TED1812

The Law

The relevant paragraphs of section 3(1) of the Act provide as follows: -

• (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,

    (j) any terms or conditions relating to paid leave (other than paid sick leave)

Discussion and Findings of the Court

The Court is satisfied that the contract of employment provided by the Respondent to the Complainant can properly be regarded as forming a written statement of her terms of her terms of employment as required by Section 3 of the Act.

The Court will now proceed to consider whether that statement complied with the Act in terms of the following claims: -

• 
  (i)Section 3(1) (a) – the statement did not set out the full name of the employer in that the company name omitted the “CD” along with the word Ireland in brackets.

  It is clear that the statement provided to the Complainant identified the name of the Respondent as Component Distributors (Ireland) Limited as distinct from Component Distributors (CD Ireland) Limited.

  The complaint of the Complainant is well founded in this regard.

  
  (ii)The Statement does not set out the Complainant’s breaks

  The statement set out the break entitlements on page 8, providing for break periods as set out in the Act of 1997. This statement did not provide for the timing of these breaks. Therefore, the complaint of the Complainant is well founded in part.

  (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 contract of employment 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.

Conclusion.

The Court finds that the breaches of the 1994 Act complained of in the within proceedings are merely of a technical nature and are without substance and trivial.

It is clear to the Court that the within appeal derives from complaints as regards alleged contraventions of the Act which have had no practical impact on the Complainant during her employment with the Respondent.

InPatrick Hall v Irish WaterDetermination TED161, this Court gave extensive consideration to the approach which should properly be adopted in cases where some technical contravention of the Act occurred which had no practical consequences for the complainant. Here the Court 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 Complainant has made it clear to the Court that the only remedy sought is compensation. The Court has identified two areas of deficiency in the statements of terms of employment provided to the Complainant. InPatrick Hall v Irish Waterthis Court dealt with similar facts by application of the rule encapsulated in the maximde minimis non curat lex. Here the Court stated: -

  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.”

Section 7(1)(d) of the Act provides, in effect, that an Adjudication Officer (and this Court on appeal) may order an employer to pay a complainant compensation of such amount (if any) as is just and equitable having regard to all the circumstances. The purpose of compensation is to provide redress to an aggrieved party for some loss, damage, inconvenience or expense incurred by that party in consequence of some wrongful act or omission by another. On the facts of the instant case, as admitted or as found by the Court, the Complainant herein suffered no adverse consequences of any materiality in consequences of those contraventions upon which her claim to compensation is grounded. The Court does accept that, as pointed out by White J inPetraitis v Philmic Limited[2017] IEHC 831, at par 45, proof of a detriment is not a condition precedent to an award of compensation under the Act. Nevertheless, the Court is obligated to consider if such an award is just and equitable having regard to all the circumstances. Those circumstances include a consideration of whether the requirements of justice and equity warrant such an award.

Determination

The within appeal is upheld in part as set out above. In its decision inIrish Waterthe Courtheld 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”.The Court follows that reasoning in its approach to this claim.

The Court determines that the amount of compensation which is just and equitable in all the circumstances is nil. The Recommendation of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Caroline Jenkinson
8 October 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.