FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : JOHNSTOWN GARDEN CENTRE LTD (REPRESENTED BY GRAHAME PICKETT, H. R. CONSULTANTS) - AND - ALA BERGHIE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer Recommendation No r-157631-te-15/EH.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 9th May 2016 in accordance with Section 8(1) of the Terms of Employment (Information) Act, 1994 to 2001. A Labour Court hearing took place on the 28th of June 2016. The following is the Decision of the Court.
DETERMINATION:
This matter comes before the Court by way of an appeal of the Decision of an Adjudication Officer in a complaint made by Ala Berghie (the Appellant) against her former employer Johnstown Garden Centre Limited (the Respondent) under the Terms of Employment (Information) Act, 1994 to 2001 (the Act). The Appellant complained that the written statement of her terms of employment supplied to her by the Respondent contravened the Act at Section 3.
The Adjudication Officer decided that the complaint was well founded.
Background
The Appellant was employed by the Respondent from 5thOctober 2010 to 6thJuly 2015.
The Appellant complained that the statement of terms of employment supplied to her
a)Was not supplied within the timeframe required by Section 3(1) of the Actb)Did not contain the full name of the employer as required by Section 3(1)(a) of the Act
c)did not comply with the provisions of the Terms of Employment (Additional Information) Order, 1998 (the Order of 1998) made in accordance with the terms of Section 3(6) of the Act in that it did not (1) specify that the Appellant was entitled to a daily rest period of 11 hours in accordance with the provisions of Section 11 of the Organisation of Working Time Act, 1997 (the Act of 1997), (2) specify rest and intervals at work in accordance with the provisions of Section 12 of the Act of 1997, and (3) specify that the Appellant was entitled to a weekly rest period in compliance with Section 13 of the Act of 1997.
d)did not contain details as specified in Sections 3(1)(g) and 3(1)(ga) of the Act as amended being- a.‘therate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000’,
b.and that
c.‘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’
- a.‘therate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000’,
The Court notes references by the Appellant to Section 14 of the Unfair Dismissals Act, 1977 (the Act of 1977) and to S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (the Code). The Appellant has made no submission to the Court contending a breach of the Act arising from or connected with these enactments. The Court has no jurisdiction under the Act to deal with alleged contraventions of the Act of 1977 or of the Code.
Conclusions of the Court
1.Complaint that the Statement of terms of Employment supplied to the Appellant was not supplied within the timeframe set out in the Act at Section 3(1)The Act at Section 3(1) requires that
- “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….”
The Appellant’s complaint in this respect has been made out.
2.Complaint that the Statement of terms of Employment supplied to the Appellant did not correctly identify the name of the Employer and thus contravened Section 3(1)(a) of the Act
The Statement supplied to the Appellant identified the Respondent as Johnstown Garden Centre. The company name of the Respondent is Johnstown Garden Centre Limited. The Court accepts that the Statement supplied to the Appellant did not use the word ‘Limited’ when identifying the employer and to that extent did not accurately state the name of the Appellant’s employer.The Appellants complaint in this respect has been made out.
3.Complaint that the Statement of terms of employment supplied to the Appellant did not comply with the Terms of Employment (Additional Information) Order 1998
- a)The Statement supplied to the Appellant gave clear details of start and finishing times which clearly outline hours of work on any five days out of seven.
The Court concludes that the detail of working hours supplied to the Appellant makes clear both the daily and weekly rest periods afforded to the Appellant.In those circumstances the Court must find that complaint as regards a breach of the Terms of Employment (Additional Information) Order 1998 in those respects has not been made out.
b)The Appellant contends that the phrase ‘with a ½ hour Lunch Break’ as utilised in the Statement supplied to the Appellant by the Respondent is imprecise and capable of a number of interpretations depending on whether a person lives in Dublin, is at school, or is in an office. Indeed the appellant submitted that in parts of the country “lunch” could be referred to as “dinner” whereas “dinner” in Dublin would refer to a meal later in the evening.
The Order at Section 3(1) provides as follows:- 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.
The Court accepts that the phrase ‘with a ½ hour Lunch Break’, notwithstanding that its meaning appears to have been readily understood by the Appellant as a means of identifying a time period in the day, is not an actual time of day by reference to clock times. The Court further accepts that the Order of 1998 requires the time to be articulated as a clock time.
The Court therefore accepts that the Appellant’s complaint in this regard has been made out.
- a)The Statement supplied to the Appellant gave clear details of start and finishing times which clearly outline hours of work on any five days out of seven.
The Court has examined the document identified as ‘Terms of Employment: Full-Time Staff’ as supplied to the Appellant and finds that this statement does not contain the details specified at Sections 3(1)(g) and 3(1)(ga) of the Act.The Court notes that the Appellant was in receipt of a rate of pay in excess of the statutory Minimum Wage at all material times.
The Court finds that the absence from Statement of Terms and Conditions of employment of the details specified at Sections 3(1)(g) and 3(1)(ga) of the Act had no practical impact on the Appellant and no submission has been made to the Court that such an impact occurred.
The Appellant’s complaint in this respect has been made out.
5.Complaint that the Annual Leave arrangements specified in the Statement of Terms of Employment do not comply with the interpretation of Leave Year specified in the Act of 1997.
The Act at Section 3(1(j) provides that such a statement should provide detail as regards“any terms or conditions relating to paid leave (other than sick leave)”.
The Court has examined the Statement supplied to the Appellant and notes that it contained detail of the terms and conditions applying to the Appellant as regards leave.
The Court finds that the statement of terms of employment supplied to the Appellant met the requirements of the Act.
The Court notes that the Appellant contends that the leave arrangements applying contravened the Act of 1997. The Court does not have jurisdiction to deal with such a complaint in proceedings taken under the Terms of Employment (Information Act) 1994.
Determination
The Court determines that the Appellant’s complaint that the Respondent failed to comply with the Terms of Employment (Additional Information) Order 1998 is well founded in part.
The Court for the reasons set out above determines that the Appellant’s complaint that the Respondent failed to comply with Section 3 of the Act is well founded in part.
The Court determines that compensation should be paid to the Appellant in accordance with Section 7(2(d) of the Act. The Court considers that the amount of compensation which is just and equitable having regard to all of the circumstances of this case is €100.
The Decision of the Adjudication Officer, for the reasons set out above, is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
25th July 2016______________________
JKChairman
NOTE
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.