TED1727

This is Ms Stachon’s (“the Complainant”) appeal from a decision of an Adjudication Officer (ADJ-00001835, dated 5 January 2017) under the Terms of Employment (Information) Act 1994 (“the Act”). The Adjudication Officer held that the Complainant’s claim was not well-founded. The Notice of Appeal was received by the Court on 27 January 2017. The Court heard the appeal in Wexford on 23 November 2017. The Complainant was represented by Mr Richard Grogan, Solicitor; Lake Region Medical Limited (“the Respondent”) by IBEC.

The Complainant commenced employment with the Respondent on 30 March 2007 as a general operative. She earns approximately €450.00 per week. The Complainant received a statement of her terms conditions of employment, signed on behalf of the Respondent, and dated 29 March 2007. The Complainant also signed this statement. In addition, the Complainant received an Employee Information Booklet (which runs to some 28 pages) on 30 March 2007. The Complainant also signed to acknowledge receipt of the Information Booklet. In doing so, she also acknowledged her agreement to be bound by the contents thereof and confirmed that she was under a duty to familiarise herself with the contents of the Booklet. The Complainant’s signature was witnessed on behalf of the Respondent.

The Complaint

The Complainant submits that the Statement of Terms and Conditions dated 29 March 2007 does not fulfil the requirements of section 3 of the Act in five respects:

• 
  (a) It does not comply with section 3(1)(g);

  (b) It does not comply with section 3(1)(ga);

  (c) It does not comply with section 3(1)(i);

  (d) It does not comply with section 3(1)(j); and

  (e) It does not comply with section 3(1)(k)(ii).

The Respondent’s Submission

The Respondent submits that it has not breached the Act in the case of the Complainant. It submits that sections 3(1)g and 3(1)(ga) are not relevant to the Complainant’s circumstances as she was paid in excess of 150% of the national minimum wage. It further submits that it is not in breach of section 3(1)(i) because the Employee Information Booklet provided to the Complainant (and signed for by her) forms part of her contractual terms and conditions of employment and clearly sets out her hours of work.

It is the Respondent’s position that the Statement of Terms and Conditions of Employment dated 29 March 2007 fully states the Complainant’s annual leave entitlements and, therefore, complies with section 3(1)(j) of the Act. The Respondent submits that the complaint advanced on behalf of the Complainant to the effect that the annual leave year referred to in the aforementioned statement is not the statutory leave year provided for in the Organisation of Working Time Act 1997 is a matter which falls to be adjudicated under that Act and not under the 1994 Act.

Finally, the Respondent states that the Employee Information Booklet contains full details of its occupational pension scheme.

The Law

The relevant paragraphs of section 3(1) of the Act provide 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, that is to say—

  (a) …..

  (g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

  (ga) that the employee may, under section 23 of 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,

  (h) ….

  (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—

  • (i) incapacity for work due to sickness or injury and paid sick leave, and

    (ii) pensions and pension schemes,

  ……..”.

Each of the Complaints Considered

(i)The Statement does not identify the pay reference period for the purposes of the National Minimum Wage Act 2000 and does not state that the Complainant is entitled to seek a statement within the meaning of section 23 of that Act

The Statement dated 29 March 2007 did not contain the above information. However, as the Complainant’s wage is in excess of 1.5 times the national minimum wage rate, the absence of the information required by sections 3(1)(g) and 3(1)(ga) could have no practical significance in the Complainant’s case.

(ii)The Statement does not set out the Complainant’s hours of work.

The Statement is deficient in this regard. However, the Employee Information Booklet contains detailed information – at page 9 -in relation to the shift pattern operated by the Respondent. It follows that the Complainant was fully appraised of her working hours.

(iii)The Respondent’s annual leave year does not run in tandem with the statutory annual leave year specified in the Organisation of Working Time Act 1997.

Section 3(1)(j) of the 1994 Act provides that the statement furnished to the employee must provide information on “any terms or conditions relating to paid leave (other than paid sick leave)”. The Statement of 29 March 2007 did contain information on the terms and conditions relating to the Complainant’s annual leave entitlements. If it is suggested that the contractual provisions in the Complainant’s contract of employment contravened the provisions of the Organisation of Working Time Act 1997 that is a matter that could only be adjudicated upon in proceedings under that Act. Such proceedings do not form part of the within appeal.

(iv)The Statement furnished to the Complainant does not give details of the Respondent’s occupation pension scheme.

The Statement is deficient in this regard. However, the Employee Information Booklet contains detailed information – at page 13 -in relation to the occupation pension scheme operated by the Respondent. It follows that the Complainant was fully appraised of this scheme.

Discussion and Decision

Having regard to the totality of the information provided to the Complainant in writing at the commencement of her employment (i.e. the Statement of Terms and Conditions plus the Employee Information Booklet), and to the Employee’s rate of pay, the Court finds that the breaches of the 1994 Act complained of in the within proceedings are merely of a technical nature.

This Court – in its decision inIrish Water v Patrick Hall TED161,a case the facts of which bear close similarity to that of the within appeal – held that where mere technical breaches of section 3 of the 1994 Act occur, “the dictates of fairness or equity could not justify an award of compensation”.

Irish Water v Patrick Hallis applied and the decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
29 November 2017______________________
JDDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.