TED2410

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043599 (CA-00053942-003).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 4 October 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 2 May 2024.

The following is the Decision of the Court:

DECISION:

The matter before the Court is an appeal by David Hasala against a decision of an Adjudication Officer (Adj-00043599, CA-00053942-003) in a complaint made against his former employer Mounthawks Inns Limited O’Donnell’s Bar and Restaurant under the Terms of Employment (Information) Act, 1994 (the Act).

The Adjudication Officer held that the complaint failed as there was no appearance by either party at the Workplace Relations Commission hearing.

A Notice of Appeal was received by the Court on 4 October 2023 and a hearing of the Labour Court was held in Cork on 02 May 2024.   This case is linked to RPD246 and MND245.

The parties are referred to in this Determination as they were at first instance. Hence, Mr Hasala is referred to as “the Complainant” and Mounthawks Inns Limited O’Donnell’s Bar and Restaurant is referred to as “the Respondent”.

Position of Respondent

There was no submission or appearance by, or on behalf of, the Respondent at the hearing.

Rule 21 of the Labour Court Rules 2024 provides that:

“Where the Respondent does not turn up for the hearing and, no satisfactory explanation is given to the Court for the failure of the Respondent to appear, the Court may proceed to hear the appeal”.

The Court was satisfied that the Respondent in this case was on notice of the appeal.

By letter dated 22 March 2024 the Respondent was notified of the date, time, and location of the appeal hearing. As is the usual practice of the Court, the Court Secretary contacted the parties in advance of the hearing date to request their submissions and to confirm their attendance at the hearing. No reply was received to any emails sent to the Respondent. On 24 April 2024 the Court Secretary rang the Respondent’s phone number at 12.02pm and left a message. At 14.55pm, the Court Secretary received a call from Respondent’s number, but the caller hung up when the Secretary answered the call by stating that she was from the Labour Court.  No response was received to subsequent calls and emails from the Court Secretary to the Respondent in advance of the hearing on 2 May 2024.

As no satisfactory explanation was given to the Court to explain the Respondent’s failure to appear at the hearing, the Court decided to proceed to hear the appeal.

Position of the Complainant

The Complainant submits that he did not receive a written statement setting out the particulars of his employment within 5 days as required by Section 3(1A) of the Act

The Complainant gave sworn evidence that he commenced employment on 13 June 2019 as a chef de partie and subsequently became the Head Chef.

The Complainant submits that he did not receive a statement of terms and conditions of employment on commencing employment and was told that he one would be provided to him at a later point. No statement of terms and conditions of employment was ever issued to him.

The Relevant Law

Section 3 of the Act provides:

“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—

(a) […]

(b) […]

(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,

(f) […]

(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,

(g) […],

(ga) that the employee may, under section 23 of 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 to subsection (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 the Companies 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 the National 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.

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs (h), (i), (j), (k) and (l) of the said subsection (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 under subsection (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 in subsection (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 than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.”

Discussion and Decision

The Act imposes an obligation on an employer to provide a worker with basic information regarding the terms of their employment.

The Complainant’s testimony was not disputed, as the Respondent did not attend the hearing. The Complainant came across as a credible and honest witness, and in the absence of any evidence from the Respondent, the Court accepts the uncontested sworn evidence of the Complainant.

The Court finds, therefore, that the Respondent has not fulfilled its obligations under section 3 of the Act to provide the Complainant with a statement of the terms and conditions of his employment.

The Court, when measuring the appropriate compensation to be awarded must take account of all the relevant facts. In this case, having done so, it finds the breach of the Act to be at the upper end of the scale and, accordingly, awards the maximum compensation allowed of four weeks pay.  The Court directs that the Respondent pay compensation of €3,002.84 to the Complainant.

The Court determines that the Complainant’s claim is well founded. 

The Adjudicator’s decision is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
13 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.