TED1919

This is an appeal by Ms Megan Hayes Kelly (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00018463/CA-00023749-001, dated 7 June 2019) under the Terms of Employment (Information) Act 1994 (‘the 1994 Act’). The Notice of Appeal was received by the Court on 3 July 2019. The Court heard the appeal in Dublin on 21 August 2019.

Complaints under the Act

The Complainant alleges that the written contract of employment issued to her by her former employer, Beechfield Private Home Care Limited (‘the Respondent’), and dated 7 July 2017, did not comply with section 3 of the 1994 Act in a number of respects:

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  •It referred to an annual leave year which didn’t coincide with the statutory annual leave year provided for in the Organisation of Working Time Act 1997;

  •It stated that the employee was entitled to twenty days’ annual leave whereas the Organisation of Working Time Act refers to an entitlement of ‘four working weeks’;

  •There is no reference to the pay reference period for the purposes of the National Minimum Wage Act 2000 or to the employee’s entitlement to request a statement in respect of such a pay reference period, as required by sections 3(1)(g) and 3(1)(ga) of the 1994 Act;

  •The Respondent’s address, as required by section 3(1)(b) of the 1994, was omitted;

  •There was no reference to the employee’s hours of work as required by section 3(1)(i) of the 1994 Act;

  •The contract did not comply with Section 3(1)(k)(ii) of the Act in so far as it failed to make reference to the employee’s right to access a Personal Savings Retirement Account;

  •The contract failed to refer to the employee’s entitlements under sections 11, 12 and 13 of the Organisation of Working Time Act 1997 as provided for in SI 49 of 1998.

Decision

It is well-established in the Determinations of this Court that it is not necessary for a Complainant under the 1994 Act to demonstrate that he or she suffered a detriment as a consequence of the Respondent’s failure to fully comply with its obligations under section 3 of that Act.

Likewise, the Court does not accept that a Respondent’s classification of its non-compliance with the requirements of the Act as a merely ‘technical breach’ provides a legitimate defence to such non-compliance. Furthermore, there is no provision in the 1994 Act that makes it a condition-precedent of an employee’s entitlement to refer a complaint under the Act to the Workplace Relations Commission that he or she firstly raises a grievance about their contract with their employer.

The Act provides that the Workplace Relations Commission, and this Court on appeal, can award up to four weeks’ remuneration when it determines that section 3 of the Act has not been complied with. In determining the appropriate level of compensation it should award in a particular case, the decision-maker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum, particularly the Respondent’s failure to advise the Complaint of her entitlement to access a Personal Savings Retirement Account. The Court also notes the Respondent’s continued characterisation of the breaches of the 1994 Act that occurred in this case as merely technical or semantic in nature.

Having regard to the foregoing, the Court measures the appropriate compensation due to the Complainant in this case as being at the maximum permitted under the Act .i.e. four weeks’ remuneration. The Complainant worked varying hours and was paid either €10.00 or €11.00 an hour depending on the particular client to which she was assigned. The Court finds that the Complainant earned €360.00 per week on average. The total compensation payable, therefore, in respect of the breaches of the 1994 Act totals €1,440.00.

As this award is made by way of compensation for a breach of a statutory entitlement and is not in the form of redress for non-payment of wages, it is non-taxable.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
DC______________________
23 August 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.