ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002383

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 24/8/16 & 08/02/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, 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).

Background

The Complainant was employed as a hair stylist from 26th of July 2012 to 16th March 2016. The Respondent is a sole trader who operates a hair and beauty salon. The Complainant was paid between €80 and €100 per day. The Complainant submitted a number of claims which were received by the WRC on 18th of March 2016. A number of additional complaints were received by the WRC on 1st April 2016. Two hearings took place, the first on 24th August 2016 and the second on 8th of February 2017. The first hearing dealt with all but one of the complaints, the second hearing dealt with the complaint taken under the Employment Equality Act, 1998. A claim under the Industrial Relations Act was withdrawn at the hearing which took place on 24^th August 2016.

1) Terms of Employment Information Act CA-00003295-001

Complainant's Submission and Presentation

The Complainant representative stated that although the Complainant did receive a contract of employment, there were a number of faults with the procedures around the issuing of the contract and that certain elements were missing from the contract, contrary to Sec (3) of the Act.

Respondent's Submission and Presentation

The Respondent's representative agreed that while there had been some omissions in the contract they were minimal and in essence the contract did comply with the requirements of the Act.

Findings

Although the Complainant did receive a contract of employment, there were a number of omissions from the contract of employment. However, the omissions were trivial in nature.

This matter has been dealt with by the Labour Court in Determination No. TED161 Irish Water and Patrick Hall:

"The Court is satisfied that, in the circumstances of this case, any deviations that may have occurred from what the strict letter of s. 3 of the Act, or from what the statutory instrument at issue prescribes, are so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule. There can be no doubt that the Respondent provided the Complainant with all the information that he required in relation to the essential elements of the terms and conditions attaching to his particular employment. What is complained of is a failure to provide information on matters that had no practical significance in the context of the employment that he was offered and accepted."

Regarding the matter of Redress in such circumstances the Court held:

                            "In this case the only redress sought by the Complainant is an award of compensation. Such an award can only arise where the complaints made are well founded. Moreover, it should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. On any reasonable view, even if the complaints herein were well founded in the technical sense, the dictates of fairness or equity could not justify an award of compensation in the circumstances of this case."

Decision

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the respondent has breached Sec 3 of this Act, however as they were technical breaches and had no material impact on the Complainant I make no award.

2) Payment of Wages Act CA-00003295-002

Complainant's Submission and Presentation

The Complainant's representative put forward that the on return from Maternity Leave the Complainant's working week was unilaterally reduced by one day per week. There was no documentation in relation to short-time working and such documentation was required to back up a proposition that this was not a breach of the Act. If the reduction was a regular occurrence at a specific time of the year then that must be proved. The Complainant gave direct evidence in which she stated she was the only employee to lose a full day's work per week, that she was offered some work to make up for the reduction in work, which she accepted.

Respondent's Submission and Presentation

 The Respondent gave direct evidence in relation to the matter explaining that January and February are the quietest times of the year and that most of the employees' days are reduced by one day per week. Such a reduction has been taking place for the last three years. Another witness for the Respondent gave evidence to the effect that the reduction in work in January and February was a regular occurrence and that all staff had their hours reduced in early 2015.

Findings

I do not believe that the reduction in the working week was anything other than the regular rhythm of the hair dressing business of which the Complainant must have been aware. The Complainant was not treated differently than her colleagues, and that there was no illegal deduction from wages.

Decision

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that this complaint fails.

3) Organisation of Working Time Act CA-00003295-003

Complainant's Submission and Presentation

The complainant's representative put forward that the Complainant was not paid correctly for the following Public Holidays:

2015 August PH, 2015 October PH, 2015 St. Stephen's Day, 2016 New Year's Day, 2016 St. Patrick's Day (CA-0003295-012), 2016 Easter Monday (CA-0003295-013)

Respondent's Submission and Presentation

The Respondent denied the Complainant had not been paid all her Public Holiday entitlements. That when the Complainant went into hospital earlier than expected to have her baby in July 2015 she explicitly requested that the 9^th and 11^th July be processed as part of her annual leave. Subsequently, the Complainant had contacted the Respondent and requested to be paid for the rest of her holiday entitlements for 2015 in advance in order that she would be starting a new leave year upon her return from maternity leave. Accordingly the Complainant was paid for an additional 8.75 days, being the balance of her Annual Leave and Public Holiday entitlements for 2015.  

