ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00001998

Parties:

Complaints:

Date of Adjudication Hearing: 15th July 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Location of Hearing: Dublin

Procedure:

On the 8^th October 2015 and the 18^th February 2016, the complainant lodged complaints to the Workplace Relations Commission. The complaint of the 8^th October 2015 was made pursuant to the Employment Equality Acts and relates to discrimination and harassment on the ground of race. It is the subject of the report in ADJ 93. The complaints of the 18^th February 2016 are made pursuant to the Unfair Dismissals Act, the Employment Equality Acts, the Organisation of Working Time Act and Terms of Employment (Information) Act. The complainant is a childcare worker and the respondent is a crèche. This adjudication report addresses the four complaints made on the 18^th February 2016.

The complaints and two adjudication files were scheduled to be heard together on the 15^th July 2016. The complainant attended and was represented by Aoife McMahon, BL instructed by Cristina Stamatescu, solicitor. The respondent was represented by Nóra Cashe, Peninsula Business Services. The owner of the respondent attended as did two senior managers.

At the outset of the hearing, the parties made preliminary applications. The complainant submitted that when the respondent witnesses were to give evidence, the other respondent witnesses should be asked to leave the room of the adjudication. The complainant said that this step should be taken to prevent witnesses corroborating the testimony of the other witnesses. I declined this request and did so for the following reasons. While there are circumstances in which witnesses should be excluded from the hearing while other witnesses give their evidence, adjudication hearings held under the auspices of the Workplace Relations Act and related employment and equality statutes are not overly formal. The introduction and exclusion of witnesses attending a hearing is not conducive to the smooth and informal running of a hearing. Parties are entitled to cross-examine the evidence of each witness, so it is open to a party to put to a witness the close correlation of their evidence to that of other witnesses. Furthermore, in reality, there is nothing stopping witnesses rehearsing their testimony in advance of a hearing. Evidence, however, given by multiple witnesses that appears choreographed is less than persuasive (see, for example, paragraph 4.10 of A Teacher v A National School DEC-E2014-097).

In its preliminary application, the respondent submitted that the complainant had sought to raise her dismissal under both the Unfair Dismissals Act and the Employment Equality Acts and not elected between one or other of the claims within the time limit set out by section 101 of the Employment Equality Acts (as amended by section 17 of the Credit Guarantee (Amendment) Act 2016 and enacted on the 8^th February 2016). The respondent also submits that the complainant is not entitled to double recovery for the two heads of claim. The complainant advanced the dismissal element of the claim by way of the Unfair Dismissals Act.

In accordance with Section 41 of the Workplace Relations Act, 2015, section 8 of the Unfair Dismissals Acts, 1977 - 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaints to me by the Director General of the Workplace Relations Commission, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant asserts that she was constructively dismissed from her employment as a childcare worker with the respondent, a crèche. She also claims discrimination, harassment and victimisation pursuant to the Employment Equality Acts and makes complaints pursuant to the Organisation of Working Time Act and the Terms of Employment (Information) Act. The respondent denies the claims.

Summary of Complainant’s Case:

The complainant outlined that her employment with the respondent commenced on the 15^th December 2011. She went on a period of maternity leave in June 2013 and returned to work in January 2014. On her return, her child attended the crèche where she worked and she obtained a discounted fee from the respondent. During this time, she worked full-time. She was left with very little take-home pay, this being in the region of €650. She decided that she should go part-time and raised this with the owner of the respondent. She said that she had always felt intimidated in her dealings with the owner. He questioned how she spent her money. She commenced part-time hours in October 2014, working from 8am to 2pm. She was given one 15 minute break per day during this time.

