Complainant

Respondent

Anonymised Parties

A   car saleman

A car showroom

Act

Complaint Reference No.

Date of Receipt

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

CA-00001380-001

10/12/2015

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

CA-00001380-002

10/12/2015

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

CA-00001380-003

10/12/2015

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

CA-00001380-004

10/12/2015

The   complainant worked for the respondent between 1999 and 2015, when he resigned   his employment following the respondent’s refusal of his application for   annual leave. He has lodged complaints regarding how his application for   leave was treated and the circumstances around the ending of his employment.   The respondent denies the claims.

The   complainant said that there were a number of elements to the claim made   pursuant to the Employment Equality Acts; one was the discrimination and a   second was the forced resignation of the complainant. Primary schools finish   at the end of June and return at the end of August and in 2015, the   complainant’s children were 12, 9 and 6. There was nothing in the   complainant’s contract of employment about taking annual leave at particular   times of year and the employee handbook makes reference only to taking two   weeks’ annual leave together. The respondent had circulated a modified   commission structure in an email of the 16^th February 2012. Point   2 of the email refers to a “reasonable approach” around targets to take   account of annual leave; nothing in the email refers to restricted annual   leave. This showed that the targets were flexible to accommodate annual   leave. The complainant referred to the evidence of annual leave had been   taken in previous years. His estimated income for 2015 was €70,000, including   benefits, Christmas bonus and golf club membership. The complainant outlined   that the respondent was a group structure and he worked at a named car   showroom. The Brand Manager had declined the complainant’s request for annual   leave in 2015 and there was a conflict between them over whether there had   been a change in custom and practice with respect to annual leave and   targets. The complainant referred to a note of the 20^th May 2015   apparently written by the Managing Director of his conversation with the   complainant and the complainant’s detailed grievance complaint of the 16^th   June 2015. This refers to his exceeding the targets for July 2015, to his   stress at his request for annual leave being refused and that no other staff   were scheduled to take annual leave at this time. While the respondent had   assigned the Financial Controller to hear the grievance, the complainant said   that the Financial Controller was lower on the pecking order than the   Managing Director, to whom he had already referred the issue.

The   complainant outlined that the target for 2015 was the sale of 105 cars and   that month, he had already made six sales and eight pre-orders. With 14   orders, he had met the target. He did not believe that the respondent had not   met its target. He referred to a named person working in another respondent salesroom   who had been able to take annual leave in July 2015. The complainant also   referred to the email sent to him by the Brand Manager at 16.25hrs on the 29^th   June 2015. This emailed contained revised targets for the complainant to meet   in order for him to take annual leave in July. The complainant stated that   the timing of the email was significant as his wife had just phoned the   respondent receptionist to inform the respondent that he had been taken to   hospital with chest pains. Commenting on the targets, the complainant said   that they had been sent to him when on sick leave and contained impossible   targets, for example increasing the profit target to €1,500. The complainant   referred to the memorandum of a conversation between the HR Officer and the   complainant’s union representative of the 2^nd July 2015. The   complainant tendered his resignation by letter of the 3^rd July   2015, following which the respondent asked that he meet with the Managing   Director on the 6^th July 2015, an invitation he declined. The   complainant referred to the account prepared by the Brand Manager at a time   he was still in the employment of the respondent and that there was no   attempt by the Brand Manager to reconsider his position with respect to his   annual leave despite the complainant’s resignation. The complainant had been   certified on sick leave until the 4^th July 2015. He described the   subsequent actions of the respondent in cancelling his phone as an act of   victimisation. This included the accusation made by the Brand Manager that   the complainant had stolen a mobile phone. The complainant resolved the issue   of the phone himself on the 13^th July 2015.

The   complainant submitted that his claim pursuant to the Employment Equality Act   related to indirect discrimination on the family status ground regarding the   annual leave. The claim of victimisation pursuant to the Act related to less   favourable treatment arising from his grievance and request to go on annual   leave, when his targets were increased and he was threatened with dismissal.   In respect of the claim made pursuant to the Organisation of Working Time   Act, the complainant referred to sections 19(3) and 20(1) and his entitlement   to two weeks’ unbroken leave and the employer’s duty to have regard to work requirements   and the need for the employee to reconcile work and family responsibilities.   The targets imposed by the respondent in June 2015 interfered with the   complainant’s statutory right to annual leave. It was submitted that   financial burden cannot amount to objective justification for indirect   discrimination. This was distinct to the claim of constructive discriminatory   dismissal.

In legal   submissions, the complainant referred to the case of Allen v Independent Newspapers [2002] 13 E.L.R. 84 and submitted   that the complainant had met the obligation of availing of the grievance   procedure. He also submitted that the reference to health and well-being   applied to his case as he had informed the respondent of his stress. The   complainant referred to KHS AG v Shulte   (C-214/10), where the Court of Justice of the European Union emphasised   the importance of paid annual leave as an important principle of EU social   law and pursuant to the Charter of Fundamental Rights. Relying on O’Donnell and others v Health Service   Executive (DEC-E2006-023), the complainant referred to his roster that   provided he work a five and a half days per week, working until 2pm on   Saturdays and that a rule that prevented the taking of annual leave over the   summer was indirectly discriminatory on the family status ground. The   complainant relied on the test for victimisation set out in Department of Defence v Barrett EDA   1516 and submitted that he relied on section 74(2)(f) where he had been   victimised for opposing by lawful means an unlawful act. The complainant had   sought to take annual leave and was subject to adverse treatment. There had   been a reaction to the complainant taking a protected action.

In   evidence, the complainant said that he started employment with the respondent   in April 1999. He was there to sell cars. There had been four franchises with   a great many sales staff. They would sort out holidays themselves. As the   sales team reduced in time, they would discuss their holidays together. One   named colleague had a young family and asked to take annual leave in early   August. It was practice to discuss holiday needs with colleagues and then to   submit a request to the manager online. It was not practice for the manager   to indicate any reply and one might only receive a formal response on one’s   return from annual leave. His working hours were 9 to 6.30 Monday to Friday   and 10 – 3 on Saturdays. He was paid a working week of 39 hours, but worked   53 – 55 hours per week, as well as commission. There was no overtime pay.   This was hard on work/life balance, for example he missed out on taking his   children to Saturday morning sporting activities. It was practice that they   worked six days per week in the months of January to March and they arranged   in other months to each get a Saturday off a month. As it was not possible to   take annual leave between January and March, the taking of annual leave over   the summer was important for family life.

The   complainant outlined that there had been no issue with him taking annual   leave in July 2014, including on the part of the Brand Manager. In 2015, the   complainant had spoken with colleagues and one said that he was taking 18   days in late July. This left the complainant with early July or 10 days at   the end of August. The school holidays were to start on the 28^th   or 29^th June and to end on the 29^th or 30^th   August. He commented that Portugal was expensive in late August. The   complainant submitted an online request for annual leave on the 14^th   May 2015 and was then off on other annual leave for two days. It was only   during the following week that he was told that his request for annual leave   had been refused. By this stage, the complainant had already booked holidays,   and it was the norm to do so, as one might not hear back formally from the   respondent.

