ADJ-00002547

ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00002547

Parties:

Complaint(s):

Date of Adjudication Hearing: 09/05/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015 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 by the Respondent from 15 July 2014. The Respondent owns and operate a Beauty and Tanning Salon. Each set of the complaints is dealt with below.

Summary of Complainant’s Case:

The Complainant stated that she was initially employed by the Respondent on a part time basis. The Complainant stated that on 27 July 2015 she was registered with full time hours.

The Complainant stated that she spoke with the Respondent on 23 September 2015 and she was informed that the Company was over staffed and that somebody would have to be let go. The Complainant stated that the Respondent told her that she had been picked to be let go. The Complainant stated that she had been employed the longest out of the six employees who were employed by the Respondent at that time.

The following are the claims the Complainant has taken:

1. CA -00003548-001 Family Status Discrimination & Dismissal: The Complainant states that she was discriminated against due to her family status. The Complainant stated that on 23 September 2015, the Respondent said that the Company was over staffed and that he would have to leave somebody go. The Complainant stated that the Respondent then told her that she had been picked to be let go as she had too far to travel for work and that due to her family problems it would be better if she left. The Complainant stated that she had informed the Respondent on marital issues she was going through and that her husband was leaving her. The Complainant stated that she is subsequently divorced as a result of the marital problems. The Complainant stated that these issues had not affected her ability within her role with the company and that she had not been given any complaints from the Respondent or any customers. The Complainant stated that this should not have been a deciding factor in dismissing her. The Complainant stated that she had been employed by the Respondent the longest out of the six employees. The Complainant stated that the next person to be let go a few months later was the second longest serving employee who was also married with a child. The Complainant stated that the Respondent chose to keep the other two male employees and the two female employees who were single and that they went on to hire another female staff member who was single. The Complainant stated that when she asked why she had been picked to be let go the Respondent responded by telling her that firstly it was due to the location in which she lived and secondly due to her family problems. The Complainant stated that the Respondent said that the other employees lived closer and that the Complainant had too far to travel. The Complainant stated that she explained to the Respondent at that time how she had never been late for work in over a year and that this distance was not a problem. The Complainant stated that she received a phone call from the Respondent’s business partner who stated that he was surprised that she was leaving. The Complainant stated that she informed the Respondent’s business partner that she had did not want to leave, that she had been fired. The Complainant stated that the Respondent’s business partner said that he was surprised by this as she was a good worker and that there was no reason to dismiss her. The Complainant received her P45 and payslips when she was dismissed. The Complainants first witness (CW1) stated that the Complainant told her just after she had been talking to the Respondent that she was told to leave due to the problems she was having with her marriage. CW1 stated that the Complainant was in a relationship with the Complainants second witness (CW2). It was stated that the Complainants husband was unaware of the relationship. CW1 stated that the Manager said that that CW2 or CW2’s girlfriend were not permitted to go into the sunbed area or out the back as they had had a fight. CW1 stated that the Manager and CW2 had a fight and as a result CW2 was not allowed in. CW1 stated that CW2’s girlfriend was not allowed in due to the relationship between the Complainant and CW2. The Complaints second witness (CW2) stated that there was no relationship between himself and the Complainant. CW2 stated that he was separated from his girlfriend. CW2 stated that they had once been in a relationship in a club. CW2 stated that after the Respondent had dismissed the Complainant, Respondent’s Business Partner (BP) said to CW2 that he should not leave as he is the best employee.

    

1. CA-00003548-002 Annual Leave Payment: The Complainant stated that she did not receive any holiday pay for the year that she had been employed by the Respondent. The Complainant stated that when she had received her P45 and her payslips she requested payslips for her holiday pay. The Complainant stated that the Respondent told her she would not be getting payslips for holiday payment as they do not pay holiday pay. The Complainant requested that she would be given a payslip for holiday pay which showed that she had been paid for zero hours of holiday payment. The Complainant stated that this request was denied by the Respondent. The Complainant stated that the Respondent told her that the Company do not pay holiday pay.

    

2. CA-00003548-003 Public Holiday Payment: The Complainant stated that she was not paid for any public holidays. The Complainant stated that she asked the Respondent about her public holiday payment to which he responded that the she was not entitled to public holiday payment as she did not work on the public holidays. The Complainant stated that she informed the Respondent that she was entitled to public holiday payment even if she didn’t work on the public holiday and that the Respondent replied by telling her that “there is no payment for bank holidays in my Company”.

