TED2115

1. Appeal Of Adjudication Officer Decision No(S) ADJ-00027049 CA-00034621-001

BACKGROUND:

2. The worker appealed the decision of the Adjudication Officer under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place 24 August 2021. The following is the Court's Determination:

DETERMINATION :

Background.

This is an appeal under the Terms of Employment, (Information) Acts, 1994-2015, ‘the Acts’.

Ms. Quilty, ‘the Complainant’, worked for MBCC Foods (Ireland) Ltd., ‘the Respondent’ as a Barista in their Costa Coffee store in Belgard, Dublin.

After leaving the employment, the Complainant lodged a complaint under the Acts with the Workplace Relations Commission, ‘WRC ‘. An Adjudication Officer upheld the complaint and awarded compensation of €100.

The Complainant appealed the level of award to this Court.

Summary of Complainant arguments.

The Complainant did not receive an adequate contract.

The provisions of her contract made no reference to S.I. 49/1998 relating to rests and break periods.

The contract did not comply with s.21 of the Employment Equality Acts regarding gender issues or s.30 of those Acts regarding non-gender equality issues.

As noted in C-350/99 Lange v. George Scheunemann 2001 ECRI-1061 an employer is obliged to notify employees of all aspects of the contract of employment relationships. The provisions of the Employment Equality Acts are implied terms of the employment relationship and should be included in contracts.

Summary of Respondent arguments.

The Complainant’s contract is wholly in compliance with s.3 of the Acts.

The contract sets out;

Name of Employer

Place of Work

Commencement date

Rate of pay/method of calculation and length of intervals between payments

Hours of work

Annual leave entitlements

Entitlement to sick leave and access to pension fund

Right to notice

Job Description.

All information provided for in the Acts is contained within the contract.

The applicable law

Terms of Employment, (Information) Acts 1994-2015

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) 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, 1963 ),

(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) 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,

(g) the rate or method of calculation of the employee's remuneration,

(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.

(2) A statement shall be given to an employee under subsection (1) 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 paragraphs (g), (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) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement 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)) 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.

S.I. No 49. Of 1998

TERMS OF EMPLOYMENT (ADDITIONAL INFORMATION) ORDER, 1998.

I, TOM KITT, Minister of State at the Department of Enterprise, Trade and Employment, in exercise of the power conferred on me by section 3 (6) of the Terms of Employment (Information) Act, 1994 (No. 5 of 1994), as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order, 1997 ( S.I. No. 305 of 1997 ), and the Enterprise, Trade and Employment (Delegation of Ministerial Functions) (No. 2) Order, 1997 ( S.I. No. 330 of 1997 ), hereby order as follows:

1. This Order may be cited as the Terms of Employment (Additional Information) Order, 1998, and shall come into operation on the 1st day of March, 1998.

2. In this Order "the Act" means the Organisation of Working Time Act, 1997 (No. 20 of 1997).

3. (1) In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

(2) In relation to an employee who has entered into a contract of employment before the commencement of this Order, the employee's employer shall, if requested by the employee to do so, give or cause to be given to the employee, within 2 months of the request being made, a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

Deliberation

There is no explicit requirement on employers in the Acts to make reference in an employment contract to the provisions of the Employment Equality Acts and it would be unfair for the Court to penalise the Respondent for a failure to do something that they are not required to do by the relevant legislation. Further, the Court sees no reason to follow up the invitation of the Complainant’s representative to seek clarity from the European Court on the matter.

The complaint before the Court is taken under the Acts. Employers are required to comply with the Acts and the Court’s jurisdiction extends only to the enforcement of that legislation.

S.I 49/1998 is a statutory instrument made under the Acts that requires employers to set out in employment contracts the specific entitlements of employees to rest breaks and rest periods under the terms of the Organisation of Working Time Act. This forms part of the requirements of employers under the Acts.

The AO concluded that the Respondent complied with s.3 of the Acts to a high degree but that some of the points in the S.I. might be in doubt. The Court concurs with this view and suggests that the Respondent tidy up their employment contracts to make explicit reference to the matters covered by the S.I.

For a minor, technical, breach of this sort, for which there is no evidence of detriment suffered by the Complainant, the Court concurs with the view of the AO that a low level award of €100 compensation is adequate.

Determination

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
EMcN	______________________
1 September 2021	Deputy Chairman