TED1819

This is Mr Tomasz Warzycha’s (‘the Complainant’) appeal from a number of decisions of an Adjudication Officer (that each bear the claim reference numberADJ-00007789 and are dated13 June 2018) under the Terms of Employment (Information) Act 1994 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 19 June 2018. The Court heard the appeal in Dublin on 24 September 2018.

The Complaint was employed by Sprint Coatings Limited (‘the Respondent’) (or a predecessor company) between 3 July 2006 and 16 March 2017 on which latter date he was summarily dismissed for gross misconduct.

Specific Complaints under the Act

(a) The Complaint alleges that the Statement of Terms and Conditions furnished to him in August 2008 does not contain the address of his employer in the State. The Respondent exhibited a copy of the Statement signed by the Complainant on 1 August 2008. It clearly sets out the Respondent’s address. The Adjudication Officer held that this complaint was not well-founded. The Court upholds the Adjudication Officer’s decision in respect of this complaint: the Respondent’s address is included in the Statement furnished under the Act to the Complainant.

(b) The Complainant alleges that the Statement furnished to him does not comply with section 3(1)(l) of the Act which requires the following information to be included in such a statement: “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”.

The written Statement furnished to the Complainant provided for one week’s contractual notice from each side; it did not make reference to the Complainant’s statutory notice entitlements. The Adjudication Officer held the Complaint was not well-founded. The Court, however, finds that the Statement, in so far as it fails to refer to the Complainant’s entitlements under the Minimum Notice and Terms of Employment Act 1973, does not adequately fulfil the Respondent’s obligation with regard to section 3(1)(l) of the Act. The Adjudication Officer’s decision is set aside and the Court directs the Respondent to pay compensation of €100.00 for this breach.

(c) The Complainant alleges that the Statement furnished to him by the Respondent in August 2008 does not comply with section 3(1)(g) or with section 3(1)(ga) of the Act. Section 3(1)(g) requires the employer to specify in writing “the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Acts 2000 and 2015”. Section 3(1)(ga) requires the Statement to confirm that 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”.

There is no reference to the National Minimum Wage Act 2000 in the written Statement furnished to the Complainant in August 2008. The Adjudication Officer held that neither complaint was well-founded. The Court sets aside the Adjudication Officer’s decisions in relation to sections 3(1)(g) and 3(1)(ga). Self-evidently, the Statement issued to the Complainant is deficient in so far as it fails to make reference to the National Minimum Wage Act 2000. However, as the Complainant was at all times earning in excess of the then current minimum wage rate, the breaches in question were of a merely technical nature. The Court does not award compensation for the breaches under this heading.

(d) The Complainant was originally employed as a general operative. He was promoted to a supervisory grade in 2014. His rate of pay was also increased in or around this time. He alleges that two separate breaches of section 5 of the Act occurred thereafter in so far as the Respondent failed to issue him a revised Statement of Terms and Conditions to reflect his new job title and rate of pay. The Adjudication Officer held that both complaints alleging that the Respondent failed to amend the Statement to reflect changes in the Complainant’s terms and conditions of employment in 2014 were statute-barred. The Court sets aside the Adjudication Officer’s decisions. The breaches of section 5 the Complainant alleges were continuing in nature and were not statute-barred when he referred them to the Workplace Relations Commission. The Court finds both complaints are well-founded and awards compensation of one week’s gross pay i.e. €714.90 in total in respect of both complaints taken together.

(e) Paragraph 3(1) of SI No 49 of 1998 provides: “In relation to an employee who has entered 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 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.”

The Complaint submits in his written statement to the Court that the provisions of “SI No 49/1998 are not contained in the statement”. The Complainant’s assertion in this regard is self-evidently not entirely accurate as the Statement issued to the Complainant makes provision for two daily rest breaks (one of 15 minutes’ duration and the second of 30 minutes’ duration) but does not specify the times at which those breaks may be taken. For this reason, the Court finds that the Respondent has partially complied with the requirements of SI No 49 of 1998 but that the Respondent’s non-compliance amounts to a mere technical breach. In the circumstances, the Court does not award any compensation to the Complainant for this partial breach.

Conclusion

In summary the Court upholds the appeals listed at (b) through (e) above and awards compensation totalling €814.90 to the Complainant.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
30 November, 2018Deputy Chairman



NOTE

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