Complainant

Respondent

Parties

Andrei Mircea  Simioanca

Square Hair & Beauty Limited

Representatives

Marius Marosan

Thomas Ryan

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00053635-001

10/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00053635-002

10/11/2022

The complainant accepts that he was told orally what his terms of employment were, but he was not given this in writing in compliance with the statute.

Square Hair and Beauty Limited operates a hair and beauty business.

The complainant, Andrei Mircea Simioanca commenced employment with the Respondent, on March 7th, 2022. At that time the owner of the company was on a prolonged visit to her family in the US. Furthermore, the manager of the premises was on sick leave and did not return to work.

The acting manager interviewed the complainant and set out his duties and conditions.  It is accepted that this was not set out in writing and another of the respondent’s employees also discussed the complainant’s role with him.

At the commencement of his employment the complainant indicated that he would need certain Sundays off.  The respondent accommodated this and in fact he only worked one Sunday, August 17th, 2022. The complainant was also facilitated with finishing early on certain days. 

While the complainant states that he did not receive a statement of his core terms and conditions of employment, he confirms that he was told orally what they were. The respondent says that the complainant suffered no loss or detriment due to this oversight.

The respondent refers to decisions of the Labour Court, the EAT, and the High Court (details were submitted), that where any breach of the 1994 Act is technical or minor in nature that fairness or equity could not justify an award of compensation to the complainant.

The respondent submits that this position applies equally to the current proceedings.

In the Labour Court decision in Philmic Limited T/A Premier Linen Services -v- Petraitis (TED1616) where the Labour court determined as follows:

“The Court finds that the Respondent was in breach of the Act at Section 3(g) and 3(ga). No submission has been made to the Court to the effect that the Appellant suffered detriment as a result of these breaches. The Court measures the compensation amount which is just and equitable having regard to all of the circumstances of this case as being nil.”

Notably, the complainant in Philmicappealed to the Labour Court on a point of law to the High Court in Petraitis -v- Philmic Limited T/A Premier Linen Services [2016 No. 253 MCA].

The High Court held that the Labour Court had not erred in law, concluding as follows:

“The Labour Court heard all the evidence from the Appellant and the Respondent. Its finding was to uphold the claim of the Respondent in the more substantial matters that it had provided substantial information to the Appellant by way of a contract of employment which the Appellant signed and an additional Employee Handbook which was available to him and which he acknowledged having had received and read. The compensation to be awarded to the Appellant was a matter for the Labour Court.”

Accordingly, it is submitted that this High Court decision is authority for the proposition that a complainant can be awarded no compensation notwithstanding a finding that there was a breach of the 1994 Act.

The respondent would refer to the Labour Court decision in Grant Engineering (Ireland) -v- Delaney (TED1728)where the Court highlighted its view that they will not award compensation where the claim “is without substance and trivial” and where the technical breaches “have had no practical effect on or consequence for the” employee.

The Labour Court in Grant Engineering referred to its earlier determination in Irish Water -v- Hall (TED161)where it was concluded as follows:

“No submission has been made to the Court to the effect that the Appellant suffered any detriment as a result of these breaches. The Court measures the compensation amount which is just and equitable having regard to all of the circumstances of this case as being nil.” 

The Labour Court in Irish Water -v- Hall (TED161) also applied the de minimis rule, which the respondent submits is equally applicable in this case, where the Court stated as follows:

“De Minimis rule:

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… The Court is satisfied that, in the circumstances of this case, any deviations that may have occurred from what the strict letter of s. 3 of the Act, or from what the statutory instrument at issue prescribes, are so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule. There can be no doubt that the Respondent provided the Complainant with all the information that he required in relation to the essential elements of the terms and conditions attaching to his particular employment. What is complained of is a failure to provide information on matters that had no practical significance in the context of the employment that he was offered and accepted.”

Notably, the Labour Court in Irish Water -v- Hall (TED161) also concluded that.

“[t]he decision in Von Colson is not authority for the proposition that the Complainant should be awarded compensation in circumstances where he clearly suffered no present or future detriment from any of the omissions of which he complains.”

