Complainant

Respondent

Anonymised Parties

Export Operative

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Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00010599-001

28/03/2017

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

CA-00010599-002

28/03/2017

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

CA-00010599-003

28/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00010599-004

28/03/2017

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

CA-00010599-005

28/03/2017

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

CA-00010599-006

28/03/2017

The claimant commenced employment with the respondent on June 13th, 2016 and resigned with effect from Jan. 15th, 2018. On March 16th, 2017, she brought 6 discrete complaints to the Commission (see above). In the order listed above, firstly, she contends that due to the volume of work allocated she was not in a position to take her rest breaks. Secondly, she contends that she is due payment for annual leave accruals. Thirdly, she is claiming recompense in respect of the hours worked in excess of her contractual arrangement (and the working time legislation) with the respondent. Fourthly and fifthly, she claims unfair dismissal and finally, sixthly, she alleges discrimination on the grounds of gender, family status and disability. The claimant’s last day at work was Feb. 20th, 2017, when she left on stress\health and safety related leave and was not due to return until the end of her maternity leave. On Feb. 28th 2017 the claimant submitted her complaints to the respondent under the latter’s Grievance Procedure. Further to investigation, the respondent rejected the claimant’s grievances as unfounded.

As outlined above, the claimant commenced employment with the respondent on June 13th, 2016 and resigned with effect from Jan. 15th, 2018. On March 16th, 2017, she brought 6 discrete complaints to the Commission (see above). In the order listed, firstly, she contends that due to the volume of work allocated she was not in a position to take her rest breaks.   She contends that she raised this matter with her supervisor several times (e.g. in the course of ‘daily huddles’). Secondly, she contends that she is due payment for annual leave accruals. This is estimated at 20 days. Thirdly, she is claiming recompense in respect of the hours worked in excess of her contractual arrangement and working time legislation. These extra work hours were necessitated by the volume of work, which she felt was inappropriate for a staff member of her (limited) service. Fourthly and fifthly, she claims unfair dismissal. Though she was not formally dismissed, the dismissal might be categorised as a claim of ‘constructive’ dismissal. Finally, sixthly, she alleges discrimination on the grounds of gender, family status and disability. This claim is associated with the claimant’s pregnancy.     The claimant’s last day at work was Feb. 20th, 2017, when she left on stress related leave and was not due to return until the end of her maternity leave. On Feb. 28th 2017 the claimant submitted her complaints to the respondent under the latter’s Grievance Procedure. Further to investigation, the respondent rejected the claimant’s grievances as unfounded. The claimant’s version of events led the Health and Safety Authority to advise her that her stress was work related and that she should ask her employer about altering her work environment\load\arrangements. The claimant’s G.P. took a broadly similar view of the scenario and also wrote to the respondent in respect of same.

The respondent categorically and unequivocally rejects all complaints\allegations made by the claimant and submitted extensive supporting documentation\evidence in respect of their position. With regard to the 6 discrete complaints brought to the Commission (see above) firstly, she contends that due to the volume of work allocated she was not in a position to take her rest breaks. She contends that she raised this matter with her supervisor several times (e.g. in the course of ‘daily huddles’). The respondent contends that they never forbade the claimant from taking her breaks and that ‘she received her rest breaks in line with those provided for under the Act’. Secondly, she contends that she is due payment for annual leave accruals. This is estimated at 20 days. The respondent contends that the entitlement stands at 21 days and it is their intention to pay the sum due on return from maternity leave. Thirdly, she is claiming recompense in respect of the hours worked in excess of her statutory legal entitlements (and contractual arrangement) with the respondent. The extra work hours were necessitated by the volume of work, which she felt was inappropriate for a staff member of her (limited) service. The respondent contends – and produced supporting evidence to show - that they did not breach working time regulations as ‘the claimant worked on average less than 40 hours per week’ and in any case (as per the employment contract) they would be under no obligation to pay overtime. Related thereto, the respondent reviewed the claimant’s workload and found that it was ‘well within range and capacity’. Fourthly and fifthly, she claims unfair dismissal. The respondent insists that the claimant was ‘at no point dismissed’ and that ‘the employment contract has not been severed by either party’. Finally, sixthly, she alleges discrimination on the grounds of gender, family status and disability. This claim is associated with the claimant’s pregnancy.   The respondent contends that the claimant has failed to make a ‘prima facie’ case of discrimination.