The complainant said that things changed in April 2015. She noticed that her income had dropped and learnt from the respondent that she was no longer being paid for her breaks. She stated that the owner had told her that this was because she was working part-time. She said that there were other part-time employees who she believed were being paid for their breaks. At the end of July 2015, she said that a colleague quit and the owner asked the complainant to work full-time hours. She agreed to do so, but raised the issue of pay. The owner said that he would put together a proposal. He later asked her again and she again enquired about the proposal. The owner later offered a monthly salary of €1,600 and a greater reduction in the crèche fee, but this was still not financially viable for her. It was not logical for her to accept such a proposal. The complainant said that the owner became angry and told her that she would have to work full-time or quit. She received advice and in a meeting of the 8^th October 2015 told the owner that this was not grounds to dismiss her. He became angry with her and said that he would record the conversation. He asked a manager to join the meeting and then suggested a number of proposals. He told her that she could continue working part-time until “I tell you to quit.” He later said that she could work part-time until March 2016 when she would go back to full time hours. He also proposed that she would keep part-time hours but would have to be flexible about when those hours were.

Over this period, there were six or seven meetings between her and the owner. During these discussions, the complainant had asked for €1,800 in monthly wages. She said that she felt threatened and under pressure to make an urgent decision. On the 8^th October 2015, the owner had become angry and told her that she had no rights in Ireland because she was a Romanian citizen. She said that the owner questioned why she needed part-time hours when her husband was out of work; he had questioned his parenting. Because of the events of the 8^th October 2015, the complainant said that she could not accept the situation anymore. She was crying and upset. She felt that she could not return to work after the meeting, in particular to be around the children. She asked to go home. She left at about 10.30 or 11am on the 8^th October 2015 and never returned to work. She enjoyed her work but had a bad relationship with the respondent owner. The complainant outlined that the stress of these events caused her to leave. She wrote a letter of resignation on the 9^th October 2015 and some days later received a text message from the owner to acknowledge the letter. She received an emailed letter from the respondent on the 19^th October 2015, which was accompanied by the LRC Grievance procedure.

The complainant outlined that she was supplied with a contract of employment in January 2015 and this referred to her being a part-time employee. She had requested this as she was seeking a loan. She said that she had not received a contract in 2011 as stated by the respondent. In respect of mitigation, the complainant outlined that she had looked for other jobs since the end of this role. Her original qualification was as an English language teacher and it was difficult to find such work here, given that English is spoken here as a mother tongue. She had sought to upgrade this qualification so that it was recognised here. She outlined that on the 6^th June 2016, she had commenced a full-time course in payroll and book keeping.

In relation to the Organisation of Working Time claim, she outlined that she was not paid for breaks between April and October 2015. She had taken one break of 15 minutes for the five days of the week she worked. The reference to a loan in the correspondence relates to paid annual leave, where the respondent had asked that she had to borrow money in order to be paid in advance for this leave. In relation to the grievance procedure, the complainant said that she had not understood the grievance procedure emailed to her by the owner. She had not received a P45 or reference from the respondent. In respect of the Employment Equality claim, the complainant said that this related to family status and race and included a claim of harassment. In relation to the claim of victimisation, the complainant was treated differently to other part-time employees as the owner had not repeatedly asked them to work full-time. The owner had been aware of her financial situation and wanted to force her to go back to full-time work. The owner had threatened the complainant, specifically when saying that she would be dismissed if she did not accept his proposal for full-time hours. One manager had told her that the complainant was entitled to be treated better by the owner.