    

3. CA-00003548-004 & CA-00003548-005 Rest Breaks: The Complainant stated that she had not received any rest breaks during her employment with the Respondent. The Complainant stated that she has worked up to thirteen hours in one day without any break. The Complainant stated that none of the staff members got breaks except that the Manager would occasionally take breaks. The Complainant stated that the Respondent told her if she really wanted a break she would not be paid for it and that they could only take a break if there were two people on the floor. The Complainant stated that she could not leave to use her phone or to have food as she was required to stay in the shop for the time she was allowed any break. The Complainant stated that she was not given any contract with reference to break entitlements.

Summary of Respondent’s Case:

There was no written submission made by the Respondent. The following is a summary of their oral evidence presented.

1. CA -00003548-001 Family Status Discrimination & Dismissal: At the hearing, the Respondent stated that the Complainant would go missing out the back with another male employee with whom the Complainant had a relationship with (CW2). The Respondent stated that they had spoken to the Complainant about her having an affair with CW2 in the shop. The Respondents witness stated that the other CW2’s girlfriend was very angry with the Complainant. It was stated that CW2’s girlfriend would kill the Complainant if she got her and that she was going to call the Complainants husband to tell him about the affair. The Respondent stated that he spoke to the Complainant in relation to this and told her that she had better go as he was afraid as to what may happen with the Complainants husband and that CW2’s girlfriend. The Respondent stated that the Complainant agreed with this and stated that she could not afford parking nor was she getting enough hours. The Respondent stated that the Store Manager had warned the Complainant numerous times with regards to the affair and that CW2’s girlfriend coming into the shop was the final straw. BP stated that the Complainant had called him when he was in Poland and stated that she wished to leave her position as she could not afford the parking or childcare and that she had had a fight with her husband. BP stated to the Complainant that this was her own choice. BP stated that he had spoken to the Complainant about not talking to CW2 and that he had given her warnings in relation to this. BP stated that CW2’s girlfriend had come into the shop with CW2’s daughter and said that she didn’t know what she was going to do about them. BP stated that the Complainant paid €50 a month for car parking. BP stated that he is friends with RW1. The Respondents first witness (RW1) stated that the Complainant would often go out to the back of the store with CW2 who the Complainant was having an affair with. RW1 stated that he had often warned the Complainant about going out the back and disappearing from the shop floor as this left the person on the shop floor being left of their own. RW1 stated that he put in cameras to see what the Complainant was doing. RW1 stated that the CW2’s girlfriend had entered the shop and asked for the Complainant’s husband’s number and stated that she would kill the Complainant. RW1 stated that the Complainant broke up with her husband and said that she did not have money for a childminder as she was a lone parent. The witness stated that he saw her on the CCTV with CW2. The Respondents second witness (RW2) stated that she had seen the Complainant kissing CW2 many times at work and that she had told the manager about it. RW2 stated that she would be left on the floor on her own as the Complainant would be out the back with CW2. RW2 stated that CW2’s girlfriend was very unhappy about the relationship.

    

2. CA-00003548-002 Annual Leave Payment: The Respondent accepted that the Complainant was not paid for holidays for the period that she was employed by the Respondent. The Complainant accepted the average of 33 hours a week at €9 per hour, which amounts to €297.72 which is the employee’s average weekly wage.

    

3. CA-00003548-003 Public Holiday Payment: The Respondent accepted that the Complainant was not paid for public holidays for the period that she was employed by the Respondent.

    

4. CA-00003548-004 & CA-00003548-005 Rest Breaks: The Respondent stated that the Complainant was supposed to write in the book the times she was out but that she had failed to do so. The Respondent stated that the Complainant did go out on her breaks. The Respondent stated that employees are allowed to take breaks when it was not busy and that this was the responsibility of the employees. RW1 stated that he had not taken any breaks as he did not need them. RW1 also stated that he was not sure of what hours employee worked and what breaks they were entitled to.