The   complainant outlined that his target for sales in 2015 was 105 cars and the   target for July 2015 was 14 cars. He was ahead of his annual target, having   sold 70 cars ahead of a target of 64. He was on target in May 2015 and was   one behind in June 2015. He had seven additional orders for deals to complete   in July, when the ‘152’ plate would issue. He believed that he was on target   for July 2015. The Brand Manager raised the targets issue when he turned down   the complainant’s request for annual leave. The Brand Manager said that the   complainant should consider his position in the company, stating that the   complainant should “row in or get out.” The complainant replied that he was   on target but no effort was made to check targets. Commenting on the Brand   Manager’s note of the 4^th July 2015, the complainant did not   accept that he had been irate in their conversation of the 20^th   May 2015. This could have been a heated conversation. He explained that he   could not take annual leave in June 2015 as the children were still in school   and they were back in school at the end of August. It was also 30% more   expensive in August. The complainant accepted that he had told the Brand   Manager that he had not booked flights, but later told him that he had booked   flights. The complainant had been trying to meet his targets. The Brand   Manager told him that if he did not like it, he should get out.

The   complainant said that he had been flabbergasted by the Brand Manager’s   response and raised this with the Group HR Manager. She suggested seeking to   resolve the matter at local level. He later sent her his grievance. This was   very stressful for him and he had trouble sleeping. The complainant also   raised this with the Managing Director, who batted this down to the Brand   Manager, while the Brand Manager said that it had been the Managing   Director’s decision.

The   complainant had no choice but to lodge a grievance and did not think he would   have to involve the union because of his loyalty and attendance. He said that   he had been told there and then at the grievance meeting that the answer was   “no” and there was a threat to his job. The Financial Controller said he   would seek a compromise with the Managing Director and the Brand Manager. The   complainant commented that the Managing Director was the Financial   Controller’s line manager. The complainant said that a named Senior Manager   sets all the targets regarding sales of the brand of car sold by the   respondent and he became involved as the complainant had contacted HR. This   Senior Manager was the same level as the Managing Director. He referred to   comments attributed to the Senior Manager by the Brand Manager (in his note   of the 4^th July 2015) and that this Senior Manager had said that   staff could not be let go on holidays. The complainant referred to a   colleague in a showroom for another brand of car who was allowed go on annual   leave on the 10^th July 2015.

After the   grievance, he raised this matter again with the Brand Manager, who said he   would discuss this with the Managing Director. The complainant was later told   that he could avail of the annual leave if new targets were met. He said that   he was not sleeping or eating at this time, and it was difficult for him to   do his job. His sales dropped at this time. On the 1^st July 2015,   this all hit him as he made his way home for lunch and he became unwell. His   wife drove him to their GP and he was then brought to hospital by ambulance.   He spent that night in hospital and it was all down to stress and strain.

The   complainant said that he saw the targets set by the respondent in its email   of the 29^th June 2015 on his return to work on the following   Wednesday. This asked him to sell 16 units in a short period of time. At this   time, he described himself as being foggy and not able to understand. He said   that sales of cars of another manufacturer had always been counted in their   targets and in the calculation of profit margin. He described the targets and   the approach of the respondent as “bananas stuff” and that he was being   bullied for wishing to go on annual leave. He had been given until the 8^th   July 2015 to reach the targets and it hurt him that this is how he was being   treated after working for the respondent for 16 years. The complainant   offered the compromise of working on the day of his departure (9^th   July 2015) and also working on the day of his return. He said that he would   not have met the new targets set by the respondent.

In respect   of his resignation, he said that he had nowhere else to go to and had already   raised this issue with the Brand Manager and Managing Director. He described   himself as being all over the place mentally and commented that no-one in the   respondent had contacted him when he was on sick leave, even though they knew   how he had been brought to hospital by ambulance. He had worked for the   respondent for 16 years. He submitted his resignation to the Brand Manager,   who accepted it and asked the complainant to sign it. He did not ask the   complainant to reconsider. The complainant later received phone calls and   letters from the respondent, delivered by email and by courier. He was not in   a state of mind to meet the Managing Director. The complainant availed of the   holiday and when he was away, his phone was switched off and diverted to the   showroom. No-one from the respondent had mentioned him availing of the annual   leave after he tended his resignation. The complainant later returned keys,   an iPhone 5 and a company car to the respondent. In respect of his phone, the   complainant said that while he had been supplied with an iPhone 5 by the   respondent, he had returned this. He had used an iPhone 6, but he had   purchased this himself. The complainant said that his basic pay was €23,000   plus commission, which was calculated according to sales and car finance   targets. Where he met the target of 105 car sales, his income would be   €70,000. The P60 issued stated his income at €58,000. There were also   employer contributions at 4%, a 50% contribution to golf club membership and   the provision of a phone, worth €50 per month. He had built up a Christmas   bonus worth between €10 – 15,000.

In respect   of mitigation, the complainant outlined that he had been specifically trained   in the high profile car sold by the respondent. This involved training in   Germany and further online training. He had also received training in car   finance. The respondent had four dealerships and the only other dealer of the   car brand was in a named location, too far away from his home. The   complainant said that after a month, he began a role with a letting agent and   worked two or three days a week. The full-time salary for the role was   €30,000 per year. He had become unemployed in the two weeks before the first   day of adjudication. He had sought similar sales roles, but they attracted   €30,000 full time per year or €15,000 part-time, with no commission.

In   cross-examination, it was put to the complainant that the handbook provides   that annual leave must be agreed with the manager according to operational   and manpower needs; the complainant accepted this, but referred to custom and   practice as he had described in evidence. The complainant accepted that 2013   had been the first year of the second registration, and while there had been   little increase in sales in the first year, there were larger increases in   2014 and 2015. It was put to the complainant that the Brand Manager had   raised issues in 2014 about his annual leave between the 19^th July   and the 9^th August 2014 and that he had taken annual leave in   August in previous years; the complainant accepted he had availed of annual   leave in August. It was put to the complainant that the Brand Manager would   say that in his 3.5 years as the complainant’s manager, he always responded   to applications for annual leave before the start of the leave and not   afterwards; the complainant did not accept that this was the case and there   would be no immediate response to leave. The system was lax and the Brand   Manager had only once got back before the first day of leave. The complainant   said that he had not had the chance of speaking to the Brand Manager prior to   his formal request for leave in 2015. It was put to the complainant that he   received every second Saturday off, with part-time cover provided on   Saturdays; he replied that they worked every Saturday for the first three   months of the year, after which the rota kicked in. It was put to the   complainant that only one member of the sales team closed every day; he   replied that one of the team of four would stay until 6.30pm and if he was   not closing, he could leave between 5.50 to 6.15pm. It was put to the   complainant that there was a conflict regarding their conversations in 2014   when the Brand Manager said that annual leave would be an issue next year;   the complainant did not accept that this conversation had taken place. It was   put to the complainant that while a named colleague had taken leave for the   first two weeks of August, there was still the last two weeks in this month;   the complainant replied that this colleague was to return on the 17^th   August and the schools would already be back on the 29^th and 30^th   August. It was put to the complainant that he thought he had a right to   annual leave when he wanted; he replied that he had a right to go on annual   leave. In respect of his conversation with the Brand Manager of the 20^th   May 2015, the complainant accepted that they agreed to disagree about what   had been discussed in 2014, but that he had not lied about not booking   flights or hotels. He accepted that he had already made reservations. It was   put to the complainant that the Brand Manager had no issue with an overlap of   annual leave in August between the complainant and the colleague; the   complainant replied that it was possible that this had been discussed but he   had booked the holiday. It was put to the complainant that August was possible   as his children were off school; he said that he only had two weeks at the   end of August and he told the Brand Manager later that day that he had booked   holidays. It was put to the complainant that he told the Brand Manager that   the showroom targets were his problem; he replied that he had said that it   was his job to meet his targets. He recalled the Brand Manager saying that   each had a role in reaching the showroom targets. It was put to the   complainant that August was a reasonable alternative made available to   accommodate his family needs; he replied that he agreed with this but he had   already booked. It was put to the complainant that he was not prepared to   resile from pre-booked annual leave; he accepted this. It was put to the   complainant that his offer of compromise was to work on the day he was to   leave; he said that he had also offered to work on the day of his return. It   was put to the complainant that the respondent had made offers of annual   leave in August or taking leave starting the last week of July, but he was   not prepared to budge; the complainant replied that he offered to work two   extra days. It was put to the complainant that when he said that he was   meeting his targets, he was looking at commission targets.