In cross-examination, the complainant acknowledged that she had received a reduced fee to accommodate her child in the crèche. She did not accept that the agreement to change her hours to part-time hours was a temporary one and she denied that she had signed the document dated the 22^nd September 2014 and exhibited by the respondent. The owner had told her that “we could do that for you”, i.e. reduce her hours of work. She acknowledged that she had received 15 minute breaks and said that others were paid for breaks. She acknowledged that she had said that she would be “terminated” if part-time hours were not available. It was put to her that a proposal of part-time hours, with flexibility had been made to her; she agreed that it had been made but that she could not be flexible as to which hours she worked. It was put to her that flexibility meant either working between 8am and 2pm, or a later shift of 1pm to 6pm; she replied that flexibility meant that the owner could ask her to come in at any time. It was put to the complainant that the respondent contested that he had made the comments attributed to him regarding her husband and her nationality. The complainant acknowledged sending the letter of resignation on the 9^th October 2015 and also receiving the email of the 19^th October 2015. She was asked why had she not lodged a grievance; she replied that she had already raised her difficulties with the owner with the two managers. It was put to the complainant that she had already obtained advice at this time, so why had she not obtained further advice about a grievance; she replied that she had already raised her wish for part-time hours with the respondent. It was put to the complainant that one manager had given her and her colleagues a contract of employment in January 2012; she replied that she had attended a staff meeting and while a contract was shown to staff; they were never asked to sign it. The complainant was referred to the “loan” mentioned in the meeting minutes of the 17^th September; she replied that this loan was paid annual leave which she had to borrow from the employer. She denied that it was her signature on a letter drafted by the respondent regarding the loan. The complainant said that the meeting of the 17^th August 2015 had lasted 30 minutes. It was put to the complainant that the proposal outlined on the 24^th August 2015 was reasonable; she replied that she would still be losing out. In relation to the minutes of the meeting of the 8^th October 2015, the complainant said that she had not asked for the manager to join them. She did not know what the reference in the minutes to social welfare payments referred to. She said that the respondent could not dismiss her if part-time hours were not available. It was put to the complainant that in her email of the 20^th October 2015, she said that her decision to resign was unchangeable; she replied that she had felt hunted and she had raised the owner’s behaviour with both managers.

In closing submissions, the complainant outlined that the fact of the respondent emailing the LRC grievance procedure after her letter of resignation does not provide sufficient or practical guidance about lodging a grievance. The LRC document was not appropriate as it was directed for HR managers in large organisations. The complainant had not been aware of the respondent grievance procedure and had not been able to pursue a grievance. The complainant submitted that she had acted reasonably in the circumstances and had told the managers of her difficulties with the owner. The complainant relied on Porter v Atlantic Homecare Ltd (2008) E.L.R. 95 as authority for reasonableness is broader than referring a grievance.

Summary of Respondent’s Case:

The respondent denies the claims advanced by the complainant. At the outset of his evidence, the owner outlined that the name of the respondent was a business name and that they were in the process of setting up a limited company. The complainant commenced employment on the 5^th December 2011 and that her role was that of a nursery assistant. She had been recommended by friends of hers who worked in the crèche. In November 2011, the owner emailed the complainant to offer her a permanent, full-time position with the respondent. The owner had verified that the complainant had good English and her first role was to be in the baby room.

The owner said that in late August or September 2014, the complainant asked for part-time hours. She had said that her employment should be terminated if this could not be accommodated, referring to the social welfare support of Family Income Supplement. The complainant was upset and she was a valued member of staff. The owner said that there was no part-time post available but he later relented and agreed to provide part-time hours. Another named member of staff was to return from maternity leave and this colleague and the complainant effectively job-shared part-time roles. The owner referred to a hand-written note signed by him and the complainant confirming that the part-time role was for one year only.

The owner raised the issue of the complainant returning to full-time hours in August 2015. This led to a series of meetings between him and the complainant. She had asked for better terms, for example a bigger discount on the crèche fee. The complainant kept coming back with more proposals. In respect of the loan, the owner outlined that he had loaned the complainant €500 as he knew she faced financial difficulties. The loan was not annual leave remuneration paid to the complainant in advance of a period of annual leave, as she had suggested. In respect of the meeting of the 8^th October 2015, the owner said that he wanted an update from the complainant. He was not often in the crèche and he wished to know the complainant’s decision regarding full-time work. A named colleague was to go on maternity leave, as were two other members of staff, including his spouse, the manager. The complainant said that she was not obliged to accept full-time hours. Referring to the minutes, the owner acknowledged that he had inferred that the complainant’s reason for not wanting to work full-time was related to social welfare. She had not said that this was the case. In the meeting, the owner left the room as soon as the complainant became uncomfortable. He asked a manager to join them. There was no reason for the complainant to be uncomfortable. He denied that he had been shouting and because of the lay-out the office, everyone would have heard any shouting. The manager entered the room and witnessed that the complainant saying that she would not go back to full-time hours. The owner said that he later made the offer of part-time hours with flexibility. It was very difficult to accommodate her existing part-time hours. If a part-time employee worked from 8am to 2pm, it was difficult to cover the hours in the afternoon to the close of business. The owner denied that he had said that the part-time hours would last until March 2016. At the end of the meeting, the complainant asked to go home. The owner replied that she would have to ask her manager as he did not know whether there were enough staff on to cover the ratios.

