ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012104
Complaints:
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-00016051-001 | 29/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016051-002 | 29/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00016051-003 | 29/11/2017 |
Date of Adjudication Hearing: 03/07/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,and Section 7 ofthe Terms of Employment (Information) Act 1994, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a waitress from December 2015. She contends that the Respondent discriminated against her on grounds of age and disability. She further contends that he hours were cut and that this change in her conditions of employment was not notified to her in writing. |
Summary of Complainant’s Case:
The Complainant stated that she had a few personal problems during 2017. After one major family incident she didn’t turn up for work and couldn’t ring in to say why. She was sacked over the phone by the Food & Beverages Manager. She told him he could not just fire her without any process. Following that, she was put back on the roster but only for 4 hours. She submitted a hand written account of a phone call she had with the Food & Beverages Manager of the hotel in which he told her that he was letting her go and that her personal life had nothing to do with the hotel. When she challenged this she was later told to come to a meeting. On 23rd November 2017 she met with the hotel owner who told her that the Manager had no permission to make that phone call on his behalf. When she asked about her hours being dropped, she was told it was due to lack of business. When she asked about a younger member of staff having more hours, the owner said it was because the other staff member filled a different role – that of barman. The Complainant contends that she was discriminated against because of her age and disability. |
Summary of Respondent’s Case:
The Respondent strongly refutes the allegations made. As an employer in the area for 23 years, the respondent has been compliant with all labour laws. It is submitted that all employee contracts were updated in 2011, copies contained in folders at clock in. It is argued that the Respondent could change the Complainant’s hours as this was catered for in her contract. The Complainant’s hours were reduced due to a number of things, mainly because business was quiet. The Respondent stated that he had been very lenient in the past with the Complainant who was absent from work for 8 weeks in 2017 and in October 2017 had a very serious incident due to personal issues. The rosters had to be adjusted due to employees returning from maternity leave. The age profile of his business is approx. as follows: 7 over 50 years of age, 4 over 40 years of age and 10 over 30. The Complainant was not discriminated against on grounds of age or disability. |
Findings and Conclusions:
Terms of Employment (Information) Act 1994
CA-00016051-001 The Complainant’s stated complaint here is that she did not receive notification in writing of a change to her terms of employment as they relate to the number of hours she would be required to work. There was a dispute between the parties as to whether she was given a written contract of employment. I was not presented with evidence that she was given such a contract. Section 3 of the Act requires that employees shall be given written terms of employment within two months of commencement of employment and Section 5 of the Act requires that changes to the terms must be notified in writing not later than one month following the change. In this instant case, I accept the evidence of the Complainant and I require the Respondent to pay to the Complainant the sum of €250 compensation. Employment Equality Acts 1998 & 2004 Section 85 (A) of the Acts provide that the burden of proof in claims of discrimination lie with the Complainant in the first instance to establish the facts to raise a presumption of discrimination and it is only when that burden is discharged, the onus then shifts to the employer to prove that there was no infringement of the principles of equal treatment. CA-00016051-002 The Complainant’s complaint here is that she was discriminated against on the grounds of age and disability and that the Respondent victimised her in her employment. The key issues for decision and relevant law is as follows: 1. Has the Complainant a disability as defined by the Employment Equality Acts? 2. Has the Complainant been discriminated against because of her age? 3. Has the Complainant been victimised as defined by the Acts? 1.1 Section 2 of the Employment Equality Acts provides: “disability” means – (a) The total or partial absence of a person’s bodily or mental functions (b) The presence in the body of organisms causing or likely to cause chronic disease or illness (c) The malfunction, malformation or disfigurement of a part of a person’s body (d) A condition or malfunction which results in a person learning differently from a person without the condition or malfunction (e) A condition, illness or disease which affects a person’s thought processes, perception of reality emotions or judgement or which results in disturbed behaviour And shall be taken to include a disability which exists at present, or which previously existed or which may exist in the future or which is imputed to a person”. In this instant case, it is common case that the Complainant was absent from work “due to personal problems at home”, which neither side elaborated on in the hearing. The Complainant referred to depression problems. However, no medical evidence was made available to the employer and I find that as no actual medical evidence was provided to the employer that the Complainant suffered a disability there is no case to support the Complainant’s case that she qualifies under the ground of disability. 2.1 In relation to the second ground of age discrimination, I note the evidence that some younger employees were given more hours. I note the Respondent’s evidence in relation to the role of one comparator and the circumstances of return to work of the other two employees. The Complainant has not established a prima facie case that she was discriminated against on age grounds. 3.1 Victimisation occurs where an employee suffers adverse treatment as a result of making a complaint of discrimination. This complaint was received on 29th November 2017, at which time the Complainant’s hours, which were the subject of her complaint had been reduced. It is not therefore established that the Complainant’s hours were reduced because of her complaint under the Acts. CA-00016051-003 This complaint, of discrimination on age grounds is a duplication of claim and is covered in 2.1 above. |
Decision:
CA-00016051-001
I uphold the complaint and require the Respondent to pay to the Complainant the sum of €250
CA-00016051-002
The Complainant was not discriminated against on grounds of disability or age. The Complainant was not victimised as defined in the Acts. Her complaints fail.
CA-00016051-003
The Complainant was not discriminated against on age grounds and her complaint fails
Dated: 19/09/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham