DWT1725

This is Ms Brown’s (‘the Complainant’) appeal to the Court from a decision of an Adjudication Officer (ADJ-00002383, dated 26 April 2017). The Adjudication Officer considered claims under the following Acts: the Employment Equality Act 1998 (‘the 1998 Act’); the Terms of Employment (Information) Act 1994 (‘the 1994 Act’); the Maternity Protection Act 1994; the Organisation of Working Time Act 1997 (‘the 1997 Act’); and the Payment of Wages Act 1991 (‘the 1991 Act’). The Notice of Appeal – whereby the Complainant appeals from each of the decisions made by the Adjudication Officer, save one decision in relation to payment in respect of annual leave - was received by the Court on 5 May 2017. The Appeal was heard in Dublin on 17 October 2017. Further documentation was requested from Lisa Sheppard T/A Zinc Hair and Beauty (‘the Respondent’) in the course of the hearing. This was received on 23 October 2017. The Complainant’s Solicitor submitted his written observations on the issue of the maximum compensation permitted under the 1997 Act were the Court to uphold the complaints in respect of public holidays (see below). Mr Grogan’s letter was received by the Court on 26 October 2017.

The Complainant was employed as a part-time Hair Stylist by the Respondent from 26 July 2012 until she resigned her employment with effect from 19 March 2016.

Complaints under the 1998 Act

The Complainant alleges that she that she was sexually harassed and that she was also discriminated against in the workplace on grounds of age. The incident of sexual harassment is alleged to have taken place in May 2015 and the incident of alleged age discrimination in February 2016. A number of the within complaints were received by the Workplace Relations Commission on 18 March 2016. Additional complaints were received by the Commission on 1 April 2016.

The issue of whether or not the complaint in respect of the alleged incident of May 2015 was within time or not was raised before the Adjudication Officer and he determined that the Complainant had not demonstrated reasonable cause such as to permit him to allow her an extension of time to bring it. The issue falls to be consideredde novoby this Court. The Complainant relies on the second alleged incident that occurred in February 2016 in this regard and submits that as that event occurred within the six-month period prior to her lodging her complaint under the 1998 Act there is therefore a continuum of discriminatory acts stretching back from the later incident to that of May 2015. It is well established that continuing discrimination can arise where there are a series of separate acts or omissions which, although not forming part of a regime, are sufficiently connected so as to constitute a continuum. However, in order to rely on this type of continuing discrimination the Complainant must first establish that there an actual act of discrimination within the six-month period preceding the reference of the complaint. (Ann Hurley v Cork County VECEDA1124 applied.) It follows, therefore, that the Court must first examine the evidence before it in relation to the second of the alleged incidents and only if that complaint is upheld will it be necessary for the Court to consider the question of whether or not the first alleged incident is in a continuum with the second such that it should be deemed to have been brought within time.

The Complainant stated the following in respect of the incident of February 2016 in her direct evidence to the Court. She said the incident occurred on 27 February 2016 shortly after her return to work following a period of maternity leave. On the occasion in question she was having a conversation with two colleagues (Ms Tanya Fox and Janine) when a third colleague (Kelly) intervened and asked what age the Complainant was to which Ms Fox replied that she was thirty. The Complainant alleges that Kelly then said that the Complainant looked more like forty.

In cross-examination, it was put to the Complainant that she had not made a complaint to her employer at all about this alleged incident and had not referred to it in her letter of resignation. The Complainant accepted both propositions and that she had first raised it when she submitted her initial complaint form to the Workplace Relations Commission on 18 March 2016. Ms Tanya Fox gave evidence for the Respondent. She told the Court that she had no recollection of the conversation taking place on 27 February 2016 or at all as alleged by the Complainant. She further told the Court that she is a skin care therapist and that the Complainant occasionally bought skin care products from her and that she recommended products to her from time to time appropriate to her age. This was the only context, the witness said in her evidence, in which anything related to the Complainant’s age arose for discussion.

