ADJUDICATION OFFICER DECISION
CORRECTION ORDER ISSUED PURSUANT TO SECTION 41(16) OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision issued on 29/07/19 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00015431
Parties:
| Complainant | Respondent |
Anonymised Parties | A Barber | A Barber Shop |
Representatives | In person | Did not attend |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice and Terms of Employment Act, 1973. | CA-00020046-001 | 27/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00020046-004 | 27/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00020046-005 | 27/06/2018 |
Date of Adjudication Hearing: 08/04/2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,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 worked for the respondent as a Barber from 16th January 2018 until 1st June 2018. The complainant worked approximately 39 hours per week and was paid €430 gross. The complaints relate to alleged breaches of the Organisation of Working Time Act 1997, the Minimum Notice and Terms of Employment Act, 1973 and the Employment Equality Acts, 1998-2015. The complaints were submitted to the Workplace Relations Commission (WRC) on 27th June 2018. |
Summary of Complainant’s Case:
CA-00020046-001 – Minimum Notice The complainant stated that she was summarily dismissed on 1st June 2018. The complainant is seeking her minimum notice entitlements. CA-00020046-004 – Breaks The complainant stated that she did not get breaks while at work. The complainant submits that she mostly worked alone in the barber shop which meant it was impossible to take any breaks. She stated that she ate her lunch if the opportunity arose while there were no customers in the shop. CA-00020046-005 – Discrimination and Harassment The complainant stated that she was discriminated against on the grounds of her Race, Gender and Religion. The complainant stated that she was also harassed by the respondent owner. The complainant outlined that she was working in another Barber Shop in Galway and was very busy. She stated that when she began working for the respondent, the business was very quiet. The complainant estimated that she was doing approximately 10 haircuts each Saturday while employed by the respondent as opposed to approximately 35 haircuts on a Saturday in her previous employment. The complainant stated that after approximately 3-4 weeks, she began to receive reduced salary payments and the respondent would assure her that she would paid her outstanding entitlements the following week. The complainant contends that having been employed to work five days per week, her hours were then reduced to three days per week. The complainant stated that when she sought the correct salary payments, the respondent made comments to her in relation to her race and to the fact that she drove a Volvo stating that people of her race had plenty of money. The complainant also stated that the respondent made discriminatory remarks relating to her religion by virtue of the food she ate as well as making generally inappropriate comments to her. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication hearing and was not represented. |
Findings and Conclusions:
It is regrettable that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint. In relation to the complaints I find as follows: CA-00020046-001 – Minimum Notice Sections 4(1) and 4(2)(a) of the Minimum Notice and Terms of Employment Act, 1973 states as follows: 4.(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, The complainant stated that she was dismissedwith immediate effect on 1st June 2018. On the basis of her service with the respondent, the complainant was entitled to one weeks’ notice of the termination of her employment. Accordingly, I find that the complaint is well founded. CA-00020046-004 – Breaks Section 12 of the Organisation of Working Time Act, 1997 states as follows: 12.(1)An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1). The complainant stated that she mostly worked alone in the barber shop. I accept her evidence that in those circumstances it was not always possible to take a break and when it was possible, the complainant’s break was often interrupted by a customer entering the shop. Based on the complainant’s evidence and in the absence of any participation from the respondent in the adjudication process, I am satisfied that the complainant did not receive breaks in line with the provisions of the legislation. CA-00020046-005 – Discrimination and Harassment The complainant submits that she was discriminated against on the grounds of her Gender, Religion and Race by the respondent. The complainant also asserts that she was harassed by the respondent owner. Discrimination Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows: 6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where — (a) 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) (in this Act referred to as the ‘discriminatory grounds’) which — (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. Harassment Harassment and Sexual Harassment are defined under Section 14A of the Employment Equality Acts, 1998 to 2015 as follows: 14A. (1) For the purposes of this Act, where — (a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is— (i) employed at that place or by the same employer, (ii) the victim’s employer, or (iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or (b) without prejudice to the generality of paragraph (a) — (i) such harassment has occurred, and (ii) either — (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment. (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable — (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, (3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person. (4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment. (5) In this section ‘employee’ includes an individual who is — (a) seeking or using any service provided by an employment agency, and (b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1), and accordingly, any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility. (6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12. (7) (a) In this section — (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material Burden of Proof Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:
85A (1) Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary. (4) In this section ‘discrimination’ includes — (a) indirect discrimination, (b) victimisation, (c) harassment or sexual harassment, (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void. In her evidence, the complainant stated that the respondent owner often commented on her race and how people of her race always had money. The respondent owner was also alleged to have made comments to the complainant in relation to her religion and her choice of diet as well as making inappropriate comments in relation to, inter alia, the complainant’s gender. Having considered the evidence presented, I am satisfied that the complainant has discharged the burden of proof in relation to her complaints and has given an honest and credible account of how she was treated by the respondent owner. Accordingly, and in the absence of any participation by the respondent in the adjudication process, I am satisfied that the complaints are well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00020046-001 – Minimum Notice I find that the complaint is well founded. The respondent is directed to pay the complainant €430 (one weeks’ gross pay) in respect of minimum notice entitlements. CA-00020046-004 – Breaks I find that the complaint is well founded. The respondent is directed to pay the complainant compensation in the sum of €500 for the infringement of the complainant’s employment rights. |
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00020046-005 – Discrimination and Harassment I find that the complaints of discrimination and harassment are well founded. The respondent is directed to pay the complainant €5,000 in compensation. |
Dated: 29/07/2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Minimum Notice, Breaks, Discrimination, Harassment |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015431
