Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017255-002

05/02/2018

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

CA-00017255-003

05/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017255-004

05/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006

CA-00017255-005

05/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017255-006

05/02/2018

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

CA-00017255-010

05/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006

CA-00017255-011

05/02/2018

The complainant commenced employment as a hair stylist with the responded on 20/12/12.

She works 20 hours a week and earns €9.55 per hour.

She states that she did not get rest breaks, was offered no terms and conditions of employment until after she resigned in January 2018, was constructively dismissed, was subjected to discriminatory treatment, and was penalised for having reported work permit and tax issues to the relevant authorities.

She resigned her employment on 5/1/18.

She submitted seven complaints to the WRC on 5/2/18.

CA-00017255-002. Organisation of Working Time Act, 1997,

The complainant maintains that she did not always get her rest breaks as the salon was too busy to take lunch. Other staff did get their breaks. She was advised that she could not leave the salon while in lunch break.

CA-00017255-003. Terms of Employment (Information) Act, 1994.

The respondent did not provide her with terms and condition s of employment until after she had left her employment. There were no contracts prior to 2017.

CA-00017255-004. Section 8 of the Unfair Dismissals Act, 1977.

This is a complaint of constructive dismissal.

In relation to the statutory requirement for one years’ service, the complainant states that the employment records are unreliable. She believes that she has the requisite service up to January 5 2018 as she states that she worked in the sister salons owned by the respondent during 2017. She refers to texts from the salon in November and December 2016 which she states are evidence that she did work during this period though denied by the respondent. She states that text messages from the respondent reveal that she worked on 6, 7 and 8 March yet these are not recorded in in her P45 for the period 24/2/17 to 15/7 2017 and this, she maintains, support her argument that the records of her employment were not properly recorded by the respondent.

The complainant submits that she was the only employee not earning commission. She was a black woman. She had numerous discussions with the respondent and she was led to believe that she would be paid commission and that it would be backdated. She did receive commission in December 2017. She was then advised that she would not be paid commission in January 2018 and there would be no backdated commission. She took this to be a breach of the agreement and saw the payment made to her at Christmas to be no more than an enticement to work at Christmas.

Several times throughout December 2017 and January 18, she asked for a copy of her contract of employment and this was denied to her.

A stylist employed after the complainant was offered full time before the complainant.

There was no grievance procedure.

The breach of the agreement to pay her commission and the refusal to provide her with a copy of her contract forced her to conclude that there had been a complete breakdown of trust. She submitted her resignation on the 5 January 2018.

CA-00017255-005.Schedule 2 of the Employment Permits Act, 2006

The complainant withdrew this complaint.

CA-00017255-006.Complaint under the Industrial Relations Act, 1969.

The complainant states that she was bullied and harassed after she told the respondent she intended to make a complaint to the WRC. The respondent told the rest of the staff and she was bullied and harassed by a co-worker.

CA-00017255-010Complaint under section 77 of the Employment Equality Act, 1998.

The complainant withdrew the complaint of discrimination on the grounds of age.

The complainant states that she was discriminated against on family status and race grounds in relation to conditions of employment. She further states that she was victimised.

In 2015 she heard her manager state “Blacks should be paid less.”

She was not paid commission but other employees, white and Asian were getting a commission. She didn’t get her lunch breaks

She states that she was given the more menial tasks in the salon. She was only allowed cut and colour when the place was understaffed. These higher cost jobs earned higher tips for the stylists. She maintains this was done on the basis of her colour.

Her hours were frequently changed whereas the white and Asian employees had constant hours.

She mentioned that she was considering a Chinese donor as part of her IVF treatment and the respondent said” Chinese and Blacks don’t mix.” She was asked to move around to other salons; other staff were not asked to do this. She had to tend to more customers in a working day than other staff.

Marital status.

The complainant states that she heard the respondent using the expression IVF to fellow Chinese and other workers and this was followed by peals of laughter. She maintains had she been married or in a partnership and embarking on an IVF treatment plan, as opposed to being of a different marital status, the matter would not have provoked such laughter.

CA-00017255-011. Complaint under Schedule 2 of the Employment Permits Act, 2006.

The complainant withdrew this complaint.

CA-00017255-002. Organisation of Working Time Act, 1997,

The respondent refutes this complaint. The respondent refers to the records signed by the complainant confirming that she did get her rest breaks break. A witness for the respondent Ms D confirmed that all staff signed the working time record. She stated that staff went on lunch breaks when it was not busy.

