Merchants Arch Restaurants Company Ltd (Represented by Peninsula Business Services (Ireland) Ltd) v Felix Guerrero (Represented by Richard Grogan & Associates Solicitors)
| Jurisdiction | Ireland |
| Court | Labour Court (Ireland) |
| Judgment Date | 01 May 2018 |
| Judgment citation (vLex) | [2018] 5 JIEC 0104 |
| Docket Number | FULL RECOMMENDATION DETERMINATION NO.EDA1833 ADJ-00003641 CA-00005113-009 |
| Date | 01 May 2018 |
Labour Court (Ireland)
FULL RECOMMENDATION
ADE/17/94
DETERMINATION NO.EDA1833
ADJ-00003641 CA-00005113-009
Chairman: Mr Hayes
Employer Member: Mr Marie
Worker Member: Mr Hall
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
1. Appeal of Adjudication Officer's Decision no: ADJ-00003641.
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 5 April 2018. The following is the Determination of the Court:
This is an appeal by Mr Felix Guerrero against the quantum awarded by the adjudication officer in the following complaints he made to the Workplace Relations Commission against his employer Merchant's Arch Restaurant Company Limited,:
-
1. A complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act, 1994 reference number CA-00005113-001 lodged on 01/06/2016
2. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-002 lodged on 01/06/2016
3. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997, reference number CA-00005113-003 lodged on 01/06/2016
4. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-004 lodged on 01/06/2016
5. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-005 lodged on 01/06/2016
6. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-006 lodged on 01/06/2016
7. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-007 lodged on 01/06/2016
8. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-008 lodged on 01/06/2016
9. A Complaint seeking adjudication under section 77 of the Employment Equality Act, 1998 reference number CA-00005113-009 lodged on 01/06/2016
10. A Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991 reference number CA-00005113-010 lodged on 01/06/2016
11. A Complaint seeking adjudication under section 13 of the Industrial Relations Act, 1969 reference number CA-00005113-011 lodged on 01/06/2016
12. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00009016-001 lodged on 10/01/2017
â-‹
The Adjudication Officer issued his decisions in respect of the complaints on 26 October 2017. The Complainant appealed against those decisions to this Court on 13 November 2017.
The appeals came on for hearing before the Labour Court on 5 April 2018.
The complainant was employed by the respondent licensed premises and restaurant and his principal duty involved holding an advertising sign in the public street inviting passers by into the respondents establishment. He commenced employment with the Respondent on 27 March 2014. Arising out of the manner in which his employment was managed he made complaints under various enactments to the Workplace Relations Commission. The outcome of the decision of the Adjudication Officer in respect of those complaints are now before this Court. The complaints under appeal to this Court are set out below.
Complaint under section 7 of the Terms of Employment (Information) Act, 1994 reference number CA-00005113-001
Section 7 of the Act in relevant part states
- 7.'(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3, 4, 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.
Section 3 of the Act of 1994 places obligations on an employer to provide an employee with written details of the terms under which s/he is employed. Section 3 of the Act sets out the mandatory details that must be included in such a statement. It states:
Section 3 of the Act states
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 in relevant part states
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.
The Complainant states that he did not receive a contract of employment within two months of the date on which he commenced working for the Respondent.
A contract of employment was produced by the Respondent that it maintains was supplied to the Complainant. The Complainant disputes this. However he further states that the contract of which the Respondent relies does not comply with section 3 of the Act.
He submits that it
-
1. Does not contain the name of the employer contrary to section 3 of the Act
2. Fails to identify the statutory leave year contrary to section 3 of the Act
3. Fails to make reference to a pensions scheme or retirement savings scheme
4. Fails to comply with...
To continue reading
Request your trial