Complainant

Respondent

Anonymised Parties

A Complainant

A Retail Food Business

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028460-001

16/05/2019

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

CA-00028460-002

16/05/2019

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

CA-00028460-003

16/05/2019

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

CA-00028460-004

16/05/2019

The complainant is a Sudanese national who works in a retail food business. He works 19 hours a week for which he receives a weekly wage of €186.20 All of his work colleagues are of Pakistani heritage. The complainant is claiming discriminatory dismissal, in that his employment was terminated because of his race and nationality. He is also claiming that he did not receive a statement of his terms and conditions of employment, holiday pay nor minimum notice before his employment ended.

The complainant is a Sudanese national and has worked 19 hours a week as a shop assistant for the respondent since the 20th of October 2016 for a weekly wage of €186.20. The complainant’s duties involve general shop assistant work along with deli work for which he obtained certain health and safety certificates during his employment. The complainant asserts that he always had a good relationship with the respondent, his co-workers and the customers of the business.

Prior to the complainant’s dismissal the manager of the respondent business provided a letter stating that he intended to increase the complainant’s hours in the business. This letter is dated the 14th of February 2019, a copy of which was exhibited.

The complainant submits that at no time during his employment with the respondent business did he receive a statement of the terms and conditions of his employment. He also asserts that he never received holiday pay.

The complainant states that during his time working for the respondent, he was never at any time the subject of performance or disciplinary related review by the respondent. He further states that at no time during his employment with the company did he received a verbal or written warning from the respondent. The complainant speaks both English and Arabic. The respondent business is owned and run by people of Pakistani heritage who speak English and Urdu.

At the time of the complainant’s dismissal from the respondent business, he claims he was the only person employed in the business who was not of Pakistani heritage. The complainant states that, although he did not speak Urdu, this never posed a problem for him at work.

On or about the 9th of May 2019 the complainant was informed by the respondent that the next day would be his last day working at the business. This was the first time the complainant had been advised by his employers that his employment was to be terminated. The complainant was not given his statutory minimum notice or any payment in lieu thereof. The complainant drew his employer’s attention to his rights in this regard and his protestations were ignored. The complainant ceased employment with the respondent company on the 10th of May 2019 and a copy email from Mister X confirming this, was exhibited. The complainant was not at any time given the reason for his dismissal despite requesting same.

On the 13th of May 2019 a man of Pakistani heritage commenced work with the respondent company. The complainant contends that this new employee fulfils the same role as previously filled by the complainant. It is submitted that the only difference between the new employee and the complainant is nationality and race and this new employee effectively replaced the complainant.

It is submitted that the complainant has been dismissed in circumstances amounting to discrimination based on his nationality as outlined by section 6 (2) of the Employment Equality Act 1998. The complainant seeks adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act 1998.

Under Section 3 of the Terms of Employment (Information) Act 1994, an employer is obliged to provide an employee with a statement in writing containing particulars of the terms of the employee's employment. The complainant states that at no time during his employment did he receive such a statement and is therefore seeking adjudication under Section 7 of the said Act.

Under the Organisation of Working Time Act 1997 the complainant was entitled to paid annual leave during his employment with the respondent business. At one point during his employment the complainant was advised of this by a third party and raised the issue with his employer, who the complainant states responded that no such entitlement existed for part time workers. The complainant is seeking adjudication under section 27 of the Organisation of Working Time Act 1997. The plaintiff did not receive the statutory minimum notice to which he is entitled and now seeks adjudication of this matter under section 11 of the Minimum Notice and Terms of Employment Act 1973.

The Respondent failed to appear at the hearing.

CA-00028460-004 Discriminatory Dismissal

The main issue I must consider in this specific complaint is whether the complainant was subjected to discrimination in relation to the manner of his dismissal on the grounds of race as defined under the Employment Equality Acts 1998-2015.

Section 6(1) of the Employment Equality Acts provides:

“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 …”

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...”

85A. Burden of Proof

(1) Where in any proceedings 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 [Commission] to the [Director General] under section 85(1), facts are established by or on behalf of the [Commission] 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.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), insofar as they related to proceedings under this Act, are revoked.

Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination and requires the complainant to establish in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

I found the complainant to be honest and frank in the giving of his evidence. The uncontested evidence of the complainant was that he was the only person who was not of Pakistani heritage in the company and that he was dismissed because of his race. He was replaced almost immediately by a man of Pakistani heritage who continued to carry out the same duties he had previously carried out in the business. No reason was given for his dismissal which he submits was done summarily. He gave evidence that he was never disciplined nor were any performance issues identified whilst he worked. I conclude that the complainant satisfies the prima facie threshold regarding section 85A of the Acts and has proved, as a matter of probability that he was singled out for dismissal and that any other colleague of a different racial origin would not have been dismissed. As the respondent was not present to rebut the inference of discrimination raised and in consideration of all the evidence presented to me, I find that the complaint is well founded and that the complainant was dismissed on the grounds of race and therefore suffered discrimination contrary to section 6(2) of the Acts.

In the making of the award I am minded of the guidance given by the Labour Court in Massinde Ntoko v Citibank {2004} 15 E.L.R. 116 where it stated that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. The dismissal on race grounds of the complainant, breached his rights to equal treatment and freedom from prejudice. I find that his complaint of discriminatory dismissal is well founded, and I award the complainant compensation of €10,000.    

CA-00028460-001 Minimum Notice

The minimum period of notice is addressed in section 4 of the Minimum Notice and Terms of Employment Act, 1973 which reads:

(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,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

(3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.

(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.

(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have the effect as if that contract provided for a period of notice in accordance with this section.

(6) The Minister may by order amend or revoke an order under this section including this subsection.

The complainant submits that he was summarily dismissed without notice. The respondent was not present to submit evidence in rebuttal of the complaint, therefore, based on the evidence presented to me I find that the complaint is well founded and section 4(2)(a) of the Act is the relevant section. The complainant is entitled to two weeks’ notice therefore I award him the compensatory sum of €372.40.

CA-0028460 – 002: Terms of Employment

Terms of Employment  

The Terms of Employment (Information) Act, 1994 require that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Furthermore, redress in the Act is described as follows at Section 7(2):

A recommendation of an adjudication officer under subsection (1) 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)(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

(d) order 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 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations undersection 17 of the Unfair Dismissals Act 1977,

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 a contravention to which the complaint relates, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The complainant submits that he never received a statement of his terms and conditions from the respondent during the period he was employed. In this case the only redress sought by the Complainant is an award of compensation. Such an award can only arise where the complaints made are well founded. Moreover, it should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. The respondent was not present to submit evidence in rebuttal of the complaint, therefore, based on the evidence presented to me I award the complainant the sum of €150 in his favour.

CA-00028460-003: Annual Leave

Annual Leave

The Organisation of Working Time Act 1997 deals with entitlement to annual leave at Sections 19 and 20:

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater…

20. Times and pay for annual leave:

(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

[(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year].

(2) The pay in respect of an employee's annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section.

27. Complaints to adjudication officer:

(1) In this section “relevant provision” means—

(a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26,

[(aa) any of the following regulations of the Activities of Doctors in Training Regulations namely, regulations 5 to 10,]

(b) the provision referred to in section 6(1) of regulations, a collective agreement, registered employment agreement or employment regulation order referred to in that section, or

(c) paragraph 9 of the Fifth Schedule.

(2) [ … ]

[(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(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.

The complainant, in evidence, stated that when he approached the respondent for paid annual leave he was told that as he worked only 19 hours a week he was not entitled to annual leave. This is an erroneous assertion by the respondent.

I am minded of the decision in Cementation Skanska v Carroll DWT 38/2003. In this case, the Labour Court said that, given the requirements of Art.7 of the Working Time Directive, an award of compensation for loss of annual leave “need not be limited to the value of the lost holidays”. The Court recognised that, where the right to annual leave is infringed, the redress provided “should not only compensate for economic loss sustained but must provide a real deterrent against future infractions”. I have decided that this claim is well founded, and I conclude that it is just and equitable to award the Complainant €900 under section 27 of the Organisation of Working Act.

CA-00028460 - 004 Discriminatory Dismissal

The complaint is well founded, and I award the complainant €10,000

CA-00028460 - 001 Minimum Notice

The complaint is well founded, and I award the complainant compensation of €372.40

CA-0028460 – 002: Terms of Employment

The complaint is well founded, and I award the complainant compensation of €150

CA-00028460-003: Annual Leave

The complaint is well founded, and I award the complainant compensation of €900.

Discriminatory Dismissal, Minimum Notice, Holidays, Terms of Employment