There is clearly a conflict of evidence between the Complainant and Ms Fox in relation to the incident which the Complainant alleges amounts to age discrimination and which she says occurred on 27 February 2016. Ms Fox was alleged to have played a role in the incident. However, she herself has no recollection of the incident having occurred at all. Moreover, she gave convincing evidence of the very limited – and non-discriminatory - circumstances in which the Complainant’s age did fall was mentioned. Having considered the evidence adduced from both the Complainant and Ms Fox, the Court finds that on the balance of probabilities that the conversation the Complainant alleges took place on 27 February 2016 did not in fact occur then or at all. The Court is support in its finding in this regard by the fact that the Complainant failed to raise the alleged incident with Ms Sheppard directly or in her letter of resignation.

It follows that the Court cannot accept Mr Grogan’s submission that the alleged incident of May 2015 should be deemed to be within time on the basis that it is in a continuum with the alleged discriminatory incident of February 2016. In the alternative, Mr Grogan submitted that the Complainant had reasonable cause for not bringing her complaint to the Workplace Relations Commission within six months of the alleged incident as required by the 1998 Act due to her pregnancy at the time and the fact that she went on maternity leave shortly after the incident allegedly occurred. Ms Sheppard – the Respondent – in her evidence stated that the Complainant went into labour earlier than expected and commenced her maternity leave on 9 July 2015. Ms Sheppard also told the Court that the Complainant had never raised a complaint with her in relation to the alleged incident between May and July 2015. In fact, Ms Sheppard had received a complaint from another employee (Ms Tanya Fox) in relation to the issue which cast the incident in a very different light from that in which the Complainant seeks to portray it.

Section 77(5)(b) of the 1998 Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338,Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

• “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The test formulated inCementation Skanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

• “The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The Complainant in the within appeal is relying on her pregnancy and the fact that she was subsequently absent from the workplace on maternity leave in support of her application for an extension of time to bring her complaint in respect of the alleged incident of May 2015. Clearly her pregnancy ended on the birth of her child. The fact of her pregnancy cannot, therefore, be relied as basis for application. It appears to the Court that the Complainant’s application for an extension of time is predicated only on her belief that she was justified in delaying lodging her complaint by virtue of her having been on maternity leave. However, she was due to return from this period of protective leave on 9 January 2016 but entered into an agreement with the Respondent to use her accrued public holiday entitlements to delay her return to work until 23 January 2016. As stated previously, she didn’t lodge her complaint until 18 March 2016. Her maternity leave had long since ceased as of that date and cannot therefore be relied on by the Complainant as a basis for seeking to extend the time limit. Accordingly, the Court finds this complaint under the 1998 Act to have been brought out of time and that no basis to extend the time limit has not been made out by the Complainant. The Court so determines.

Complaints under the 1994 Act

It is common case that the Complainant received two Statements of Terms and Conditions from the Respondent pursuant to the 1994 Act. She received the first statement on 26 July 2012 at the commencement of her employment. She received the second statement on 1 July 2013 following a change in the Respondent’s business address.

Mr Grogan submits that the above statements are not fully compliant with the requirements of the 1994 Act in six respects and that the breaches he has pointed to cannot be considered to be minor or technical in nature or otherwise so insubstantial as to bring them within thede minimisrule. The Respondent accepts that there are deficiencies in the written Statements she furnished to the Complainant. However, on her behalf, Mr Kelly BL submits that the Complainant suffered no loss as a consequence of the said technical breaches and that the Court should apply the determination of a previous Division inIrish Water v HallTED161 in which the Court held that “the dictates of fairness or equity could not justify an award of compensation” to the Complainant in respect of a series of technical breaches he had identified in the statement/contract with which he had been furnished at the outset of his employment by Irish Water.

In the within appeal, Mr Grogan submits the following breaches occur in the statements furnished to the Complainant:

• 
  (i) The times at which the specified breaks allowed during the working day could be taken are not specified;

  (ii) The statements make reference to an annual leave year which does not coincide with the statutory annual leave year specified in the Act of 1998;

  (iii) The Complainant’s place of work is not specifically stated although the Respondent’s address is included in the statements;

  (iv) The statements do not specify a pay reference period for the purposes of section 23 of the National Minimum Wage Act 2000;

  (v) The Complainant was not advised of the Respondent’s nominated PRSA provider;

  (vi) The actual notice period that the Complainant was entitled to under the contract was not specified and she was not furnished with a copy of the Minimum Notice and Terms of Employment Act 1973, which was referenced in the statement.

