FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES: PBR RESTAURANTS LIMITED T/A FISH SHACK CAFE (REPRESENTED BY PENINSULA) - AND - MR PADRAIC HANLEY (REPRESENTED BY MR MICHAEL KINSLEY B.L., INSTRUCTED BY KEANS SOLICITORS) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00030290, CA-00040519-003 Mr. Hanley, ‘the Complainant’, set up a business in 2008. In August 2019, the business went into examinership. Some of the business was taken over by the company that is the Respondent in this case. The Complainant did not hold any shares with the Respondent company but became General Manager from December 2019. It is common case between the parties that the Complainant did not receive a contract of employment at that time or later. The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’ under the Terms of Employment (Information) Act 1994, ‘the Act’ The Adjudication Officer, ‘AO’, upheld the complaint and awarded compensation of €5,500 being 4 weeks’ pay, the maximum allowable under the Act. The Respondent appealed to this Court. Note: The Respondent acknowledged that there had been a breach of the Act, that was described as ‘technical’ but appealed the quantum awarded. Summary of Complainant arguments. The Complainant is entitled to the maximum award. He was made redundant in circumstances where he had no contract that made provision for redundancy. Therefore, the absence of a contract had a significant impact on him. Summary of Respondent arguments. While the legal liability is with the Respondent, a representative of the Respondent had been in communication with the Complainant, who had responsibility for pay roll, and had asked him to fill in the standard employee contracts with relevant details for himself and for his family members. He failed to complete details for himself, despite undertaking to do so. At all material times, the Complainant was responsible for the provision of documentation in compliance with the Act. The Complainant’s own failure to complete the documentation did not lead to any material detriment. The Court is referred to Sergejus Udalous v South Eastern Vegetable Producers Ltd, TE224/2012 in which the Tribunal noted that it was entitled to determine what was ‘just and equitable’ in the circumstances, including whether a claimant was ‘unduly prejudiced’ in respect of an alleged breach. Further in Irish Water v. Hall, TE/15/6, the Labour Court declined to make an award for a breach of the Act because the ‘dictates of fairness and equity could not justify an award’. The Complainant had years of experience in relation to these matters. Appropriate inference should be drawn from the facts as to the actual harm suffered as a result of any technical failure. The appropriate 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. (1A) Without prejudice tosubsection (1), an employer shall, not later than 5 days 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: (a) the full names of the employer and the employee; (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of theCompanies Act 2014); (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of theNational Minimum Wage Act 2000; (e) the number of hours which the employer reasonably expects the employee to work— (i) per normal working day, and (ii) per normal working week. 7. (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. Deliberation. The only issue for the Court to consider in this case is that of compensation for the acknowledged breach of the Act by the Respondent. The Court does not believe that the Determination in ‘Irish Water’ is applicable in this case. Indeed, given that the Complainant was having to adjust to his new circumstances of working in a business that he had founded but no longer owned any part, some extra sensitivity might have been expected by the Respondent to ensure that the Complainant was treated fairly. However, as the AO noted, the Directors failed to treat him seriously or with the respect that a senior manager might feel entitled to expect. In many respects, leaving it to the Complainant himself to fill out his contract must have compounded any difficulties for the Complainant in adjusting to his new circumstances. While the Court does not accept the argument made for the Complainant that his subsequent redundancy/dismissal might have gone differently if he had a contract, the Court further agrees with the AO that the absence of a contract left the Complainant in an uncertain legal ‘limbo’ that the Act is designed to avoid. For these reasons, the Court agrees with the AO that the appropriate compensation is four week’s pay or €5,500.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
