Act

Complaint Reference No.

Date of Receipt

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

CA-00013799-001

07/09/2017

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

CA-00013799-002

07/09/2017

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

CA-00013799-003

07/09/2017

The Complainant was employed by the Respondent as a Bar Worker from 3 September, 2016 to 16 March, 2017. The Complainant claims that he was discriminated against by the Respondent on the grounds of gender and race contrary to Sections 6(2)(a) and (h) of the Employment Equality Acts in relation to his conditions of employment and discriminatory dismissal. The Complainant also claims that he was subjected to victimisation contrary to Section 74(2) of the Acts. The Respondent disputes the claims of discrimination and victimisation.

The Complainant claims that the Respondent failed to provide him with a written statement of his terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994.

The Complainant also claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997.

The Respondent disputes the Complainant’s claims under the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act 1997.

CA-00013799-001 – Complaint under the Employment Equality Acts

The Complainant, who is a Romanian national, commenced employment with the Respondent as a Bar Worker on 3 September, 2016. He had previously been employed by the Respondent between 2014 and January, 2016.

The Complainant claims that he performed well in his employment with the Respondent, having never been the subject of any disciplinary complaint, investigation or sanction prior to the matters that culminated with his dismissal. Following the commencement of his employment in September, 2016, the Respondent initially gave the Complainant an average of 12 hours per week. In or around October, 2016, the Respondent employed 4 to 5 new female employees and without explanation began cutting the Complainant’s hours and awarding them to the new female members of staff. The Complainant claims that the decline in his hours and increase in the new female employees eventually resulted in him being rostered for an average of 1 night per week and the new female employees being rostered for an average of 3 to 4 days per week.

On 16 March, 2017, the Complainant was rostered to commence his shift at 8:00 pm. That morning, the Respondent contacted the Complainant and stated that his hours were being cut and that his roster would not start until 12:00 pm midnight. It subsequently came to the Complainant’s attention that the new female staff had been awarded his hours. The Complainant claims that the Respondent had reduced his hours and awarded same to the new members of staff because of his gender and nationality. The Complainant claims that all of the Respondent’s staff were aware that the female members of staff were getting better hours. The Complainant claims that this treatment by the Respondent in relation to the allocation of hours amounts to discriminatory treatment on the grounds of race and gender in relation to his conditions of employment.

The Complainant also claims that the Respondent subjected him to discrimination on the grounds of race and gender by failing to promote him.

On 16 March, 2017, the Complainant refused at midnight to work in protest of the fact that the Respondent had unilaterally reduced his hours in the manner in which it had in the preceding weeks. The Respondent terminated the Complainant’s employment on this date. On being informed of his dismissal the Complainant requested his payslips, P45 and accrued statutory annual leave. The Complainant claims that when he protested against the discriminatory treatment that he was being subjected to by the Respondent by refusing to attend his shift, the Respondent summarily dismissed him. The Complainant claims that same amounted to victimisation and discriminatory dismissal on the grounds of his race and age.

On 5 October, 2017, the Complainant was walking past the Respondent’s bar with his brother at 11:20 pm when he was approached by Mr. M (Director of the Respondent company). Mr. M asked the Complainant if he could have a word with him and proceeded to ask the Complainant what he had against the Respondent. The Complainant asked Mr. M what he meant. Mr. M stated that the Complainant must have something against the Respondent because he was bringing it to court for unfair dismissal.

The Complainant explained that he had nothing against the Respondent, that he had enjoyed his time there, but that he was not treated properly, that he was being discriminated against in rostered hours because of his gender and that he was bringing the Respondent to court for discrimination. The Complainant stated that he had still not been paid his annual leave. Mr. M stated that he had nothing to do with annual leave and that annual leave was not being paid as the Respondent was building a restaurant near the premises. Mr. M then stated that he was going to ban the Complainant from the premises, would put in the word to have other nightclubs in the area ban him and that he would not provide the Complainant with a reference. Mr. M then asked the Complainant if he was “going against” him or Mr. D (the Respondent’s Bar Manager). The Complainant stated that he was suing the Company as they knew what was going on inside of the company and never did anything about it.

