Complainant

Respondent

Anonymised Parties

A Cleaner

A Hospitality Business

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014862-001

09/10/2017

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

CA-00014862-002

09/10/2017

The complainant submitted her complaints on 9 October 2017. On 23 March 2018, the Director General delegated the cases to me for hearing and decision. I held a joint hearing with both parties on 17 April 2018.

CA-00014862-002 – Employment Equality Acts:

The complainant’s case on her discrimination complaint concerned numerous complaints related to the recording of her work hours, interactions with a particular manager, criticism of the quality of her work and issues with her pay, which the complainant attributed to her national origin – she is Portuguese – and which she says constitute discrimination on the ground of race.

During her oral evidence, however, it turned out that her co-workers were three young women from Brazil who at various times worked alongside her.   According to the complainant, these women were treated just as bad as her. There was one older, long-time employed Irish employee who, in the evidence of the complainant, was much better treated.   The complainant in particular complained that when she was asked to cover that employee’s work, her efforts drew much criticism from management.

CA-00014862-001 – Unfair Dismissals Acts:

As regards her complaint of unfair dismissal, the complainant asserts that upon her return from holidays, she was called into a meeting and informed that her job was now done by an outside cleaning company. She was asked to fill out a P45 request form. According to the complainant, the job offer in the respondent’s guest house was only made after the complainant refused to request her P45.   The complainant refused this offer because in light of her immediate experiences with the respondent’s management, she had no trust in this offer. She disputed the respondent’s evidence that it was because the hours did not suit her due to her studies. She also stated that she refused to request her P45 because in her view, it was the respondent who was dismissing her and replacing her with outside cleaners. The complainant noted that her dismissal notice was dated two days later than the date on her P45, which she first saw at the hearing of the complaint.

The complainant confirmed that no structured process was followed to address the alleged shortcomings in her work.

As regards mitigation of her loss, the complainant stated in evidence that she continued in another part-time job which she had held independently of her employment with the respondent, and which paid €10.40/hour at 30 hours per week.

CA-00014862-002 – Employment Equality Acts:

The respondent runs a hospitality business which comprises a pub, a restaurant, and a guesthouse. It has 65 staff of different nationalities. The complainant was one member of a team of three young immigrant women who were tasked with doing the daily cleaning of its restaurant.   It denied discriminating against the complainant in her terms and conditions of employment. Whilst the respondent accepted the likelihood of the bar manager’s behaviour, based on its knowledge of his personality, it disputed that the complainant was not paid for hours worked, or that the complainant had no chance to sign in for her hours. The respondent witnesses said that all staff entered the premises through the guesthouse, and that all staff signed in and out there. In terms of the complainant’s pay, payslips of the complainant were produced in evidence.

As regards the alleged poor treatment of the complainant and her Brazilian workmates, the respondent stated that concerns about the quality of the work of all four women had arisen since 2016. The respondent had not succeeded in addressing those.   According to the respondent, the older Irish worker had been in their employment for more than ten years. Her task was cleaning the respondent’s pub. At the material time, this woman was undergoing chemotherapy and the complainant and her colleagues were asked to cover some of her tasks.   The respondent denies discrimination.

CA-00014862-001 – Unfair Dismissals Acts:

The respondent, who gave their evidence first, accepted that whilst the complainant was away on holiday, a decision was made to end the employment of her and her two colleagues and to hire a new outside cleaning team. According to the respondent, this was due to the standard of work of all three of them.     The respondent pointed to a considerable number of text messages, directed to all of them, on this topic.   However, the respondent accepted that the complainant had never had an individual meeting with her manager to address these problems, and had not been advised at any time that her job was in danger. When the complainant returned from holiday and asked about her cleaning rota, the respondent texted her to call her in for “a chat”. In this meeting, the complainant was told that the respondent wished to move forward in terms of their cleaning service and have a fresh start with the newly hired team, who were engaged on a trial basis. The respondent stated that the new service cost “pennies more” than the previous cleaning team and worked out well.

As regards the complainant’s employment, the respondent asserts that the complainant was offered a cleaning role in their guesthouse, which would have given her greater supervision. The complainant rejected this offer, according to the respondent due to either study obligations or payment issues (the respondent’s evidence varied in this regard), and instead asked about her notice period.   The complainant withdrew her complaint about her notice period during the hearing.

It was therefore the respondent’s understanding that the complainant did not want to continue with the company. It confirmed that the complainant’s employment with them came to an end on 6 August 2017. This was verbally confirmed to the complainant during a meeting.     According to the respondent, the complainant did not ask for written confirmation of her termination of employment.   The respondent further stated that in order to provide the complainant with her P45 form, she would have had to sign a P45 request form (an internal document of the respondent organisation) and since she did not do this, she was not provided with her P45.   It was in fact acknowledged by both parties that the complainant first had sight of her P45 form at the hearing of the complaint. The respondent, although it was in possession of the complainant’s address, stated in evidence that it never considered sending the form to her by post.  

