FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES: SITTING TREE LIMITED T/A HARBOUR BAR - AND - JAVIER FERNANDEZ TORRES DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)ADJ-00035331 CA-00046495-002 This is an appeal by Mr Javier Fernandez Torres (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00035331/CA-00046495-002, dated 10 August 2022) under the Terms of Employment (Information) Act 1994 (‘the Act’). Notice of Appeal was received on 28 August 2022. The Court heard the appeal (along with two associated appeals – TE/22/44 and TE/22/46) in Dublin on 25 November 2022. The Complainant was employed by Sitting Tree Limited T/A Harbour Bar (‘the Respondent’) as a bartender from 7 June 2021 until his employment terminated on 31 September 2021, the Respondent having determined that he had not successfully completed his probationary period and was not a good fit for the business. In the period immediately prior to his dismissal, the Complainant worked on average sixteen hours per week and was paid €12.00 per hour. The Complainant alleges that the Respondent failed to furnish him with a written statement of terms and conditions within two months of the commencement of his employment as it was required to pursuant to 3(1) of the Act. The Complainant accepts that he received a written statement from the Respondent some three months after his employment commenced but that that statement did not comply with the requirements of section 3(1) in so far is it did not contain particulars of his normal working hours. Both Parties furnished the Court with comprehensive written submissions which the Court took as read. Mr Crean, for the Respondent, accepted that the Respondent furnished the Complainant with a written statement of terms and conditions on 3 September 2021 and that the statement provided that the Complainant’s normal hours of work would be “assigned based the weekly work schedule” and that his hours “may change from week to week due to other staff availability, sickness or increased/decreased demands of the business”. He further submits that the Respondent’s delay in issuing the two-month statement was so “trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule”. Discussion and Decision It is abundantly clear from the facts as accepted by both Parties that the Respondent did not issue the Complainant with a two-month statement of terms and conditions within the timeframe specified by section 3(1) of the Act for so doing. The Court, accordingly, awards the Complainant four weeks compensation in respect of this omission on the part of the Respondent. The compensation is calculated as follows: 4 x 16 hours @ €12.00 per hour = €768.00. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
