EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
TE139/2014
APPEAL OF:
Freshcut Food Services Ltd – appellant
against the recommendation of the Rights Commissioner in the case of:
Demitrij Karpenko –respondent
under
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden BL
Members: Mr W. Power
Mr D. Thomas
heard this appeal at Dublin on 5th January 2016
Representation
Appellant: Mr Aidan Phelan of Peninsula Business Services (Ireland) Limited,
Unit 3 Ground Floor Block S, East Point Business Park, Dublin 3
Respondent: Mr Richard Grogan of Richard Grogan & Associates Solicitors,
16 & 17 College Green, Dublin 2
This case came before the Tribunal by way of an appeal by the employee (appellant) against the recommendation of the Rights Commissioner (r-144092-te-13/EH) under the Terms of Employment (Information) Act, 1994 and 2001.
Determination
The appellant brings this appeal to ask the Tribunal to reduce the amount of the award. The employee was issued with a contract of employment and it was argued that any faults or omissions in the contract were minor and did not result in any loss to the recipient.
While it is accepted by the respondent (employee) that he was issued with a contract of employment, his representative argued that it was deficient in a number of significant respects and therefore the award made by the Rights Commissioner is appropriate.
The Tribunal carefully considered the evidence adduced by the parties and the submissions made.
Section 3 (1) of the Terms of Employment (Information) Act 1994 requires that an employee be given a written statement containing the following information:
(a) The full names of the employer and the employee,
(b) The address of the employer in the State or, where appropriate, the address of the principle place of the relevant business of the employer in the State or the Registered Office (within the meaning of the Companies Act, 1963.
(c) 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,
(d) The title of the job or nature of the work for which the employee is employed,
(e) The date of commencement of the employee’s contract of employment
(f) In the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,
(g) The rate or method of calculation of the employee’s remuneration,
(h) The length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval.
(i) Any terms or conditions relating to hours of work (including overtime),
(j) Any terms or conditions relating to paid leave (other than paid sick leave),
(k) Any terms or conditions relating to-
- Incapacity for work due to sickness or injury and paid sick leave, and
- Pensions and pension schemes,
(l) The period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,
(m) A reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they are made.
The Tribunal looked at the respondent’s contract and took account of the submission made concerning the defects.
Section (a): the company name is incorrectly given on the contract. The erroneous insertion of a space could undermine the legal status of the contract.
Section (b): compliant.
Section (c): compliant
Section (d): compliant
Section (e): compliant
Section (f); not relevant
Section (g): the respondent was to be paid €10 per hour. The Tribunal is satisfied that this rate of remuneration meets the requirements of the National Minimum Wage Act, 2000.
Section (h): compliant
Section (j): does not comply, especially when specifying the year for annual leave purposes as a calendar year rather than a year starting on 1st April as laid down in the Organisation of Working Time Act.
Section (k): compliant
Section (l): compliant
Section (m): not relevant.
The Tribunal also finds that the respondent’s (employee’s) contract of employment failed to comply with Article 3 (1) of the Terms of Employment (Additional Information) Order, SI no 4 of 1977 in that it does not give details of rest periods and breaks.
Overall the Tribunal is satisfied that the contract honours the spirit of the Act. The appellant accepts there are shortfalls and have re-written their contract of employment.
The Tribunal varies the recommendation of the Rights Commissioner, and in all the circumstances awards compensation to the appellant employee in the sum of €150.00 under the Terms of Employment (Information) Act, 1994 and 2001.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)