Complainant

Respondent

Anonymised Parties

Technical Records Assistant

An Airline

Representatives

Richard Grogan & Associates

Roland Rowan B.L. instructed by McDowell Purcell Solicitors

Act

Complaint 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-00008605-001

29/11/2016

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

CA-00008605-002

29/11/2016

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

CA-00008605-003

29/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008605-004

29/11/2016

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

CA-00008605-005

29/11/2016

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

CA-00008605-006

29/11/2016

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

CA-00008605-007

29/11/2016

The Complainant is a Hungarian National who works as a Technical Records Assistant and was paid €20,500 per year. She claims that she suffered an injury at work and had been certified as unfit for work for a period of time. The Complainant claims that she was told to return to work by the Respondent, which she said this was to do with her Gender and Race. She also claims that there were various breaches of other employment rights legislation.

The Respondent is an Airline which has a diverse multi-cultural workforce. It refutes that the Complainant suffered an injury at work and it sought to return her back to work on light duties following an investigation into the claim and after she was deemed fit to return to work following two occupational health assessments. It also disputes the claims made of discrimination on Gender and Race grounds and the other alleged breaches of employment rights’ legislation.

Preliminary matters

The Complainant, in reply to the Respondent’s application for a preliminary ruling on whether these complaints are an abuse of process being, frivolous, vexatious and bound to fail and in particular on whether the Complainant has satisfied the burden of proof in showing that a prima facie case has been established against it in relation to the Employment Equality complaints, said that she was content that the cases proceed as per the usual Workplace Relations Commission’s practice and procedure and by the issuing of one decision.

The Complainant said that should the Respondent leave the hearing that the stenographer should not be allowed to stay in the room and take notes for it in its absence.

The Complainant raised other issues as regard the burden of proof in specific cases under the Organisation Working Time Act and whether the Workplace Relations Commission is an adversarial or inquisitorial tribunal.

Substantive matters

CA-00008605-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant said that she did not receive a statement which complies with Section 3 of the Terms of Employment (Additional Information) Order 1998 S.I. 49 of 1998 article 3(1) where, it provides that an employer shall give within two months of the commencement of employment a statement in writing containing particulars, and in this instance, setting out with clarity her holiday entitlement. Therefore, she claims the statement does not set out her rights appropriately as per the Act.

CA-00008605-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant said that she did not receive her entitlements for the August Public Holiday 2016. She claims that she was on sick leave at the time and on sick pay and she was entitled to the August Public Holiday as an additional payment. She cites the Labour Court Decision in Thermo King v Kenny DWT11/2006 and the E Smith School t/a The High School v Mr Sean McDonnell DWR1411 to support her case.

CA-00008605-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant said that she did not receive her entitlements for the October Public Holiday 2016. She claims that she had an accident at work in February 2016 and she was entitled to the October Public Holiday as an additional payment. She claims that she is entitled to public holidays for a 52-week period following an occupational accident as opposed to just 26 weeks for any other illness/accident as provided for under schedule 3 of the Organisation of Working Time Act, 1997. She cites the Labour Court Decision in Thermo King v Kenny DWT11/2006 and the E Smith School t/a The High School v Mr Sean McDonnell DWR1411 to support her case.

CA-00008605-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The case was withdrawn on the day of the Hearing.

CA-00008605-005 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Complainant claims that she suffered an injury in work to one of her hands and was certified as unfit to work. She claims that she was providing medical certificates to her employer at all stages.

She claims that she was informed that she should return to work on light duties. She claims that she was certified as unfit to work and was being pressurised to return to work. She claims that she believes that is because of her gender and of her Hungarian nationality.

CA-00008605-006 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant said that she did not receive a statement which complies with Section 3 of the Terms of Employment (Additional Information) Order 1998 S.I. 49 of 1998 article 3(1) where, she said, an employer shall give within two months of the commencement of employment a statement in writing containing particulars of the terms and duration of rest and break periods referred to in sections 11, 12 and 13 of the Organisation of Working Time Act, 1997.

CA-00008605-007 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant claims that the Respondent changed its name from the time her contract was signed and the present date. The Complainant notes that the Respondent claims that this was forced on it by re-registration due to the new Companies Act, 2014 but said that this is still a breach and that it had caused her much difficulty in determining who the correct Respondent was for furnishing her complaints to the Workplace Relations Commission.

