time.

The Respondent

The respondent did not adduce evidence in the course of the appeal but merely relied on submissions. In the submissions advanced on its behalf the court was told that the complainant had been furnished with an employee handbook which contained all of the information that the respondent was statutorily obliged to furnish. In the course of questioning by the Court it emerged that the handbook upon which the respondent relied was produced some time after the complainant commenced his employment. The respondents position was that the complainant had received an earlier version of the hand book.

Discussion

The central fact in issue in this case is whether or not the complainant was furnished with a statement which contained the particulars referred to at s.3 of the Act and S.I. 49 of 1998. The complainant’s representative told the court that the complainant did not receive such a statement in the manner specified by the Act or in any other form. While the respondent took issue with this, it did not adduce any rebuttal evidence. In these circumstances the Court has no reason to doubt the accuracy of the complainant’s position and that position is accepted. Consequently, the complainant is entitled to succeed in his appeal.

The redress which can be awarded is regulated by the combined effect of s.41 of the Workplace Relations Act 2015 and s.7 of the Act, as amended.

Section 7(2) of the Act in its amended form now provides: -

• (2) A decision of an adjudication officer undersection 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3 , 4 , 5 or 6 shall do one or more of the following, namely —
  • ( a ) declare that the complaint was or, as the case may be, was not well founded,

    ( b ) either —

    • (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 adjudication officer,

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

In support of that proposition the complainant’s representative relied upon an opinion delivered by Advocate General Mengozzi in the Case C-174/16H. v Land BerlinECLI:EU:C:2017:306. An opinion of an Advocate General in a case before the CJEU has no binding force unless and until it is adopted by the Court of Justice. The Court of Justice has yet to deliver judgment in that case. Nevertheless, the Court has considered the opinion of the Advocate General relied upon and it cannot see how it could support the proposition that every omission from a statement mandated by s.3 of the Act constitutes a stand-alone infringement to which the statutory limit on compensation should be separately applied.

It is clear a failure to comply with s.3 constitutes a single contravention of the Act. The extent of non-compliance is a matter that goes to the gravity of the contravention and that can properly be taken into account in deciding on redress and in particular in measuring the quantum of any compensation to be awarded. However, the extent of non-compliance or the gravity of the contravention cannot offset or supplant the clear provision of s.7(2)(d) of the Act.

In deciding on redress the Court must be mindful of its obligations to ensure that its decision is effective and efficient in the provision of legal protection to a complainant and also dissuasive of further infractions.

The Court must also take into consideration the effect of the infringements on the worker concerned. In this regard the Complainant’s representative told the Court that the injury suffered was that he had to attend two hearings to vindicate his rights.

Having regard to all the circumstances of this case the Court measures the amount of compensation that is just and equitable at the equivalent of 3 weeks’ pay, that is to say, €1,260 (€420 x3) for the infringements involved.

Determination

For the reasons set out herein the within appeal is allowed. The decision of the Adjudication Officer is set aside and substituted with this Determination.

Signed on behalf of the Labour Court



Louise O'Donnell
10 August 2017______________________
LSDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.