It was   then submitted on behalf of the complainant that the respondent had failed to   provide such targets to a data access request and only provided redacted   targets in response to subsequent correspondence. It was put to the   complainant that the showroom target was the basis of the annual bonus   payment; the complainant replied that he only ever received topline targets   and was not made aware of the showroom targets. He did not have a clear   understanding of how the bonus was calculated, but he knew it was a   percentage of “wash-out”.

In further   cross-examination, it was put to the complainant that the Brand Manager was   concerned with showroom targets; he replied that he was on target and six   above target. It was put to the complainant that the Brand Manager had made   his decision regarding annual leave on the basis of meeting the showroom   target; he replied that he was six ahead with 64 sales and 7 pre-orders. It   was put to the complainant that he was behind the target of 70 and that the   showroom target had been 87; he emphasized that he was on target. It was put   to the complainant that the Brand Manager had the showroom target at the back   of his mind; he replied that there was a known target and an unknown target.   In respect of the grievance procedure; it was put to the complainant that the   Group HR Manager had pointed him to the grievance policy; he replied that she   had batted him off. It was put to the complainant that during the grievance   process, he had been given the option of taking leave in August 2015 either   in overlap or at the end of the month but he was not prepared to go in   August; he replied that this was not feasible as a colleague had taken leave   in early August and unfortunately, his holidays had been booked. He said that   he had not made enquiries about changing his flights but there would been a   cost to do this. He said that he expected the respondent to say immediately   if it was declining his online request for leave and would have seen this   straight away on his phone. It was put to the complainant that the Brand Manager   suggested that the complainant move his annual leave to the last week of   July. It was put to the complainant that in July 2014, he had sold one car   per day, so the target set out in the email of the 29 June 2015 was   reasonable; he did not accept that the target was reasonable. In respect of   the timing of the phone call and the email, the complainant did not accept   that his wife’s phone call and the sending of the email occurred at the same   time and that the phone call had been made earlier. The complainant accepted   that his consultant had given him the all clear and that he had not required   medication. He said that he was depressed in a general sense and not in a   medical sense. It was put to the complainant that he then resigned without   making a further grievance and with the option of third party resolution; he   accepted that the option was there but he had invoked the grievance   procedure. He had spent six or seven weeks going from one to another and   ended up in hospital. He was then given eight days to achieve a target. It   was put to the complainant that he had lodged a grievance on the 16^th   June and this was replied to on the 18^th June, that a hearing had   taken place on the 25^th June and he resigned on the 3^rd   July 2015; he replied that he had tried to resolve this at local level and   that the grievance was the last stage. He then received the email of the 29^th   June 2015. It was put to the complainant that the Brand Manager had   telephoned him a few times; he replied that there may have been one text but   there had been no human aspect or concern. It was put to the complainant that   the Managing Director had asked him to come in; he replied that he was not in   a state of mind to come in. He accepted that he was not on prescribed   medication.

In respect   of mitigation, it was put to the complainant that at this time, six named car   dealers were looking for sales staff; he replied that he had specialised in a   named car brand and that he had applied for one or two roles. He obtained a   role in a letting agency and this presented a different opportunity.

In   re-examination, the complainant referred to the exhibited copy of the email   from the receptionist to the Brand Manager on the day he was taken to   hospital. He said that the email of the 29^th June 2015 required   two sales and two deliveries per day. In respect of alternative periods of   annual leave, he said that it had been suggested that there were would one   week in July or two weeks at the end of August. He also faced the cost of   hiring and the availability of an apartment in August. He outlined that the   Group HR Manager had batted him off; he had wanted her to help him and to   have a chat. She would not meet him.

The wife   of the complainant gave evidence. She outlined that her husband worked six   days per week most weeks, especially between January and March. They had to   block weekends off to do anything. The weekends were busy as she did all the   runs for sport and her husband missed out. This was an issue in particular   for her youngest child, who has asthma. She had previously asked the primary   school to take her children out during the school term, to leave before the   end of the school year or to dip into September, but the school did not   recommend or condone this. The school did not want to set a precedent and for   children to miss out on either the start or end of a school year. Her   youngest child had also reached her quota of school absences because of her   health.

In respect   of the events of the 29^th June 2015, the wife of the complainant   said he came home and looked washed out. He told her that he felt very unwell   and he was unable to drive. They booked an appointment with a GP. Later, an   ambulance was called to the GP surgery, at which time the complainant was   drenched and a waxy colour. He did not need to be revived. She travelled with   her husband to hospital, where he spent the night and was transferred to a   different hospital the following day. In respect of the complainant’s annual   leave, she said that the complainant had felt defeated between the 20^th   May and the 29^th June when he sought to obtain approval for the   leave, especially as they had previously availed of a holiday at this time of   year. She could not recall any discussion of an overlap in early August, so   late August was the only option. She submitted that the complainant had   worked for the respondent for 16 years and no-one resigns willy-nilly.

The   hearing adjourned and resumed for a second day on the 6^th February   2017. At this, the complainant addressed matters raised on the previous day.   In evidence, the complainant commented that he had never seen the annual   leave policy, dated the 26^th June 2006 prior to the last day of   these proceedings. In respect of the email of the 31^st May 2012,   the complainant accepted that this was an approval for his annual leave, but   said that this did not state how long it took to approve his application for   leave. In respect of the other historical records, he said that there were   missing requests from August, September and October 2012, from March, April   and May 2013 and 2014. There was no rhyme nor reason whether a request for   annual leave would be formally approved. The last one was the decline of the   3^rd June 2015 to his leave between the 9^th and 24^th   July 2015. The complainant referred to the 2015 commission structure that   provides a target of 105 for new and used car sales. The complainant   commented on a landscape spreadsheet exhibited by the respondent, dated the 8^th   December 2014, which gives a target of 100. His name is not on the   spreadsheet and he had never seen this document before. He had also never   seen a second spreadsheet of the same date, upon which his first name is   inscribed. In further cross-examination, the complainant accepted he applied   for leave via an online system prior to taking leave. It was put to the   complainant that applications could be approved or declined; he replied that   there was a time lapse in getting a response. It was put to the complainant   that his application for annual leave in June 2013 was approved in a few   days; he replied that they would make sure there was cover prior to applying   for leave. It was put to the complainant that there was a difference between   a commission target and a showroom target; he replied that he had obtained   from a colleague a spreadsheet giving targets for 2015. This document has “BM   MB” inscribed on the top left of the sheet, and gives commission and   desirable sales targets. The commission target for July was 11 and the   desirable target was 17.