CA-00014862-002 – Employment Equality Acts:

The issue for decision in this complaint is whether the complainant was discriminated against

In order to make a valid prima facie case of discriminatory treatment on the ground of race, pursuant to S. 85A of the Employment Equality Acts, the complainant needs to identify a comparator of a different race who received more favourable treatment than her. This is specified in S. 6(1) of the Employment Equality Acts, where discrimination is defined as “a person 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)”, which includes the ground of race on which the complaint was brought.

The second component of a valid prima facie case is that the complainant proves the facts from which less favourable treatment could be inferred. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.

In coming to my decision, I have considered all oral and written evidence presented to me by the parties.

As regards the complainant’s comparator, it is the complainant’s own evidence that her three workmates were Brazilian and according to her, equally badly treated.   Whether this was the case or whether, as the respondent asserts, there were continuing problems with the quality of the work of them all, is to some extent a moot point – there is agreement between the parties about the equality of their treatment. As regards the complainant’s Irish colleague, a long-term employee of the respondent’s, it is common case that this woman was facilitated with a lighter workload due to her health problems.   It appears therefore that she was receiving a form of reasonable accommodation due to serious illness.     I am therefore not satisfied that she can be said to have been in a “comparable situation” to the complainant and the other young women within the meaning of the Acts, to serve as a valid comparator within the meaning of S. 6(1) of the Acts.

As regards the complainant’s evidence in general, I note that she did not produce any written evidence in addition to her oral evidence on the issues of pay and signing in, and I accept the respondent’s evidence as regards her pay and hours.   Furthermore, it is clear from copies of text messages between the parties that the complainant did raise the bar manager’s behaviour with the respondent, but did not make a complaint of harassment within the meaning of the Acts, that is, harassing behaviour that referenced her race or national origin. She only complained of his rudeness, which, as noted, the respondent accepts.

Overall, I am satisfied that between the complainant’s difficulties of identifying a valid comparator and the evidence adduced by both sides in regard of her complaint of discrimination, that no valid prima facie case has been made out for discrimination in her terms and conditions of employment or other discriminatory conduct.

I am turning now to the complainant’s complaint of unfair dismissal.

CA-00014862-001 – Unfair Dismissals Acts:

The events which led to the complainant’s dismissal from her employment with the respondent have so many procedural faults that I have no difficulty finding that her dismissal was unfair. As already summarised above, there was no dispute that no individual performance improvement process was engaged in with the complainant, and that the complainant was not warned that her employment could be at risk.   Neither was there any form of appeal available to the complainant. In other words, there was no way for the complainant to influence the decision to terminate her employment, of which she learned wholly unexpectedly on her return from her holiday.   From the respondent’s own evidence, it is clear that the respondent simply “had enough” of employing the complainant and her colleagues and decided to replace them with someone else, with no notice to the affected workers.   This has to be close to a textbook definition of an unfair procedure. I wholly accept that faced with such a development, the complainant placed no trust in the respondent’s offer to clean in their guesthouse instead, and considered herself dismissed.   I also accept the complainant’s evidence that the offer of a cleaning role in the guest house was only made after she protested her dismissal.

There was no dispute that the complainant had been employed by the respondent for one year and three months, and had thus sufficient service to bring a complaint under the Unfair Dismissals Acts 1977-2015.

As regards the complainant’s mitigation of her loss, I accept that she continued to work in her other part-time job, which by the details given in her evidence, probably supplied the lion’s share of her income. As regards mitigating the loss of her employment with the within respondent, I note that the complainant, in a technical sense, had no opportunity to do so because the respondent withheld her P45. As noted repeatedly above, the complainant only came into the possession of her P45 at the hearing of the complaint, nearly eight months after her employment with the respondent ended.  I find this to be very troubling poor conduct on the part of the respondent.  

In the circumstances, I find that awarding the complainant 36 weeks’ compensation, from the date of her dismissal on Sunday 6 August 2017 to Sunday 15 April, i.e. the Sunday before Tuesday 17 April 2018, which was the hearing date on which the complainant came into possession of her P45, to be fair and reasonable. The complainant’s income from her work varied, but from her P45, can be averaged at €127.44 per week. Accordingly, her compensation would be €4588, subject to lawful deductions.

For the reasons outlined in detail above, I find that the respondent did not discriminate against the complainant, in her terms and conditions of employment, and on the ground of race, contrary to Sections 8 and 6(2) of the Employment Equality Acts, 1998-2015.

I find that the complainant was unfairly dismissed from her employment with the respondent contrary to Section 6 of the Unfair Dismissals Acts 1977 to 2015.   I therefore order, pursuant to the provisions of Section 7 of the Unfair Dismissals Acts 1977 to 2015, that the respondent pay the complainant €4588, subject to lawful deductions, in compensation for her dismissal. The reasons for this award and how it connects to the complainant’s loss, are outlined in the preceding section.

Employment Equality Acts 1998-2015 – race – conditions of employment – harassment – Unfair Dismissals Acts 1977-2015 – no procedures followed – no opportunity for worker to influence her dismissal – P45 form withheld from complainant until hearing of complaint – difficulty of mitigating loss of employment in this situation.