The owner outlined that he never threatened to dismiss the complainant; she had embellished this story. The owner said that they had had a casual conversation where she had mentioned her financial difficulties and a house in Romania. He had asked why childcare was such an issue. In respect of the comment regarding the complainant’s husband, the owner denied referring to the complainant directly. He had said “I don’t understand why you need to pay childcare at all” and that he had not made any specific reference to the complainant’s husband. In respect of breaks, the owner outlined that the complainant was entitled to a 15 minute break. His practice was to pay staff for breaks when it was affordable. The respondent had been treading water for a period and no staff were paid breaks during this time. The owner said that the complainant had been paid for annual leave, although this might not have been specified on her pay slip.

In cross-examination, the owner acknowledged that the complainant was a valued member of staff. He said that the breaks were paid when they could and they were a benefit and an incentive. They were paid on a variable basis. He said that he could not be sure that there had not been occasions when some staff were paid for breaks while others were not. It was put to the owner that the period of August to October 2015 was stressful as one staff member had quit and three others were due to go on maternity leave. He replied that it was not particularly stressful. He said that his role was to look at the numbers; he did not recruit staff or work in the crèche. He also said that he was not the type of person to get annoyed with people in front of children and their mothers. This would be shooting himself in the foot. He accepted that he had not seen the complainant signing the loan document and that he had sent the complainant the LRC grievance procedure in October 2015. He accepted that the complainant had not directly referred to social welfare during the meeting of the 8^th October 2015, but inferred this as she had said “her salary and the money she is getting.” In respect of the comment regarding the complainant being Romanian, the owner said that he had raised this in the context of the pre-2012 position regarding Romanian citizens in Ireland and their entitlement to social welfare. He outlined that his wife is Hungarian and they own a house very close to the Romanian border and 10 minutes from where the complainant is from. The owner outlined that the complainant had asked for a contract to assist with getting a loan and this was to show that she had worked for the respondent for a longer period of time. He said that the 2011 contract had not been sufficient for her needs. It provided that the complainant has a permanent, part-time role, commencing on the 5^th July 2011. The owner said that the complainant had also received a contract in 2012.

With reference to the handwritten note of the 22^nd September 2014, the owner said that he had written this in his diary and the complainant had signed it. She had not been supplied with a copy. He outlined that he asked the complainant about returning to full-time hours in August 2015 as he was aware that three staff were scheduled to go on maternity leave later that year and they may also have had to go on leave at an earlier stage. He said that the conversation in September 2014 when the complainant asked to be terminated so that she could go on social welfare was a casual one and took place in the hallway; he had not written a minute. He had supplied the grievance procedure to the complainant in October 2015 on advice. He said that the meeting of the 8^th October 2015 could not have taken 45 minutes as they did not have the staff to allow one staff member be away from their duties for so long. There had been no communication to staff in April 2015 when breaks were not paid and no general communication of when they were or were not paid.

The crèche manager gave evidence. She outlined that she manages the crèche and deals with staff, parents and suppliers. She is married to the owner and it is his business. She outlined that in January 2012, there had been a staff meeting and she had handed out contracts to staff members. The complainant had signed and returned hers the following day. In respect of the 8^th October 2015, the complainant had approached her about the owner’s request for her to work full-time. The manager replied that she would speak with the owner, saying that she liked the complainant and would do everything to keep her. She asked the complainant to go to the staff room, where she met the owner. The manager then worked covering breaks and by the time she was free again, the complainant had left. She outlined that all full-time staff get their breaks and for part-time staff it depends how they work for. Staff are not paid for their breaks.