Complaint under the Maternity Protection Act 1994 and Complaint under the 1991 Act

Mr Grogan accepted that the complaint submitted under the Maternity Protection 1994 and that submitted under the 1991 Act are inextricably linked. The Complainant’s case is that she was not permitted to return to the same job following her period of maternity leave as that which she had prior to going on maternity leave. She alleges that she was required to work one day less per week following her return to work on 23 January 2016 compared to her normal working week in the period immediately prior to 7 July 2015. The Respondent submits that its common practice in the hair dressing industry to place staff on shorter working hours in the post-Christmas period because there is typically a reduced demand for services in this period. The Respondent directed the Court to the provision in the contract of employment issued to the Complainant on 26 July 2012 wherein the Respondent reserves the right to place staff on short-time and/or lay-off. In accordance with the foregoing provision – included in the contract of employment issued to all staff in the Respondent’s business – all staff (with the exception of two Hair Stylists who were rostered to work on the two busiest days of the week only), including the Complainant, had had their working hours reduced in this manner in 2013, 2014, 2015 and again in 2016. Notwithstanding this, the Respondent had offered additional work to the Complainant (on Fridays and then on Wednesdays) following her return from maternity leave in January 2016. However, it transpired that Fridays were not suitable because the Complainant’s husband worked on Fridays. The Complainant initially accepted the offer of an additional day’s work on Wednesdays but in fact worked on only one Wednesday before telling the Respondent that it no longer suited her to work on that day of the week.

The Court finds that the above complaints under the Maternity Protection 1994 and under the 1991 Act are not well-founded having regard to the cogent and convincing evidence proffered by Ms Sheppard and Ms Fox about the annual practice in the Respondent’s business of reducing employees’ working time during the months of January and February having regard to a reduced demand for the Respondent’s services at that time of year.

Complaints under the 1997 Act

The Complainant advance two complaints on the appeal before the Court under the 1997 Act: the first relates to public holidays; and the second relates to Sunday premium payments.

The Complainant submits that she was paid only €20.00 in respect of the Christmas Day 2015 public holiday. She also submits that she did not receive any benefit in respect of the public holidays that fell during her period of maternity leave until after the maternity leave period had concluded. Ms Sheppard’s evidence to the Court is that she had discussed with the Complainant prior to the commencement of the latter’s maternity leave period the possibility of the Complainant using her public holiday entitlements to take additional leave following the completion of her official period of maternity leave. This arrangement – she told Court – was firmed up by agreement with the Complainant in early January 2016. Hence, the Complainant’s return to work at that time was deferred until 23 January 2016. Ms Sheppard, by way of explaining how the payment of €20.00 was calculated in respect of 25 December2015 gave evidence of her understanding of how she believed payment for a public holiday which falls on a day the employee is not normally rostered to work should be calculated.

The Court accepts the payment in respect of the public holiday which fell on 25 December 2015 was wrongly calculated due to a genuine misunderstanding on the Respondent’s part. The Complainant should have received a payment equivalent to 20% of her normal weekly wage in respect of that public holiday. However, the Court has had regard to the evidence given by Ms Sheppard in respect of the arrangement freely and jointly agreed between her and the Complainant whereby the Complainant used her accrued public holiday entitlements to extend her period of absence from the workplace following the conclusion of her maternity leave period. In those circumstances, no substantive breach of the Act occurred in respect of the Complainant’s public holiday entitlements that caused the Complainant to suffer a detriment, financial or otherwise (other than the underpayment of the amount due to her in respect of 25 December 2015).

The Court, accordingly, upholds the award of €250.00 made by the Adjudication Officer to the Complainant (in respect of that aspect of her complaint that relates to her public holiday entitlements) as being just and equitable in all the circumstances.

The Complainant also takes issue with the manner in which she was remunerated for Sunday work and submits that she did not received a premium for Sunday work. It is common case that the Complainant worked four hours when required to work on a Sunday and was paid €60.00. It follows that her hourly rate for so working was €15.00 per hour which is approximately 1.5 times her rate of pay for working during the week. It follows, therefore, that this aspect of the claim under the 1997 Act is not well-founded.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
2 November 2017______________________
JDDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.