TED2013

FULL RECOMMENDATION

TE/19/62
ADJ-00020298 CA-00026698

DETERMINATIONNO.TED2013

SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014

PARTIES :

CELESTINE CAFE BAR LTD
(REPRESENTED BY BARRY O' MAHONY, B.L., INSTRUCTED BY ARAG LEGAL PROTECTION LTD

- AND -

NATALIE SMITH

DIVISION :

Chairman:	Mr Foley
Employer Member:	Ms Connolly
Worker Member:	Ms Tanham

SUBJECT:

1.Appeal of Adjudication Officer Decision No: ADJ-00020298 CA-00026698

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 24 September, 2019 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 4 December, 2020. The following is the Decision of the Court:-

DETERMINATION:

This is an appeal by Celestine Café Bar Ltd (the Appellant) against an Adjudication Officer’s Decision given under the Terms of Employment (Information) Act, 1994 (the Act) in a claim that Natalie Smith ( the Claimant) did not receive a written statement of her terms of employment as required by the Act at Section 3 from her employer at the material time. The Adjudication Officer held that the Appellant had not received a written statement of her terms of employment and awarded her a sum of €1,125 in compensation.

The Claimant commenced employment with the Appellant on or around 1^stAugust 2017. The within complaint was made to the Workplace Relations Commission on 1^stMarch 2019. The cognisable period for the complaint therefore, having regard to the provisions of the Workplace Relations Act, 2015 at Section 41, is 2^ndSeptember 2018 to 1^stMarch 2019.

The case

The complaint before the Court is that the Appellant has breached the Act in that the Appellant failed to provide the Claimant with a written statement of the particulars of the terms of her employment.

It is common case that the Claimant did not receive a written statement of the particulars of her terms of employment until a date at the end of August 2018 or beginning of September 2018. The specific date of receipt by the Claimant of a written statement is disputed.

The Appellant contends that the Claimant received a written statement of the terms of her employment on 29^thAugust and that consequently no breach of the Act occurred during the cognisable period for the within complaint.

The Claimant contends that she did not receive the written statement until 4^thSeptember 2018 and consequently the Appellant was in breach of the Act during the cognisable period for the within complaint.

Ms W, a Director of the Respondent company, gave credible, clear and cogent evidence to the Court as regards the provision of a written statement to Claimant. She said that she had signed the statement on 29^thOf August and, while she could not have an exact recollection because of the distance in time, she would normally have provided the statement to an employee on the date she signed same. She could not say with certainty that she had provided the statement to the Claimant on the 29^thAugust.

The witness acknowledged that she had received a letter from the Claimant which was dated 4^thSeptember 2018 but she could not recall with certainty the exact date that she received that letter.

The Claimant submitted a letter to the Court which she said she had written to the Appellant on 4^thSeptember which carried that date. The letter sets out that the Appellant had received a written statement of the terms of her employment on that date.

In all of the circumstances, the Court finds, on the balance of probability, that the Claimant was provided with a written statement of the terms of her employment on 4^thSeptember 2018.

The law

The Act at Section 3 provides as follows:

3.— (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 ……..

Position of the parties

The Respondent submitted that the Claimant was, at all times, aware of her terms and conditions of employment and never raised any issue with regard to same. The breach of the Act alleged by the Claimant is of a trivial and technical nature and occurred due to an oversight. The Appellant drew the Court’s attention to the case of Irish Water v Hall TED 1/2016 [2016] E.L.R. 61 and submitted that this case was authority for the proposition that the deviations from the strict application of S.3 of the Act in the within case were, as stated in Irish Water,

‘so trivial, technical, peripheral or otherwise so insubstantial as to come within the de-minimis rule’

The Claimant submitted that a breach of the Act has occurred and that she should be compensated for that breach.

Discussion and conclusions

The Court notes carefully the contention of the Appellant that the matter before the Court is of a trivial and technical nature. The Appellant has, in that context, asked the Court to consider this Court’s decision in Irish Water v Hall.

This Court, in that decision, stated as follows:

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 Irish Water case, the matter at issue before the Court was a contention by the Claimant that certain elements of a written statement which had been supplied to him did not meet the requirements of the Act. For example, the Claimant, who earned a salary of five times the National Minimum Wage at the material time, complained that the statement provided to him did not, as is required by the Act, specify the pay reference period for the purpose of the National Minimum Wage Act 2000.

In the within complaint, the matter before the Court concerns the Appellant’s accepted failure to provide a written statement of her terms to the Claimant at all for a period of time within the cognisable period for the complaint.

The Court cannot accept that a failure to comply at all with Section 3 of the Act can be reduced to a trivial or technical matter. The decision of Henchy J. in Monaghan UDC v Alf-a-Bet Publications Ltd. [1980] I.L.R.M. sets out that:

“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”

If this Court were to accept the contention that a total failure to comply with Section 3 of the Act was a breach of such little significance as to allow the application of thede-minimisrule, the Court would, in effect, be allowing that section 3 of the Act could, as a general proposition, be ignored unless a worker could show a detriment arising therefrom. This Court does not accept that such a conclusion can be drawn.

The Court therefore concludes that the Appellant was in breach of the Act at Section 3 during the cognisable period for the within complaint. In particular, the Claimant, from 2^ndSeptember 2018 to 4^thSeptember 2018, was not in receipt of a written statement of her terms of employment despite having commenced her employment more than two months previously.

Determination

The Court determines that the Respondent has breached the Act at Section 3 and orders it to pay to the Appellant the sum of €100 in compensation; being the amount the Court considers to be just and equitable in all of the circumstances.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court

	Kevin Foley
MK	______________________
23 December 2020	Chairman

NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.