TED192

The Appellant had made complaints that the Act had been breached at Section 3 and also that the Respondent had breached S.I. 49/1998 [The Terms of Employment (Additional Information) Order 1998]. The Adjudication Officer made decisions in respect of each element of the Appellant’s complaint and these are outlined below together with the decisions of the Court on the within appeal.

The Appeal and decisions of the Court

The Court notes the sparse nature of the documentation provided by the Appellant’s representative on the Appellant’s behalf to the Court in order to advance his appeal. The Court notes that the submissions received by the Court from the Appellant set out appeals in respect of decisions made under the Act in respect of alleged breaches of the Act at Section 3(1)(a), (b), (c), (g), (ga), and as regards S.I.49/1998. No other appeals are particularised in any submission made by the Appellant to advance his appeal of the decision of the Adjudication Officer.

Section 3(1) (a), (b) and (c) of the Act

The Appellant, in his appeal, alleges that the Statement of Terms and Conditions furnished to him in January 2016 does not contain the address of his employer in the State or of his place of work in breach of the Act at Section 3(1)(a),3(1)(b) and 3(1)(c). The Appellant submitted no documentation to support his complaint. The Respondent exhibited a copy of the documentation supplied to the Appellant in January 2016. That documentation does not provide the address of the Respondent in the State but does, in a letter of appointment dated 25^thJanuary 2016, set out the Appellant’s main place of employment.

The Act obliges employers to provide employees with written statement of particulars of their terms of employment. The Act is derived from Directive No 91/533/EEC of 14th October 1991 of the Council of the European Communities on an Employer’s Obligation to Inform Employees of the Conditions Applicable to the Contract of Employment Relationships.

Neither the Act nor the Directive impose an obligation on employers to provide employees with a written contract of employment, but rather a written statement of the terms of employment. Therefore, the Court is satisfied that there is no obstacle in the Act which prevents those details being contained in a contract of employment and in a letter of appointment, as long as they are in writing and comply with the provisions of Section 3 of the Act.

The Court can find no evidence that the Adjudication Officer either heard or decided a complaint as regards alleged breaches of the Act at Section 3(1)(a) or 3(1)(b). Consequently, no appeal of such decisions are before the Court.

The Adjudication Officer upheld the Complaint as regards a breach of the Act at Section 3(1)(c) and made no award of compensation.

The Court finds that the Respondent did not breach the Act at Section 3(1)(c) in that the letter of 25^thJanuary 2016 did provide the Appellant with details of his main place of work.

Section 3(1)(g) and (ga) of the Act

The Appellant, in his appeal, alleges that the Statement furnished to him by the Respondent in January 2016 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 January 2016. The Adjudication Officer held that the complaint was not well-founded. The Court sets aside the Adjudication Officer’s decision in relation to section 3(1)(g) of the Act. 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 breach in question was incapable of causing a detriment of any nature to the Appellant. The Court considers that the amount of compensation which is just and equitable in the circumstances is nil. The decision of the Adjudication Officer is varied.

The Court can find no evidence that the Adjudication Officer either heard or decided a complaint as regards an alleged breach of the Act at Section 3(1)(ga). Consequently, no appeal of such a decision can be before the Court.

The Court so determines

S.I. 49 / 1998 – Terms of Employment (additional information) order 1998

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 Court therefore finds that the Respondent has substantially complied with the requirements of SI No 49 of 1998 but that the Respondent’s failure to specify the times at which daily rest breaks of 45 minutes can be taken amounts to a breach of the Act. That breach has caused no detriment to the Appellant. The Court considers that the amount of compensation which is just and equitable in the circumstances is nil. The decision of the Adjudication Officer is varied.

The Court so determines.

Determination

The Court determines that the Respondent has breached the Act at Section 3(1)(g) and has also breached the terms of S.I. No 49 of 1998. The decision of the Adjudication Officer in relation to an alleged breach of the Act at Section 3(1)(g) is set aside. The decision as regards an alleged breach of S.I No 49 of 1998 is varied. The Court determines that the amount of compensation which is just and equitable in all of the circumstances is nil.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
21st January 2019______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.