TED1721

The Adjudication Officer decided that the Appellant had not suffered any detriment as a result of minor technical breaches in her contract of employment and as such no award of compensation was made.

Preliminary Matter

The parties disagreed initially as regards the appropriate Respondent in the within matter. However, the parties confirmed at the commencement of the hearing of the Court their agreement that the Board of Management of Kilmeen National School is the appropriate Respondent in the matter.

The Appeal

The Appellant contends that the statement with which she was provided upon the commencement of her employment and re-issued to her on 30^thSeptember 2005 did not comply with the Act in the following respects: -

• 
  •In contravention of the Act at Section 3 (1)(g) the statement did not specify 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 (the Act of 2000).

  •In contravention the Act at Section 3 (1)(g)(a) the statement did not expressly state that the employee may request a statement of her average earnings pursuant to s.23 of the National Minimum Wage Act, 2000 (The Act of 2000).

  •In contravention the S.I. 49 of 1998 made in accordance with the Act at Section 3(6) the statement did not specify the times and duration of rest period and breaks in accordance with the Organisation of Working Time Act, 1997 (the Act of 1997) at Sections 11, 12 and 13.

The Appellant contended that the Respondent, in the statement issued to the Appellant, did not provide all of the information which the Act required to be provided in that statement. The Appellant acknowledged that she was provided with a timetable setting out her hours of work and rest periods at all times in her employment. The Appellant also acknowledged that she was in possession of full information as regards her remuneration at all times during the course of her employment with the Respondent and that, as a result of the fact that she was in receipt of remuneration which was more than 150% of the National Minimum Wage at all material times, she was prohibited by the Act of 2000 from making a request to the Respondent under Section 23 of that Act.

The Appellant acknowledged that at all material times during her employment and currently she was a member of a Trade Union recognised by the Respondent for negotiation as regards terms and conditions of employment for SNA’s.

Position of the Respondent

The Respondent contended that the Appellant was provided with full details as regards her remuneration at all times in her employment. The Respondent submitted that the statement provided to her upon commencement of employment set out that the“salary scale for her post shall be in conformity with the salary scale applicable to SNA’s as determined by the Department of Education and Science from time to time. Increments will be awarded after each year of satisfactory service in an approved post as a Special Needs Assistant in a recognised school”.The Respondent submitted that, as a result of the level of her remuneration and the operation of the Act of 2000 at Section 23, the Appellant had no capacity to make a request of the Respondent for a statement of her earnings as provided for under the Act of 2000 at Section 23. The Respondent submitted that it should not be penalised for failure to include a statement as regards Section 23 of the Act of 2000 which, in the case of the Appellant, would not be factually accurate or appropriate. The Respondent submitted that to advise the Appellant that she may make such a request, when in fact she may not, would not be an accurate statement of the terms of her employment.

The Respondent asserted that it had supplied to the Appellant, at the commencement of her employment, a school timetable which clearly set out to her arrangements as regards the timing and duration of her breaks. The Respondent contended that S.I. 49 of 1998 did not require that a statement in accordance with Section 3 of that Instrument be included in the statement specified at Section 3 of the Act, merely that the statement in accordance with Section 3 of the Instrument be given to the employee within the timeframe set out in the Instrument. The Respondent contended that the timetable provided to the Appellant at the commencement of her employment met the requirements of S.I. 49 of 1998 in full. In addition the Respondent submitted that the statement of terms and conditions of employment supplied to her at the commencement of her employment asserted that break entitlements would be in accord with the provisions of the Organisation of Working time Act, 1997. The Respondent submitted that at all material times the Appellant was working 3 hours and 12 minutes per day and consequently enjoyed no entitlement to breaks under the Act of 1997.

The Law

Section 3 of the Act, as amended, provides: -

• Written statement of terms of employment

  (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) 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 principal 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 of 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,

  (fa)a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order

  (g) 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

  (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) 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—

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

  (ii) 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 were made.

  (2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

  (3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

  (4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

  (5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

  (6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

  • (b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

    (7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

• In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

• An employer shall be obliged to notify an employee to whom this Directive applies, hereinafter referred to as 'the employee', of the essential aspects of the contract or employment relationship.

The Appellant has made clear that the within appeal is not founded on any detriment suffered and in particular on any absence of knowledge or understanding of the matters pertaining to her employment in respect of remuneration or entitlement to breaks.

The Appellant accepts that she had no capacity under the National Minimum Wage Act to make a request of the Respondent under that Act at Section 23. The Appellant emphasised to the Court that she sought compensation because of the contended for failure of the Respondent to meet the requirements of the Act at section 3 and of S.I 49 of 1998. The Court considered the appeal as follows

Item 1

That the statement did not, in accordance with the Act at section 3(1)(g), specify 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.

It is clear that the statement afforded to the Appellant did make clear the method of calculation of the employee’s remuneration insofar as the Respondent made clear that remuneration would be in accord with the determination of the Department of Education and Science from time to time. The statement did not specify the pay reference period for the purpose of the National Minimum Wage Act, 2000.

The Complainant’s contractual salary was set at a multiple of the National Minimum Wage. A statement of the type envisaged by s.3(1)(g) of the Act could not have had any practical significance for the Complainant.

