ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Restaurant Employee | Fast Food Retailer |
Representatives |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00023238-001 | ||
CA-00023238-002 | ||
CA-00023238-003 | ||
CA-00023238-004 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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:
There were four claims relevant to this case namely: CA-00023238-001: Complainant pursuant to the Payment of Wages Act, 1991, CA-00023238-002: Complainant pursuant to the Organisation of Working Time Act, 1997, CA-00023238-003: Complainant pursuant to the Organisation of Working Time Act, 1997, CA-00023238-004: Complainant pursuant to the Employment Equality Act, 1998. The Respondent carries on business as a Fast Food Retailer. The Complainant was employed by the Respondent on or about the 18th February 2014 with a job title of Kitchen on a contract for between 8 and 40 hours. The complaint form was received on 15 November 2018 by the WRC. The Respondent confirmed the correct Respondent details to the WRC prior to the hearing and the parties agreed at the hearing to updating the employer’s information to the correct respondent details. This is now done. I was concerned that the Respondent was not correctly notified of the initial hearing date and even though they attended the hearing on that day and subsequently both parties had an opportunity to submit further written submissions. I gave the Respondent the opportunity to have a further hearing date to ensure they had fair and adequate notice of the hearing. The respondent’s representative confirmed in writing to the WRC that they consider the matter to have reached its conclusion and requested for my decision to be issued further to the hearing and the opportunity they had to submit written submissions. On that basis I proceeded to issue my decision as follows:
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Summary of Complainant’s Case:
In or around April 2016 the Complainant began training for the role of Supervisor. He successfully completed that training, passed the relevant exam, and took up the role of Supervisor in or around October 2016. As a Supervisor, the Complainant was entitled to quarterly payments of €500.00 from the Respondent. The Complainant’s hourly rate of pay was initially €8.25. This was increased to €10.25 in November 2016 as a Senior Crew Person and was increased again in November 2016. The Complainant worked approximately 40 hours per week and more on some occasions. CA-00023238-001 The Complainant alleges the employer is in breach of the provisions of the Payment of Wages Act, 1997, and in particular section 5 thereof, accrued quarterly bonuses were not paid by the Respondent, which constitutes an unlawful deduction:
· 2016: 3 x €500.00 · 2017: 4 x €500.00 · 2018: 3 x €500.00 The Complainant alleges the employer is in breach of the provisions of the Payment of Wages Act, 1997, and in particular section 5 thereof, the Complainant was not paid for hours actually worked by him as follows:
· 2014: 140 hours at €8.25 per hour. The loss amounts to €1,155.00 · 2016: 80 hours at circa €11.00 per hour. The loss amounts to €880.00 · 2017: 27 hours at circa €11.00 per hour. The loss amounts to €297.00. CA-00023238-002 The Complainant alleges the employer is in breach of the provisions of the Organisation of Working Time Act, 1997, and in particular section 21 thereof, he was not compensated for the following public holiday entitlements: · 2014: 17 days of holidays at 8 hours per day @ 8.25. The loss amounts to €1,122.00 · 2015: 15 days of holidays at 8 hours per day @ 8.65. The loss amounts to €1,038.00 CA-00023238-003 The Complainant alleges the employer is in breach of the provisions, and section 19 in particular, of the Organisation of Working Time Act, 1997 and/or the Payment of Wages Act, 1997, he was not compensated for annual leave entitlements. The Complainant is entitled to 22 days of paid holidays per year. In 2014 the Complainant used 5 days, and in 2015 he used 7 days. The Complainant calculates that €1,122.00 is due and owing to him by the Respondent for 2014 and €1,038.00 is due and owing for 2015.
CA-00023238-004 The Complainant alleges the employer is in breach of the Employment Equality Act, 1998, he was discriminated against on the grounds of race, namely his Czech nationality and the colour of his skin. The Complainant was harassed and, furthermore, was victimised by the Respondent, within the meaning of section 74 of the Act.
They noted that Section 6 of the 1998 Act prohibits discrimination on the grounds of race. Discrimination is taken to occur when a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds, including race, which inter alia exists. The Complainant gave evidence at the adjudication hearing of the discrimination, harassment and victimisation to which he was subjected on the grounds of race. The following is provided by way of summary: The Complainant is a Czech national and was the only Czech national working in the premises. Throughout his employment with the Respondent, the Complainant was treated differently to other supervisors and employees with whom he worked. He was the only supervisor not to have been paid quarterly bonuses. He was regularly pulled away from tasks and embarrassed in front of fellow employees. The Complainant’s main complaint is in respect of the behaviour of one of his managers in particular, Manager X but is not limited thereto. Manager X requested other employees to report back to him about the Complainant. The Complainant was therefore subjected to unwarranted and improper scrutiny, supervision and criticism. He was refused various training including, for example, the ice machine. The Complainant was singled out for unfair treatment by Manager X and was repeatedly asked questions like “Did you wash your hands” which were intended to and did in fact degrade the Complainant. The Complainant previously complained Manager X about his treatment. The Complainant was the subject of a purported disciplinary hearing on or about the 24th November 2017. The hearing concerned an alleged complaint that the Complainant had shouted at a staff member. The disciplinary process was fundamentally flawed in that: i. The Complainant was not afforded fair procedures, ii. He was not accompanied at the hearing, notwithstanding that English is not his native language, and he was therefore at a disadvantage, iii. The Manager who took statements from other employees interviewed the Complainant, and this is the same Manager whom the Complainant complains has discriminated against him, iv. Multiple statements were provided by the same employees, v. The Complainant did not have an opportunity to cross-examine the people who provided statements against him, vi. A full and proper investigation was not carried out by the Respondent in respect of the Complainant’s assertions.
Following the hearing the Complainant was informed that he was to be issued a Final Written Warning and was to be demoted to a Crew Member. On the 11th December 2017 the Complainant’s solicitor formally appealed the decision, and also requested various documentation from the Respondent. Despite repeated requests, the Respondent has failed, refused and/or neglected to progress the Complainants appeal which he asserts constitutes ongoing discrimination, harassment and/or victimisation as do the penalties imposed by the Respondent to which he remains subjected. When the Complainant attended at work on the 26th December 2017, he was presented a new contract which purported to reflect his demotion. The Complainant did not sign same. This was not unreasonable in circumstances where the Complainant had lodged an appeal. The Complainant was informed by Manager X that he was not being allowed to work. The Complainant became very upset and left the premises. This was yet another example of the Complainant being singled out for unfair and inappropriate treatment and constitutes ongoing discrimination, harassment and/or victimisation by the Respondent, its servants or agents. The complaints herein were not referred within the six-month time period, the Complainant applies for such extensions of time for the bringing of the within complaints as are necessary on the following grounds: (a) The Complainant has been absent from work due to stress related illness. The Respondent is on notice of this and has been in receipt of sick certificates. (b) The Respondent is not prejudiced by any such extensions. (c) The Respondent’s decision in respect of the disciplinary hearing of the 24th November 2017 is the subject of an ongoing appeal by the Complainant, which the Respondent has failed, refused and/or neglected to progress.