Parties:
| Complainant | Respondent |
Anonymised Parties | A Barber | A Barber Shop |
Representatives | In person | Did not attend |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015 | CA-00020046-001 | 27/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00020046-004 | 27/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00020046-005 | 27/06/2018 |
Date of Adjudication Hearing: 08/04/2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,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 worked for the respondent as a Barber from 16th January 2018 until 1st June 2018. The complainant worked approximately 39 hours per week and was paid €430 gross. The complaints relate to alleged breaches of the Organisation of Working Time Act 1997, the Workplace Relations Act, 2015 and the Employment Equality Acts, 1998-2015. The complaints were submitted to the Workplace Relations Commission (WRC) on 27th June 2018. |
Summary of Complainant’s Case:
CA-00020046-001 – Minimum Notice The complainant stated that she was summarily dismissed on 1st June 2018. The complainant is seeking her minimum notice entitlements. CA-00020046-004 – Breaks The complainant stated that she did not get breaks while at work. The complainant submits that she mostly worked alone in the barber shop which meant it was impossible to take any breaks. She stated that she ate her lunch if the opportunity arose while there were no customers in the shop. CA-00020046-005 – Discrimination and Harassment The complainant stated that she was discriminated against on the grounds of her Race, Gender and Religion. The complainant stated that she was also harassed by the respondent owner. The complainant outlined that she was working in another Barber Shop in Galway and was very busy. She stated that when she began working for the respondent, the business was very quiet. The complainant estimated that she was doing approximately 10 haircuts each Saturday while employed by the respondent as opposed to approximately 35 haircuts on a Saturday in her previous employment. The complainant stated that after approximately 3-4 weeks, she began to receive reduced salary payments and the respondent would assure her that she would paid her outstanding entitlements the following week. The complainant contends that having been employed to work five days per week, her hours were then reduced to three days per week. The complainant stated that when she sought the correct salary payments, the respondent made comments to her in relation to her race and to the fact that she drove a Volvo stating that people of her race had plenty of money. The complainant also stated that the respondent made discriminatory remarks relating to her religion by virtue of the food she ate as well as making generally inappropriate comments to her. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication hearing and was not represented. |
Findings and Conclusions:
It is regrettable that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint. In relation to the complaints I find as follows: CA-00020046-001 – Minimum Notice Sections 4(1) and 4(2)(a) of the Minimum Notice and Terms of Employment Act, 1973 states as follows: 4.(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week, The complainant stated that she was dismissedwith immediate effect on 1st June 2018. On the basis of her service with the respondent, the complainant was entitled to one weeks’ notice of the termination of her employment. Accordingly, I find that the complaint is well founded. CA-00020046-004 – Breaks Section 12 of the Organisation of Working Time Act, 1997 states as follows: 12.(1)An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1). The complainant stated that she mostly worked alone in the barber shop. I accept her evidence that in those circumstances it was not always possible to take a break and when it was possible, the complainant’s break was often interrupted by a customer entering the shop. Based on the complainant’s evidence and in the absence of any participation from the respondent in the adjudication process, I am satisfied that the complainant did not receive breaks in line with the provisions of the legislation. CA-00020046-005 – Discrimination and Harassment The complainant submits that she was discriminated against on the grounds of her Gender, Religion and Race by the respondent. The complainant also asserts that she was harassed by the respondent owner. Discrimination Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows: 6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where — (a) 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) (in this Act referred to as the ‘discriminatory grounds’) which — (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. Harassment Harassment and Sexual Harassment are defined under Section 14A of the Employment Equality Acts, 1998 to 2015 as follows: 14A. (1) For the purposes of this Act, where — (a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is— (i) employed at that place or by the same employer, (ii) the victim’s employer, or (iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or (b) without prejudice to the generality of paragraph (a) — (i) such harassment has occurred, and (ii) either — (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment. (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable — (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, (3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person. (4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim’s employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment. (5) In this section ‘employee’ includes an individual who is — (a) seeking or using any service provided by an employment agency, and (b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1), and accordingly, any reference to the individual’s employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility. (6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for ‘in relation to the victim’s conditions of employment’ there were substituted ‘contrary to section 11’ or, as the case may be, section 12. (7) (a) In this section — (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material Burden of Proof Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:
85A (1) Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant. (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary. (4) In this section ‘discrimination’ includes — (a) indirect discrimination, (b) victimisation, (c) harassment or sexual harassment, (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void. In her evidence, the complainant stated that the respondent owner often commented on her race and how people of her race always had money. The respondent owner was also alleged to have made comments to the complainant in relation to her religion and her choice of diet as well as making inappropriate comments in relation to, inter alia, the complainant’s gender. Having considered the evidence presented, I am satisfied that the complainant has discharged the burden of proof in relation to her complaints and has given an honest and credible account of how she was treated by the respondent owner. Accordingly, and in the absence of any participation by the respondent in the adjudication process, I am satisfied that the complaints are well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00020046-001 – Minimum Notice I find that the complaint is well founded. The respondent is directed to pay the complainant €430 (one weeks’ gross pay) in respect of minimum notice entitlements. CA-00020046-004 – Breaks I find that the complaint is well founded. The respondent is directed to pay the complainant compensation in the sum of €500 for the infringement of the complainant’s employment rights. |
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00020046-005 – Discrimination and Harassment I find that the complaints of discrimination and harassment are well founded. The respondent is directed to pay the complainant €5,000 in compensation. |
Dated: 29/07/19
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Minimum Notice, Breaks, Discrimination, Harassment |