Item 2

That the statement does not, in accordance with the Act at section 3(1)(ga), expressly state that the employee may request a statement of her average earnings pursuant to s.23 of the Act of 2000.

Section 23(2) of the National Minimum Wage Act 2000 provides as follows: -

• An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 2, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

In those circumstances the Court must conclude that any statement advising the Appellant that she could make a request to the Respondent pursuant to the Act at Section 23 would be inaccurate. Nevertheless the Court can acknowledge that the statement provided to the Appellant did not state that the Appellant could make such a request.

Item 3

That the statement did not comply with S.I 49 of 1998 in that the statement did not specify the duration of rest period and breaks in accordance with Sections 11, 12 and 13 of the Act of 1997.

The Court has examined the provisions of S.I. 49 of 1998 at Section 3 as set out above. That instrument does not require that the statement setting out detail of an employee’s entitlement to breaks as set out at Section 11, 12, and 13 of the Act of 1997 be contained in the statement provided for at Section 3 of the Act. It does require that a statement providing this detail and information is provided to the employee within two months of commencement of employment. There is no submission made by the Appellant that the timetable supplied to the Court setting out this detail was not supplied to the Appellant within two months of commencement of her employment. There is no contention by the Appellant that the timetable supplied to her did not provide all the detail required by S.I 49 of 1998. The Court also notes separately that there is no contention by the Appellant that she was not afforded all her entitlements to breaks and rest under the Act of 1997.

It is clear that through a combination of the statement provided to the Appellant at the commencement of her employment and the timetable given to her at the same time that the Appellant was provided with comprehensive written statements as regards timing and duration of rest and breaks and was also advised that she was entitled to the protection of the Act of 1997 in respect of breaks and rest.

Discussion

It is clear to the Court that the within appeal derives from complaints as regards alleged contraventions which have had no practical impact on the Appellant in the 14 years of her employment with the Respondent from 2001 to 2015. Indeed no issue as regards the Act was raised by the Appellant, her trade union or any other representative until 2015.

This Court inPatrickHall v Irish Water[TE15/6], where the nature of the matters under appeal were almost identical to those in the within matter, considered the nature of complaints which could be argued to be deriving from events or alleged contraventions of law which have no practical effect and commented as follows

• “As appears from the above, these complaints are wholly devoid of any substantive merit. The State has already incurred the costs associated with providing the Complainant with a hearing of these complaints at first instance and it is now obliged to incur the cost in time and expense of providing him with a full appeal before a division of the Court. That takes no account of the cost incurred by the Respondent in defending this case, both at first instance and now on appeal. The combined associated costs of processing and hearing these complaints is grossly disproportionate to any value that could have accrued to the Complainant if the technical infringements of which he complains had not occurred”.

• “In the circumstances of this case that represents an unacceptable squandering of public resources. It is a manifest absurdity to suggest, as the Complainant does, that these contraventions, if such they are, could or should be met with an award of monetary compensation. “

• 
  •The statement provided to the Appellant upon commencement of her employment did specify the rate or method of calculation of the employee’s remuneration as required by the Act at Section 3(1)(g).

• 
  •The statement provided to the Appellant did not specify the pay reference period for the purpose of the Act of 2000 as required by the Act at Section 3(1)(g)(a).

• 
  •The statement provided to the Appellant did not expressly state that the Appellant may request a statement of her average earnings pursuant to s.23 of the Act of 2000. The Court accepts that any such statement, were it to have been made to the Appellant at any time in her employment with the Respondent, would have been inaccurate having regard to the provisions of the Act of 2000 at Section 23.

• 
  •The statements provided to the Appellant at the commencement of her employment in the form of a timetable and her contract of employment did comply with S.I 49 of 1998 in that the statements did specify the duration of rest periods and breaks referred to in Sections 11, 12 and 13 of the Act of 1997.

The appellant has made it clear to the Court that the only remedy sought is compensation. The Court has identified two areas of deficiency in the statement provided to the Appellant upon the commencement of her employment. The Court however notes the analysis of this Court inPatrick Hall v Irish Water [TE15/6]of the ‘de minimis rule’ where it stated as follows

• De Minimis rule

  It is an established principle of the common law that a Court should not squander its resources in dealing with claims that are without substance because the contraventions complained of had no practical consequence for the plaintiff. This principle is encapsulated in the Latin maxim de minimis non curat lex (the law does not concern itself with trifles). The classic statement of where this principle should be applied is contained in the judgment of Henchy J. in the Supreme Court’s decision in Monaghan UDC v Alf-a-Bet Publications Ltd. [1980] I.L.R.M. 64, at page 69. Henchy J articulated a generally applicable test in the following terms: -

  • “In such circumstances, what the Legislature has, either immediately in the Act or immediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”

In the view of the Court the within appeal is without substance and trivial. It concerns matters which have had no practical effect on or consequence for the Appellant . In those circumstances it would be inappropriate to recommend any compensation in respect of the contraventions of the Act which have been identified.

Determination

The within appeal is dismissed. The Recommendation of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
19 September 2017______________________
JDChairman



NOTE

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