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Summary of Respondent’s Case:
The Respondent outlined that each complaint contained in the Complainant’s complaint form falls outside of the six-month period within which they are required to be brought and is prima facie statue-barred. The Complainant has failed to show reasonable cause for delay in presenting his complaints and it is submitted that no extension to the six-month period is warranted in the circumstances. Had the Complainant been in a position to show reasonable cause for the delay, the complaints would be limited to the following timeframe:
1. Compliant Ref: CA-00023238-001 – 15 November 2017 to 26 December 2017 2. Compliant Ref: CA-00023238-002/3 – The Respondent is not in a position to establish the time frame to which this complaint relates as the Complainant has failed to provide details of the Annual Leave year or public holidays. 3. Compliant Ref: CA-00023238-004 – As per the Compliant Form, and the instruction of the Complainant on the day that the last day of discrimination should read ‘12/10/2017’. It is the Respondent’s understanding that this is a typographical error, and it is noted that when giving evidence the Complainant alleged discrimination on the 26 December 2017. Complaint Ref: CA-00023238-001
Section 6 (4) of the Payment of Wages Act, 1991 states that: “a rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”. The Adjudicator in the Workplace Relations Commission Adjudication Reference ADJ-0007212 considers in detail the implications of formulating a single complaint under the Payment of Wages Act, 1991 where a portion of the alleged contraventions of that legislation fall outside of the six-month time period within which a claim must be brought.
In considering the High Court decisions of Moran v The Employment Appeals Tribunal and Health Service Executive v McDermott, the Adjudication Officer found the complaint to be time-barred, but also noted that: “Mr Justice Hogan relying upon the Moran decision in the McDermott decision held as follows, “This was because the complaint as formulated by the Complainant in that case related to a time period of alleged contraventions which was plainly time barred”.
The within Complaint Form, while failing to establish any contravention of the Payment of Wages Act, was submitted to the WRC on the 15 November 2018. The Complainant became absent on sick leave on 26 December 2017 and has remained absent since that date. Any claim for a contravention of the Payment of Wages Act, 1991 is denied in its’ entirety but is in any event well outside of the 6-month time frame within which the Complainant is required to bring his claim. This Complaint is without doubt statute-barred.
The Complainant has failed to set out the details of this complaint, and the Respondent denies that there has been any contravention of the Payment of Wages Act, 1991.
Complaint Ref: CA-00023238-002/3
Section 27(4) of the Organisation of Working Time Act, 1997 states that “a rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” Subsection 5 of that Section goes on to state that a rights commissioner “may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
The within complaint was presented by the Complainant to the WRC on the 15 November 2018. The Complainant in the present case had professional advice available to him from in or around July 2017. His representative wrote to the respondent on 3 July 2017 advising that they were acting in respect of personal injury proceeding. The Complainant was therefore engaged with activating a complaint under a different statute. The Complainant’s representative also wrote to the Respondent on the 9 March 2018 advising that if they did not receive a response as a matter of urgency, they would have no alternative but to refer the matter to the Workplace Relations Commission. In the Adjudication Decision Ref: ADJ-0007818 (a copy of this decision is appended hereto) it was held that:
“A belief that the Respondent will ignore your efforts is surely all the more reason to progress the complaint to the external agencies”.
When giving evidence at the Adjudication Hearing of the within proceedings, the Complainant failed to offer any excuse or explanation for the delay, save that was “scared”. It is submitted that this rationale for delay is completely illogical in circumstances where the Complainant had threatened the within proceedings and that engaged representation to that effect. In any event, it is submitted that any such fear fails to meet the standard set out in the above authorities for reasonable delay.
The Complainant has failed to set out the details of both complaints, and the Respondent denies that there has been any contravention of the Organisation of Working Time Act, 1997.
Complaint Ref: CA-00023238-004
Section 77(4)(5)(a) of the Employment Equality Act, 1998 provides that a claim for redress may not be referred “after the end of the period of 6 months from the date of the occurrence of the discrimination to which the case relates, or, as the case may be, the date of its most recent occurrence”.
Section 77(4)(5)(b) allows a complaint to be heard within a further 6 months where reasonable cause exists.
The standard test set out by the Labour Court for the purpose of granting an extension of time is that formulated in Cementation Skanska and Carroll, DWT0338 in the following terms: -
“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would initiate the claim in time”.