She claims that the employee is entitled to be notified of such a change in accordance with Section 5 of the Terms of Employment (Information) Act, 1994.

Preliminary matters

The Respondent said that these complaints should be the subject to a determination on a preliminary issue, namely that the Complainant’s case is an abuse of process being, frivolous, vexatious and bound to fail. In particular it claims that it requires a preliminary determination from the Adjudication Officer on whether the Complainant has satisfied the burden of proof in showing that a prima facie case has been established against it, in relation to the Employment Equality complaints - reference number CA 00008605-005 - prior to having it to go into evidence and be put at a cost in defending its position.

The Respondent claims that the Complainant in respect of the claims pursuant to the Employment Equality Act has not provided it with a submission other than to say that she is female and Hungarian and has failed to disclose a prima facie case. It refers to Desmond Shields, Abusive of Process – unjust and Improper Conduct of Civil Litigation in Ireland, First Law 2002 quoting Lord Denning in Goldsmith v. Sperrings [1977] 2 AER 566 to support its claim that “[…] legal process is the keeping order and doing justice. It can be used properly, or it can be abused […]”, and when this happens the adjudicator should step in and protect such a Respondent.

It referred to other decisions which show proceedings as vexatious and said that the Complainant in the within claims is using a scattergun approach, which amounts to multifarious proceedings brought for purposes other than the assertion of legitimate rights. It claims that there needs to be flexibility to manage this, as was recognised in Hunter v. Chief Constable of the West Midlands Police, [1981] 3 AER 727 and the need for the Courts to protect against any abuse of process which is used as a tool to cause unfairness and hardship on defendants, Sun Fat Chan v. Osseous Limited [1992] 1 IR 425.

It claims that the Complainant has sought to bombard the Respondent with a variety of claims which are duplicated by making identical complaints and seeking to rely upon various statutory provisions. It claims that this puts into question whether this method is an abuse of power and should be considered solely by way of a preliminary determination, which would lead to considerable saving in both time and cost, citing Bus Eireann v. SIPTU PTD 8/2004.

In particular, the Respondent stated that it desired a preliminary decision on whether the Complainant has satisfied the burden of proof in showing a prima facie claim in the Employment Equality cases. There are four such cases in total. It states that the burden of proof as set out in Section 85(A) rests with the Complainant, citing Regan and Murphy’s book, Employment Law, and the tests in relation to shifting that evidential burden are set out in Michell v. Southern Health Board [2001] 12 ELR 201 and McCarthy v. Cork City Council, EDA 0821 [2008]. It said that the Complainant has not provided any facts from which it can be presumed that there has been discrimination other than the bare assertions of the grounds themselves.

It claims that it finds it difficult that the claim of discrimination can be levelled on it, a Respondent, a multiple nationality employer of multiple thousands of a workforce. It referred to the Labour Court decision in Valpeters v. Melbury Developments Limited [2010] 21 ELR 64 in particular “[…] Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn […]”

It has called on the Adjudication Officer to make a preliminary determination on the case.

The Respondent has also asked that should the case proceed, and should it decide to leave the proceedings that the Adjudication Officer would allow for its stenographer to remain on in the room to take a note.

The Respondent left the hearing room following its presentation of its preliminary application and after I informed the parties of how I intended to conduct the hearing and proceed with my inquiry in to the complaints and did not return.

Substantive matters

CA-00008605-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent in submissions furnished to the Workplace Relations Commission stated that the Complainant’s contract of employment complies with the Terms of Employment (Information) Act, 1994. It states that if there are any breaches they are unintentional, minor and in practice of zero consequence.

CA-00008605-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Respondent in submissions furnished to the Workplace Relations Commission stated that the Complainant was provided with an additional days’ annual leave in respect of the August bank holiday and there is no loss to the Complainant accordingly. It stated that if there are any errors in not paying the Complainant in respect of the August bank holiday that they were unintentional and minor, and she suffered no loss.

CA-00008605-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Respondent in submissions furnished to the Workplace Relations Commission said that the Complainant was provided with an additional days’ annual leave in respect of the October bank holiday and there is no loss to the Complainant accordingly. It said that if there are any errors in not paying the Complainant in respect of the October bank holiday were unintentional and minor and she suffered no loss.

CA-00008605-005 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Respondent in submissions furnished to the Workplace Relations Commission said that it denies that there has been discrimination by reason of her Gender or Race.

