ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020001

Parties:

	Complainant	Respondent
Anonymised Parties	An employee	An employer

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00026469-001	19/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00026469-002	19/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026469-003	19/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026469-004	19/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026469-005	19/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026469-006	19/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026469-007	19/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00026469-008	19/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00026469-009	19/02/2019

Date of Adjudication Hearing: 16/10/2019

Workplace Relations Commission Adjudication Officer: Conor Stokes

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 respondent is a Registered Friendly Society. The complainant was employed by the respondent on a fixed term contract from 22 August 2016 until 22 August 2017 which was renewed from 22 August 2017 until 22 August 2018. The complainant informed her employer of her pregnancy on 14 December 2017 and submitted the relevant paperwork thereafter.

Summary of Complainant’s Case:

The complainant’s case is that she never received a document with the name of the employer on it in that the fixed-term contract she received indicated that the respondent was given a different name. Accordingly, it does not constitute a valid contract. Following on from this, the respondent cannot claim the benefit of a contract of a contract that was in the name of an entity that doesn’t exist.

In these circumstances, it was argued that the complainant should not have been let go during the special protected period that surrounds Maternity. It was submitted that this constitutes dismissal and this discrimination is contrary to the provisions of the Employment Equality Act, 1998.

The complainant submitted that if this issue related to a role expiring and the office returning to the original configuration then it would amount to a redundancy issue and in that case, the manner in which the complainant was treated would amount to a breach of the Directive.

Summary of Respondent’s Case:

The respondent’s case is that the inclusion of the word Limited in the contract is simply a typo that appears once in the letter but not in the Association Handbook (both of which constitute the contract of employment). It contends that all employment related information is included in these two documents which were provided to the complainant at the start of her employment.

The respondent contends that this combination of documents complies with the provisions of the all of the employment legislation and accordingly does not discriminate against the complainant.

The respondent contends that the complainant’s position was always considered to be temporary and accordingly she was engaged on a temporary (fixed-term) basis.

The respondent submitted that they were not required to pay the complainant notice as she was on notice that her fixed-term contract would finish on 22 August 2018.

Findings and Conclusions:

CA-00026469-001

The respondent contends that the complainant sought a permanent position with them in 2017 prior to the renewal of the second fixed-term contract. This was refused on the basis that they were not in a position to offer a permanent, but the second fixed-term contract was offered and accepted by the complainant. The complainant contests this version of events, stating that she didn’t seek a full-time position as, from a personal perspective, she wasn’t in a position to seek one. On balance, having heard the evidence presented to me, I prefer the respondent’s version of events in relation to this element.

Arising from the foregoing and the conclusion that the complainant was employed under a fixed-term contract (see CA-000-26469-002 below) and arising from the fact that she was on notice of the expiry of the contract (see CA-000-26469-008 below), I am not satisfied that the complainant has established a prima facie case of discrimination under the Employment Equality Act, 1998 and this element of the complaint fails.

CA-00026469-002

The respondent submitted that the inclusion of the word ‘limited’ in the letter that forms part of the contract of employment is a typo. Having considered all the information submitted to me, in particular, the letter and handbook comprising the contract and the payslip submitted together with the accounts from both parties, I accept the respondent’s contention that the inclusion of the word ‘limited’ was a typo. Therefore, I consider that the complainant received the particulars of her employment in accordance with Section 3 of the Terms of Information Act. Furthermore, I am satisfied that the complainant was employed on a fixed-term contract. Accordingly, no prima facie case has been established in relation to the Terms of Employment (Information) Act, 1994 and this element fails.

CA-00026469-003

No claim in relation to the payment for Public Holidays was pursued. As no evidence was presented, I find that no breach of this element of the Organisation of Working Time Act, 1997 has been established and this element of the complaint fails.

CA-00026469-004

CA-00026469-005

The claim in relation to the right to four weeks annual leave was withdrawn.

CA-00026469-006

The claim in relation to the right to two weeks unbroken annual leave (Section 19(3) of the Act) was withdrawn.

CA-00026469-007

The respondent noted that payment of 5.5 days annual leave was due to the complainant and indicated that this would be paid.

CA-00026469-008

Arising from the conclusion that the complainant was employed under a fixed-term contract (see CA-000-26469-002 above), I am satisfied that the complainant was on notice of the end date of her contract. Therefore, the complainant is not entitled to succeed in relation to this element of the claim.

CA-00026469-009

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

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-00026469-001

Based on all the information provided to me in relation to the investigation, my decision is that the complainant is not entitled to succeed under Section 79 of the Employment Equality Acts, 1998 - 2015.

CA-00026469-002