A copy of this decision is appended hereto. The Labour Court in that case decided to extend time as, among other reasons, the claimant was not receiving legal advice. In the case of Kylemore Service Group and Michael Loftus, UDD1628, the Court declined to extend time where the complainant relied on his homelessness and mental health problems. The Court noted that he had the capacity to instruct his legal advisor and formed the view that “as the Complainant had the capacity to issue those instructions there is no reason to find that he did not have equal capacity to issue instructions…to file a complaint under this Act on his behalf with the WRC.” A copy of this decision is appended hereto.
The Complainant in the present case had professional advice available to him from in or around July 2017. His representative wrote to the respondent on 3 July 2017 advising that they were acting in respect of personal injury proceeding. The Complainant was therefore engaged with activating a complaint under a different statute. The Complainant’s representative also wrote to the Respondent on the 9 March 2018 advising that if they did not receive a response as a matter of urgency, they would have no alternative but to refer the matter to the Workplace Relations Commission. In the Adjudication Decision Ref: ADJ-0007818 it was held that:
“A belief that the Respondent will ignore your efforts is surely all the more reason to progress the complaint to the external agencies”.
When giving evidence at the Adjudication Hearing of the within proceedings, the Complainant failed to offer any excuse or explanation for the delay, save that was “scared”. It is submitted that this rationale for delay is completely illogical in circumstances where the Complainant had threatened the within proceedings and that engaged representation to that effect. In any event, it is submitted that any such fear fails to meet the standard set out in the above authorities for reasonable delay.
The Respondent states that it is clear that the Complainant has failed to prove the case set out in his Complaint form and is also out of time. The Complainant herein has failed to demonstrate any instances of discrimination, victimisation or harassment. During the hearing of the within proceedings, the examples of discrimination proffered by the Complainant were as follows: 1. That he had been asked to sign a Contract of Employment; 2. He had to open the store by himself with ‘barely any’ help from his manager; 3. That the store had advertised for a supervisor; 4. That he had been unable to locate his shoes. It is submitted that none of the examples provided by the Complainant meet the threshold for discrimination, victimisation or harassment. Discrimination is defined in section 6(1) of the Employment Equality Acts as one person is being treated less favourably than another is, has been or would be treated. The Labour Court in the decision of Rimantas Juodris & Sarunas Juodris V Ruskim Seafoods Ltd EE/2011/720 & EE/2011/720 set out the basis for bringing a case of discrimination. Victimisation is defined in section 74(2) of the employment equality acts as “dismissal or other penalisation of the complainant solely or mainly occasioned by the complainant having, in good faith- (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment), (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or (d) given notice of an intention to do anything within paragraphs (a) to (c).” The Labour Court in the decision of Department of Defence v Barrett EDA1017 stated that in order to succeed improving a claim for victimisation the complainant was required to show the following: (a) the complainant had taken action of a type referred to at Section 74 of the act; (b) the complainant was subjected to adverse treatment by the respondent; and (c) the adverse treatment was in reaction to the protected action haven’t been taken by the Complainant. The Complainant has failed to establish he has been victimised, discriminated against or harassed.
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Findings and Conclusions:
Decision:
CA-00023238-001 In relation to the Pay claim in line with section 6 of the Payment of Wages Act 1991, I make the following decision; At all times it was open to the Complainant to refer a complaint to the WRC. The Complainant is outside of the legislative timeline based on the evidence provided therefore this claim fails. CA-00023238-002 In relation to the public holiday claim in line with section 27 of the Organisation of Working Time Act, 1997, I make the following decision; At all times it was open to the Complainant to refer a complaint to the WRC. The Complainant is outside of the legislative timeline based on the evidence provided therefore this claim fails. CA-00023238-003 In relation to the annual leave entitlements in line with section 27 of the Organisation of Working Time Act, 1997, I make the following decision; At all times it was open to the Complainant to refer a complaint to the WRC. The Complainant is outside of the legislative timeline based on the evidence provided therefore this claim fails.
CA-00023238-004
For the reasons set out herein, the Complainants complaint was out of time and no reasonable cause was established that would allow for an extension of time therefore this claim fails.
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Dated: 8th August 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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