In closing   submissions, the complainant submitted that there had been breaches of the   Organisation of Working Time Act in relation to rest breaks and the keeping   of records. There had not always been the opportunity for the complainant to   take breaks. On the 14^th May 2015, the complainant applied for   annual leave and in evidence, the Brand Manager had not said that annual   leave could not be taken in July. The complainant would not have known that   he could not apply for annual leave in July. The complainant had taken annual   leave in July before and this represented a change to his contract of   employment. It was submitted that a test of reasonableness was the most   difficult for an Adjudication Officer to implement. The complainant submitted   his request for annual leave on the 14^th May 2015 and booked a   deal available for July. He had no reason to believe his request would be   refused. The process of approving annual leave was hit and miss, with   examples of leave being approved months after it was taken. It was submitted   that the complainant’s requests for annual leave are missing from the   documentation despite his data access request. It was further submitted that   the complainant’s premature booking of a holiday goes to mitigation, as   opposed to reasonableness. It was submitted that if the July targets were so   important and annual leave could not be taken in this period, employees   should have been informed of this. This had a particular impact on people   with families; there is no exception in the Organisation of Working Time Act   for targets. The complainant was not given the chance to avail of annual   leave and this amounts to indirect discrimination on the family status   ground. It was submitted that family rights were fundamental rights within   the Charter of Fundamental Rights. In respect of victimisation, the   complainant submitted that when he raised issues relating to annual leave, he   was entitled to protection. Instead, he was told that the targets would   increase, to what the respondent classed as the showroom targets. This   included a higher profit margin of €1,500 and being given the deadline of the   9^th July 2015. This breached company policy where targets would be   reduced to accommodate annual leave. The Brand Manager had said that the   complainant had gone over his head and matters were now aggravated. The   complainant relied on the Department of   Defence v Barrett EDA1516 regarding the victimisation of someone who   makes an equality complaint. The complainant relied on O’Donnell and others v Health Service Executive, a case of   indirect discrimination regarding rosters and the countervailing right to   family life of the employees. It was submitted that in this case, the right   to reconcile family life and the complainant’s family status were overridden   by the pursuit of profits. In respect of the complainant’s decision to resign,   it was relevant to take account of the email regarding new targets, and the   miscalculation of the target, and that he did not know of the showroom   targets. The complainant had lost faith in the respondent and it was the   complainant’s health that prevented him from going back to work. It had taken   an awful lot for him to resign when he had no other employment to go to. This   had not been a decision he had taken lightly. The complainant had been   discriminated against by the respondent when it was unwilling to deal with   the issues raised by the complainant. Its response had been to increase   targets and to make the complainant’s annual leave conditional. This would   not have happened to someone without family status.

The   Managing Director gave evidence. The respondent had four dealerships and   employed 160 employees. It made losses after 2008 but came into profit in   2011. The year 2013 was the start of two-tier registrations and there was a   second bite of the cherry in the month of July. This month was now the second   biggest month for registrations. Targets are set by the distributor and   assigned to the showroom. The respondent in turn set their budgets according   to the targets. They could be penalised for missing a target. The respondent   changed the bonus structure to incorporate distributor targets, in particular   for a leading manufacturer.

In respect   of the complainant, the Managing Director said that the showroom target was   the most important target. The complainant was off target for new car sales   of the leading manufacturer by 23 cars. The Managing Director had also   declined annual leave requests for two other staff members, based in other   dealerships. The complainant had rung to meet him and explained his   predicament. I replied that it was the decision of the Brand Manager. He said   that his letter of the 3^rd July 2015 had been in response to the   complainant’s resignation and he sent further letters of the 8^th   and 15^th July 2015.

In   cross-examination, the Managing Director said he was aware of the   complainant’s entitlements under the Organisation of Working Time Act and   agreed that the Court of Justice of the European Union had determined that   cost and financial considerations do not excuse discrimination. He said that   the respondent took great care of staff and accepted that the complainant had   worked for the complainant for 16 years. It was put to the Managing Director   that the complainant had come to him in despair; he replied that he would not   intervene with the decision of the Brand Manager. He expected the complainant   to engage with the Brand Manager and he had only been involved briefly. It   was put to the Managing Director that the Brand Manager had already said   “no”; he replied that he expected the complainant to engage more and to come   to a compromise. All matters are resolved by negotiation, even between a line   manager and a subordinate. It was put to the Managing Director that he had a   role in the grievance; he replied that he had met and listened to the   complainant. In respect of the document showing a deficit of 23 cars; the   Managing Director said the complainant was actually 26 cars behind, counting   new sales of the leading manufacturer. The complainant’s target set by the   distributor was 49 for the first half of 2015 and this was set at the end of   December 2014. He accepted that the complainant had only seen this document   on the day of the last hearing despite a data access request and that the   commission target had been 105. It was put to the Managing Director that the   Brand Manager’s email of the 29^th June 2015 makes no mention of   the complainant being 26 cars behind; he accepted that this was the case. It   was put to the Managing Director that the email refers to the complainant   selling 50% of the target and today was the first time that the figure of 26   was mentioned; he said that this was not his role as he did not manage the   showroom. The complainant would have known what his target was. It was put to   the Managing Director that the complainant had presented a target sheet from   a colleague currently employed by the respondent; he replied that this was   the commission target. It was put to the Managing Director that he did not   support the complainant in getting annual leave; he replied that he was okay   with the complainant getting annual leave. In respect of his email to the HR   Officer of the 14^th July 2015, he said that this showed he would   back whatever decision the Brand Manager reached. It was put to the Managing   Director that a firm line was taken in the letters of June and July 2015 and   he believed that the company was correct; he said the respondent had been   correct and managers approve leave. It was put to the Managing Director that   the complainant had left in an ambulance so what was the purpose of the chat   after his resignation when the Managing Director had made up his mind; he   replied that he had not made up his mind and would have met the complainant   and referred back to the Brand Manager. He did not agree that the complainant   could have no confidence of his management of the situation. It was put to   the Managing Director that the invitation for a chat after resignation had   been “too little, too late”. It was put to the Managing Director that sales   targets had been met and that no staff had been brought in to replace the   complainant. It was put to the Managing Director that it had taken one month   to place an ad to replace him with the role advertised on the 6^th   August 2015 and filled on the 6^th October 2015; he replied that   the respondent had been anxious to find a replacement.

In   re-examination, the Managing Director said that it had been the complainant   who approached him at a time when he had not lodged a grievance. There were   commission targets and showroom targets, the latter of which were agreed with   the distributors. The respondent had to pre-register cars in order to meet   targets.

In   evidence, the Brand Manager said he had been the manager of the showroom in   December 2011. In respect of annual leave, they would have a discussion with   the sales team, who would also chat themselves. Formal applications were made   online and they would arrive with him within 24 hours. The complainant’s 2015   application was the first occasion he declined an application for leave. In   2014, the complainant had taken annual leave between the 21^st July   and the 1^st August. The year of 2013 had been the first year of   the dual registration and the target doubled in 2014, up to 43 cars. The   targets were increased again for 2015. When he approved the complainant’s   leave in 2014, the Brand Manager said that this was something they would   review going forward. He was clear that this conversation had taken place. He   commented that the leave taken by the complainant in 2014 was later in the   month of July.

