TUD171

As is the normal practice for this Court, Ms Kolesnik is referred to in the within determination as the Complainant and her employer, Trinity Leisure Holdings Limited T/A Trinity City Hotel, is referred to as the Respondent.

The Court heard a number of related appeals together brought by the Complainant against three decisions of an Adjudication Officer: r-143303-wt-14/DI made under the Organisation of Working Time Act 1997 (“the 1997 Act”); r-143314-tu-14/DI & r-143324-tu-14/DI made under the EC (Protection of Employees on the Transfer of Undertakings) Regulations 2003 (“the 2003 Regulations”); and r-143301-te-14/DI made under the Terms of Employment (Information) Act 1994 (“the 1994 Act”). The Complainant also appealed against a recommendation of the Adjudication Officer (r-143309-ir-14/DI) under the Industrial Relations Act 1969 (“the 1969 Act”). The Respondent cross-appealed against the Rights Commissioner’s decision (r-143303-wt-14/DI) only.

The decisions and recommendation of the Adjudication Officer are each dated 26 April 2016. The Complainant’s Notice of Appeal was received by the Court on 9 May 2016. The Respondent’s Notice of Appeal was received by the Court on 2 June 2016. The Court heard the appeals and cross-appeal on 20 September 2016. The Complainant was represented by Mr Richard Grogan, Solicitor; the Respondent was represented by Ms Claire Bruton BL, instructed by Mason, Hayes & Curran Solicitors.

Relevant Employment History

The Complainant commenced employment as an Accommodation Assistant on 10 September 2007. Her employment transferred to the Respondent, in accordance with the 2003 Regulations in September 2013. The material clauses of the Complainant’s contract of employment provide as follows:

• “3. Full Time Employees – 7 day roster

  Your salary will be €per hour (sic). This includes your Sunday premium based on you getting every third Sunday off (i.e. you work two Sundays out of three. Payment will be made weekly with one week in arrears and will be paid directly into your bank account ….

  [4.] HOURS OF WORK

  The company operates a seven-day week shift system. This will comprise of early, late and weekends (and possibly ad hoc night shifts) and will be assigned to you by Management on a weekly basis. You may be required to work more or less hours to meet the needs of the business and staff breaks, of any types, must be agreed with your immediate supervisor …..”

Appeal under the 2003 Regulations

The issue complained of here relates to the number of hours the Complainant was required to work prior to the transfer of her employment in September 2013 versus those she was required to work following the transfer. The Complainant submits that her hours were unilaterally increased from 35 hours per week to 39 hours per week following the transfer and that she had not been consulted in relation to this change in her working pattern.

The Respondent accepts that the Complainant’s hours were fixed at 39 hours post-transfer in order ‘to give certainty to employees’ but that there had been a degree of consultation between the Complainant and her colleagues and their manager in relation to this change and the employees had consented to it. Counsel for the Respondent also submitted that the Complainant’s written contract of employment is silent on the number of hours that the Complainant was required to work per week, although she was engaged as a full-time employee. The contract, in fact, provided for working hours “to meet the needs of the business”. Finally, the Respondent also submitted that the rosters for the relevant period indicated that there had a significant fluctuation in the Complainant’s hours in the period leading up to the transfer.

Both parties agreed that the Complainant’s hours had been reduced back to 35 hours per week with effect from March 2015 and the Complainant was satisfied with this arrangement.

Having regard, in particular, to the provisions of the Complainant’s contract to the effect that she could “be required to more or less hours to meet the needs of the business” – which contractual provision was carried forward by virtue of the transfer of undertakings which occurred in September 2013 – the Court finds that the appeal before it under the 2003 Regulations is not well founded. The decision of the Rights Commissioner is therefore affirmed.

The Court so determines.

Appeal under the 1994 Act

The Complainant’s representative submitted that the aforementioned contract of employment issued to the Complainant and signed by her on 21 January 2008 does not comply with section 3 of the 1994 Act in the following respects:

(i) The contract does not refer to SI No. 49 of 1998 – the Terms of Employment (Additional Information) Order 1998;

(ii) The contract does not provide for an annual leave year that coincides with the statutory annual leave year;

(iii) The contract does not provide for the matters required by sections 3(g) and 3(ga) of the 1994 Act.

When questioned by the Court in relation to the detriment suffered by his client arising from the aforementioned deficiencies in her written contract, the Complainant’s representative stated that his client had not been advised of her entitlement to request a statement of average earnings pursuant to section 23 of the National Minimum Wage Act 2000 and had, as a consequence, not been advised in relation to a fundamental right.