Findings and Conclusions:

1. CA -00003548-001 Family Status Discrimination & Dismissal:

Section 77 of the Employment Equality Acts deals with time limits within which complaints of alleged discrimination must be referred. Section 77(5)(a) stipulates that a claim for redress may not be referred “…..after the end of the period of 6 months from the date of occurrence of the discrimination or……the date of its most recent occurrence.” The Complainant has stated that she was informed on the 30 September 2015 that her employment was to be terminated. The Complainant submitted her claim on the 19 April 2016. Therefore the Complainants claim was to expire on the 30 March 2016. The Complainant submitted her claim on the 19 April 2016. Section 77(5)(b) provides that an extension of the 6 month time limit to 12 months may be granted by the Director in certain circumstances, i.e. where there is reasonable cause preventing a Complainant from submitting a claim within the prescribed 6 month period. The Complainant has not provided reasonable cause as to why she has not submitted her claim within the prescribed 6 month period.

1. CA-00003548-002Annual Leave Payment:

   Section 19 of the Organisation of Working Time Act, 1997 states that:

   (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

   (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

   (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)

    

Section 27(3) & (4) of the Organisation of Working Time Act, 1997 states that:

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(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 the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Complainant was never been paid for holidays over the course of her employment with the Respondent. The Respondent has agreed that this has been the case. However, in accordance with Section 27(4) of the Organisation of Working Time Act, 1997 and Section 41(6) of the Workplace Relations Act 2015 the complaint falls outside of the timeframe and the claim fails.

3. CA-00003548-003Public Holiday Payment:

Section 21 of the Organisation of Working Time Act, 1997 states that:

(a) A paid day off on that day,

(b) A paid day off within a month of that day,

(c) An additional day of annual leave,

(d) An additional day's pay:

Section 27(3) & (4) of the Organisation of Working Time Act, 1997 states that:

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(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 the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Complainant was never paid her public holidays entitlements over the course of her employment. The Complainant was employed from 15 July 2014 to 23 September 2015 therefore is due a public holiday entitlement on the below:

1. First Monday in August, 2014, expired

2. First Monday in October, 2014, expired

3. Christmas Day, 2014, expired

4. St Stephen's day 2014, expired

5. New Year’s Day, 2014/2015, expired

6. St Patrick's day, 2015 expired

7.. Easter Monday, 2015, expired

8. First Monday in May, 2015, expire

9.First Monday in June, 2015, expired

10 .First Monday in August, 2015, expired

The Adjudicator notes that the above contraventions are presented after the expiry of the period of 6 months beginning on the date of the contravention to which the complaint relates therefore the claim fails under Section 41(6) of the Workplace Relations Act 2011

4. CA-00003548-004 & CA-00003548-005Rest Breaks:

Section 27(3) & (4) of the Organisation of Working Time Act, 1997 states that:

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(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 the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Complainant over the course of her employment was never informed of her rest break entitlement nor received rest break entitlements in line with the legislation outlined in the Organisation of Working Time Act 1997. The Adjudicator finds that the Respondent is required by Section 25 of the Act to keep records of the Complainant’s hours of work. It has not done so. However, the Adjudicator notes that the above contraventions are presented after the expiry of the period of 6 months beginning on the date of the contravention to which the complaint relates therefore the claim fails under Section 41(6) of the Workplace Relations Act 2015.

Decision:

Section 41 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.

1. CA -00003548-001 Family Status Discrimination & Dismissal: Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. The complaint falls outside the timeframe permissible within the legislation and therefore the claim fails.  

2. CA-00003548-002Annual Leave Payment: In accordance with Section 27(4) of the Organisation of Working Time Act, 1997 and under Section 41(6) of the Workplace Relations Act 2015 the complaint falls outside of the timeframe and the claim fails in relation to payment for annual leave.

3. CA-00003548-003Public Holiday Payment: In accordance with Section 27(4) of the Organisation of Working Time Act, 1997 and under Section 41(6) of the Workplace Relations Act 2015 the complaint falls outside of the timeframe and the claim fails in relation to payment for public holiday entitlements as.

4. CA-00003548-004 & CA-00003548-005Rest Breaks: In accordance with Section 27(4) of the Organisation of Working Time Act, 1997 and under Section 41(6) of the Workplace Relations Act 2015 the complaint falls outside of the timeframe and the claim fails in relation to contravention of rest break legislation.  

Dated:   20 July 2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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