FULL RECOMMENDATION
PARTIES : LARKIN UNEMPLOYED CENTRE LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00001093 The Complainant worked for the Respondent under a Community Employment, ‘CE’, scheme. Summary of Complainant arguments The contract of employment made no reference to the address of the employer; the correct start date; the pay reference period under the National Minimum Wage Act; that the employee may request a written statement under the National Minimum Wage Act; the date of the annual leave year; provisions regarding employee entitlements under the Organisation of Working Time Act; the provisions of Directive 91/533/EEC. Summary of Respondent arguments The Respondent is exempted from the requirements of the Act as the Complainant was engaged under a Community Employment scheme. The applicable law Terms of Employment, (Information) Act 1994 Written statement of terms of employment.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— (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places, (d) the title of the job or nature of the work for which the employee is employed, (e) the date of commencement of the employee’s contract of employment, (fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, (ga) that the employee may, undersection 23of 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, (h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, (i) any terms or conditions relating to hours of work (including overtime), (j) any terms or conditions relating to paid leave (other than paid sick leave), (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes, (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, (m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made. (3) The particulars specified inparagraph (d)ofsubsection (1A)orparagraphs (h), (i), (j), (k)and(l)of the saidsubsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way. (4) A statement furnished by an employer undersubsection (1)or(1A)shall be signed and dated by or on behalf of the employer. (5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter. (6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to insubsection (1)or(1A)) as may be specified in the order and employers shall comply with the provisions of such an order. (b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph. (7) This section (other thansubsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act. Complaint to adjudication officer undersection 41of Workplace Relations Act 2015 7. — (1) An employee shall not be entitled to present a complaint undersection 41of the Workplace Relations Act 2015 in respect of a contravention ofsection 3,4,5or6, if the employer concerned has — (a) complied with a direction undersection 6Agiven in relation to the contravention before, on or after the commencement of section 8 of theWorkplace Relations Act 2015, or (b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired. (1A) An employee shall not be entitled to present a complaint under Part 4 of theWorkplace Relations Act 2015in respect of a contravention ofsection 3(1A)— (a) unless the employee has been in the continuous service of the employer for more than 1 month, or (b) if the employer concerned has been prosecuted for an offence under this Act in relation to the same contravention. (2) A decision of an adjudication officer undersection 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention ofsections 3,4,5,6or6Cshall do one or more of the following, namely — (a) declare that the complaint was or, as the case may be, was not well founded, (b) either — (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer undersection 3,4,5,6or6C, or (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer, (c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer, (d) in relation to a complaint of a contravention under changesection 3,4,5, or6, and without prejudice to any order made underparagraph (e)order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations undersection 17of theUnfair Dismissals Act 1977. (e) in relation to a complaint of a contravention undersection 6C, and without prejudice to any order made underparagraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations undersection 17of theUnfair Dismissals Act 1977. Decision of Labour Court on appeal from decision referred to in section 7 8. — A decision of the Labour Court undersection 44of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to insection 7, shall affirm, vary or set aside the decision of the adjudication officer. Deliberation It is a fact that the contract shown to the Court fails to show the address of the employer and any reference to the employee’s rights under the National Minimum Wage Act. These provisions are required specifically under s. 3 of the Act. The failure to include the date of the annual leave year might, arguably, be covered under the s.3 requirements also, though the Court was not provided with arguments on this aspect. The remaining complaints regarding omissions from the contract are open to argument. No argument was made to the Court. The Court is satisfied that the Complainant was an employee of the Respondent and was covered by the provisions of the Act. In any event, the Court is satisfied that the Complainant suffered no detriment as a consequence of any omissions from the contract and sees no reason to direct that any compensation be paid to the Complainant. As provided for in s.7 of the Act, the Court determines that the Complainant should alter the terms of contracts with employees to reflect fully the terms of the Act. The Court notes that, in effect, this amounts to the same outcome as that in the case ofIrish Water v. Patrick Hall, TE/15/6, in the course of which the Court offered strongly worded observations regarding the use of State resources in dealing with cases of technical breaches of this Act that have no detrimental impact on a complainant. The Court echoes those observations here. Potential complainants and, more particularly, their representatives are asked to take those observations on board. It is not in the interests of complainants, respondents, this Court or the citizens of this State, whose hard earned money funds the resource offered by the Court, for time, effort and cost to be taken up in dealing with technical breaches of legislation that are of no consequence to the party pursuing a case. Determination The Decision of the Adjudication Officer is set aside.
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