In cross-examination, the manager said that she did not see the complainant sign the contract. She said that she had not felt stressed by the staffing needs in 2015. She had managed crèches since 2007 and while three of their 10 staff were going on maternity leave (including herself) they had started the hiring process. She acknowledged that the respondent needed the complainant to take full-time hours as it had to replace the part-time hours undertaken by an employee who was going on maternity leave. In respect of the meeting of the 8^th October 2015, she did not think that voices had been raised. The complainant had never informed her of interpersonal difficulties with her husband, the owner. While she had been aware that the complainant’s husband was not working, she was not aware of any financial difficulties.

The junior manager gave evidence. She outlined that she commenced working at the respondent on the 5^th July 2011 and had acted up as crèche manager when the manager had been on periods of maternity leave. She said that she had been at the staff meeting in early 2012 when the manager had given out contracts. The staff had been looking for contracts since the acquisition of the crèche by the respondent. At the meeting, the staff looked through the document together. Some had signed it there and then, others took it home with them. In relation to the payment of breaks, the junior manager said that she had only started doing payroll. In relation to difficulties with the owner, the junior manager said that the complainant and her spoke about everything. She had given the complainant advice about dealing with him and he was not in the premises very often. She had spoken directly to the owner too. In respect of the 8^th October 2015, she joined the meeting to find that the complainant was very upset and she and the owner were talking over each other. She said that she told them to calm down and it was clear that the complainant had decided not to take full-time hours.

In cross-examination, the junior manager acknowledged that she was an employee of the respondent and that she had given advice to the complainant about approaching the owner. She accepted that the complainant had been upset on the 8^th October 2015. The junior manager outlined that where there was one full-time employee working with two part-time employees, this placed pressure on the full-time employee. She outlined that there had not been tension involving the complainant until the issue of part-time or full-time hours arose.

In closing submissions, the respondent submitted that the complainant had been provided with a contract of employment in early 2012 and any issues that there may be with the contract were technical and minor. In relation to breaks, the Organisation of Working Time Act does not provide for the payment of breaks and this claim cannot succeed. In respect of the unfair dismissal claim, an employee was obliged to exhaust all avenues before terminating their employment and the complainant had not done so, especially after she had obtained advice. The respondent employed many non-Irish employees and the owner was also not Irish. The complainant had been given favourable treatment in being offered an additional discount on the crèche fees and increased pay. In relation to the harassment and victimisation claims, the respondent asserted that there had been no loud voices at the meeting on the 8^th October 2015 and there was no atmosphere of intimidation in the respondent crèche. No issues had been raised with other members of staff.

Findings and Conclusions:

The complainant commenced her employment with the respondent on the 15^th December 2011 and worked as a crèche assistant in a local crèche. The complainant resigned by letter of the 9^th October 2015.

The complainant lodged two sets of complaints to the Workplace Relations Commission, which were heard together at this adjudication. The complaint of the 8^th October 2015 is made pursuant to the Employment Equality Acts and relates to discrimination and harassment on the grounds of race. It was initially scheduled by the Workplace Relations Commission for adjudication on the 21^st January 2016, but adjourned at the request of the complainant. This is dealt with in the adjudication report in ADJ-0000093.

The complainant submitted a second complaint to the Workplace Relations Commission on the 18^th February 2016. It included a complaint of constructive dismissal pursuant to the Unfair Dismissals Act. There was also a claim pursuant to the Terms of Employment (Information) Act regarding the provision of a statement of the terms of employment and a claim pursuant to the Organisation of Working Time Act regarding daily rest breaks as well as claims made pursuant to the Employment Equality Acts on the grounds of race and family status.

Complaint made pursuant to the Unfair Dismissals Act (CA-00002692-001)

The complainant resigned from the employment of the respondent by letter of the 9^th October 2015. She claims constructive dismissal, i.e. she resigned because of the actions of the respondent. The dismissal element of the complainant’s case was pursued by way of the Unfair Dismissals Acts. The claims made pursuant to the Employment Equality Acts were advanced in respect of allegations of discrimination, harassment and victimisation on grounds of race and family status.

