ADJ-00002552

Complainant

Respondent

Parties

A Beauty Therapist

A Beauty Salon

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00005395-001

21/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00003549-001

29/03/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00003549-002

29/03/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00003549-004

29/03/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00003549-005

29/03/2016

The Complainant was employed as a Beauty Therapist with the Respondent from 8^th April 2014 until the employment terminated on 28^th January 2016. The Complainant was paid €10.00 an hour and she worked 16 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 29^th March 2016 alleging the Respondent had breached the Terms of Employment (Information) A t, 1994, had breached the Payment of Wages Act, 1991 in relation to payment of notice and her annual leave entitlements, had breached the Organisation of Working Time Act, 1997 in relation to payment for Public Holidays, had discriminated against her on the basis of her gender and had discriminated against her by dismissing her and harassing her, had unfairly dismissed her under the Unfair Dismissals Act, 1977.

The Complaint ADJ 00003459-001 under the Unfair Dismissals Act, 1977 – 2015 was withdrawn at the Hearing.

Terms of Employment ( Information) Act, 1994. The Complainant stated she had not been provided with a written statement of her Terms and Conditions of Employment contrary to the Act

Payment of Wages Act, 1991. The Complainant stated that she had not been paid her Minimum Notice of €140.00 on termination of her employment. She also stated that she had not been paid her accrued annual leave entitlements on termination of the employment.

Organisation of Working Time Act, 1997. The Complainant stated that she was due payment for 4 Public Holidays and is claiming payment of €119.85.

Employment Equality Act, 1998. The Complainant stated that she informed the Respondent in October 2015 that she was pregnant. One of her named Colleagues went on Maternity Leave in November 2015 and the Respondent recruited a named employee to replace her. The Complainant continued to work her two days up to Christmas 2015 and she took one week’s annual leave. On 11^th January 2016, one day before she was due to return to work, she received a text from the Respondent informing her not to return to work as it was very quiet. She received a similar message the following week. She then received a phone call from the Manager who informed her that the Accountant advised that she should be dismissed. The Complainant wrote to the Respondent on 18^th January 2016 asking her to reconsider the position and suggesting she could reduce her days to one day a week. This would mean she would still qualify for Maternity Benefit. She attended her GP. The Complainant spoke to the Manager and she requested that she be allowed to continue working but   the Manager, who is the daughter of the Respondent, became aggressive and she explained the Company’s circumstances. This conversation ended with the Manager stating she would talk with the Accountant and revert to her. She received a letter dated 21^st January 2016 which confirmed in writing she was being let go and informing her that she would be issued her P45, notice and her accrued annual leave. The Complainant stated that she had not received anything further from the Respondent.

The Complainant stated she was not shown any evidence by the Respondent that redundancies were required and she was not informed of any selection process in relation to her dismissal. She stated she was discriminated against contrary to Section 6(2) of the Act when she suffered less favourable treatment during her pregnancy. The Complainant referred to a decision of the Labour Court in support of their argument that it was for the Respondent to rebut the alleged discrimination. The Complainant was dismissed in the total absence of any substantiated grounds for her dismissal.

The Complainant also alleged that she was the victim of harassment as defined by Section 14 A (7) in relation to the phone call with the Manager on 19^th January 2016.

Terms of Employment (Information) Act, 1994. The Respondent confirmed at the Hearing that the Complainant had not been provided with a written statement of her Terms and Conditions of Employment during the course of the employment.

Payment of Wages Act, 1991. The Respondent stated that the Company had been subject to a NERA Inspection. The Respondent stated that they had calculated what was owed to the Complainant and stated she was owed one week’s minimum notice of €140.00 – the Complainant had taken 3 days annual leave in August 2015 and had been paid. The Respondent stated that the Complainant was owed €207.80 annual leave accrued for 2015 and €11.20 for 2016.

Organisation of Working Time Act, 1997. The Respondent stated that the Complainant was due the sum of €119.85 in respect of four Public Holidays Oct 25^th; Dec 25^th and 26^th 2015; 1^st January 2016.

