FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES : GRANT ENGINEERING (IRELAND) UNLIMITED COMPANY (REPRESENTED BY IBEC) - AND - DENIS DELANEY (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision No: ADJ-00002915.
BACKGROUND:
2. This is an appeal under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 14 November 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Denis Delaney (the Appellant) against the decision of an Adjudication Officer in his claim against his former employer, Grant Engineering Ireland (the Respondent) under the Terms of Employment (Information) Act 1994 -2012 (the Act).
The Adjudication Officer decided that the Appellant’s complaint was well founded in part but that the contraventions of the Act were minor in nature. The Adjudication Officer awarded nil compensation.
Preliminary Matter
The parties agreed in their submissions that the Appellant had been given a written statement of terms of employment in accordance with the requirements of the Act at section 3. The parties disagreed however that the statement included a document headed ‘Grant Engineering Ltd' and containing the title of the Appellant’s position with the Respondent, the address of his place of work, his starting date and specifying that he had received a copy of the Company and Worker’s agreement. Both parties accepted that the Appellant had signed this document at the commencement of his employment.
The Court has given consideration to the proposition put forward by the Appellant that although he had signed the impugned document he had not actually received it. The Court notes that the document is acknowledged to have been signed by the Appellant at the point at which he received the accompanying document. The Court finds the proposition of the Appellant, unsupported as it is by evidence of any kind, not to be credible.
The Court, on the balance of probability, finds that the Appellant received the document in question and that it can properly be regarded as forming part of the written statement of the terms of his employment provided to him by the Respondent as required by the Act at Section 3.
The Appeal
The Appellant contends that the statement with which he was provided upon the commencement of his employment did not comply with the Act in the following respects: -
•In contravention of the Act at Section 3(1)(a) the Statement did not set out the full name of the employer in that the statement did not include the word Ireland in brackets.•In contravention of the Act at Section 3(1)(b) the Statement did not set out the address of the employer in the State or, where appropriate, the address of the principal place of relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963.
•In contravention of the Act at Section 3(1)(c) the Statement did not set out the Appellant’s 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.
•In contravention of the Act at Section 3(1)(d) the Statement did not set out the title of the Appellant’s job or nature of the work for which the Appellant was employed
•In contravention of the Act at Section 3(1)(d) the Statement did not set out the date of commencement of the Appellant’s contract of employment.
•In contravention of the Act at Section 3 (1)(g) the statement did not specify the rate or method of calculation of the Appellant’s remuneration and the pay reference period for the purpose of the National Minimum Wage Act 2000 (the Act of 2000).
•In contravention the Act at Section 3 (1)(ga) the statement did not expressly state that the Appellant may request a statement of his average earnings pursuant to s.23 of the National Minimum Wage Act, 2000 (The Act of 2000).
•In contravention of the Act at Section 3(1)(k) the Statement did not set out 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.
•In contravention of the Act at Section 3(1)(l) the Statement did not set out the period of notice which the Appellant was required to give and entitled to receive (whether by or under statute or under the terms of the Appellant’s contract of employment) to determine the Appellant’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice
•In contravention the S.I. 49 of 1998 made in accordance with the Act at Section 3(6) the statement did not specify the times and duration of rest period and breaks in accordance with the Organisation of Working Time Act, 1997 (the Act of 1997) at Sections 11, 12 and 13.
In addition the Appellant submitted that the respondent was in contravention of the Act at Section 5 in that when the Appellant’s role was, in 2014, changed from that of driver to general operative. Similarly the Appellant submits that when the Respondent company changed status in 2015 from that of a limited company to an unlimited company the change in the Respndent company name to remove the word limited was not notified to the Appellant.
Position of the Appellant
The Appellant contended that the Respondent, in the statement issued to the Appellant, did not provide all of the information which the Act required to be provided in that statement.
The Appellant accepted when asked by the Court that he suffered no detriment as a result of any contended for deficiency in the written statement of terms of employment afforded to him.
Position of the Respondent
The Respondent contended that the Appellant was provided with a comprehensive written statement of his terms of employment at the commencement of his employment and that any deficiency, if such there was, was minor in nature and of no practical consequence for the Appellant.
The Law
Section 3 of the Act, as amended, provides: -
- Written statement of terms of employment
(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 of 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,
(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) the rate or method of calculation of the employee's remuneration, and the pay reference period for the purpose of the National Minimum Wage Act 2000
(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.
(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.
- (b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.
- 5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—
( a) 1 month after the change takes effect, or
S.I. 49 of 1998, Terms of Employment (Additional Information) Order 1998, provides, at Section 3(1), as follows: -
- 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.
- An employer shall be obliged to notify an employee to whom this Directive applies, hereinafter referred to as 'the employee', of the essential aspects of the contract or employment relationship.
The Appellant has made clear that the within appeal is not founded on any detriment suffered and has made no submission that at any time during the course of his employment he was other than fully in possession of information as regards all elements of the terms of his employment. The Court finds that the state of knowledge of the terms of his employment of the Appellant during his employment was such as to mean that the purpose of the directive at Article 2 was achieved in the case of the Appellant’s employment with the Respondent and that there was no shortcoming in that regard.
Item 1
That the Statement did not set out the full name of the employer in that the statement did not include the word Ireland in brackets.
It is clear that the statement provided to the Appellant identified the name of the Respondent as Grant Engineering Ltd as distinct from Grant Engineering (Ireland) Limited.