In respect   of 2015, the Brand Manager outlined that the complainant had applied for   annual leave on the 14^th May 2015 and he saw the application the next   day. They were a four-person sales team and had a high target for 2015. It   was also an important month for commission. On the Wednesday morning, the   complainant came to ask for a half-day of leave the following Friday. They   discussed the request for the July leave and the Brand Manager said it would   be impossible to achieve the targets with three sales people. The complainant   replied that he had the right to take annual leave. The Brand Manager   commented that the month of July was important and it was about having people   on the ground. The complainant would have been away for three Saturdays and   this left the showroom thin. They were not close to the target by the end of   June and it had been a target of 57 for July. He reminded the complainant of   their conversation the previous year, but he had not recollection of this.   The complainant said that he had not booked a holiday. The Brand Manager suggested   June and the complainant replied that his children would be still in school.   The Brand Manager suggested taking annual leave in August and the complainant   replied that he took annual leave in July.

At the   meeting of the 20^th May 2015, the Brand Manager raised the   complainant’s importance and future in the company. They were a four-person   sales team and everyone had to carry the burden. The car manufacturer had   wanted the respondent to increase the number of sales staff. They had   resisted this as there was not enough footfall and this increase in staff   would lead to reduced salaries. The Brand Manager said that his decision   stood and the complainant replied he would appeal. He formally declined the   request on the 3^rd June 2015 and had left it open because of the   toing and froing. The complainant would have known of the decision to refuse.   The complainant later explained that he had already booked a holiday. The   Brand Manager said he was contacted by the distributor to ask if a sales   staff had requested annual leave, and while they did not say to decline the   application, they emphasised the target. While there were divisions over the   options available, the Brand Manager said he had not taken his stance   lightly. He suggested one week’s leave or that the leave be taken at the end   of July. While he had a good working relationship with the complainant, he   did not want a disgruntled employee on the shopfloor.

The Brand   Manager said that on the Monday, he came with the proposal of a new target.   While it did not cure the problem, it took the pressure off and avoided   having to pre-register cars. He said that the complainant could go but only   having reached these targets. He commented that this was emotional for him   and he had left his own children behind at a named location in Ireland. There   was complete deadlock. In respect of the email of the 29^th June   2015, he said that there was an error in relation to the target as he had   already sold six new cars. His actual target was to sell a car per day. He   thought that the complainant could have met the target and he could have left   the status quo, i.e. the complainant attending work while his family was   away. He outlined that the manufacturer set the showroom target and this is   divided between the sales team. The commission target was lower and is to   provide income to the team. The sales team would know the showroom target.

In respect   of the landscape spreadsheet dated the 8^th December 2014, the   Brand Manager said that such a document was prepared every year. Each month   began at zero, so sales from previous months would not count toward that   month’s target. Past successes were not included. In July 2015, the sales   team had been under pressure with only three sales staff. In respect of the   timing of the email of the 29^th June 2015, the Brand Manager   noticed that the complainant was not in the showroom at about 2 or 3pm. The   receptionist had told him that the complainant had gone to lunch at 2pm. The   showroom was busy and he noticed that there was still no sign of the   complainant at 3.45pm. He then sent the email regarding the revised targets.   It was after this that he was forwarded the email from the complainant’s wife   to say that the complainant had had heart pains and had gone to the doctor.

The   complainant returned to work on the 3^rd July 2015 and gave him the   letter of resignation. The Brand Manager asked if the complainant was sure   and commented that the letter was not signed. He asked the complainant to   sign the letter. They discussed notice, where the complainant said that it   was two weeks while the Brand Manager said he thought it was a month. They   shook hands and that was the end of it. They had a good working relationship   and he was surprised by the resignation. In respect of breaks, the Brand   Manager said that people knew that they could take their breaks whenever they   could. This was at their own direction, including how long they took. The   Brand Manager said he had put the alternatives of June, later in July or in   August, with the latter two being suitable for school holidays. He also asked   the complainant to shorten his holiday, but the complainant kept saying that   he had booked his holidays.

In   cross-examination, the norm of two weeks leave being taken together (as   referred to in the handbook and in the Organisation of Working Time Act) was   put to the Brand Manager. It was put to the Brand Manager that there was no   document regarding the taking of annual leave in July or to say that annual   leave could not be taken in this month; he replied that this would not be   something that would be documented. He accepted that the complainant had   taken annual leave in July in the years of 2013 and 2014. It was put to the   Brand Manager that his notes did not refer to this 2014 conversation; he   replied that he had not had the opportunity to set this out in a document in   2015. It was put to the Brand Manager that there is no reference in the email   of the 29^th June 2015 to the 2014 conversation; he replied that   there was no need to refer back to this conversation. The Brand Manager   accepted that the only time the 2014 conversation had been documented in   writing was after the complainant’s resignation. It was put to the Brand   Manager that the letter of the 9^th July 2015 from the Managing   Director; he replied that the Managing Director would not have known about   this conversation. The Brand Manager did not accept that the complainant had   no expectation that his application for leave in 2015 would be refused. He   outlined that he had said in 2014 that annual leave would be reviewed and he   had not said that there would be no annual leave in July 2015. It was put to   the Brand Manager that the email referred to the showroom target, but not to   other staff; he replied that he had referred to staff cover in the email. The   Brand Manager did not dispute that the complainant had met his targets. It   was put to the Brand Manager that the complainant had been six cars ahead of   target; he replied that these targets were irrelevant as the showroom target   was 57 new cars in July and how the complainant was tracking did not matter   as the target for each month starts again. He had assessed July on its   merits. It was put to the Brand Manager that the Managing Director had said   that the complainant was 23 or 26 cars behind target; he replied that this was   not relevant as the showroom needed to sell 57 new cars in July. The   complainant had been aware of this. It was put to the Brand Manager that the   complainant had received a different spreadsheet; he replied that the   distributor target would have been handed to staff, including the   complainant. The Brand Manager accepted that the commission target was 105,   but with the commission clawback, this was brought back to 100. In 2015,   every month would stand on its own. The Brand Manager was asked whether the complainant’s   target for July had been 12 or 14 cars; he replied that the target was 12 new   cars. He had wanted the complainant to hit the target and the target of 12   was fair to the complainant. He could have fixed a target of 14. He described   the email of the 29^th June 2015 as the last throw of the dice. He   accepted that there was a miscalculation in the email as he had not accounted   for the six cars already sold by the complainant. It was put to the Brand   Manager that he had also increased other targets, for example profit on   sales; he replied that the targets were the main thing and the profit target   he had set was below that of a usual sale.