The Respondent set out in broad terms that it is an employer of a worldwide operation with a multinational workforce.

The Respondent stated that it refutes the claims made against it. It stated that the Complainant never reported a workplace accident, and all that it has done was attempted to engage with her and encourage her to return to work. It stated that she was assessed by two company doctors and deemed fit to return to work.

CA-00008605-006 ­- Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent in submissions furnished to the Workplace Relations Commission stated that the Complainant’s contract of employment complies with the Terms of Employment (Information) Act, 1994. It went into detail in tabular form under each of the specific headings and demonstrated what it had captured and appears in the contract of employment.

CA-00008605-007 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent in submissions furnished to the Workplace Relations Commission stated that the Respondent had to re-register its name in accordance with the Companies Act, 2014. It claims that re-registration in accordance with the Companies Act was not voluntary and does not affect the obligation of the Respondent and could not trigger obligations under Section 5(1)of the Terms of Employment (Information) Act, 1994, and should such an obligation apply the Respondent would seek to avail of the exemption under Section 5(2) of the Act.

Preliminary matters

The Respondent at the outset of the hearing made a particular preliminary application where it sought that these complaints be dealt with by means of a preliminary determination by the Adjudication Officer and, in particular, it sought for me to determine by a preliminary decision whether the Complainant’s had established a prima facie case before the Respondent must incur the evidential burden and the costs to defend against the Complainant’s allegations in respect of the complaints under the Employment Equality Acts.

The Complainant was present and suggested that the case should be conducted in accordance with the normal practice of the Workplace Relations Commission.

Having considered the arguments presented by the Respondent on the day of the hearing, I am satisfied that I could not accede to the request without having heard the evidence in the case first. This was all the more pointed in terms of the complaint under the Employment Equality Acts, where there was a long-established approach, adopted by the Equality Tribunal for many years previously, that the totality of the evidence from both parties must be heard before any conclusions were reached – an approach which was underpinned by the well-established jurisprudence on the matter. At the beginning of the day I clearly informed the parties how I intended to conduct the hearing. I noted that some of the complaints dated back to 2016, and it was my intention to expedite this case and bring it to a conclusion and a decision as speedily as I could, having due regard to my obligations to comply with procedural fairness and natural justice. I said that I would go through the individual complaints on a case-by-case basis and ask the Complainant to inform the hearing whether each of the complaints were still being pursued, so as to determine the full set of complaints before me for consideration. I said that following this exercise I would listen to any preliminary matters that the parties wished to address and, notwithstanding, it was my intention to proceed by hearing all the evidence on a case-by-case basis, and preferably for completion that day and where I would then issue a composite decision dealing with all the issues raised and by each individual complaint in order.

The cases have been delegated to me for inquiry by the Director General of the Workplace Relations Commission and I am satisfied that it is for me to conduct that inquiry in the most appropriate way, as long as I adhere to the principles of fairness and natural justice. I am satisfied that the approach decided by me is fully in line with the Workplace Relations Commissions’ practice and the procedure, that I have continually applied in all my hearings heretofore. I considered that my proposed methodology would offer the best opportunity to proceed expeditiously. I also noted that I failed to see how I could accede to such a request without first having heard all the evidence relating.  

As noted above I have not heard any evidence other than a preliminary presentation from the Respondent stating that the Complainant’s complaints are an abuse of process, frivolous and vexatious. I have been asked to make a preliminary determination on whether the Complainant has established a prima facie case in regard to the Employment Equality complaints prior to putting the Respondent to the expense of defending the case. I am satisfied that Section 79 (3A) of the Employment Acts does allow for preliminary determinations in certain circumstances, and in particular, in Equal pay cases (Section 79(3)), where there are some agreements on the facts. I determined that this is not the case here. The request before me, is in relation to whether the Complainant has established of a prima facie case in the substantive matter of the complaint. It is clear from the outset, that the facts are not in agreement. I have noted that the superior courts have continually supported unitary hearings and composite decisions as the preferred approach. In particular I note the Supreme Court decision of Mr. Justice McKechnie in Campion Concrete Products Limited and Voran House Limited v South Tipperary County Council unreported [2015] IESC 79, in relation to a similar request for a preliminary determination on a planning application, and I note in particular at paragraphs 21 and 22 under the heading Encouraging Efficiency he said -