Taking the issues in turn, the complainant asserts that she was constructively dismissed by the respondent because of how the respondent dealt with her hours of work and in particular, the events of the 8^th October 2015. She tendered her resignation by letter on the 9^th October 2015. This letter states as follows “The changes to my contract of employment I was informed about were not eligible for me and the manner they were introduced was inappropriate, intimidating and aggressive. The stress has simply become too much as the situation has started 3 months ago with repeated meetings on the matter and threats for not agreeing the offer. As my own health is at risk now and the environment in work is improper, my last day of work will be 23/10/2015.” The complainant went on certified sick leave after that point.

The respondent replied to the complainant on the 19^th October 2015 and included in the letter is “On 9/10/2015 we received your written resignation. I was naturally surprised by this especially given the last remarks made to you was that you could continue with your current schedule. Upon further reflection, I feel you have resigned in the heat of the moment and am writing to ask if you wish to reconsider… I would like to take this opportunity to remind you of the importance of airing any concerns which you may have, and to resolve matters through the formal process... If you wish to reconsider your decision to resign, then please let me know within the next 5 working days, namely by 25/10/2015 at the latest.” Attached to this letter is the LRC Code of Practice on Grievance and Disciplinary Procedures. The complainant replied on the 20^th October 2015 to say that her decision was “unchangeable”.

The definitions section of the Unfair Dismissals Act (at section 1(b)) provides as follows in relation to the definition of constructive dismissal:

“dismissal”, in relation to an employee, means—

           “(b) the termination by the employee of his contract of employment with his     employer, whether prior notice of the termination was or was not given to the       employer, in circumstances in which, because of the conduct of the employer, the            employee was or would have been entitled, or it was or would have been             reasonable for the employee, to terminate the contract of employment without            giving prior notice of the termination to the employer”

The complainant referred to case law of the Employment Appeals Tribunal on the test for constructive dismissal. She relied on Porter v Atlantic Homecare Ltd [2008] 19 E.L.R. 95 as authority that not availing of a grievance procedure was not fatal to a claim of constructive dismissal. Furthermore, she relied on May v Moog Ltd [2002] 13 E.L.R. 261 which established that the onus was on the employer to seek reasons for the employee’s resignation in such circumstances. She also relied on Kennedy v Foxfield Inns Ltd t/a The Imperial Hotel [1995] E.L.R. 216 in relation to resigning in response to rude and offensive behaviour from a manager and Riehn vDublin Society for the Prevention of Cruelty to Animals [2004] E.L.R. 2015 regarding the obligations on an employer to recognise workplace stress and its liability following the later resignation of the employee.

The respondent asserts that the burden of proof rests on the complainant to show that the respondent had repudiated the contract of employment or that it had been reasonable for her to resign. It refers to the high level of proof highlighted by the Employment Appeals Tribunal in An Employer v An Employee (UD 1146/2011). It referred to Conway v Ulster Bank Ltd (UD 474/1981) and the need for an employee to have “substantially utilised the grievance procedure to attempt to remedy her complaints” prior to resigning. It also referred to the need to exhaust a grievance procedure emphasised by the Employment Appeals Tribunal in An Employee v An Employer (UD 720/2006) and Kearns v Silverfern Properties Ltd [2013] 2 JIEC 0701, where the Tribunal found that the claimant had resigned in the heat of the moment.

Having considered the oral and written submissions and evidence of the parties, I make the following findings in relation to the claim of unfair dismissal. As submitted by the respondent, the legal burden rests on the complainant where she asserts constructive dismissal. She must establish that the respondent has breached a fundamental term of her contract of employment or that it was reasonable in the circumstances for her to resign.

Below I have addressed the claim made pursuant to the Terms of Employment (Information) Act. It is worth noting the grievance procedure included at 10.1 of the Employment Contract, dated the 9^th January 2012, states “Any matter not resolved internally shall be referred to a Rights commissioner, the Labour Relations commission, the Labour Court, the Employment Appeals Tribunal or Equality Office, as appropriate.” On the 19^th October 2015, the respondent sent the complainant the Code of Practice on Grievance and Disciplinary Procedures in reply to her letter of resignation.