Notably, in Petraitis -v- Philmic Limited the complainant sought to argue that the Labour Court had

 “misdirected itself in respect of the Appellant’s entitlements under s. 3 and 5 of the Terms of Employment (Information) Act 1994” due to the Labour Court “failing to consider the principle of effectiveness as set out by the Court of Justice in Von Colson and Kamann.”

As previously outlined, the High Court found that the Labour Court did not err in law in awarding no compensation.

The respondent refers to the decision of the Employment Appeals Tribunal in Udalous -v- Southeast Vegetable Producers Limited (TE224/2012) in which the EAT determined as follows;

“The Tribunal notes the case of Archbold v CMC (Ireland) Ltd TE05/2003 where a division of the Tribunal held that money payable under the Act did not "equate to loss of remuneration" but was "in the nature of compensation" and accordingly, the Tribunal was entitled to determine what payment was just and equitable in all the circumstances (not exceeding four weeks remuneration) including whether a complainant was "unduly prejudiced" by the failure of the employer to provide the written statement of terms and conditions of employment…

“Taking into consideration the comprehensive contract and additional information provided to the employee the Tribunal finds that employer complied with the spirit of the Terms of Employment (Information) Act 1994 to such an extent that it would be unjust for the Tribunal to exercise its jurisdiction ordering the employer to award compensation to the employee…”

The respondent submits that they have indeed complied with the section as required and that any breach that may be attached to the claim is of a small significance.

In relation to this complaint under the Terms of Employment (Information) Act, 1994 the respondent accepts that the complainant was not given a written document until August although both parties accepted that he had been told the general outline of his terms of employment before that.

However, the respondent argues that the complainant suffered no detriment and should therefore not be compensated.

The requirement to give to an employee statements of both their general conditions of employment, and their core conditions may sometimes be regarded by some as a purely administrative or technical matter.

It is no such thing.

It Is very important that an employee be given a clear written statement of the terms of employment so that both parties are clear what they expect from each other, to say nothing of it being a statutory requirement.

It is sufficiently important that the legislature stiffened the requirement to do so, in the form of an earlier but briefer statement of core terms in the Employment (Miscellaneous Provisions) Act 2018.

The Unfair Dismissals Act at section 14 also imposes a requirement to give an employee in writing setting out the procedure which the employer will observe before and for the purpose of dismissing an employee.

The respondent did not comply with this either and it cannot be argued that the complainant did not suffer any detriment as a result.

On the contrary his employment was terminated, (the subject of a separate complaint) and it is reasonable to speculate that had the provisions of the Unfair Dismissals Act been complied with, and remained fresh in the respondent‘s mind, it might have exercised greater compliance with the requirements of fair procedure in dismissing the complainant.

In general, as already noted, it is of course a statutory requirement to comply with it cannot entirely be waved away on the basis that the employee suffered no detriment.

In employment law, cases are generally very fact specific.

I do not accept that the cases referred to above by the respondent are authority for a general proposition that because a failure to comply with the statute has not had adverse implications for a complainant then she or he loses their right to a remedy.

If this were the case the statute would have explicitly provided for it.

Specifically, having regard to some of the authorities cited by the respondent, I do not accept on these facts that the failure to provide the statement was  ‘so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule.’

Similarly, a failure to provide any statement at all due to the absence of the respondent’s key managers does not bring it within the same category, as set out in Irish Water -v- Hall (TED161 and relied on by the respondent.

The respondent accepted the business owners had been absent in the United States and the business manager was absent on sick leave. It is their responsibility to ensure that in delegating the process of recruitment of staff to others in their absence that they are made aware of their statutory responsibilities to their employees.

It appears that some information was provided to the complainant but neither does this meet the test of the ‘comprehensive contract and additional information’ referred to inUdalous -v- Southeast Vegetable Producers Limitedwhich was relied on by the respondent above.

I set out my award on this below.

The complaint under the Terms of Employment (Information) Act 1994 is well-founded and I award the complainant two weeks wages in the amount of €550.00