PTD151

The claim is grounded on an alleged contravention of sections 9 and 15 of the Act.

Basis of the claim
The Claimant was employed by the Respondent as a sales advisor in a part time capacity. She was dismissed when another employee who had been on maternity leave returned to work. The contract under which the Claimant was employed stated that her position was ‘permanent’. The Respondent submitted that this was in error and that her contract should have stated that the position was temporary.

On these facts the Claimant contends that her right to equal treatment in respect to her conditions of employment with the conditions of employment of a comparable full time employee, under s.9 of the Act, were infringed. She further contends that her dismissal amounted to penalisation contrary to s.15 of the Act.

Statutory provisions
Section 9(1) of the Act provides: -

• Subject to subsection (2) and (4) andsection 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

• 
  (1) An employer shall not penalise an employee—
  • (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part, or

    (b) for having in good faith opposed by lawful means an act which is unlawful under this Act, or

    (c) for refusing to accede to a request by the employer to transfer from performing—

  
  
  • • (i) full-time work to performing part-time work, or

      (ii) part-time work to performing full-time work,

      or

    • (d) for giving evidence in any proceedings under this Act or giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a), (b) or (c).
  (2) For the purposes of this section, an employee is penalised if he or she—
  • (a) is dismissed, suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

    (b) is the subject of any other action prejudicial to his or her employment,

  but, where any such action with regard to the employee is in respect of the matter referred to in subsection (1)(c), that action shall not constitute a penalisation of the employee if both of the following conditions are complied with—
  • (i) having regard to all the circumstances, there were substantial grounds both to justify the employer's making the request concerned and the employer's taking that action consequent on the employee's refusal, and

    (ii) the taking of that action is in accordance with the employee's contract of employment and the provisions of any other enactment of the kind to whichsection 20(2) applies.

  (3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

  (4) In this section—

  “full-time work” means work which, if it were performed, would result in the person performing it being regarded as a full-time employee for the purposes of this Act;

  “part-time work” has the same meaning as it has insection 13.

It is equally clear that the Claimant’s dismissal did not arise from any matter of the type referred to at subsection (1) of s.15 of the Act. Consequently it could not amount to penalisation within the statutory meaning of that term.

Disposal
For these reasons the Court is satisfied that the Claimant’s claims are misconceived. The decision of the Rights Commissioner is affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court



Kevin Duffy
8th October 2015______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.