“In more modern times, particularly in light of litigation becoming ever more complex, costly and lengthy, many attempts at official level have been made to identify ways in which the consequences of such events can be avoided, or at least ameliorated. Hence, both legislative provisions and specific rules of court with that intention in mind, have been adopted in several different sectors of litigation, including personal injuries, commercial and competition, to name but some, as well as provision being made for mediation, conciliation and other forms of alternative dispute resolution. (Order 56A RSC). Side by side with these changes there has been much innovation at judicial level by way of case management, modular hearings and other imaginative steps, to the same end. Largely the results have been very positive, but still vigilance must be exercised lest through the prism of expedition, truncated hearings will end up having the opposite effect. I am satisfied that such would be the situation if the appeal in the instant case was allowed.

22. Despite the undoubted advantages of such insightful moves, it remains the position that at primary level, a unitary trial is the starting point. Experience throughout many decades of litigation has shown that in the vast majority of cases this is the best mechanism by which justiciable issues can be determined, not only so as to achieve justice, but also as representing the most expeditious and cost-effective way of doing so. Therefore, whilst I greatly favour all suggestions which curtail the possibility of having diffuse and lengthy trials, one must be sure however that what is provided for in that regard, will in fact achieve, the intended end.”

I also note at paragraph 26 where reference was made to the Supreme Court in McCabe v. Ireland [1999] 4 I.R. 151 where at p. 157 of the report, Lynch J. stated: - “A preliminary issue of law obviously cannot be tried in vacuo: it must be tried in the context of established or agreed facts. The facts relevant to the preliminary issue must not be in dispute, but they may be agreed for the purposes of the preliminary issue of law only without prejudice to the right to contest the facts if the actual determination of the preliminary issue should not dispose of the matter at issue. The facts must be agreed or the moving party must accept, for the purposes of the trial of the preliminary issue which he raises, the facts as alleged by the opposing party.”

I further note at paragraphs 55 and 57 he finds: - “…it is highly probable that even a decision in favour of the appellant on the preliminary issues, would not reduce significantly the number of potential witnesses who might be relevant to this particular claim: nor would it necessarily curtail the issues which would have to be traversed at the hearing. Likewise it is difficult to see any substantive decrease in the necessary preparation for the hearing of this issue when compared with the overall claim. As a result, it inevitably follows that there would be very little saving in either costs or time and certainly it does not appear convenient to embark on the course as suggested by the council. In fact the contrary would likely be the position, as same would involve two substantive hearings rather than one. Accordingly, on this basis I would also dismiss the appeal.

56. Finally, it is at least as likely as not, that if the issues were determined by way of a preliminary hearing, either party, if aggrieved by the result, may undertake an appeal in respect thereof to this or as may now be more appropriate, to the Court of Appeal. Duffy v. Newsgroup Newspapers Limited (No.2) [1994] 3 I.R. 63, is apt on point where O'Flaherty J. said:-

“I would also make the observation that the whole point of setting down a preliminary point of law is to save in time and costs. This is surely not being achieved in the course of these proceedings. Even if there were a preliminary hearing on this matter whoever lost would, presumably, appeal to this Court and would mark the third appeal in an interlocutory manner in these proceedings.””

I also take note of the decision in Bisi Adigun v The Equality Tribunal [2015] ESC 91 in the Supreme Court where Justice Charleton, in a case of appeal from the High Court on a judicial review proceeding addressed questions relating where the Equality Tribunal should always conduct cases expeditiously and by affording the appropriate remedies of the Acts, where he said:-

“15. While it is correct to argue that a unitary trial is the normal and most satisfactory method of proceeding with a case in court, there are also many circumstances where the trial of a preliminary issue may resolve the substance of a legal dispute. Even apart from the subsection quoted above, it is within the scope of fair procedures before any judicial or quasi-judicial body for an issue to be isolated and tried in advance of the main hearing provided that can be done fairly. Sometimes, the parties will consent to that. The advantage of the Employment Equality Acts is that the circumstances under which such a course may be taken by the Equality Tribunal are clearly spelt out. Central to any issue as to whether redress in respect of discrimination within employment is available under the Acts, is whether a person was employed or not. That issue was inescapably part of, and fundamental to, the admissibility of a claim for redress, which is defined in statute as being available only to employees. Hence, even apart from legislative provisions, it would make sense that once the issue was raised, it should be determined in advance of what was likely to be a substantial hearing. The resources of courts and tribunals are limited. It is a pointless exercise to engage in a trial of fact over several days when whether or not the resolution of such facts may yield any redress to the claimant looms is clearly the first hurdle that he or she must cross. That can be fairly isolated and tried in advance. There is nothing in the papers on this appeal to suggest that the Equality Officer misconstrued the relevant legislation or exercised the discretion which it gave him in any unreasonable or capricious manner.

