FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : STOBART (IRELAND) DRIVER SERVICES LTD (REPRESENTED BY PURDY FITZGERALD) - AND - PATRICK DOOLIN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No: r-156366-te-15/DI
BACKGROUND:
2. The Claimant 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 6th March, 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Patrick Doolin against the Decision of an Adjudication Officer r-156366-te-15/DI 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 Mr Doolin is referred to as ‘the Complainant’ and Stobart (Ireland) Driver Services Ltd is referred to as ‘the Respondent’.
Background
The Complainant is employed as driver. Pursuant to the European Community (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131), he transferred to the Respondent’s employment in 2010. Following the transfer, the Complainant disputed the Respondent’s adherence to both his contractual terms and conditions of employment and his legal entitlements, in particular the Respondent’s failure to provide him with information on his normal or regular starting times and finishing times and duration of his working day.
A complaint of a breach of Section 3 of the Act was received by the Workplace Relations Commission on 31stDecember 2014. The Complainant also submitted related complaints under the Organisation of Working Time Act, 1997 and the Safety, Health and Welfare at Work Act, 2005.
The Adjudication Officer found that the Act at Section 3(1)(i) did not make it obligatory for an employer to provide an employee with particulars of actual starting and finishing times of their working day in a statement of their terms of employment. The complaint was found to be not well founded and failed.
The Complainant appealed the Adjudication Officer Decision to this Court on 21stDecember 2016. The appeal came before the Court on 6thMarch 2017.
Preliminary Issue
The Respondent raised a preliminary issue as to whether a complaint had been validly made to the Adjudication Officer. In support of its position, the Respondent stated that in circumstances where the Complainant had simply listed the Act without any further details of the complaint then the particulars of the complaint had not been set out as required in the complaint form submitted by the Complainant to the Workplace Relations Commission on 31stDecember 2014. The Respondent relied on Section 7(4)(a) of the Act, which states:-
- (4) (a) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
It was the Respondent’s position that the compliant must fail accordingly. However, the Court does not accept that the compliant before it is not a valid one. At the time of the Adjudication Officer’s hearing, the Minister had not specified the particulars to be contained in a complaint to the Adjudication Officer and had not specified the form for such a complaint, therefore the form utilised by the Complainant was not a statutory form. The Act therefore requires only that a complaint to an Adjudication Officer be made in writing. The Court accepts that the complaint was validly made in writing to the Adjudication Officer on 31stDecember 2014.
Summary of the Complainant’s Case
Ms. Karan O’Loughlin, SIPTU, on behalf of the Complainant put forward the following points:-
- i.The Act requires that workers be provided with information about their working time.
ii.The Complainant has not been provided with this information.
iii.He has received no information of his regular starting times and duration of his working day and he has received no information concerning when overtime applies.
iv.Drivers like the Complainant are required by the Respondent to make contact during their rest day to determine their start time for their next working day. They are not provided with a finishing time and can therefore only estimate the duration of their working day.
v.Section 3(1)(i) must be interpreted as requiring an employer to provide an employee with information of their start times, finish times and an approximation of the duration of their working day.
Summary of the Respondent’s Case
On behalf of the Respondent, Mr. Einde O’Donnell of Purdy Fitzgerald Solicitors outlined the Respondent’s case as follows:-
- i.There is no legal basis for the Complainant’s claim under Section 3 of the Act.
ii.On the commencement of his employment the Complainant was provided with a written contract of employment. A number of clauses in the contract provided detail regarding working hours, Sunday working and overtime arrangements.
iii.The information provided to the Complainant satisfies the requirements of Section 3(1)(i) of the Act.
The Law
Section 3(1)(i) of the Act requires an employer to provide an employee with a statement in writing containing, in relevant part, the following particulars: -
- 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, that is to say—
(i) any terms or conditions relating to hours of work (including overtime),
Discussion and Findings
On behalf of the Complainant, Ms. O’Loughlin contented that Section 3(1)(i) must be interpreted as requiring an employer to provide an employee with information of their start times, finish times and an approximation of the duration of their working day. Mr. O’Donnell on behalf of the Respondent disagreed with this contention and argued that there was no legal basis for same. Ms. O’Loughlin was unable to point the Court towards any legal authority in support of her contention.
Having considered the arguments, the Court is satisfied that Section 3(1)(i) of the Act does not make it obligatory for an employer to provide an employee with actual starting and finishing times in a statement of terms and conditions of employment. The Court is emboldened in this view by Section 17(1) of the Organisation of Working Time Act, 19997, which states:-
- —(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
In the Court’s view, the Act of 1997 clearly recognises that statements of terms of employment may not provide employees with information on normal or regular starting and finishing times of work.
The Court therefore finds that Section 3(1)(i) of the Act does not require an employer to provide an employee with information of their normal or regular starting times and finishing times in a statement of their terms of employment.
Determination
The Court finds that the Respondent was not in breach of Section 3 of the Act and declares that the complaint is not well founder and fails.
The Decision of the Adjudication Officer is affirmed accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th March, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.