In further   cross-examination, it was put to the Brand Manager that it would have been   left to the day he was to travel before the complainant could know whether he   could avail of annual leave; he replied that he took it that the   complainant’s family would travel. The application for annual leave had been   declined and this was an opportunity to overturn the refusal. It was put to   the Brand Manager that there were only eight days for the complainant to   sell; he replied that 60% of the sales are done in the first ten days of   July. In respect of the other sales person given annual leave in July, the   Brand Manager said that this was a sales person associated with a different   car manufacturer and he thought that this showroom had taken on additional   staff. He said that part-time staff only did a particular role. It was put to   the Brand Manager that the replacement role of the complainant was not   advertised until August; he replied that there was a drop-off after July and   this was the time the respondent needed all hands on deck. The advertisement   had been placed in September or October in advance of the ‘161’ registrations.   He outlined that the email of the 29^th June 2015 had been a last   ditch attempt to resolve issues. It was put to the Brand Manager that there   was no other compromise possible for the complainant; he replied that the   complainant could have shortened his annual leave. What the complainant had   wanted was against company policy. In respect of the complainant’s   resignation, the Brand Manager said that he asked the complainant whether he   was sure and said that they had not wanted it to come to this. The contents of   the email of the 10^th July 2015 and the reference to cancelling   the fuel card were put to the Brand Manager; he replied that they had a close   knit team and this had spiraled out of control. There are parts afterwards   that the Brand Manager says he now regrets. He had wanted to get the iPhone 6   back and he apologised to the complainant for this. At the time the wage   deduction was raised, the car, fuel card and mobile phone were outstanding.   He said that he had never been in this situation before. He said that the   phone number was diverted as customers could not have reached the   complainant. Any messages for the complainant would have been relayed to him.   It was put to the Brand Manager that his email of the 28^th July   2015 referred to the complainant “dropping in any old phone”; he replied that   this had happened with previous staff. It was put to the Brand Manager that   this was how he treated staff; he replied that it was very unfair to say   this. It was put to the Brand Manager that there had been complaints from   certain named individuals regarding his behaviour; he denied this and   explained the circumstances of his interaction with them. It was put to the   Brand Manager that the respondent had no record of rest breaks; he replied   that people took their own rest breaks and they did not use records.

In   evidence, the Financial Controller said that he was a member of senior   management. He did not accept that the outcome of the complainant’s grievance   complaint had been pre-ordained. He had heard the complainant’s side of the   story, including that he had booked a holiday prior to being approved annual   leave. At the grievance hearing, the complainant said that July was not busy,   but in his role as Financial Controller, he felt it necessary to meet the   showroom targets. The showroom would have lost 25% of its sales team over 14   selling days. The complainant said that he was confident the showroom would   meet its selling target. The Financial Controller asked the complainant to go   back to seek a compromise. He was clear that he was not upholding the   grievance as he had studied all the material and the complainant had not   advanced any new information. He stated that the respondent always took the   business requirements into account. The reference to disciplinary action in the   notes of the grievance hearing was a statement of fact as the complainant had   already broken company policy in booking annual leave without authorisation.

In   cross-examination, the Financial Controller said that this had been the first   grievance hearing he had conducted with the respondent and he had worked for   the respondent for one year. He sought advice from HR, where he took   direction regarding the structure of the hearing. He also drew from his   experience in previous roles. It was put to the Financial Controller that he   was told what to say; he replied that he was informed by the Group HR   Director that he should mention that disciplinary action was possible if the   complainant took unauthorised annual leave. It was put to the Financial   Controller that he should have paused for reflection before concluding the   grievance; he replied that he had already received lots of information from   the complainant and he had advanced nothing new at the hearing. In respect of   the HR Officer’s submission to the grievance, the Financial Controller said   that he was aware that HR had offered alternative periods of annual leave to   the complainant and he confirmed this with HR. He acknowledged that he had   not asked the complainant about alternative periods of annual leave, nor had   he asked why the complainant had turned these down. He thought the   complainant should seek a compromise. Asked about what kind of compromise,   the Financial Controller replied that given the complainant had booked annual   leave, it was for him to compromise. The complainant could shorten his   holidays. He encouraged the complainant to go back to HR. The Financial   Controller said that there had been 15 pre-registered sales and this was a   lot for one month. It was put to the Financial Controller that there had been   a direction from the Senior Manager of the distributor to the HR Officer not   to permit annual leave; he replied that the Senior Manager is not mentioned   in his email and he was not aware of any phone call to the HR Officer. It was   put to the Financial Controller that the Senior Manager had said “do it or   else” in respect of refusing the complainant’s leave; he replied that the   Brand Manager reported to the Senior Manager and had to meet sales targets set   by the Senior Manager, who was not part of the chain of command.

The HR   Officer gave evidence. She said that she was the HR Officer for the   respondent, the distributor and other companies, all owned by the same   holding company. In respect of the conversation with the union representative,   she had enquired how the complainant was, in particular his health. The union   representative raised the issue of annual leave and she replied that the   complainant had already booked annual leave without permission. She explained   the pressure in relation to the “152” registration and the need to have   everyone on the floor. The Brand Manager had given the complainant options   and had made the last ditch effort of the email of the 29^th June   2015. She said that local managers, rather than HR, made decisions regarding   annual leave and according to their needs. She outlined that the Brand   Manager had informed her of the complainant’s resignation and she was   surprised by this. She phoned the complainant as she was concerned about the   issues he raised in the letter of the 3^rd July 2015. She suggested   that he could meet the Managing Director on the following Monday. She then   received an email from the complainant to say that it would not be worth   attending such a meeting and he asked for his final pay.

In cross-examination,   the HR Officer said that she looked after payroll, recruitment and HR   administration. At this time, the Group HR Director was on annual leave. She   had been in the role for seven years. They provided HR support in respect of   330 people. She denied taking direction from anyone in relation to her   conversation with the union representative. In respect of the email of the 20^th   May 2015, the HR Officer said that in the email the HR Director had explained   the remit of the HR department. It was put to the HR Officer that the   grievance policy gives a role to HR; she replied that they could not get   involved in decision-making over annual leave. She accepted that it was an   obligation on the respondent to record rest breaks and these records had not   been taken. The HR Officer did not accept that the complainant had exhausted   all avenues and there was still an avenue of appeal. They could have availed   of a third party. The HR Director had hoped that the matter could be resolved   locally, as per the email of the 20^th May 2015.

In closing   submissions, the respondent outlined that it was factual that annual leave   had to be agreed with the respondent. The approval of annual leave was   subject to work requirements and referred to the wording in section 20 of the   Organisation of Working Time Act, in particular “having regard to work   requirements”. It was submitted that there were nine weeks of school holidays   and the complainant had been given alternatives within the school holiday   period, but they were not acceptable to the complainant as he had already   booked holidays. The respondent had bent over backwards in providing   alternatives. First, it had suggested June, and then later in July or August,   or that the complainant take a shorter holiday. The complainant wanted to go   in July and it was not the case that he had to take annual leave in July. The   complainant’s evidence was that August was too expensive, but this could not   amount to discrimination. The respondent was entitled to have regard to work   requirements and the complainant would have known of the importance of July.   The complainant had been advised to go back to the Brand Manager, but the   only proposal he had was to work on the day he was leaving and the day he   came back. This was not enough. There were no acts of victimisation. This was   not about targets except for the target of 57 new cars of the leading brand   to be sold in July. In respect of the document submitted by the complainant   on the second day of hearing, it was submitted that this was of different   format and had not been provided by the respondent.

In respect   of the resignation, it was submitted that the complainant resigned without   going to the next level. The Managing Director asked the complainant to   reconsider, as did the HR Officer. The respondent had acted reasonably, even   if the complainant did not get his way. The complainant had not acted   reasonably. The Brand Manager should have stayed with the status quo and did   not have come up with solutions to put to the complainant. There was no point   in the respondent setting the complainant up not to reach targets and it   believed that the complainant would meet the targets. The complainant had   been in breach of company policy, but the Brand Manager sought to find   compromise. The email of the 29^th June 2015 cannot amount to   victimisation. It was not the case that the complainant was prevented from   taking annual leave.