Counsel for the Respondent submitted that the Complainant had received a comprehensive written contract of employment and that the instances of non-compliance with the 1994 Act which are the subject of the complaint herein are merely technical in nature and do not in fact give rise to any meaningful detriment in so far as the Complainant is concerned. Counsel also pointed out that the Complainant had, in fact, made a section 23 request to the Respondent. Furthermore, she told the Court that two revised draft contracts of employment had been issued to the Complainant and both had been rejected by her solicitor. The draft contracts address the shortcomings in the original contract listed at (i) and (ii) above.

The Court determines that the complaints referred to on appeal under the 1994 Act are well-founded. However, they are technical in nature and the facts clearly indicate that those technical breaches have not caused the Complainant to suffer any detriment. This Court has previously – inIrish Water v HallTED161 - indicated its approach to requests to it for compensation under the 1994 Act in circumstances where there are mere technical deficiencies in an employee’s written statement of terms and conditions/ written contract which do not cause any appreciable detriment to the Complainant. Having regard to its determination in that case, the Court determines that no compensation is merited in the instant case for the merely technical breaches of the 1994 Act that were occasioned by the omissions in the Complainant’s contract of employment.

The Court so determines.

Appeal under 1997 Act

Mr Grogan indicated to the Court that he was pursuing only one issue on behalf of his client on the appeal under the 1997 Act i.e. the Respondent’s failure – contrary to section 14 of the 1997 Act- to specify in the Complainant’s written contract how the Sunday Premium element of her remuneration was calculated. As noted previously, the Complainant’s contract provides that her specified hourly rate of pay “includes [her] Sunday premium based on [her] getting every third Sunday off”. Counsel for the Respondent submits that the requirements of section 14(1) of the 1997 Act have thereby been met in the Complainant’s contract because it is self-evidently the case that the fact that she is required to work on certain Sundays has been taken into account by the Respondent in fixing her hourly rate of pay.

Counsel for the Respondent referred the Court to the determination of this Court inDuesbury Limited v FrostDWT1032 in which the Court found as follows in relation to section 14:

“It is clear from Subsection (1)(b) of this Section that the right to compensation for Sunday working can be satisfied where that requirement is taken into account in determining the Employee’s rate of pay. This suggests that some element of the Employee’s pay must be specifically referable to the obligation to work on Sundays.”

However, notwithstanding the Respondent’s purported reliance on the determination inDuesbury,the Respondent failed to tender any evidence to the Court in relation to what, if any, element of the Complainant’s hourly rate of pay was specifically referable to her contractual obligation to work on Sundays. It follows that the the Respondent’s cross-appeal in this regard fails. At first instance, the Adjudication Officer directed the Respondent to pay the Complainant “a premium of 30% of the basic rate for all hours worked on Sundays falling within the period 25 September 2013 to 24 March 2014.” The Court affirms that decision.

The Court so determines.

Appeal under the 1969 Act

The issue in dispute under the 1969 Act relates to the Respondent’s Safety Statement prepared pursuant to its obligations under the Safety, Health & Welfare at Work Act 2010. Mr Grogan submits that the Respondent is obliged to prepare a version of this statement “in a language likely to be understood by the Complainant” i.e. her native language, which is not English. Ms Bruton BL submits that the Respondent’s workforce typically comprises workers from up to 25 different nationalities, many of whom are longstanding employees of the Respondent. It would be impracticable and inordinately costly to provide a translation into each of the worker’s native language having regard to the length of the Safety Statement (some 100 pages) and the fact that it is revised on an annual basis. She further submits that the Respondent provides on-the-job health and safety training on a regular basis. She also informed the Court that following the issuing of the Adjudication Officer’s Recommendation in this matter, the Respondent’s Accommodation Manager who is of the same nationality as the Complainant arranged a meeting with the Complainant (on 5 September 2016) at which the Manager explained the key points of the Safety Statement in her native language and allowed her to take notes during the course of that meeting.

The Appeal fails. There was nothing submitted to the Court to suggest that the Complainant in the within appeal has been placed in a position of vulnerability arising from the Respondent’s decision not to furnish her with a translation of its Safety Statement into her native language. The Court recommends, however, that as a matter of good practice that the Respondent should apprise its employees in writing on each occasion in the future when the Safety Statement has been revised. A meeting or meetings, as appropriate, should then be convened at which a representative of the Respondent should explain the relevant parts of the Safety Statement to the employees. A note should be retained on file to record attendance at those meetings and the content of the matters notified to the employees also.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
17th January, 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.