CA-00017255-003. Terms of Employment (Information) Act, 1994.

The respondent submits copies of contracts signed by the complainant on 24 February 2017 and 8 September 2017. The respondent refutes this complaint.

CA-00017255-004.Section 8 of the Unfair Dismissals Act, 1977.

The respondent states that the complainant does not have one year’s continuous service at the date of her resignation on 5/1/18. Her employment with the respondent has been intermittent. She commenced employment in 2013 and left the employment on 16 June 2013. She was employed again in 2014.She had 2 further periods of employment with the respondent 24 February – 15 July 2017 and 7 August 2017 – 5 January 2018.

Should the adjudicator decide that the complainant has the requisite service, then in the alternative, the complainant’s evidence does not meet the two tests which she must satisfy in order to succeed in a complaint of constructive dismissal .The first test, the contract test, set out by Denning MR in Western Excavating (ECC) v Sharp (1978)I.C.R is described thus:

“conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

Concerning the reasonableness test which a complainant must satisfy either in addition to or as an alternative to the contract test, the respondent relies on the EAT decision – Joyce v brothers of Charity Services (2009) ELR 328 At 332 where it stated

“It must be satisfied that the employee is either entitled or is acting reasonably in terminating thecontract. In order for an employee to meet either of these criteria the conduct referred to in the act cannot be petty or minor but must be something that is serious or significant which goes to the root of the relationship between the employer and the employee. Consequently, the tribunal must look at the conduct of the employer and the reasonable ness of the recognition by the employee”.

The respondent submits that the complainant meets neither of the two tests.

No commission was paid to any of the part time staff. The sole permanent employee was the only employee out of a staff of seven who was paid commission.

The respondent refers to the onus on the employee to exhaust the internal grievance procedures, which was set out in the complainant’s written statement of her terms and conditions of employment and which she received and signed on 17 September 2017. Copies were submitted at the hearing. The complainant did not activate the grievance procedure to have her complaints addressed. The respondent again relies on Conway v Ulster Bank and Beatty v Bayside Supermarket to underscore the necessity of using the grievance procedures in a complaint of constructive dismissal.

CA-00017255-005. Schedule 2 of the Employment Permits Act, 2006.

The respondent was not aware that the complainant had made a complaint to the WRC until after the complainant had resigned.

CA-00017255-006. Complaint under the Industrial Relations Act, 1969.

The complainant refers in her submission to complaints of bullying against Ms D. She made no complaint to the respondent concerning Ms D;’s behaviour. Neither did she invoke any anti bullying procedure.

CA-00017255-010 Complaint under section 77 of the Employment Equality Act, 1998.

The respondent states that in order to show less favourable treatment on the race and family status ground, the complaint must demonstrate that a person of a different race and marital status was treated more favourably than her.

In response to the instances of alleged discrimination cited by the complainant, the respondent advises that all staff were asked to cover in sister salons. The complainant was paid the same minimum wage rates as other staff and did no more work than other staff.

The respondent refers to the burden of proof set out in section 85A of the Employment Equality Acts 1998, as amended, which rests with a complainant making a complaint of discrimination.

The respondent relies on Valpeters v Melbury Developments Limited EDA -0917, a case concerning alleged discrimination on grounds of race, where the Labour Court addressed the probative burden contained in Section 85A of the Acts which a complainant must meet in trying to raise an inference of discrimination. They stated

“This requires that the complainant must first establish facts from which discrimination may be inferred. …...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 of credible evidence. Mere speculation or assertion, unsupported by evidence, cannot be elevated to a factual basis upon which an inference od discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the the language of this provision admits of no exceptions to that evidential rule. Based on the tenets set out in that determination, and in Ryanair Ltd V Agnieszka Spyra, EDA 1428, the complainant has not advanced any facts or evidence from which it may be inferred that on the balance of probabilities, any act of discrimination on any of the grounds alleged occurred.

CA-00017255-011. Complaint under Schedule 2 of the Employment Permits Act, 2006.

The respondent was not aware of any complaint submitted to Department of Social Protection.

CA-00017255-002. Organisation of Working Time Act, 1997,

The complainant confirmed on the working time records that she had received her rest breaks. These records were opened at the hearing. This complaint cannot succeed.

CA-00017255-003. Terms of Employment (Information) Act, 1994.

