Complainant

Respondent

Anonymised Parties

A General Operative

An Agricultural Services Company

Representatives

Peter Nolan B.L. instructed by Elena Gray , Barry Healy & Company Solicitors

No appearance

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-00017610-001

23/02/2018

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

CA-00017610-002

23/02/2018

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

CA-00017610-003

23/02/2018

The Complainant worked as a general operative for the Respondent, an agricultural services company based in north Monaghan since 2015. In mid-2017 the Complainant discovered that all the other employees of the Respondent received 4 weeks paid holidays per annum or payment in lieu. However, since the start of his employment in 2015, the Complainant had not been given paid holidays or payment in lieu in accordance with his statutory entitlement. He was the only non-Irish national working for the Respondent and was the only employee who was not given paid holidays.

At the outset of the hearing the issue of times limits arose.

The Complainant issued his complaints on 23 February 2018 however he stopped working for the Respondent following a work place accident in early August 2017. On the face of it the complaints were potentially out of time.

The Complainant raised two points in respect of this. Firstly, he requested that the time limit of 6 months be extended to 12 months for reasonable cause. He submits that he sustained a serious work-related injury in August 2017 as a result of which he was incapacitated and unable to seek advice from a solicitor for a number of months. Also from August 2017 he was not earning any wages and his wife and son (who has special needs) who were dependant on the Complainant’s income, were placed in an economically precarious position. These problems were compounded by the attitude of the Respondent, who denied that his accident had occurred at work.

The second point the Complainant raises to defeat being out of time, is an alternative argument, namely that the employment never officially ended as while he was not being paid from August 2017 he did not receive a P.45, the Respondent furnished a P.60 on him in March 2018 and in the run up to Christmas 2017 the Respondent telephoned him to request that he do some work, which the Complainant could not do due to his injuries. However, as the employment was never officially terminated and therefore the contact is still extant at the time of the hearing.

CA 00017610-001 (OWTA)

The Complainant alleges that during his employment from June 2015- August 2017 he was made to work excessive hours which exceeded 48 hours per week. He was expected to work during the evening time as well as during the day. The plant was very busy and he was required to perform many different tasks; including the maintenance of tractors and cleaning the premises when the other staff had gone home. He was required to work at weekends and on bank holidays. He was treated differently to the other employees insofar as they observed a 48 hour limit whereas he did not. He was the dogsbody on the plant and was treated differently to everyone else.

CA00017610-003 (OWTA)

The Complainant was not given paid holidays during the time he worked for the Respondent other than one week in 2015.

CA00017610-002 (Equality)

In July 2017 when the Complainant had been working for over 2 years he found out from a work colleague that all the other employees, all of whom were Irish, received paid holidays, whereas he did not. The exception to this was paid one week of annual leave in 2015 when he brought his young son home to Lithuania to visit his father, however other than this one time, he was not allowed to take annual leave in 2015, 2016 or 2017 and he did not receive payment in lieu.

He assumed that due to the plant being so busy that all the employees were treated like this, however this was not the case. In 2017 his Irish work colleague told him that if he were him, he would not continue to work for the Respondent. This work colleague said that all workers are entitled to and received paid holidays. This was the first time that the Complainant discovered this discrepancy in terms of less favourable employment terms.

On hearing this the Complainant’s partner attended the Respondent’s premises to request that the Complainant be either paid for the holidays that were owed to him or be permitted to take paid holidays to make up for that which he had lost. She was told by the Respondent that he had already been given days off when they had to attend hospital appointments with their young son, who has autism. His partner told the Respondent that on those days the Complainant was always required by the Respondent to make up the lost hours by working that evening. During this conversation, the Respondent stated that he did not accept that any monies were due to the Complainant. The Complainant attempted to discuss this complaint with the Respondent directly but any time he did, the Respondent pretended not to hear and cupped his ear and said “Wha? Wha? in an exaggerated way to show that he did not intend to listen to the Complainant’s query.

From Spring 2017 the Complainant became aware that he was the only employee who was not receiving his statutory entitlement to holidays and because he was the only non-Irish national working there he believed that this less favourable treatment was because he was not Irish and the other employees were Irish. This less favourable treatment was evidenced in other ways; he always got the most difficult or unattractive work; for example, dealing with slurry distribution, cleaning after all the others had left the plant and being asked to do unsociable and excessive hours. He was treated in a less favourable way compared to the Irish employees.