The Complainant claims that this treatment by the Respondent amounts to victimisation contrary to Section 74 of the Employment Equality Acts.

CA-00013799-002 – Complaint under the Terms of Employment (Information) Act 1994

The Complainant claims that the Respondent failed to provide him with a written statement of his terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994.

CA-00013799-003 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997.

CA-00013799-001 – Complaint under the Employment Equality Acts

The Respondent operates a bar/restaurant/nightclub business and employs up to 50 employees with the vast majority being students working on a part-time basis. The business has been transformed since the current owners took charge in 2011 and new or additional staff are regularly employed during busy periods.

The Complainant was initially employed by the Respondent during the period from 2014 to January, 2016. He was subsequently re-employed in September 2016 and worked initially as a member of the floor staff in the bar/nightclub carrying out duties such as picking up glasses and serving orders to customers. The Complainant performed well in this role and progressed to working as a barman after having been provided with the relevant training to perform this role.

The Respondent submits that hours are allocated to staff in the bar/nightclub based on their availability and the needs of the business. The allocation of hours to staff can vary at different times of the year depending on the level of business at any given time. The Respondent submits that it has many different nationalities employed in the business and that an employee’s nationality or race does not in any way influence the manner in which hours of work are allocated.

The Respondent denies the Complainant’s claims that he was subjected to discrimination on the grounds claimed in relation to the allocation of hours. The Respondent contends that the race, gender or age of an employee does not have any bearing on the number of hours allocated to staff.

The Respondent also denies the claims that the Complainant was subjected to victimisation or discriminatory dismissal. The Respondent contends that the Complainant resigned from his employment of his own volition after he failed to attend for work on 16 March, 2017.

Evidence of Mr. M, Proprietor

Mr. M, Proprietor, took over the business in 2011 when it was a small bar and has subsequently developed it into a busy establishment with a day and night-time trade. Mr. M stated that the Complainant was employed directly by the Bar Manager in September, 2016 and had performed well during the initial stages of his employment. Mr. M denies that the Complainant was subjected to discrimination on the grounds of his race or gender in relation to the allocation of hours of work during his period of employment. Mr. M stated that there were a number of new staff, both male and female, employed in or around October, 2016 but denies that hours were taken from the Complainant and re-allocated to the newly employed female members of staff.

Mr. M stated that the Complainant was rostered to work at 8 pm on 16 March, 2017 but his shift was changed to 12 am, on the Complainant’s request, as he was also working on a part-time basis in a fast food outlet. However, the Complainant failed to attend for his shift at 12 am on 16 March, 2017. The Complainant was requested to attend a meeting with the Bar Manager on 18 March, 2017 to discuss the matter but also failed to attend this meeting. Mr. M stated that the Complainant’s two brothers are also employed by the Respondent and they were requested to ask him to make contact to discuss his employment. However, the Complainant failed to make contact and Ms. M stated that he resigned from his position of his own volition.

Mr. M stated that he spotted the Complainant walking on the street adjacent to the bar on a night in or around October, 2017. Mr. M asked the Complainant if he had time for a chat and proceeded to ask him for an explanation why he had left his employment and why he was taking a complaint to the WRC. Mr. M stated that he had a discussion with the Complainant about trying to resolve the complaint but the Complainant was looking for “ten times the amount that he had offered”. Mr. M vehemently denies that he threatened the Complainant that he would be barred from the Respondent’s bar/nightclub or that he would put in a word with other nightclubs in the area to have him banned.