The respondent submitted copies of contracts setting out the complainant’s conditions of employment signed by the complainant on 24 February 2017 and 8 September 2017 copies of which were provided to the complaianat. The evidence contradicts the complainant’s claims. I accept the respondent’s evidence. I do not uphold this complaint.

CA-00017255-004. Section 8 of the Unfair Dismissals Act, 1977.

The complainant has been intermittently employed with the respondent since 2013.

Does the complainant have one year’s continuous service?

For the year prior to her resignation on the 5 January 2018 she was employed for 2 separate periods:

24 February – 15 July 2017

And

7 August to 5 January 17.

These two contracts amount to 37 weeks and not the requisite years’ service. The complainant argues that her employment records are unreliable and that she worked in other salons in 2017. The complainant submits texts from different periods to demonstrate that she was working during those periods but submits no texts for the periods in 2017 for which she was not contracted to work, and which deprive her of the years’ service. There are no texts from January 2017 or from 15 July– 7 August 2017 indicating that she was working.

Based on the written and oral evidence I find that the complainant does not have the required service as required by section 2 (1) (a) of the Act.

I do not have jurisdiction to hear this complaint.

CA-00017255-010 Complaint under section 77 of the Employment Equality Act, 1998.

I am required to establish if the complainant was discriminated against on grounds of race and marital status contrary to section 6 (2)(b) and (h) of the Acts.

Admissibility of the 2015 complaint regarding the statement made by her manager Mr M that” blacks should be paid less" and the respondent’s statement to her in June 2017 “that Blacks and Chinese don’t mix” in response to her expressing a view that she might get a Chinese donor for her IVF treatment.

Section 77(5)(a) of the Acts provides: -

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Relying on Hurley v County Cork VEC (EDA 1124), I find these to be standalone incidents and inadmissible.

Burden of Proof

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded that”

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.”

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

Alleged discrimination on the grounds of race.

The facts advanced by the complainant to raise an inference of discrimination were that she was not paid commission unlike other staff of a different race.

The respondent employs 3 Irish stylists, 4 Chinese and 1 English stylist.

I accept the respondent’s evidence that they do not pay commission to other than the one permanent member of staff Ms. D, and the remaining 7 staff members, employed on a part time basis are not paid commission. While such an arrangement may run into difficulties under a different statute, this complaint has been lodged under the Employment Equality Act, 1998.In addition, I accept the respondent’s evidence that she was paid the same basic rate as all other staff.

I accept the respondent’s evidence that the payment made to the complainant in Christmas 2017, which the complainant mistakenly understood to be an initial payment of commission, was in fact a Christmas bonus, called ‘Red Pocket Money’, a tradition in the Chinese community.

In relation to the complaint that the complainant was given more menial tasks, the respondent advises that clients often specify a particular colourist or stylist and that perhaps the complainant did not get the same amount of opportunities to colour as other staff members. However, that is not necessarily evidence of less favourable treatment on grounds of race or family status.

Alleged discrimination on the grounds of family status.

The evidence does not support the complainant’s belief that she was treated less favourably because as a single person, she was undergoing IVF treatment. Her colleague Ms. D travelled to London to support her during her treatment. There is nothing to link the phrase IVF, uttered by the respondent, followed by laughter amongst colleagues, to family status no matter how insensitive that might be towards the complainant.

The labour Court further developed the onus which rests with a complainant, in Margetts v Graham Anthony and Company Ltd which stated that

“The mere fact that the complainant falls within one of the protected grounds is not sufficient to establish a claim of discrimination. The complainant must establish other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

Based on the written and oral evidence tendered, I find that the complainant has failed to discharge the burden of proof and the claim must therefore fail.

CA-00017255-002. Organisation of Working Time Act, 1997,

I do not find this complaint to be well founded

CA-00017255-003. Terms of Employment (Information) Act, 1994.

I do not find this complaint to be well founded

CA-00017255-004. Section 8 of the Unfair Dismissals Act, 1977.

I do not have jurisdiction to hear this complaint.

CA-00017255-005. Schedule 2 of the Employment Permits Act, 2006

The complainant withdrew this complaint.

CA-00017255-006. Complaint under the Industrial Relations Act, 1969.

The complainant did not use the internal procedures which she signed. I do not find this complaint to have merit.

CA-00017255-010 Complaint under section 77 of the Employment Equality Act, 1998.

I do not find that that the complainant has established facts from which discrimination based on race grounds, or family status grounds can be inferred. Therefore, her complaint cannot succeed.

Constructive dismissal; not paid commission; alleged discrimination on race and family status grounds.