According to the Respondent, the Complainant explicitly requested the balance of her 2015 Public Holiday entitlement would be "carried over" into 2016 with the intention that she would use those days in January 2016. In January 2016, the Complainant was paid for the following days in lieu of her 2015 entitlements; 9th, 14^th and 16^th January 2016. A pay slip showing a payment of €460 to the Complainant, categorised as "Hol/Bonus/Other", was presented by the Respondent. Other pay slips indicating other such payments were also provided.

The Respondent accepted that the manner in which this issues had been dealt with may not have been strictly in compliance with the Act but that the Complainant was not at a loss and had received payment for her Public Holiday entitlements.

Findings

I note that Section 27 (3) of the Act states,

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

( a ) declare that the complaint was or, as the case may be, was not well founded,

( b ) require the employer to comply with the relevant provision,

( c ) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.

I do believe the Complainant was paid her Public Holiday entitlements, however there was a breach of the Act in this matter

Decision

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Complainant should receive €250 in compensation for the breach of her rights under this Act. This money should be paid within six weeks of the date below.

4) Organisation of Working Time Act CA-0003295-0004

Complainant's Submission and Presentation

The Complainant also stated that she received two weeks paid leave and was told by her employer that she could take the other two weeks in a payment.

Respondent's Submission and Presentation

The Respondent accepted that the manner in which this issues had been dealt with may not have been strictly in compliance with the Act but that the Complainant was not at a loss and had received payment for her Public Holiday entitlements.

Findings

In this matter I believe the Respondent was acceding to a request from the Complainant, however, the Respondent was in breach of the Act.

I note that Section 27 (3) of the Act states,

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

( a ) declare that the complaint was or, as the case may be, was not well founded,

( b ) require the employer to comply with the relevant provision,

( c ) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment.

Decision

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Complainant should receive €450 in compensation for the breach of her rights under this Act. This money should be paid within six weeks of the date below.

5) Maternity Protection Act – CA-0003295-005

Both submissions the same as per CA-0003295-002

Findings 

I do not believe that the reduction in the working week was anything other than the regular rhythm of the hair dressing business and the Complainant was not treated differently than her colleagues.

Decision

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that this complaint fails.

6) Employment Equality Act CA-00003295-006

Complainant's Submission and Presentation 

The Complainant submitted that she had been discriminated by her employer by reason of her Gender, Civil Status and Family Status. She submitted that the Respondent had treated her unlawfully by discriminating against her in Conditions of Employment and Sexual Harassment.

These allegations centre around two alleged incidents. The first of these incidents took place in May 2015. At the hearing a preliminary issue arose regarding the time between the alleged incident and the initiation of a complaint, which was received in the WRC on 18th March 2016. The Complainant sought an extension of time limits citing the Complainant's maternity leave and medical complications as the reason for the delay in processing the complaint. It was submitted that while an employee is pregnant and particularly when she is on Maternity Leave it would not be reasonable for her to be subjected to the 6 months period of time as it would mean interfering with her Maternity Leave to instruct Solicitors.

Section 77 (5) ( a ) of the Act states;

Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

Section 77 (6) of the Act states;

On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, ma, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

In the circumstances outlined I do not believe the Complainant has shown reasonable cause to justify an extension of the time limit of six months.

The second alleged incident of harassment took place in February 2016. It was submitted that when the Complainant returned from Maternity Leave she was talking to two of her colleagues and was asked how old she was, one colleague said she was 30. The other colleague then said she looked more like 40.The Complainant's representative outlined examples of less favourable treatment such as the reduction in hours as referred to above, that a male hairstylist had been kept on after the Complainant's return to work from maternity leave and comments made regarding the Complainant's age made in February 2016. The Complainant did not give direct evidence.

Respondent's Submission and Presentation

The Respondent gave direct evidence in which she denied the Complainant had been treated less favourably, explaining the work done by the male hair stylist and the reduction in hours and how that impacted on all employees. Regarding the alleged incident of February 2016 the Respondent was not present at the time and only learned of the matter when she had sight of the WRC Complaint form. She was surprised such a complaint had been made as the Complainant's departure from her employment took place in a pleasant manner, the Complainant getting her done and being presented with a bunch of flowers. As far as the Respondent was aware there were no issues between herself and the Complainant.

Another witness for the Respondent gave direct evidence. This witness could not recall the conversation of February 2016 which had given rise to the complaint. However, she stated that if something untoward had been said to the Complainant she would have brought this to the Respondent's attention immediately. This witness also gave evidence supporting the notion that everyone had reduced hours in January and February.

Findings

Establishing a prima facie case.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this case reviewing the in light of the three tests; firstly, the complaint has not submitted a claim based on the Age ground, though the incident of February 2016 relates to age, therefore the complaint fails this test. Secondly, I do not believe the Complainant has established that the specific treatment alleged has taken place, therefore the complaint fails this test. Thirdly I do not believe the Complainant was subject to any less favourable treatment than afforded to another person in similar circumstances not covered by the relevant discriminatory ground, therefore the complaint fails this test.

Decision

As per Sec 77 of the Employment Equality Act, 1998 I am required to make a decision.

I have decided that the Complainant has not established a prima facie case of discrimination therefore this complaint must fail.

7) Industrial Relations Act CA-00003295-007

The complaint under the Industrial Relations Act was withdrawn by the Complainant at the hearing of 24^th August 2016.

8)Organisation of Working Time Act CA-00003295-008

Complainant's Submission and Presentation

The Complainant submitted that she normally earned €80-€100 per day but on Sundays she only received €60 for her days' work. It was also put forward at the hearing that the Sunday Premium was not set out in the contract of employment as it should have been and that the Sunday Premium must be taken into account when calculating pay for annual leave and Public Holidays.

Respondent's Submission and Presentation

The Respondent submitted that the reason the Complainant was paid less on a Sunday was because she was rostered to work fewer hours than she would normally be required to work on weekdays or Saturdays. The Complainant's effective hourly rate on a Sunday equated to approximately time and one half when compared to her effective hourly rate on weekdays and Saturdays.

Findings

I believe the Complainant was paid a Sunday Premium when she worked on Sundays.

Decision

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that this complaint fails.

9) Organisation of Working Time Act CA-00003295-009

Complainant's Submission and Presentation

The complainant submitted that she was not advised of the correct leave year. In Hall v Irish Water the Labour Court held that she could bring a claim under this Act about that.

Respondent's Submission and Presentation

The Respondent submitted that the concept of a "correct" annual leave year is not one which exists in the Act. While the statutory leave year is 1st April to 31st March, there is no restriction on employers using different 12 month periods provided that the same annual leave year is used consistently. The Respondent also submitted that it is unclear on what basis the Complainant maintains that this alleged failure on the part of the Respondent constitutes a cause of action as would entitle her to bring a claim pursuant to Section 27 of the Act. The Respondent also submitted that the claim is out of time and that the Complainant did not appear to be saying that she was at any financial loss due to this alleged failure.

Findings

The fact that the statutory Leave Year and the Annual Leave Year in the Complainant's workplace were different made no material difference to the Complainant.

Decision

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that although the Leave Year used by the Respondent does differ from that defined in the Act this had no material impact on the Complainant and so I make no award.

10) Terms of Employment (Information) Act CA-00003295-010

This is the same claim as CA-0003295-001

11) Organisation of Working Time Act CA-00003295-011

This is the same claim as CA-0003295-0011

12) Organisation of Working Time Act CA-00003295-012

Included in 3) above

13) Organisation of Working Time Act CA-00003295-013

Included in 3) above

14) Organisation of Working Time Act CA-00003295-014

There is no corresponding actual complaint.

15) Organisation of Working Time Act CA-00003295-015

There is no corresponding actual complaint

16) Organisation of Working Time Act CA-00003295-016

There is no corresponding actual complaint

17) Payment of Wages Act CA-00003295-017

This complaint is the same as CA-0003295-002.

Dated:   26^th April 2017