In respect   of rest breaks, the respondent put up its hands that it did not maintain   records of rest breaks taken by the complainant. This was a tight-knit group   of sales personnel who did not clock in. The complainant had not raised this   issue and this amounted to a technical breach. The respondent stated that the   sales team worked six days per week between January and March and also in   July.

The   complainant refers four complaints for adjudication. The first is made   pursuant to the Employment Equality Acts and relates to discrimination,   victimisation and discriminatory dismissal. The second is made pursuant to the   Unfair Dismissals Acts and he seeks the redress of compensation. The third is   made pursuant to the Terms of Employment (Information) Act and relates to the   lack of notification of a change in the complainant’s terms of employment. Fourth,   the complainant submitted complaints pursuant to the Organisation of Working   Time Act in relation to daily rest periods and annual leave. The complaint of   unfair dismissal was withdrawn on the first day of hearing.

The   complainant worked for the respondent for 16 years. He worked in a car   showroom, mainly selling vehicles of a high profile car brand. He received   training directly from the manufacturer, for example in finance packages. The   complainant resigned from his employment on the 3^rd July 2015.   This followed his application for a two-week period of annual leave,   commencing on the 9^th July 2015. This was initially refused by the   respondent, and later conditionally approved, provided he met certain sales   targets. The complainant engaged the respondent grievance process, but did   not obtain the outcome he sought. There was a conflict in evidence over what   was discussed between the complainant and the Brand Manager in the summer of   2014 regarding the taking of annual leave. This took place against the   background of the introduction in 2013 of biannual car registrations on the 1^st   January and 1^st July. This also takes place against the background   where car sales increased and distributors increased their sales targets. The   parties raised issues regarding two landscape target sheets, one produced by   the respondent at the first day of the adjudication, which the complainant   had previously sought, and a second produced by the complainant on the second   day of the adjudication, which he obtained from a former colleague.

CA-00001380-001

This is a   complaint pursuant to the Unfair Dismissals Act and was withdrawn by the   complainant on the first day of the adjudication.

CA-00001380-002

This is a   complaint made pursuant to the Employment Equality Acts. The complainant   outlines that there are three elements to this complaint. The first is the claim   of indirect discrimination on the family status ground, the second is constructive   discriminatory dismissal, and the third relates to victimisation. The complainant   is relies on the family status ground, which is defined as:

““family status” means   responsibility—

(a) as a parent or as   a person in loco parentis in   relation to a person who has not attained the age of 18 years, or

(b) as a parent or the   resident primary carer in relation to a person of or over that age with a   disability which is of such a nature as to give rise to the need for care or   support on a continuing, regular or frequent basis,

and, for the purposes of paragraph   (b), a primary carer is a resident primary carer in relation to a   person with a disability if the primary carer resides with the person with   the disability”

Section 6   provides as follows in relation to discrimination:

6. — (1) For the purposes of this Act and without prejudice to its   provisions relating to discrimination occurring in particular circumstances   discrimination shall be taken to occur where —

(a) a person is   treated less favourably than another person is, has been or would be treated   in a comparable situation on any of the grounds specified in subsection (2) (in this Act   referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is   associated with another person —

(i) is treated, by virtue of that association, less favourably than a   person who is not so associated is, has been or would be treated in a   comparable situation, and

(ii) similar treatment of that other person on any of the   discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory   grounds (and the descriptions of those grounds for the purposes of this Act)   are—

…

(c)   that one has family status and the other   does not (in this Act referred to as “ the family status ground”)”

The Employment Equality, 1998 as amended by the   2004 Act provides at section 31 that the provisions of section 22 shall apply   in relation to indirect discrimination on all of the non-gender grounds.   Section 22(1) states:

“(a) Indirect discrimination occurs where an   apparently neutral provision puts persons of a particular gender [marital   status, family status etc] at a particular disadvantage in respect of any   matter other than remuneration compared with other employees of their   employer.

(b) Where paragraph (a) applies, the employer   shall be treated for the purposes of this Act as discriminating against each   of the persons referred to ... unless the provision is objectively justified   by a legitimate aim and the means of achieving that aim are appropriate and   necessary.”

The   complainant asserts that he was discriminated against on the family status   ground when his application for leave was initially refused and later made   conditional on reaching certain targets. This is a claim of indirect   discrimination, so that he must show that the treatment placed persons of his   family status at a particular disadvantage to those without parental   responsibilities. Where the complainant achieves this, it falls on the   respondent to show that the provision is objectively justified.

Assessing   the factual matrix arising in this case, I find that the rule that summer   annual leave could not be taken in early July or was subject to conditions   represents a rule within the ambit of indirect discrimination. Given that the   restrictions on annual leave coincide with the beginning of the school   holidays, it treats people with family status less favourably than those   without. The next question is whether it can be objectively justified. It is   clear that ensuring sufficient sales staff in early July is a legitimate aim,   however, the means used went beyond what was necessary to achieve this aim.   The introduction of a period within which an employee could not take annual   leave or could only do so conditionally was disproportionate in circumstances   where it was formally introduced only after the complainant’s request for   annual leave and without formal advance notice or consultation with staff. Even   if the 2014 conversation with the Brand Manager took place, this was not   sufficient in the light of what was a significant change to the taking of   annual leave. In assessing the detriment caused by the indirect   discrimination, I note that the complainant could have availed of annual   leave at the end of the summer, albeit after incurring financial loss or on a   curtailed basis. I also note that the failure to formally introduce a new   regime of annual leave led to the difficult interchange between the   complainant and the respondent witnesses and the lack of certainty when   annual leave could be taken. Taking these factors together, I make an award   of €12,000 to the complainant.

In respect   of the ending of the complainant’s employment, the definition of “dismissal”   in the Employment Equality Acts explicitly includes circumstances where the   employee resigns. As held by the Labour Court in An Employee (Mr O) v An Employer (No. 2) [2005] E.L.R. 132, the   test of constructive dismissal under the Employment Equality Act mirrors that   in the Unfair Dismissals Act. The Court held:

“This definition is practically the same as   that contained at section 1 of the Unfair Dismissals Acts 1977 –2001 and the   authorities on its application in cases under that Act are apposite in the   instant case. It provides two tests, either or both of which may be invoked   by an employee. The first test is generally referred to as the “contract”   test where the employee argues “entitlement” to terminate the contract. The   second or “reasonableness” test applies where the employees asserts that in   the circumstances it was reasonable for him or her to terminate the contract   without notice.”

Applying   the legal test to the facts of this case, I find that the complaint of   discriminatory constructive dismissal is not well-founded. While I have made   findings against the respondent, they are not of such significance to allow   the complainant to consider himself to have been dismissed by the actions of   the respondent. While a new regime regarding annual leave was introduced in a   disorderly fashion, I note that the door had been left open by the respondent   to address the issues raised by the complainant. The actions of the   respondent did not amount to repudiation of contract, including of the term   of mutual trust and confidence. In these circumstances, it was not reasonable   for the complainant to resign.

