ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014615

Parties:

Complaint(s):

Date of Adjudication Hearing: 12/09/2018

Workplace Relations Commission Adjudication Officer: Roger McGrath

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:

CA-00019036-001 Complaint under the Terms of Employment (Information) Act, 1994

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00019036-002 Complaint under the Terms of Employment (Information) Act, 1994

Summary of Complainant’s Case:

The Complainant stated that when her terms of employment were changed (she was no longer paid for her 15-minute break), she was not informed by the Respondent of this change.

Summary of Respondent’s Case:

The Respondent did not attend the hearing.

Findings and Conclusions:

On the uncontested evidence of the Complainant I find that she was never notified of a change to the terms of her employment.

Section 5 of the Act states:

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, 4or 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.

I note that Sec 7 (2) (d) of the Act states, “compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 5 of this Act.

I order the Respondent to pay the Complainant €100 compensation within six weeks of the date below.

CA-00019036-003 Complaint under the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

The Complainant stated that she was due 72.41 hours holiday pay when her employment was terminated. This holiday pay was not paid to her after her dismissal. The Complainant presented her final pay slip which included a line indicating a balance of 72.41 hours holiday pay was outstanding.

Summary of Respondent’s Case:

The Respondent did not attend the hearing.

Findings and Conclusions:

On the uncontested evidence of the Complainant I find that she is due a balance of 72.41 hours pay.

Section 19 of the Act states:

19.— (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):

Section 27(3) of the Act states:

(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 of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 19 of this Act.

I order the Respondent to pay the Complainant €691.51 compensation within six weeks of the date below.

CA-00019036-004 Complaint under the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

The Complainant submits that she was never paid for Public Holidays while working for the Respondent. During her period of employment with the Respondent there were five Public Holidays. The Complainant did not work on any of these Public Holidays.

Summary of Respondent’s Case:

The Respondent did not attend the hearing.

Findings and Conclusions:

On the uncontested evidence of the Complainant I find that she was not paid her Public Holiday entitlements.

Section 21 of the Act States;

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

( a) a paid day off on that day,

( b) a paid day off within a month of that day,

( c) an additional day of annual leave,

( d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule .

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

Ain this instance I find that as the Complainant is not normally rostered to work on Public Holidays she should get one fifth of her normal weekly rate for each of the five Public Holidays for which she did not get paid. This amounts to €157.58.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 21 of this Act.

I order the Respondent to pay the Complainant €157.58 compensation within six weeks of the date below.

CA-00019036-005 Complaint under the Payment of Wages Act, 1991.

Summary of Complainant’s Case:

The Complainant submits that she did not receive an appropriate payment in lieu of notice of termination of her employment. She did not receive any notification in advance of being let go.

Summary of Respondent’s Case:

The Respondent did not attend the hearing.

Findings and Conclusions:

On the uncontested evidence of the Complainant I find that she did not receive her proper notice entitlements. However, I find this claim, made under the Payment of Wages Act, is misconceived. This matter is dealt with in CA-00019036-008 below.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint fails.

CA-00019036-006 Complaint under the Employment Equality Act, 1998.

Summary of Complainant’s Case:

The Complainant stated that there were many different nationalities in the Respondent'sworkplace and that non-Irish employees were treated less favourably than their Irish colleagues.

The Complainant stated that an Irish person would not have been dismissed in the way she had been dismissed; she got no feedback on her performance, there was no disciplinary process utilised. The Complainant stated that the difficulties with her employer only arose when she queried her pay.

The Complainant did not provide a specific comparator.

The Complainant stated that she had no specific evidence to support her claim of discrimination. It was her "assumption" that her race was taken advantage of because she is not Irish.

Summary of Respondent’s Case:

The Respondent did not attend the hearing.

Findings and Conclusions:

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “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”.

To determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, the complainant is not Irish. The complainant has not established that she was discriminated against. She has also failed to convince me that any less favourable treatment she may have been subject to was due to her race.

I find that the complainant has not established a prima facie case and her complaint therefore fails.

Decision:

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.

The complaint fails.

CA-00019036-008 Complaint under the Minimum Notice and Terms of Employment Act, 1973.

Summary of Complainant’s Case:

The complainant submitted that she did not receive her the statutory minimum period of notice on termination of her employment.

The complainant stated that she was never given anything in writing, she was not given any notice and she was not paid in lieu of notice.

Summary of Respondent’s Case:

The Respondent did not attend the hearing.

Findings and Conclusions:

Section 4 of the Act states:

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,

( 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.

On the uncontested evidence of the complainant I find she was entitled to one week's notice which she did not receive.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 4 of this Act.

I order the Respondent to pay the Complainant €157.58 compensation within six weeks of the date below.

Dated:   14/03/19

Workplace Relations Commission Adjudication Officer: Roger McGrath

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