ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002333
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003005-001 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00003005-002 | 03/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003005-003 | 03/03/2016 |
Date of Adjudication Hearing: 25/10/2016
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Complainant | A Shellfish Company |
Complainant’s Submission and Presentation:
I was working with the Respondent Company for approximately 12 years without a written Contract. Throughout this period I was singled out by the Respondent to do menial tasks which were not associated with the Oyster Farm such as cleaning and painting the dwelling houses of different members of the his family, cleaning dog kennels and gardening. Only myself and other foreign nationals were requested to do this type of work. The Irish workers were not requested to this work. I accept that I did not say anything as I felt I had no option but to do the work and keep quiet. In early 2015 I was presented with a written Contract which contained a number of unfair conditions including the following: a. The Contract stated that I would have to work in other locations as the Company directed. This could mean anywhere in the country. b. I was expected to work Saturdays as part of my normal working week without overtime pay. c. I was expected to work overtime as the discretion of the management and no guarantee of advance notice. d. I was expected to purchase protective equipment necessary for the Health and Safety purposes out of my own resources and directly from the Respondent (by deduction from my weekly wages). e. The Contract provided that I may have to work public holidays with what the Contract states to be appropriate notice. After I failed to sign the above Contract I was discriminated against by my Respondent. If I took five minutes rest he or one of the other managers would order me to get back to work and set specific tasks. I also was given the most onerous tasks which the Respondent singled out for me on a continuous basis in the hope that I would simply leave his employment. I believe that I was intentionally selected by the Respondent to be singled out, isolated, and not talked to in a humane way in his attempt to make me leave my employment. I would always be given the heavy lifting work whereas the other workers were allowed to rotate the heavy work between them. I felt that I had no option but to leave my employment due to the above circumstances. |
Throughout my employment of almost 12 years I was singled out by my employer to do menial tasks which were not associated with the Oyster farm, such as cleaning and painting the dwelling houses belonging to different members of the owner’s family, cleaning dog kennels and gardening. This type of work was not given to Irish workers who were employed in the same capacity as myself. It was only foreign nationals who were requested to do this type of work. I was also isolated by the Respondent due to the fact that I was a foreign national. In particular I have been discriminated against over the past 12 months due to my failure to sign Contract of Employment which I consider to be unfair. I believe that my employer has treated me as a second class citizen due to my nationality. |
My employer has made regular deductions from my weekly pay cheque for Health and Safety equipment which is necessary for me to carry out my duties safely. I was obliged to purchase this equipment directly from my employer and I had no choice in the matter. I also was obliged to work on Saturdays and due to this I should have been given additional holidays under Organisation of Working Time Act 1997. I believe I should have been given four days extra per year holiday money due to the fact that I was working Saturdays. My estimate of loss under this heading is 8 hours per day x €8.65 = €69.20 x 4 = €276.80 x 6 years = €1,660.80. My estimate for safety equipment purchased by deduction from my wages is €300 per annum on average x 6 years = €1,800.00. |
Respondent’s Submission and Presentation:
There was an unexplained absence of the Respondent.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 9(3) of the Protection of Employees (Employers’ Insolvency) Act, 1984 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9(4) of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.]
Issues for Decision:
Was the Claimant constructively dismissed?
Was he discriminated against on the grounds of race?
Did the Respondent breach the terms of the Organisation of Working Time Act in regard to the Claimant employment?
Legislation involved:
Unfair Dismissals Act 1977 – 2001
Employment Equality Act 1998
Organisation of Working Time Act 1997
Decision:
As there was an unexplained absence of the Respondent I accept the uncontested evidence presented on behalf of the Claimant. I find the claims well founded with the exception of the constructive dismissal which I find well founded in part as the Claimant did not invoke the Grievance procedure in his contract.
I make the following awards;
Under CA 3005 – 001 for constructive dismissal I award €3,000.00
Under CA 3005 – 002 for discrimination on the grounds of race I award €10,000.00
Under CA – 003 for breaches of the Organisation of Working Time Act I award €4,000.00
I award a total of €17,000.00
Dated: 25 November 2016