Victimisation   is defined in the Employment Equality Acts as follows:

“For the purposes of this Part victimisation occurs where dismissal or   other adverse treatment of an employee by his or her employer occurs as a   reaction to —

(a) a complaint of   discrimination made by the employee to the employer,

(b) any proceedings by a   complainant,

(c) an employee having   represented or otherwise supported a complainant,

(d) the work of an   employee having been compared with that of another employee for any of the   purposes of this Act or any enactment repealed by this Act,

(e) an employee having   been a witness in any proceedings under this Act or the Equal Status Act or   any such repealed enactment,

(f) an employee having   opposed by lawful means an act which is unlawful under this Act or the said   Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having   given notice of an intention to take any of the actions mentioned in the   preceding paragraphs.”

In this case, I find that there is insufficient   evidence to make a finding of victimisation. While I have made findings   against the respondent in respect of breaches of the Employment Equality Act   and the Organisation of Working Time Act, I do not find that the respondent   sought to victimise the complainant within the ambit of the Employment   Equality Acts. I do not find that the Brand Manager’s email of the 29^th   June 2015 was an act to victimise the complainant for raising equality   issues. While I have found that the email was part of the disorderly   introduction of a new regime of annual leave, the targets, even if   unreachable, do not amount to victimisation. The decision to cancel the   complainant’s phone number was certainly regrettable. I, however, see this as   a step taken as a result of the complainant ending his employment with the   respondent, as opposed to an act of victimisation. I reach the same finding   in relation to the fuel card.

CA-00001380-003

This   complaint is made pursuant to the Terms of Employment (Information) Act. This   complaint relates to the failure to notify the complainant of changes to his   holiday entitlements.

Section 3   of the Act provides:

“3.— (1) An   employer shall, not later than 2 months after the commencement of an   employee’s employment with the employer, give or cause to be given to the   employee a statement in writing containing the following particulars of the   terms of the employee’s employment, that is to say—

…

(i)   any terms or conditions relating to hours of work (including overtime),

(j)   any terms or conditions relating to paid leave (other than paid sick leave)”

Section 5 relates to notification of changes to statement of   particulars of an employment. It provides:

“5.— (1)   Subject to subsection (2),   whenever a change is made or occurs in any of the particulars of the   statement furnished by an employer under section 3, 4 or 6 , the employer shall notify the   employee in writing of the nature and date of the change as soon as may be   thereafter, but not later than—

(a) 1 month after the   change takes effect, or

(b) where the change   is consequent on the employee being required to work outside the State for a   period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1)   does not apply in relation to a change occurring in provisions of statutes or   instruments made under statute other than a registered employment agreement   or employment regulation order, or of any other laws or of any administrative   provisions or collective agreements referred to in the statement given under   section 3 or 4.”

I find   that the restriction imposed on the taking of annual leave in July 2015   represents a change to terms and conditions relating to the taking of paid   leave, within the ambit of section 3(1)(j) of the Act. The complainant was   not notified in writing of the change to this term and the complaint is   therefore well-founded. I award redress of €4,000.

CA-00001380-004

This is a   complaint pursuant to the Organisation of Working Time Act. It relates to   daily rest breaks and to the taking of annual leave in 2015, the issue at the   heart of this case. In respect of daily rest breaks, section 12 provides for   rest periods during the working day. Section 25 imposes an obligation on   employers to maintain records. The complainant asserts that he could not   always take rest breaks, while the respondent replied that the taking of   breaks was a matter for staff to take and they did not clock in. I find that   there was a breach of section 12 as the respondent did not ensure that sales   staff did not work beyond the hours permissible in the section. Given that   this was not raised during the course of the complainant’s employment and it   was not clear how many occasions the complainant could not avail of a rest   break, I award €750 as redress for this breach.

The issues   arising from the complainant’s application for annual leave in July 2015 as   an act of discrimination on grounds of family status have been addressed   above. The issue to be addressed here is whether a breach of section 20(1)   has occurred. This provides:

“20.— (1) The times   at which annual leave is granted to an employee shall be determined by his or   her employer having regard to work requirements and subject—

(a) to the   employer taking into account—

(i) the need   for the employee to reconcile work and any family responsibilities,

(ii) the   opportunities for rest and recreation available to the employee,

(b) to the   employer having consulted the employee or the trade union (if any) of which   he or she is a member, not later than 1 month before the day on which the   annual leave or, as the case may be, the portion thereof concerned is due to   commence”

Section   19(3) provides:

“(3) The annual leave of an employee   who works 8 or more months in a leave year shall, subject to the provisions   of any employment regulation order, registered employment agreement,   collective agreement or any agreement between the employee and his or her   employer, include an unbroken period of 2 weeks.”

Article 7   of Directive 93/104/EC provides:

“Annual   leave

1. Member States shall take the   measures necessary to ensure that every worker is entitled to paid annual   leave of at least four weeks in accordance with the conditions for   entitlement to, and granting of, such leave laid down by national legislation   and/or practice.
2. The minimum period of paid   annual leave may not be replaced by an allowance in lieu, except where the   employment relationship is terminated. “

It is   clear from section 20 that the decision to grant annual leave is one for the   employer to make. It provides that regard should be had to work requirements,   but the section also specifically refers to the need for the employee to   reconcile work and family life, and to have an opportunity for rest and   recreation. Section 20 also requires an employer to consult with employee or   the union one month prior to the taking of leave.

Having   reviewed the evidence, it appears that there was a well-established pattern   of working time and leave around the busy January sales period. The complainant   referred to a three-month period where all sales staff worked every Saturday   and did not take leave. The introduction of biannual registrations and what   appeared to be increasing expectations of sales led to the dispute in 2015.   What is striking that there was no formal approach by the respondent to   introduce a similar regime to that applicable at the start of the year. There   was reference to a conversation in the summer of 2014 and the later reaction   of the respondent to complainant’s application for July 2015 leave. Even if   the 2014 conversation took place as described by the Brand Manager, this was   not sufficient to meet the obligations provided in section 20 regarding the   taking of leave and consultation with staff. The introduction of a period in   which no employee could take annual leave represented a significant change   and required a formal process to inform and consult with employees. The fact   of staff seeking to take annual leave in the summer months cannot have come   as a surprise to the respondent. Yet, apart from an informal conversation a   year before, it only acted on the issue after the complainant’s request was   submitted.

Having   assessed the evidence, I make an award of €8,000 for the breach of section   20. This award takes account of the consequences of the breach.

CA-00001380-001

The   complainant withdrew the claim made pursuant to the Unfair Dismissals Act.

CA-00001380-002

I find   that the complaint of discrimination on the family status ground made   pursuant to the Employment Equality Act is well-founded and I award redress   of €12,000 in compensation for the effects of   discrimination. The entire award is redress for the infringement of the   complainant’s statutory rights and, therefore, not subject to income tax as   per Section 192A of the Taxes Consolidation Act, 1997 (as amended).

I find   that the complaints of discriminatory dismissal and victimization made   pursuant to the Employment Equality Act are not well-founded.

CA-00001380-003

I find   that the complaint made pursuant to the Terms of Employment (Information) Act   is well-founded and I award redress of €4,000.

CA-00001380-004

I find   that this complaint made pursuant to the Organisation of Working Time Act is   well-founded and I award redress to the complainant of €8,750, consisting of   an award of €8,000 for non-compliance with section 20 and €750 for non-compliance   with section 12.

Terms   of Employment (Information) Act

Employment   Equality Act, family status ground

Indirect   discrimination

Organisation   of Working Time Act, section 20