Employment Equality Act, 1998. The Respondent stated that another named employee, who worked full-time, commenced maternity leave in November 2015. The Complainant was offered to either work 3/4/5 days a week but the Complainant stated she would not work more than her two days a week. The Respondent stated that they then recruited a named employee for a period of 6 months to cover the Maternity Leave. This employee was retained for 20 hours a week from January 2016 to cover the Maternity Leave up to May 2016 when the employee returned from Maternity Leave.

The Respondent stated that the named person the Complainant spoke to was not the Manager but her daughter who was covering for her Mother’s absence due to the Respondent’s mother dying.

Terms of Employment (Information) Act, 1994. Both Parties confirmed that the Complainant had not been provided with a written statement of her Terms and Conditions of Employment. This is contrary to Section 3 of the Act which requires that an Employer must provide an employee with a written statement of specified Terms and Conditions of Employment within the period of 2 months of the commencement of the employment. I find the Respondent has breached Section 3 of the Act.

Payment of Wages Act, 1991. Both Parties confirmed at the Hearing that the Complainant had not been paid her Minimum Notice of 1 week on termination of the Employment on 28^th January 2016. I find the Complainant is entitled to payment of one week’s notice in accordance with Section 4 of the Minimum Notice and Terms of Employment Act, 1973.

Annual Leave. Both Parties confirmed at the Hearing that the Complainant had not been paid her accrued annual leave on termination of the Employment. The Respondent stated the Complainant was due payment of €207.80 for 2015 and €11.20 for 2016. Both Parties confirmed at the Hearing the Complainant worked 16 hours a week over 2 days and was paid €10.00 an hour. The Complainant worked 40 weeks in the 2015/2016 annual leave year from 1^st April 2015 x 16 hours per week = 640 hours x 8% = 51.2 less 16 hours taken in August 2015 = 35.2 hours annual leave due x €10.00 an hour = €350.20. I find the Complainant is entitled to payment of accrued annual leave of €350.20 subject to any lawful deductions.

Organisation of Working Time Act, 1997 – 2015. Public Holidays. On the basis of the evidence the Complainant is due to be paid for 4 Public Holidays due and not paid. I find the Complainant is due payment of €119.85      

Employment Equality Act, 1998.

The following facts were established at the Hearing – The Complainant worked 2 days a week – Another named Employee who was recruited before the Complainant worked 8 hours per week on a Wednesday and Friday up to July 2016 – Another named employee who worked full-time was on Maternity Leave and returned to work in May 2016 when she resumed on two days a week due to the financial situation of the Company   – The Maternity Replacement named Employee continued to work 20 hours a week to July 2016 when the business closed and all employees were redundant.   Both Parties confirmed at the Hearing that when the named employee went on Maternity Leave in November 2015 the Complainant was given an option of increasing her working days from 2 days up to three/four or five days a week but the Complainant confirmed at the Hearing that she had refused this on the basis that she was also a self-employed person and she did private work and also was on-call to other Salons. The Complainant also confirmed that she did receive Maternity Pay from the Department of Social Protection while on Maternity Leave.

Section 85 A of the Act provides that the Complainant must first establish facts from which discrimination may be inferred. If those facts are established on the balance of probabilities, and they are regarded as sufficiently significant to raise the inference contended for, the burden of proving that the principle of equal treatment has not been infringed in relation to the Complainant now shifts to the Respondent. It then falls to the Respondent to prove on credible evidence and on the balance of probabilities that the Complainant was not discriminated against on the basis of her pregnancy.

Section 85A provides as follows: Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

Section 6(2A) of the Act provides as follows: Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Pregnancy has been held to be a special protected period in order to limit the adverse effects of discriminatory treatment on women workers. Article 10 of the Pregnancy Directive – Council Directive 92/85/EEC (1992) requires san employer to set out duly substantiated grounds in writing where a pregnant worker is dismissed. The Court of Justice of the European Union in a long list of decisions starting with Case C-77/88 in Dekker v Stichting Vormingscrentrum has held that to disadvantage a woman in employment by reason of her pregnancy is to discriminate against her on grounds of her gender.

The evidence, which was not disputed, was that the Complainant had informed the Respondent in October 2015 that she was pregnant. The Complainant was on annual leave over Christmas 2015 and was due to return to work on 12^th January 2016. She received a text on 11^th January 2016 telling her not to return to work and the same again the following week on 18^th January 2016. She received a phone call from the Respondent on 18^th January 2016 to inform her that on advice from the Accountant she was to be let go. The Complainant wrote to the Respondent on 18^th January 2016 asking the Respondent to reconsider the position and offering to reduce her working days to one day a week. The Complainant was informed by letter dated 21^st January 2016 that her employment was to be terminated because of “an extremely difficult trading position and have suffered a significant decline in business”. She was to be given and paid one week’s notice.

I find that the Complainant has satisfied the evidential burden of proof as set down under Section 85A of the Act. I find that the burden now passes to the Respondent. I find that the Respondent has not shown any evidence to the Hearing to show why the Complainant was selected for dismissal amongst the rest of the employees of the Company. I note that in her letter dated 18^th January 2016 to the Respondent, the Complainant suggested her working week be reduced to one day a week but this was not acceptable to the Respondent. Accordingly I find that the complaint of discriminatory dismissal is well founded. In considering the appropriate remedy I am mindful that the Respondent Company has ceased trading since July 2016.

Terms of Employment (Information) Act, 1994. CA-00003549-002. In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €250.00 within 42 days of the date of this Decision.

Payment of Wages Act, 1991-CA-00003549-004. In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant –

€160.00, subject to any lawful deductions, in respect of one week’s minimum notice due and not paid and

€350.20, subject to any lawful deductions, in respect of annual leave due and not paid on termination of the employment.

The sum of €510.20, subject to any lawful deductions, to be paid to the Complainant within 42 days of the date of this decision.

Organisation of Working Time Act, 1997. CA-00003549-005In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. There are 4 Public Holidays in the reference period covered by this complaint i.e. from 30^th September 2015 to 28^th January 2016 when the employment ended. The Complainant is due to be paid for four Public Holidays October and December 2015 (3) and 1^st January 2016. I direct the Respondent to pay the Complainant €119.85 in respect of the four Public Holidays and compensation of €300.00 for breach of Section 21 of the Act. This to be paid to the Complainant within 42 days of the date of this Decision.

Employment Equality Act, 1998.CA-00005395-001

Section 85A(1) of the Act provides as follows: Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary”

The Complainant alleges that she was discriminated against in relation to her Gender and that she was discriminated against when she was dismissed in breach of Section 6 (2) of the Act. Section 6 (2) of the Act provides as follows: discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

On the basis of the evidence and in accordance with Section 79 of the Employment Equality Act, 1998 as amended I declare the Complainant has established primary facts which she is relying on and she has established that those facts are of sufficient significance to raise an inference of discrimination.

In accordance with Section 79 of the Act and in view of my findings above I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €3500.00 within 42 days of the date of this Decision.

Harassment: Section 14 (A) (7) provides as follows: (a) in this section – (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds….(b) being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, request, spoken words, gestures, or the production, display or circulation of written words, pictures or other material.

The alleged incident occurred on 19^th January 2016 when the Complainant phoned the Respondent and spoke to a named person, who the Complainant alleged was the Manager but the Respondent stated was her daughter who was covering for her as her own mother was terminally ill and dying. It is alleged that this named person stated the Complainant’s pregnancy was her own problem and this was in the context of the termination of the Complainant’s employment with the Respondent.    

Section 15(2) of the Act provides as follows: Anything done by a person as agent for another person, with the authority,(whether express or implied and whether precedent or subsequent) of that other person, shall, in any proceedingsbrought under this Act, be treated for the purposes of this Act as done also by that person. The evidence was that the Respondent’s daughter was covering for the Respondent at the time and therefore as per Section 15(2) of the Act, it is the Respondent who is held liable.

S.I. No 208 of 2012 – Employment Equality Act, 1998 (Code of Practice) (Harassment) Order 2012 provides “A single incident may constitute harassment”.

In accordance with Section 79 of the Employment Equality Act, 1998 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €500.00 within 42 days of the date of this Decision

Pregnancy Discrimination – Harassment.