The claimant’s last day at work was Feb. 20th, 2017, when she left on stress\health and safety related leave and was not due to return until the end of her maternity leave. On Feb. 28th 2017 the claimant submitted her complaints to the respondent under the latter’s Grievance Procedure. Further to a ‘thorough investigation’, the respondent rejected the claimant’s grievances as unfounded. The findings were that the workload was manageable, the handover and support structures were sufficient and the company had a duty of care … that meant they could not allow her to return to the workplace until she had been classed as fit to do so’. The claimant’s version of events led the Health and Safety Authority to advise her that her stress was work related and that she should ask her employer about altering her work environment\load\arrangements. The claimant’s G.P. took a broadly similar view of the scenario and also wrote to the respondent in respect of same. However, the respondent notes that the claimant enjoyed ‘reasonable accommodation’ in respect of same and presented examples in support of their position (e.g. counselling, support staff, reallocation of load, risk assessment). Furthermore, they point out that on the advice of their retained Occupational Health Physician (OHP), for the protection of the of the claimant - who was deemed unfit to work by the OHP – the claimant was granted (health and safety) leave as her ‘pregnancy would be best served by being out of the workplace’. The respondent also records that they liaised with the Health and Safety Authority for the purpose of meeting their various obligations.

On March 16th, 2017, the claimant brought 6 discrete complaints to the Commission (see above).

CA-00010599-001: In the order listed, firstly, she contended that due to the volume of work allocated she was not in a position to take her rest breaks.  With reference to same, it is notable that pursuant to the Organisation of Working Time Act 1997, an employer must put in place and notify in writing to each employee of a procedure whereby an employee may notify in writing to their employer the fact that they were unable to take a rest break that they would have otherwise been entitled to. The employer must keep a record of having notified the employee of their right to rest breaks and also keep a record of having notified each employee of the procedure to notify the employer in the event that they do not take their rest break (regulation 3).

CA-00010599-002: Secondly, she contended that she is due payment for annual leave accruals. This was estimated at 20 days. The respondent contended that the entitlement stands at 21 days and it is their intention to pay the sum due on the claimant’s return from maternity leave.

CA-00010599-003: Thirdly, she claimed recompense in respect of the hours worked in excess of her statutory and contractual arrangement with the respondent. The extra work hours were necessitated by the volume of work, which she felt was inappropriate for a staff member of her (limited) service. The respondent contends – and produced supporting evidence to show - that they did not breach working time regulations as ‘the claimant worked on average less than 40 hours per week’ and in any case (as per the employment contract) they are under no obligation to pay overtime.

CA-00010599-004 and CA-00010599-005 Fourthly and fifthly, she claims unfair dismissal (under 2 enactments). The claimant submitted her complaint to the Commission on March 16th, 2017. There is no evidence to substantiate the claim that she had been dismissed (constructively or otherwise) on this date.

CA-00010599-006: Sixthly, the claimant alleges discrimination on the grounds of gender, family status and disability in respect of harassment and employment conditions. As per the provision at Section 85 A of the Employment Equality Act 1998, in such scenarios it is (and has been) the established practice of the Equality Tribunal, the Workplace Relations Commission and the Labour Court that in the first instance the complainant must present basic facts from which it can be inferred that he\she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory grounds cited. For example, this is apparent from the Labour Court’s reliance on or analysis of the Southern Health Board v Mitchell (DEE011, [2001] ELR 201) case. Arising therefrom, the first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. That is, on the balance of probabilities, the claimant must show from the primary facts upon which they rely that this principle of equal treatment has not been applied to them. It is only if and when those primary facts are established to the satisfaction of the adjudicating third party - and they are regarded by the third party as being of sufficient significance to raise a presumption of discrimination - that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.

For example, in the Margetts v Graham Anthony & Company Limited (EDA038) case,the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court, stating that:

‘The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.’

Hence, it is only when the complainant has discharged this burden to the satisfaction of an Adjudication Officer\third party that the burden shifts to the respondent to rebut any inferences of discrimination. In this instance the claimant failed to meet this preliminary threshold, as no such instances or evidence of discrimination under the specified grounds in respect of this complaints were presented\raised at the hearing.

With reference to the claims as listed above (CA-00010599) the Adjudication Officer finds:

CA-00010599-001 - The claim is well founded and succeeds. An award of €2,000 to the claimant is made and must be paid within 42 days of this decision.

CA-00010599-002 – The claim is well founded and succeeds. An award of €2,800 to the claimant is made and must be paid within 42 days of this decision.

CA-00010599-003 – The claim is not well founded and fails.

CA-00010599-004 – The claim is not well founded and fails.

CA-00010599-005 – The claim is not well founded and fails.

CA-00010599-006 – The claim is not well founded and fails.

Working time records; dismissal; equality.