The complaint of the Appellant is well founded in this regard.
Item 2
That the Statement did not set out the address of the employer in the State or, where appropriate, the address of the principal place of relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963.
There is no doubt that the statement did provide this information. The complaint of the Appellant is not well founded.
Item 3
That the Statement did not set out the Appellant’s 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.
There is no doubt that the statement did provide this information. The complaint of the Appellant is not well founded.
Item 4
Thatthe Statement did not set out the title of the Appellant’s job or nature of the work for which the Appellant was employed
There is no doubt that the statement did provide this information. The complaint of the Appellant is not well founded.
Item 5
That the Statement did not set out the date of commencement of the Appellant’s contract of employment.
There is no doubt that the statement did provide this information. The complaint of the Appellant is not well founded.
Item 6
That the statement did not, in accordance with the Act at section 3(1)(g), specify the rate or method of calculation of the employee’s remuneration and the pay reference period for the purpose of the National Minimum Wage Act 2000.
It is clear that the statement did not provide this information. The complaint of the Appellant is well founded.
Item 7
That the statement does not, in accordance with the Act at section 3(1)(ga), expressly state that the employee may request a statement of her average earnings pursuant to s.23 of the Act of 2000.
Section 23(2) of the National Minimum Wage Act 2000 provides as follows: -
- An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 2, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.
Item 8
That the Statement did not set out 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.
The Statement did provide details of conditions relating to incapacity for work due to sickness or injury. There was no pension scheme in place in the employment during the employment of the Appellant. The complaint of the Appellant is not well founded.
Item 9
That the Statement did not set out the period of notice which the Appellant was required to give and entitled to receive (whether by or under statute or under the terms of the Appellant’s contract of employment) to determine the Appellant’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice
The statement did assert that the method for determining such periods of notice shall be the Minimum Notice and Terms of Employment Acts. The complaint of the Appellant was not well founded.
Item 10
That the statement did not comply with S.I 49 of 1998 in that the statement did not specify the duration of rest period and breaks in accordance with Sections 11, 12 and 13 of the Act of 1997.
The statement set out the break entitlements of the Appellant and in addition set out hours of work which provide for all rest and break periods set out in the Act of 1997. The complaint of the Appellant is not well founded.
Item 11
That the Respondent was in contravention of the Act at Section 5 in that when the Appellant’s role was, in 2014, changed from that of driver to general operative and that when the Respondent company changed status in 2015 from that of a limited company to an unlimited company the change in the Respondent company name to remove the word limited was not notified to the Appellant.
It is clear that the Appellant was informed in writing of the change of role from driver to general operative. However this notification was not issued within one month of the change taking effect. It is also clear that the Appellant was not informed in writing that the Respondent company had changed from a Limited Company to and Unlimited Company and consequently the use of the word ‘limited’ in the company title was not appropriate. The complaints of the Appellant are well founded.
Conclusions.
It is clear to the Court that the within appeal derives from complaints as regards alleged contraventions of the Act which have had no practical impact on the Appellant during his employment with the Respondent. The Appellant accepts that he suffered no detriment as a result of the contraventions of the Act which he alleges.
This Court inPatrickHall v Irish Water [TE15/6], where the nature of the matters under appeal were similar to those in the within matter, considered the nature of complaints which could be argued to be deriving from events or alleged contraventions of law which have no practical effect and commented as follows
- “As appears from the above, these complaints are wholly devoid of any substantive merit. The State has already incurred the costs associated with providing the Complainant with a hearing of these complaints at first instance and it is now obliged to incur the cost in time and expense of providing him with a full appeal before a division of the Court. That takes no account of the cost incurred by the Respondent in defending this case, both at first instance and now on appeal. The combined associated costs of processing and hearing these complaints is grossly disproportionate to any value that could have accrued to the Complainant if the technical infringements of which he complains had not occurred”.
- “In the circumstances of this case that represents an unacceptable squandering of public resources. It is a manifest absurdity to suggest, as the Complainant does, that these contraventions, if such they are, could or should be met with an award of monetary compensation. “
The Court notes the analysis of this Court inPatrick Hall v Irish Water [TE15/6]of the ‘de minimis rule’ where it stated as follows
- De Minimis rule
It is an established principle of the common law that a Court should not squander its resources in dealing with claims that are without substance because the contraventions complained of had no practical consequence for the plaintiff. This principle is encapsulated in the Latin maxim de minimis non curat lex (the law does not concern itself with trifles). The classic statement of where this principle should be applied is contained in the judgment of Henchy J. in the Supreme Court’s decision in Monaghan UDC v Alf-a-Bet Publications Ltd. [1980] I.L.R.M. 64, at page 69. Henchy J articulated a generally applicable test in the following terms: -
- “In such circumstances, what the Legislature has, either immediately in the Act or immediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”
In the view of the Court the within appeal is without substance and trivial. It concerns matters which have had no practical effect on or consequence for the Appellant. In those circumstances the Court finds that the amount of compensation which is just and equitable in respect of the five elements of the within complaint which have been found to be well founded as nil.
Determination
The within appeal is upheld in part as set out above. The Court determines that the amount of compensation which is just and equitable in all the circumstances is nil. The Recommendation of the Adjudication Officer is varied accordingly.
Signed on behalf of the Labour Court
Kevin Foley
4 December 2017______________________
MNChairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.