16. …It is within the scope of the Acts that preliminary issues can be tried and ruled on, either in advance of the substantive hearing of which they form part, or in order to obviate the necessity for such a hearing. Every tribunal and court has a duty to move with reasonable expedition. Litigation is a stressful and unfamiliar experience for those who initiate a claim or who are called on to respond. […] The Equality Officer, on the relevant correspondence, was motivated by the need to both grasp the essentials of the case and to move it along towards resolution, one way or the other. There is a range of appreciation in respect of the conduct of quasi-judicial bodies which should be respected. Clear statutory authority for the Equality Officer's actions existed. In addition, reasonable decisions as to how a case should proceed are not to be substituted, even by a contrary reasonable view. That is not the function of judicial review…

18. … the function of the Equality Tribunal lies entirely within its statutory remit. Bisi Adigun complains that having been disfavoured, as he claims, it is against the principles of justice that he should have nowhere to turn for redress. This, however, ignores the fact that it was he who decided that the statutory remedy invoked by him in his application to the Equality Tribunal was appropriate …”

It is clear that Section 79 of the Employment Equality Acts provides for the investigation of complaints by the Director General or indeed one of its Adjudication Officers. I note in the Labour Court’s decision in Courts Service v 28 named employees EDA 19/2007, where it said that 79(3A) authorised the determination of preliminary issues, in particular, arising from Section 19(5) of the Employment Equality Acts in relation to equal remuneration. However, it said that this action was an exception to “the general principle that all issues arising in a case should be disposed of in a single set of proceedings and that litigation should not be fragmented”. I am satisfied that the case law supports this general principle and I note the decisions in the Supreme Court Aer Lingus Teoranta v The Labour Court & others [1990] ELR 113 and in the High Court of The Commissioner for Valuation v The Valuation Tribunal [2019] IEHC 23 similarly supports this approach.

I am satisfied that the case should proceed as I indicated herein and I informed the parties accordingly on the day of the hearing. The Respondent asked for a short adjournment to consider the implications to which I granted. On the Respondent’s return to the room it said that it was leaving the hearing and I advised them that I intended to proceed with the case.

In relation to the Respondent’s request that the stenographer be allowed to remain in the room once it had indicated that it would leave. I am satisfied that the Courts have ruled that a party may bring with it a stenographer to assist it in its note taking. The purpose of the Workplace Relations Commission’s hearings is to allow parties present their case and adduce the evidence from the witnesses present to assists the Adjudication Officer in their inquiry into the case, and ultimately in making their decision. The independent stenographer in the instant case was not going to assist in that role for the Respondent.

I note that the Workplace Relations Commission has not objected to the use of stenographers in accompanying parties heretofore. However, once the Respondent had indicated that it was withdrawing from the proceedings and would play no further part in the hearing, I am satisfied that the stenographer should also leave. Otherwise I, as the Adjudication Officer, would be opening a hearing to hear all the evidence in a case, which as stated in the relevant Acts shall be held in private, with the Complainant on one side and an independent note taker on the other, which is neither the Respondent or a representative for the Respondent. Accordingly, I am satisfied that the stenographer should not remain in such circumstances.

In relation to the other preliminary matters raised on the day, I am satisfied that none of which require any additional preliminary determination in the instance case.

Substantive matters

CA-00008605-001 ­- Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I note the submissions on this complaint and considered same in their entirety. I am satisfied that the contract of employment does set out that the Complainant’s holiday entitlement to be “20 days’ paid holiday per annum (which shall accrue and at the rate of 1.66 days per month)”.

The Complainant argues that this is not sufficient, the legislation makes no reference to “20 working days” and said that should be “four weeks and to two other provisions and the employee is entitled to whichever is most beneficial”.

I am satisfied that the contract of employment provided by the Respondent to the Complainant can properly be regarded as forming a written statement of her terms of her terms of employment as required by Section 3 of the Act. As indicated by the Complainant the language used in that contract could be deemed not to comply with the requirements of the Act. However, I am of the view that they are merely of a technical contravention. I hold the view that there is no practical impact of this breach on the Complainant during her employment with the Respondent.