It was striking from the evidence of all the witnesses that the crèche provides a well-managed and high level of care to children. The complainant was part of the team delivering this service to children. It was also apparent that many employees of the respondent were on or were to go on maternity leave, leading to the respondent seeking to ensure it had cover for the hours required of the roster. This is evidenced by the handwritten note signed by the parties and dated the 22^nd September 2014 regarding the reduction of the complainant’s hours to part-time hours and the note’s emphasis that this did not constitute a permanent change. This led to the discussions in 2015 regarding the complainant’s hours of work, and in particular her return to full-time hours, and also to the events of the 8^th October 2015.

Having carefully considered the oral evidence adduced at the adjudication, I find that the meeting of the morning of the 8^th October 2015 occurred as outlined by the complainant. I reach this finding for the following reasons. It was not in dispute that the complainant was upset at the meeting of the 8^th October 2015 and that there was a vociferous interchange between her and the owner. They talked over each other. I am satisfied that the owner questioned the complainant’s future employment with the respondent if she did not return to full-time hours. I am satisfied that this was the latest in a number of exchanges between the parties. The complainant left her place of work, submitted the first complaint form to the Workplace Relations Commission and on the 9^th October 2015, submitted her letter of resignation. She raised specific issues regarding the tenor of the discussions between the parties. While I acknowledge that the reply of the 19^th October 2015 suggested the complainant rescind her resignation and submit a grievance, I am not convinced that the reply and the process proposed in the letter adequately addressed the issues of the 8^th October 2015. It did not offer the complainant a viable way back to work and a basis for her to rescind the resignation. It did not address the nature of the interchange of the 8^th October 2015, nor offer an avenue to deal with the obvious interpersonal difficulties that had arisen between the complainant and the owner by this point. It did not suggest any resolution of the hours of work issue or a mechanism for this to be addressed. In effect, it offered the complainant a return to the series of meetings that took place on and before the 8^th October 2015.

It follows from these findings that I determine that the complaint of unfair dismissal is upheld. I find that it was reasonable in the circumstances for the complainant to consider herself to have been dismissed by the actions of the respondent. I have made findings on the basis of the events of the 8^th October 2015 and the preceding interaction of the parties. Looking at the complainant’s circumstances at the time of her resignation and in the following weeks, her contract of employment would not have offered any solace. It referred to submitting a complaint to one of the constituent bodies of the Workplace Relations Commission, which she did on the 8^th October 2015. The Code of Practice sent to the complainant did not offer any way out for her to address the issues of dispute arising between the parties. It is too general a document to amount to a viable grievance procedure that an employee could rely on in these circumstances. I, therefore, conclude that the claim of constructive dismissal succeeds.

In respect of mitigation, I note the complainant’s efforts to seek employment as an English language teacher. While I appreciate that this is the area in which the complainant holds an academic qualification, I must also have regard to the fact that for the previous number of years, she had been working in childcare. She was not active in seeking alternative posts in childcare, even as a stop gap until she found a teaching role. Taking these factors into account, I find that she is entitled to recover financial loss equivalent to 12 months of salary. Her monthly gross wages were €1,143, so this award amounts to €13,716.

Complaint made pursuant to the Employment Equality Acts (CA-00002692-002)

The complainant asserts that she was discriminated against on the grounds of race and family status and that she was subjected to harassment and victimisation. Having considered the evidence, I find that these claims are not well founded. I am persuaded by the evidence of the owner regarding the question of discrimination on the race ground. He spoke of his and his spouse’s connections to an area adjoining that which the complainant is from. In respect of family status, it is certainly the case that the complainant and the respondent had many discussions in respect of the complainant’s hours of work, where she raised her parental responsibilities. I accept the respondent’s evidence that it was concerned about having staff available to cover the roster. I find that it did not discriminate against the complainant in relation to seeking to increase her hours. I make no findings in relation to the comments regarding the complainant’s husband because, while I appreciate the emotional impact of any such comment, I do not believe they can amount to harassment within the ambit of the Employment Equality Acts.