Furthermore, once the Complainant suffered a work based accident and sustained a back injury the Respondent refused to accept that the injury was work related and when a medical appointment was made, which the Complainant attended, the doctor informed him that his report would be premised on the fact that the injury had not occurred at work. When the Complainant explained that it had and that the doctor’s information was incorrect the doctor said that he was not at liberty to change this aspect of the report because the report was being compiled at the request of the Respondent.

No appearance

As there was no appearance by the Respondent and having been satisfied that the Respondent was on notice of the complaints I proceeded to hear the evidence of the Complainant, which was uncontested.

Time Limit Extended

This complaint was issued on 23 February 2018. The contraventions occurred prior to August 2017 ie when the Complainant was at work. However, I am extending time to bring the application within a 12 -month period preceding the issue of proceedings. I do so on the basis that due to his injury in August 2018 the Complainant was incapacitated for several weeks and this delayed him from seeking advice, instructing a solicitor and proceedings issuing. I find that reasonable cause to extend time from 6 months to 12 months has been established.

I am not persuaded by the Complainant’s secondary argument that employment is still continuing and even if I were so persuaded this would not alter this position that the claims are out of time. This is because for breaches under the Organisation of Working Time Act 1997 and under the Equality legislation time does not run from the date of dismissal (as in an Unfair Dismissal case) but rather from the date of the breaches, all of which predate the end of the employment.

CA00017610 – 001 (OWTA – Excessive Work Hours)

Having been satisfied that the claims are within time as reasonable cause has been shown, based on the uncontested evidence of the Complainant I am satisfied that the Respondent acted in breach of the Organisation Working Time Act 1997 in that he was required to work hours that exceeded 48 hours per working week. I find this complaint to be well founded and I award the Complainant €1000.00

CA00017610 – 003 (OWTA - Holidays)

For the same reasons as stated above I find that reasonable cause has been established by the Complainant and I extend the time to bring this complaint from 6 months to 12 months from the contravention.

I am satisfied that the employment ceased in August 2017 and in that circumstance, section 23 of the Organisation of Working Time Act 1997 applies.

Based on the uncontested evidence of the Complainant I find that the failure to pay him holiday pay during the period February 2016 to August 2017 to be a breach under the terms of Organisation of Working Time Act 1997 and I find this claim to be well founded. I award the Complainant the sum of €900.00 which represents the holiday pay that he should have received for that time period.

CA 00017610 – 002 (Equality)

For the same reasons as stated above I find that reasonable cause has been established by the Complainant as to why his complaint did not issue until 6 months after the last contravention and I extend the time limit to 12 months to bring this complaint. The discriminatory conduct is alleged to have occurred throughout his employment from 2015 but I will concern myself, for reasons of time limit restrictions, to discriminatory conduct that occurred during the period February 2017 until August 2017.

The Complainant cited named comparators in his complaint form. These are all the Irish workers bar none, some of whom are related to the Respondent. I am satisfied based on the uncontested evidence of the Complainant and his partner that the Respondent did not either give to the Complainant his statutory right to paid holidays during 2017 or payment in lieu of same. I am satisfied that the evidence, albeit hearsay evidence that a Mr. X, a work colleague of the Complainant informed him that all the other (Irish) workers did receive paid holidays and therefore that he was the only employee that did not. I am supported in this belief on the basis that I find it to be improbable that employees would accept terms and conditions of employment where they did not receive any paid holidays – which is one of the most basic and therefore expected employment right. I am satisfied that because this constitutes less favourable treatment and that this was meted out only to the Complainant who was Lithuanian – that the prima facie test in section 6 (h) of the Employment Equality Act 1998 that less favourable treatment on grounds of race has been made out by the Complainant.

As this complaint is uncontested and no attempt has been made to defend the charge of discriminatory conduct I find that this complaint is well founded and I make an award of compensation under section 82 of the Employment Equality Act 1998 in the sum of €8000.00. I make this award taking into account the effects of the discriminatory conduct had upon the Complainant, the fact that he suffered loss in terms of payment in lieu of holidays and to penalise the Respondent in order that this conduct is not repeated in the future.