I note the decision in Patrick Hall v Irish Water Determination TED161, where the Labour Court gave extensive consideration to the approach which should properly be adopted in cases where some technical contravention of the Act occurred which had no practical consequences for the complainant. Section 7(1)(d) of the Act provides, in effect, that an Adjudication Officer may order an employer to pay a Complainant compensation of such amount (if any) as is just and equitable having regard to all the circumstances. The purpose of compensation is to provide redress to an aggrieved party for some loss, damage, inconvenience or expense incurred by that party in consequence of some wrongful act or omission by another. On the facts of the instant case, I am satisfied that the Complainant herein suffered no adverse consequences of any materiality in consequences of those contraventions upon which her claim to compensation is grounded. I am obligated to consider if such an award is just and equitable having regard to all the circumstances. In its decision in Irish Water the Labour Court held that where mere technical breaches of section 3 of the 1994 Act occur, “the dictates of fairness or equity could not justify an award of compensation”. I, follow that reasoning in my approach to this claim. I deem that the amount of compensation which is just and equitable in all the circumstances of this complaint is nil.

CA-00008605-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

In relation to this complaint, I have before me uncontested evidence that the Complainant was not paid her entitlement for the August Public Holiday 2016. She claims that she was on sick leave and sick pay at the time and she was entitled to the August Public Holiday as an additional payment, which she claimed she did not get.

The redress available to a successful claimant under the Act is governed by section 27(3) thereof, as follows: -

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

This subsection makes it clear that the Complainant is not limited to recovering the economic or monetary value of the payments withheld. This I understand from a simple calculation of her wages is approx. €78 per pay. I note that an adjudicator may award compensation of such amount as is just and equitable having regard to all the circumstances subject to the upper limit of two years pay. In all the circumstances of this case I am satisfied that the Complainant is entitled to an award of general compensation. I deem that the amount that is just and equitable at €250.

CA-00008605-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

In relation to this complaint, I again have before me uncontested evidence that the Complainant was not paid her entitlement for the October Public Holiday 2016. She claims that she was on sick pay and she was entitled to the October Public Holiday as an additional payment.

The redress available to a successful claimant under the Act is governed by section 27(3) thereof, as follows: -

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

This subsection makes it clear that the Complainant is not limited to recovering the economic or monetary value of the payments withheld. This I understand from a simple calculation of her wages is approx. €78 per pay. I note that an adjudicator may award compensation of such amount as is just and equitable having regard to all the circumstances subject to the upper limit of two years pay. In all the circumstances of this case I am satisfied that the Complainant is entitled to an award of general compensation. I deem that the amount that is just and equitable at €250

CA-00008605-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Complaint was withdrawn on the day of the Hearing, therefore no findings necessary.

CA-00008605-005 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

I note the submissions on this complaint and considered same in their entirety. The burden of proof lies with the Complainant, who claims that she was told to return to work after a workplace accident, which is denied by the Respondent. The Complainant said that she believes that this happened because she is Hungarian and female. It was later admitted that she is unsure how others would be treated in a similar circumstance and asked from me to call for an inspection from the Workplace Relations Commission inspectorate accordingly to determine that.

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 her. If she 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.

Discrimination

The Relevant Law

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 where one is a woman and the other is a man (in this Act referred to as “the gender ground”), and 6(2)(h) that they are of different race, colour, nationality or ethnic or national origins, (in this Act referred to as “ the ground of race”).

I was informed from the Complainant’s side that the Complainant’s case in relation to Gender and Race discrimination is without evidence and that I should send out a Workplace Relations Commission Inspectors to find out the necessary evidence on the Complainant’s behalf. I find this remark bewildering and naïve. The burden of proof rests with the Complainant, it is not for the Workplace Relations Commission to prepare her case. The Complainant has not cited a comparator. No evidence was presented to support the claim.

I note the decision in Melbury Developments v Arturs Valpetters [EDA 0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”. Having considered the evidence I am satisfied to conclude that the Complainant has not established any facts whatsoever which give rise to the presumption of discrimination on the part of the Respondent. Therefore, I must state that I am satisfied that a prima facie case has not been established by the Complainant and the burden of proof did not shift in the course of the hearing. Section 85A of the Employment Equality Act 1998 has not therefore been invoked.