I find that there is no evidence of victimisation, i.e. adverse treatment of the complainant for have raised any issue relating to her family status or race or for making the within complaints. I note, for example, that the respondent ceased paying for rest breaks in April 2015, and even if the complainant is correct that she was singled out for this treatment, the discussion over the complainant’s hours only resumed in August 2015.

Complaint made pursuant to the Organisation of Working Time Act (CA-00002692-003)

The contract of employment provided by the respondent is silent as to whether rest breaks are paid for. The respondent is correct in its submission that the recovery of payment for rest breaks that should have been paid does not fall within the ambit of the Organisation of Working Time Act. Having heard the evidence, I am inclined to find as fact that the respondent ceased paying the complainant for her rest breaks because she was a part-time worker and that she was treated differently to colleagues. In reaching this conclusion, I note that, in cross-examination, it was not confirmed by all witnesses that all staff were not paid for rest breaks after April 2015. I also note that the respondent did not inform staff of the significant change of not paying rest breaks in or about April 2015 by either a staff meeting or a circular to staff. I contrast this with the staff meeting in early 2012 regarding the new contract. In spite of this finding, this is not a matter that is amenable for adjudication under the Organisation of Working Time Act. This could be a matter for consideration under the Payment of Wages Act or the Protection of Employees (Part-Time Work) Act. Applying Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210, it is not open for this adjudication to award redress pursuant to those statutes.

There was conflict between the parties as to the complainant’s entitlement to daily rest breaks. The complainant asserts that she should have been given a 30 minute break when she worked for six hours. The respondent asserts that the complainant was entitled to a 15 minute break. I was supplied with the working time records for the period of February to August 2015 and from March 2014 (when the complainant worked full-time hours). Having reviewed the 2015 work records, they show 57 days on which the complainant worked from 8am to 2pm, a shift of six hours and during which she is recorded as having received a 15 minute break. This does not comply with section 12 of the Organisation of Working Time Act, when she should have been afforded a 30 minute break. From the records, there were occasions, for example afternoon shifts, where the complainant was entitled to only a 15 minute break (which was afforded to her) and other occasions, where she worked the full day and received her rest breaks in full. There are other occasions in which the copy of the work record is unclear, so I cannot make a finding on whether a breach occurred (there were 12 such records).

I have found that there were breaches of section 12 of the Organisation of Working Time Act because when the complainant worked an 8am to 2pm shift, she only received a 15 minute break. She should have been provided with a rest period of 30 minutes for a shift of this duration. Given the frequency of the breach and the importance of daily rest periods, I award the complainant €1,500 as damages for the breach of this statutory right. This award is redress for the breach of a statutory right regarding rest periods during the working day and does not refer to remuneration or financial loss, and, of course, could not do so as rest breaks provided to the complainant were not paid for.

Complaint made pursuant to the Terms of Employment (Information) Act (CA-00002692-004)

This claim does not succeed as the complainant was presented with an employment contract within two months of the commencement of her employment, i.e. on the 9^th January 2012.

Decision:

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

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 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.

Complaint made pursuant to the Unfair Dismissals Act (CA-00002692-001)

For the reasons outlined above, I find that the complaint made pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay to the complainant redress of €13,716.

Complaint made pursuant to the Employment Equality Acts (CA-00002692-002)

For the reasons outlined above, I find that the complaints of discrimination, harassment and victimisation made pursuant to the Employment Equality Acts are not well founded.

Complaint made pursuant to the Organisation of Working Time Act (CA-00002692-003)

For the reasons outlined above, I find that the complaint relating to breaches of section 12 of the Organisation of Working Time Act is well founded and the respondent shall pay to the complainant redress of €1,500. This award is not made in respect of remuneration or arrears of remuneration.

Complaint made pursuant to the Terms of Employment (Information) Act (CA-00002692-004)

For the reasons outlined above, I find that the complaint made pursuant to the Terms of Employment (Information) Act is not well founded.

Dated:   8^th May 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Unfair Dismissal Act

Constructive dismissal

Grievance procedure

Employment Equality Acts

Race ground

Family Status ground

Harassment

Victimisation

Section 12 of the Organisation of Working Time Act

Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210

Terms of Employment (Information) Act