Complainant

Respondent

Anonymised Parties

Beauty Salon Worker

Beauty Salon

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00015803-002

14/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00015803-003

14/11/2017

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

CA-00015803-004

14/11/2017

The complainant commenced employment with the respondent with effect from March 31st, 2017, on a gross weekly wage of €390. The complainant contends that her employer did not furnish a statement of her terms and conditions of employment, that the employer failed to return her maternity benefit form and that she had been discriminated against via bullying behaviour. At the time of submitting these complaints, she was on certified sick leave for work related stress.

CA-00015803-002: The complainant contends that she did not receive a written statement of her terms and conditions of employment (i.e. a contract or handbook).

CA-00015803-003: This complaint (under the Parental Leave Act, 1998) contends that her employer was unwilling to sign a Parental Leave document (and would not return her maternity benefit form).

CA-00015803-004: The complainant contends (under the Employment Equality Act, 1998) that she was bullied/isolated/ignored by reason of her age. As a result, she has had to take work-related certified sick leave.

CA-00015803-002: Contracts were issued to all employees in October 2017. The claimant was in possession of an employee handbook (being provided with same on 15 November 2017) and was also aware that the respondent was in the process of updating practices and procedures within the workplace at the time of the commencement of these proceedings. For claimant to succeed under the Terms of Employment (Information) Act 1994 it must be proven that the respondent failed to provide them with a statement of their main terms and conditions of employment. The claimant was informed in writing at the time she commenced work with the respondent of the main terms and conditions of her employment, though this was not consolidated into one document. There is no requirement that the respondent provide a ‘policy handbook’ pursuant to the Act. Where any breach of the 1994 Act is technical or minor in nature, considerations of fairness or equity could not justify an award of compensation to the claimant (see Philmic Ltd. t/a Premier Linen Services v. Petraitis (TED1616); Grant Engineering (Ireland) v. Delaney (TED1728) and Irish Water v. Hall (TED161)). As the claimant has not adduced any particulars of loss with respect to any alleged failure on the part of the respondent pursuant to the 1994 Act, any award should be measured in light of these case precedents.

CA-00015803-003: The claimant’s partner furnished the respondent with a MB2 form on Saturday 11 November 2017. The Claimant received the completed MB2 form by post on Wednesday 15 November 2017 (2 working days after the respondent received the claimant’s MB2 form).

CA-00015803-004: The law requires that the claimant establish a prima facia case of discrimination before the burden of proof shifts to the respondent. The claimant has alleged that the most recent date of discrimination was 12 October 2017. However, no specifics of negligence, bullying, isolation or being ignored have been put forward. No perpetrator or perpetrators have been identified, no times, dates or locations have been cited. The claimant has failed to specify what aspect of her age has resulted in the alleged discrimination. Furthermore, the claimant has failed to identify a comparator, whether actual or hypothetical as required by the legislation with respect to discrimination based on the grounds of age. To require a respondent to enter a submission or attend a hearing, on the basis of the information provided by the claimant would breach the respondent’s rights to natural justice.

With regard to the allegation of ‘victimisation’, it is pertinent that ‘victimisation’ is not concerned with protecting against adverse treatment connected with any of the protected grounds within the Employment Equality Act, but rather it protects against persons involved in the enforcement of rights under the Employment Equality Acts, either as complainants, witnesses or persons who assisted those parties.

It should also be noted that the claimant was informed of the existence of a grievance procedure, but failed to utilise same. Related thereto, the claimant was responsible, in the first instance, for communicating issues she was experiencing to the respondent in a timely manner. It is not the responsibility of the respondent to address matters of which the respondent had no knowledge.

CA-00015803-002: The claimant contends that she (verbally) requested the relevant information, but that it was not furnished until Nov. 2017. The respondent contends that contracts were issued to all staff in October 2017. However, under the relevant enactment, anyone who works for an employer for a regular wage or salary automatically has a contract of employment. While the complete contract does not have to be in writing, an employee must be given a written statement of terms of employment within 2 months of starting work. The statement of terms must include the following information:

·         The full name of employer and employee

·         The address of the employer

·         The place of work

·         The title of job or nature of work

·         The date the employment started

·         If the contract is temporary, the expected duration of the contract

·         If the contract of employment is for a fixed term, the details

·         Details of rest periods and breaks as required by law

·         The rate of pay or method of calculation of pay

·         The pay reference period for the purposes of the National Minimum Wage Act 2000

·         Pay intervals

·         Hours of work

·         That the employee has the right to ask the employer for a written statement of his/her average hourly rate of pay as provided for in the National Minimum Wage Act 2000

·         Details of paid leave

·         Sick pay and pension (if any)

·         Period of notice to be given by employer or employee

·         Details of any collective agreements that may affect the employee’s terms of employment

The failure to furnish same exposes the employer to pay an employee compensation of a maximum of 4 weeks’ remuneration.

The respondent acknowledges that the relevant information was not provided to the claimant within the requisite timescale and that what was provided was ‘not satisfactory under the Act’. The claimant explained that this left her at a disadvantage, esp. when taking (e.g. maternity and sick) leave.

CA-00015803-003: The claimant furnished the respondent with a MB2 form on Saturday 11 November 2017 and received the completed MB2 form by post on Wednesday 15 November 2017. Beyond considerations as to the applicable enactment, this time span could not be construed as obstructive or as constituting an undue delay.

CA-00015803-004: In the course of the hearing the claimant acknowledged that she was not discriminated against on the grounds of age (in contrast with the content of or allegation on the relevant complaint form). When asked which of the 9 grounds (as provided for under the relevant enactment that the complaint was submitted) pertained to the complaint, she replied that she was not discriminated against under any of the 9 grounds.

CA-00015803-002: The claim is upheld and the complainant is awarded €1,560, to be paid within 42 days of this decision issuing.

CA-00015803-003: The claim is not upheld.

CA-00015803-004: The claim is not upheld.

Contractual terms; Discrimination