Evidence of Mr. D, Bar Manager

Mr. D stated that he was the Bar Manger when the Complainant requested to be re-employed by the Respondent in September, 2016. Mr. D stated that he was happy to re-employ the Complainant and he was promoted to bar work after a period of time as he was a good employee. Mr. D stated that the Complainant frequently asked for time off because he also had another part-time job. Ms. D disputed the Complainant’s contention that his hours were allocated to a number of new female staff who were employed in or around October, 2016.

Mr. D stated that the Complainant was rostered to work at 12 am on 16 March, 2017 after requesting to change his original starting time from 8 pm. Mr. D stated that the Complainant failed to attend for work on this date and despite trying to contact him by telephone on a number of occasions that night the Complainant failed to respond. Mr. D stated that he requested the Complainant’s two brothers, who were also employed by the Respondent, to ask the Complainant to contact him but he failed to do so. The Complainant was also requested to attend a meeting on 18 March, 2017 to discuss the situation but he did not attend. Mr. D stated that he received a Facebook message from the Complainant 2/3 weeks after his resignation looking for his P45 and outstanding holiday pay.

CA-00013799-002 – Complaint under the Terms of Employment (Information) Act 1994

The Respondent contends that the Complainant was provided with a written contract in relation to his employment. The Respondent disputes the claim that it has contravened the provisions of Section 3 of the Terms of Employment (Information) Act, 1994 in relation to the Complainant’s employment.

CA-00013799-003 – Complaint under the Organisation of Working Time Act 1997

The Respondent disputes the Complainant’s claim that it failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997.

CA-00013799-001 – Complaint under the Employment Equality Acts

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.   If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. 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 deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant.   It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters[1] where it held that Section 85A:

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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)…..”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons …. that one is a woman and the other is a man”. Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

The issues for consideration by me are (1) whether or not the Complainant was subjected to discriminatory treatment on the grounds of gender and/or race in relation to his conditions of employment (2) whether or not the Complainant was subjected to discriminatory dismissal on the grounds of race and/or gender and (3) whether or not the Respondent subjected the Complainant to victimisation contrary to Section 74(2) of the Acts.

In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

Conditions of Employment

The first element of the Complainant’s complaint which I must consider relates to the claim that he was subjected to discriminatory treatment on the grounds of race and gender in relation to his conditions of employment, particularly in relation to the rostering of hours. The Complainant has claimed that the Respondent employed 4 to 5 new female staff in or around October, 2016 and that his hours were subsequently reduced without explanation and awarded to the new female employees.

Having considered the totality of the evidence adduced, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons of a different nationality, race or gender were treated more favourably than him in relation to the allocation of hours during his period of employment. The Complainant has failed to adduce any significant evidence to support his claims that the alleged treatment was discriminatory on the grounds claimed but rather has essentially relied upon supposition and assertion, unsupported by evidence, in support of these claims.

I have found the Respondent’s evidence in relation to this matter to be more compelling. In particular, I have taken cognisance of the work rosters submitted in evidence which contain details of the hours allocated to staff members, including the Complainant, during the material period in question. I am satisfied that the information contained on these rosters clearly supports the Respondent’s position that the Complainant was not treated any less favourably on the grounds of gender and/or his Romanian nationality in relation to the allocation of hours during his period of employment. I have also noted from these rosters that the Complainant’s brothers, both of whom are also Romanian nationals, were also employed by the Respondent at the material time and it is clear that one of his brothers was allocated a greater number of hours each week than a number of his Irish and female colleagues. I am satisfied that these facts further support the Respondent’s contention that it did not discriminate against it employees on the grounds of race or gender in relation to the allocation of hours.  

The Complainant also claims that he was subjected to discriminatory treatment on the grounds of race and gender in relation to training during his period of employment. Having regard to the evidence adduced, I am satisfied that the Complainant has failed to establish any facts whatsoever from which it could be inferred that persons of a different nationality, race or gender were treated more favourably than him in relation to training. On the contrary, the Respondent adduced very credible and compelling evidence to confirm that the Complainant did, in fact, receive training which is supported by the fact that he was promoted from the position of floor staff to working behind the bar during his period of employment.

Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of race or gender in relation to his conditions of employment. Accordingly, this element of his complaint fails.

Victimisation

The second element of the Complainant’s complaint which I must consider relates to the claim that he was subjected to victimisation contrary to the Acts. Section 74(2) of the Acts defines victimisation as follows:

“victimization” 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 the complainant

….. ….. …..

(f)     an employee having opposed by lawful means an act that is unlawful under this Act….

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

In the case of Tom Barrett -v- Department of Defence[2]the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant. In the instant case, I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.

The Complainant has claimed that he was subjected to victimisation by the Respondent in relation to an incident that occurred in or around October, 2017 during which he contends that Mr. M, Proprietor, threatened to have him banned from the Respondent’s premises and from other licensed premises in the locality as a result of him having referred a complaint of discrimination to the WRC. The instant proceedings were referred to the WRC on 7 September, 2017 which was prior to the date of the alleged threats took place. It was not in dispute that a discussion took place between the Complainant and Mr. M on the date in question and that reference was made to the instant proceedings during the course of this interaction between the parties. I therefore find that this fact satisfies the requirement outlined in (i) above.

In considering whether the complainant has satisfied parts (ii) and (iii) of the test outlined above, I have taken cognizance of the case of Roy Mackarel –v- Monaghan County Council[3] where the Labour Court held that: “Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).”

There was a direct conflict in the evidence adduced by the Complainant and Mr. M in relation to the precise nature of the discussions that took place outside of the Respondent’s premises on the night in question. The Complainant, on the one hand, contends that Mr. M threatened to have him barred from the Respondent’s nightclub/bar and from other licensed premises in the locality whereas Mr. M vehemently denied that he made any such threats during the course of this conversation.

On balance, I have found the evidence of Mr. M to be more compelling in relation to this issue. I accept Mr. M’s evidence that he did not threaten the Complainant as alleged during the course of the discussions that took place on the relevant date in or around October, 2017 and that he was not subsequently barred from entering the Respondent’s premises thereafter. Accordingly, I find that the Complainant has failed to establish facts from which it may be inferred that he subjected to victimisation contrary to Section 74(2) of the Acts.

Discriminatory Dismissal

The Complainant also claims that he was summarily dismissed from his employment on 16 March, 2017 after he protested against the discriminatory treatment that he was suffering at the hands of the Respondent, by refusing to attend his shift. The Complainant claims that this amounts to a discriminatory dismissal contrary to Section 74(2) of the Acts. The Respondent denies that the Complainant was dismissed from his employment on 16 March, 2017 or at any stage thereafter and contends that he resigned from his position of his own volition at that juncture.

Section 2(1) of the Acts defines dismissal as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... ".

Having regard to the evidence adduced, I do not accept that the Complainant was dismissed from his employment arising from the incident that occurred on 16 March, 2017. I have found the Respondent’s evidence to be more compelling in relation to the events that took place on 16 March, 2017 when the Complainant failed to attend work for his shift. I am satisfied that the Respondent sought to engage with the Complainant following this incident to try and establish whether or not he wished to continue in employment but the Complainant failed to respond to any of these attempts to clarify the situation. I find that the evidence adduced by both Mr. M, Proprietor and Mr. D, Bar Manager was very consistent and credible in relation to this matter. I am satisfied that the Complainant’s position was still available to him following the incident on 16 March, 2017 but he decided of his own volition to resign from his employment. Accordingly, I find that the Complainant has failed to establish a prima facie case of victimisatory dismissal contrary to section 74(2) the Employment Equality Acts.

CA-00013799-002 – Complaint under the Terms of Employment (Information) Act 1994

The Complainant has claimed that the Respondent failed to provide him with a written statement of his terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994.

It was not in dispute that the Complainant was employed by the Respondent during two separate periods, namely from 2014 to January, 2016 and subsequently from September, 2016 to March, 2017. The Respondent submitted in evidence a copy of a written contract of employment provided to the Complainant which was signed by the parties on 5 December, 2015. I am satisfied that this written contract related specifically to the Complainant’s first period of employment which terminated in January, 2016.

I find that the Respondent has failed to establish or provide any documentary evidence to confirm that the Complainant was provided a written contract or statement of his terms and conditions in relation to his second period of employment which commenced on 3 September, 2016. Acordingly, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

CA-00013799-003 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant claims that he was employed by the Respondent on a “zero-hours contract” and that he was working an average of 12 hours per week during his period of employment. The Complainant claims that he did not receive payment in respect of annual leave accrued during his period of employment on cessation of his employment.

The Complainant referred his complaint to the Workplace Relations Commission on 7 September, 2017. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 8 March, 2017 to 7 September, 2017.

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. Therefore, in accordance with the provisions of Section 23(1)(b)(i) of the Act I am satisfied that any outstanding annual leave accrued during the annual leave year 2016/2017 (i.e. 1 April, 2016 to 31 March, 2017) is covered by this complaint.

I am satisfied from the work rosters and payslips which were submitted in evidence by the Respondent that the Complainant worked a total of 260 hours during the period from 3 September, 2016 to 16 March, 2017.

Section 25(4) of the Act provides, in effect, that where an employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before an Adjudication Officer, the onus of proving compliance with that provision lies with the employer. In the instant case, I am satisfied that the Respondent has failed to maintain adequate records to show that the Act was complied with in respect of the Complainant’s annual leave entitlements during his period of employment and thus carries the burden of rebutting the evidence given by the claimant.

I find that the Respondent has not adduced clear evidence that the Complainant, either received, or was paid in respect of his outstanding annual leave entitlements accrued during the material period upon the cessation of his employment. In the circumstances, I find that the complaint is well founded and that the Complainant had accrued the following entitlement of 8% of 260 hours worked during this period = 20.8 hours x €9.25 per hour = €192.40).

CA-00013799-001 – Complaint under the Employment Equality Acts

Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that:

(i) the Respondent did not discriminate against the Complainant on the race ground and/or gender ground pursuant to section 6(2) of the Acts in terms of his conditions of employment or training and contrary to section 8(1) of the Acts;

(ii) the Respondent did not discriminate against the Complainant on the race or gender ground pursuant to sections 6(2)(a) and (h) of the Acts, in respect of discriminatory dismissal contrary to section 74(2) of the Acts;

(ii) the Respondent did not subject the Complainant to victimisation contrary to section 74(2) of the Acts.

Accordingly, I find in favour of the Respondent in this case.

CA-00013799-002 – Complaint under the Terms of Employment (Information) Act 1994

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I am satisfied from the work rosters and payslips which were submitted in evidence by the Respondent that the Complainant worked a total of 260 hours during the period from 3 September, 2016 to 16 March, 2017. This equates to an average of 10 hours per week during his period of employment.

Therefore, I order the Respondent to pay to the Complainant the compensation in the amount of €185.00 being the equivalent of two week’s pay in respect of the contravention.

CA-00013799-003 – Complaint under the Organisation of Working Time Act 1997

In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well founded and that the Respondent has contravened the Complainant’s annual leave entitlements contrary to Section 23 of the Act. I order the Respondent to pay the Complainant:

-          €192.40, subject to any lawful deductions, cesser pay in respect of annual leave entitlements accrued during the annual leave year 2016/17, and

-          €100.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

Employment Equality Acts – Race and Gender grounds – Discriminatory Treatment – Conditions of Employment – Discriminatory Dismissal – Victimisation – Terms of Employment (Information) Act 1994 – Written Statement of Terms and Conditions – Organisation of Working Time Act 1997 – Section 23 - Annual Leave