Blackrock Leisure Ltd T/A Blackrock Leisure (Represented by Sarah Jane Judge B.L. Instructed by Tiernans Solicitors) v Ann-Marie Nulty (Represented by Richard H Mc Donnell Solicitors)
| Jurisdiction | Ireland |
| Judgment Date | 30 August 2019 |
| Judgment citation (vLex) | [2019] 8 JIEC 3006 |
| Date | 30 August 2019 |
| Court | Employment Appeal Tribunal (Ireland) |
| Docket Number | FULL RECOMMENDATION,ADJ-00008267 CA-00010982-011/012,DETERMINATION NO.TED1920 |
Labour Court
FULL RECOMMENDATION
TE/18/63
DETERMINATION NO.TED1920
ADJ-00008267 CA-00010982-011/012
Chairman: Mr Geraghty
Employer Member: Ms Doyle
Worker Member: Mr Hall
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014
1. Appeal Of Adjudication Officer Decision No. ADJ-00008267.
2. The Company appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(1) of the Terms of Employment (Information) Act 1994. A Labour Court hearing took place on 23rd July 2019. The following is the Determination of the Court:-
Ms. Nulty, ‘the Complainant’, stated that she worked for Blackrock Leisure Ltd., ‘the Respondent’ from 2 September 2015 until 3 February 2017. This was disputed by the Respondent, who claimed that she was employed from 26 September 2016. The Complainant states that she was not given a contract within two months of being employed thus breaching her rights under the Terms of Employment,(Information) Acts 1994 to 2014, ‘the Acts’.
The Complainant referred a case under the Acts to the Workplace Relations Commission, (WRC). The Respondent did not attend the WRC hearing and the Adjudication Officer, (AO), found in favour of the Complainant and accepted that her rights had been breached under Ss. 3 and 5 of the Acts.
The Respondent appealed this decision to the Court.
The Complainant was employed as a cashier from 2 September 2015 until 3 February 2017. She was paid an hourly rate of €10.50 per hour, which was reduced unilaterally to €9.50 per hour from 9 January 2017. She worked 42 hours per week.
The Complainant was not given a contract of employment or a written statement containing the particulars of her employment. The Complainant was not given pay slips until September 2016.
The Complainant was employed from 26 September 2016 to 3 February 2017.
The Complainant was provided with a contract of employment containing the particulars of her employment.
The pay slips do not support the Complainant’s claim that she commenced working for the Respondent in September 2015. The pay slips cover the period from September 2016 until February 2017.
There must be a legal contract of employment between the parties if the Complainant is to be entitled to redress. If the Complainant’s version of events is favoured by the Court then the Complainant was aware that she would receive her wages in cash without deduction of income tax and was, therefore, fully complicit in the arrangement. In the case of a contract which is not entered into for an illegal purpose nor prohibited by statute, the performance of the contract to be unenforceable requires not just that it involves illegality but also that the employee actively participated in the illegality.
The case of Hayden v. Sean Quinn Properties Limited (1994) ELR 54 is authority for the above proposition, (reference was made also to the ruling in Hussein v The Labour Court (HC) (2014)).
Ms. Connolly stated that she was the Office Manager for the Respondent.
The witness stated that the Complainant worked 10 hours per week for the Respondent and that she commenced working for the Respondent in September 2016. She stated that the Complainant had started as a cashier and had helped out by emptying the machines and assisted with events.
She stated that the company employed three cashiers, each of whom worked 10 hours per week.
In respect of this particular claim made by the Complainant, the witness stated as follows;
The Complainant was given a contract of employment at the end of September 2016, which she never signed
The witness did not have a copy of the contract given to the Complainant and could not explain why the Respondent had failed to provide the Complainant with all relevant HR documents when requested to do so. The witness said that other cashiers had signed their contracts.
Ms. Nulty is the Complainant.
The witness gave evidence that she was employed by the Respondent from September 2015 to February 2017. She said that she was appointed as a manager from August 2016. This involved, among other duties, putting a roster together. At all times there would be 2 or 3 cashiers on the premises.
The Complainant stated that she knew Mr. Gary Mullen to be the owner of the Respondent, who also owned similar businesses in Dublin, Newry and Dundalk.
The witness denied that she had only ever worked 10 hours per week. On the contrary, she stated that she worked 4 to 5 days per week with work days of up to 10 hours per day. She stated that the casino stayed open past midnight every night, with a cut off time of 4am.
The witness described how she had been called out one night to turn off the alarm after a break in.
The witness described how party events were held on Bank Holiday week-ends, Christmas and Halloween and that the photographs showing the staff in costume were photographs of these events.
The witness stated that she had not claimed social welfare payments while working for the Respondent. She stated that she had repeatedly requested a contract of employment but had never received one. She stated also that she had been requesting pay slips for some time until they were provided for part of her earnings from September 2016.
Under cross examination, it was put to the Complainant that if, as she claimed, she was working full time from August 2015, then she had paid no tax and had benefitted accordingly up to September 2016, after which, she claimed, only part of her income was declared for tax, which also benefitted her. The Complainant agreed that she knew that she was liable to pay tax and said that she had sought pay-slips.
It was put to the witness that if, as she claimed, she worked full-time then her P60, which reflects her pay-slips, must be wrong. She was asked why, if this was so, she had not contacted her employer? She replied that she had not done so as she had left her employment.
It was put to the witness, and accepted by her, that she had no documentary evidence to support her claims.
The witness stated that, after pay-slips were introduced, she was given cheques for the amounts shown on the pay-slips and the remainder of her wages was paid in cash. Prior to that, all her wages had been paid in cash, which had been left in an envelope in the safe.
Written statement of terms of employment.
• 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
(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and...
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