Therefore, I am satisfied that the complaint brought under section 77 of the Employment Equality Act, 1998 in relation to discrimination on the grounds of Gender and Race fails.

CA-00008605-006 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I note the submissions on this complaint and considered same it their entirety. I am satisfied that the contract of employment does set out the normal working hours and states, in relation rest and break periods, “with a 60-minute lunch break”. The Complainant argues that this is not sufficient, the 60-minute lunch break is imprecise and capable of numerous interpretations.

The claims before me alleges that the contract of employment was in contravention the Terms of Employment (Additional Information) Order 1998, S.I. 49 of 1998 made in accordance with section 3(6) of the Act, as the statement did not specify the times and duration of breaks in accordance with the Organisation of Working Time Act, 1997 at Sections 12.

I am satisfied that the contract of employment provided by the Respondent to the Complainant can properly be regarded as forming a written statement of her terms of her terms of employment as required by Section 3 of the Act. The breaches of the 1994 Act complained of in the within proceedings are merely of a technical nature. I hold the view that there is no practical impact of this breach on the Complainant during her employment with the Respondent.

I note the decision in Patrick Hall v Irish Water Determination TED161, where the Labour Court gave extensive consideration to the approach which should properly be adopted in cases where some technical contravention of the Act occurred which had no practical consequences for the complainant. Section 7(1)(d) of the Act provides, in effect, that an Adjudication Officer may order an employer to pay a complainant compensation of such amount (if any) as is just and equitable having regard to all the circumstances. The purpose of compensation is to provide redress to an aggrieved party for some loss, damage, inconvenience or expense incurred by that party in consequence of some wrongful act or omission by another. On the facts of the instant case, I am satisfied that the Complainant herein suffered no adverse consequences of any materiality in consequences of those contraventions upon which her claim to compensation is grounded. I am obligated to consider if such an award is just and equitable having regard to all the circumstances. In its decision in Irish Water the Labour Court held that where mere technical breaches of section 3 of the 1994 Act occur, “the dictates of fairness or equity could not justify an award of compensation”. I, follow that reasoning in my approach to this claim. I deem that the amount of compensation which is just and equitable in all the circumstances of this complaint is nil.

CA-00008605-007 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I note the submissions on this complaint and considered same it their entirety. The Complainant claims that the employer changes its name and that the Respondent has said that this was a requirement under the new Companies Act, 2014 and that the re-registration was not voluntary. I note is said that the type of Limited company, which the Respondent was, was no longer available, and it needed to be re-registered prior to the commencement of the Act.

The Law

The relevant paragraphs of the Act provide as follows: -

“3.— (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say

       (a)   the full names of the employer and the employee,

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

    (a) 1 month after the change takes effect, or

    (b) where the change is consequent on the employee being required to work outside the State for a    period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute, other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.”

I find that on the facts presented the Respondent has changed its name and the Complainant was not notified as per Section 5(1). However, I am of the view that the change of name was a change which has been levied on the Respondent due to the change to the Companies Act 2014. I note that the Companies Act in Section 63(12) states that - “The re-registration of a company as another type of company pursuant to this part shall not affect any rights or obligation of the company”.

I note the Section 5(2) of the Terms of Employment (Information) Act, 1994 states that Section 5(1) does not apply in relation to a change occurring in provisions of statues or instruments made under statues. When Section 5(2) is read in conjunction with Section 63(12) of the Companies Act 2014, I hold the view that this is to protect of the very same instances that arises here. Accordingly, I find that the Respondent is not in breach of the Act.

CA-00008605-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I find that the case is well founded. The amount of compensation which is just and equitable in this case is nil.

CA-00008605-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the case is well founded. The amount of compensation which is just and equitable in this case is €250.

CA-00008605-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the case is well founded. The amount of compensation which is just and equitable in this case is €250.

CA-00008605-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The complaint was withdrawn on the day of the Hearing, so no decision required.

CA-00008605-005 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:　

(i)                  the Respondent did not discriminate against the Complainant on grounds of Gender in terms of Section 6(2).

(ii)                the Respondent did not discriminate against the Complainant on grounds of Race in terms of Section 6(2).

Accordingly, her complaint fails.

CA-00008605-006 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I find that the case is well founded. The amount of compensation which is just and equitable in this case is nil.

CA-00008605-007 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

I find that the case is not well founded.