EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Jessica Fagan - employee TE46/2013
Quinn’s Convenience Store Limited – employer
against the recommendations/decisions of the Rights Commissioner in the case of
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
PAYMENT OF WAGES ACT, 1991
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire B.L.
Members: Mr J. Goulding
Mr J. Maher
heard this appeal at Dublin on 1st April 2014
Appellant(s) : Mr. Brendan Archbold, 89 Philipsburgh Avenue, Fairview, Dublin 3 (for the employee)
Respondent(s) : Mr. Jim Waters, Waters & Associates, Solicitors, Unit 1a, Hyde Court, Shaw Street, Dublin 2
(for the employer)
This case came before the Tribunal by way of appeals by both the employee and the employer against the recommendations/decisions of the Rights Commissioner references: (r-124924-wt-12/EH, r-124922-te-12/EH, r-124925-pw-12/EH.)
The appeals under the Organisation of Working Time Act, 1997 were withdrawn by both the employee’s and the employer’s representatives at the commencement of the hearing.
Summary of Case
The employee was employed as a sales assistant by the respondent convenience store from July 2011 until May 2012. She was provided with a contract of employment which stated inter alia that she would be employed on a full-time basis. The employee’s representative submitted to the Tribunal that the contract did not comply with the provisions of sections 3 (1) (b), 3 (1) (c), 3 (1) (f), 3 (1) (i), 3 (1) (j), and 3 (1) (k) of the Terms of Employment and (Information) Act 1994 and 2001. Accordingly he submitted that the employee should receive maximum compensation in accordance with the provisions of section 7 (2) (d) of the said Act.
The employer’s representative accepted that there were deficiencies in the contract of employment but the employer sought to remedy the flaws in the contract by carrying out an unprompted review of the contract and subsequently issuing additional documentation to all staff containing additional information in relation to their conditions of employment. He submitted that the employer engaged in an active process of improving their policies and procedures and held a training day for all employees in January 2012 where all employees were issued with a €25 gift voucher. He submitted that the employee in this case was not disadvantaged in any way by the technical breaches of the aforementioned Act and the Tribunal must have regard to what is just and equitable in all the circumstances. In that regard he submitted that no award of compensation should be made by the Tribunal.
In relation to the appeal by the employee under the Payment of Wages Act, 1991 the employee’s representative submitted that according to her contract of employment she was employed on a full time basis. He submitted that the custom and practice in the grocery trade was 39 hours per week for full time employees and the employee in this case, as a full time employee should have been paid on that basis. In this case the employee was only provided with 39 hours per week during 12% of her entire employment. The Tribunal heard evidence from the employee that she generally worked between 20 to 30 hours per week. She told the Tribunal that she contacted management of the store on a number of occasions seeking ‘full-time’ work and believed that her manager would deal with the issue but she never received a satisfactory response. She understood that she would be receiving 37.5 to 39 hours per week when she commenced her employment. She accepted that she did not raise the issue in writing with her employer in accordance with the employer’s written company policies. She resigned from her employment in May 2012.
The employer’s representative submitted that the employee in this case was not treated any differently from other employees. She was paid an hourly rate of pay in accordance with her contract of employment and was paid in respect of all hours worked. She was not paid a weekly rate of pay and could not have had an expectation of 39 hours per week. The hours of work of all employees varied from week to week. This is a well-known and notorious practice in the trade and she is not entitled to a payment for hours that she did not work. She attended a company training day along with all other employees on 10 January 2012 and did not raise this issue with her employer. She never raised her grievance in writing in accordance with the company’s policies and procedures during her tenure of employment.
The Tribunal finds that the recommendation of the Rights Commissioner under the Terms of Employment (Information) Act, 1994 and 2001 should be varied and the division awards the employee the sum of €1,350.00 under the Act for breaches of the Act.
In regard to the appeal under the Payment of Wages Act, 1991 the Tribunal finds that the written terms of the contract of the employee were ambiguous. The terms of the contract were in fact settled through the operation of that contract and by January 2012 it was settled between the parties that her hours would vary within a margin. In all of the circumstances, the Tribunal is satisfied that the employee was provided with the appropriate contractual hours and that she was paid accordingly under the Payment of Wages Act.
The Tribunal finds that the appeal fails and the decision of the Rights Commissioner under the Payment of Wages Act, 1991 is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal