Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Limited Company ( In Liquidation)

Representatives

Ciaran Kirwan Margetson & Greene Solicitors

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-00030137-001

08/08/2019

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

CA-00030137-002

08/08/2019

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

CA-00030137-003

08/08/2019

The Complainant is a former sales assistant, who at all material times was employed by the Respondent, having commenced his employment in or around July 2005. In and around the 8th August 2019 the Complainant filed a complaint to the WRC, in respect of a failure to pay notice and annual leave and additionally in respect of discrimination on the grounds of age. Further, the Complainant alleges a breach of section 4(2)(d) of the Minimum Notice and Terms of Employment Act 1973, as amended with regard to his entitlement to notice, and a breach of section 5 of said Act, having regard to section 19 and section 21 of the Organisation of Working Time Act 1997, as amended with regard to annual leave and public holiday entitlement.

In August, 2018 the Complainant was required to reduce his normal working hours from 36, as per his previous contract of employment to 22 per week by way of a new contract of employment. The Complainant contends that he was directly discriminated against by his employer, the Respondent, on the grounds of age contrary to the Employment Equality Acts 1998 - 2011, as amended (the “EEA”) and seeks adjudication by the WRC under section 77 of the Act.

NOTICE AND ANNUAL LEAVE/PUBLIC HOLIDAYS

Section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended deals with minimum notice and provides:

‘4(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be -

(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,’

Schedule 2 section 1 of the Minimum Notice and Terms of Employment Act 1973, as amended states:

‘RIGHTS OF EMPLOYEE DURING PERIOD OF NOTICE.

Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.’

Section 19 of the Organisation of Working Time Act provides for annual leave for employees 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):

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.’

With regard to Public Holidays, section 21 of the Organisation of Working Time Act provides:

‘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.’

The Complainant, who meets the requirements of section 4(2)(d) of the Minimum Notice and Terms of Employment Act 1973 above, had an entitlement to six weeks’ notice. Thus, the Complainant should have been paid notice in the sum of €530 x 6 totalling €3,150.

The Complainant had an entitlement to annual leave for said six weeks. Therefore, the Complainant should have been paid 2.3 days annual leave for this six-week period. Based on a weekly income of €530, the amount due for annual leave totals €243.80.

The Complainant did not benefit from any pay for public holidays during the above notice period. One public holiday occurred during the required notice period, that being the 17th March 2019. The Complainant thus has an entitlement for said public holiday in the sum of €106.

RELEVANT LAW AND APPLICATION OF THE FACTS – DISCRIMINATION

Section 6(1) of the EEA provides that: -

‘Discrimination shall be taken to occur where 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 sub-section 2 (in this Act referred to as the ‘discriminatory grounds’).’

Section 6(2)(f) provides that: -

‘(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),’

Further the EEA states at section 34(4):

‘(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if—

(i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary’.

Where retirement is being imposed on the grounds of age, McKechnie J. in Donnellan v The Minister for Justice & Ors. [2008] IEHC 467 held:

‘As noted, national measures relating to compulsory retirement ages, are not excluded from consideration under Direction 2000/78/EC. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.’

It is contended that the Complainant was subjected to discrimination on the grounds of age from the 15th July 2018 to his last date of employment on 17th February 2019 – in that during that period his working week was reduced from 36 hours to 22 hours.  

The Respondent chose to terminate the full-time employment of the Complainant, as per the Respondent’s letter to the Complainant of 28th May 2018. The only reason stated was a need to “make some changes going forward in staffing and wage costs”. There is no evidence that the Respondent’s decision was objectively and reasonably justified by a legitimate aim, and that the means of achieving that aim was appropriate and necessary. Neither is there evidence that the decision was proportionate.

No other full-time employee was subjected to a reduction in hours either before or after the change enforced on the Complainant – until the closure of the shop in February/early March 2019.

The Complainant contends that he never sought to have his hours reduced and was distressed at being singled out for a reduction in his hours.

The Complainant’s original contract of employment stated a retirement age of 65.   However, the Complainant was not required to retire at age 65. The Complainant remained in full-time employment with the Respondent until his 70th birthday and in part-time employment thereafter. The Complainant contends that he was fit and able and remained a highly successful sales assistant within the Respondent’s business. He had an excellent employment record with the Respondent. Indeed, the Managing Director on behalf of the Respondent provided the Complainant with a letter of recommendation dated 25th January 2019 in which it was stated that the Complainant would be a “tremendous asset” for a company and has “my highest recommendation”. In the circumstances the Complainant contends that there was no objective and reasonably justifiable basis for the treatment which he suffered.

Distress

In Fox v Lee DEC 6/2003 the Labour Court stated:

‘not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings.’

The Complainant was very distressed and upset that he was singled out and discriminated against solely on the grounds of age.   This distress was ongoing for the Complainant whilst in the employment of the Respondent.

No Appearance for or on behalf of the Respondent. Having made enquires, I am satisfied that the respondent company is in liquidation and that the liquidator was on notice of the date, time and venue for the within hearing.

CA 30137 – 001   Discrimination (on grounds of, age)

In July, 2018 the Respondent cut the complainant’s working hours from 36 hours to 22 hours per week. The complainant alleges that the respondent when making the decision to cut his hours, did so based on his age, and in doing so, treated him less favourably than other employee who had not yet reached the age of 65 years.

The complainant’s contract of employment states:

“Retirement age is 65, therefore at the discretion of management, employment can be terminated at any stage”.

However, the complainant continued to work 36 hours per week after his 65th birthday. In fact, he continued to work 36 hours per week until his 70th birthday. That was when his hours were reduced to 22 hours per week. The only explanation given to the complainant by the respondent, was that the Respondent “needed to make changes going forward in staffing and wage costs”. The complainant’s younger colleagues were not subject to the same treatment.

Section 85A(i) Employment Equality Act states:

‘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 to the contrary’.

In Southern Health Board v. Mitchell Labour Court AEE/99/E, the Labour Court explained that the onus on the complainant in seeking to establish a prima facie case is: -

  ‘The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.’

The Labour Court went on to say that: -

‘It is only if those primary facts are regarded…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.’

I am satisfied, on the balance of probabilities, based on the complainant’s own evidence, together with the submissions filed and the documents tendered into evidence, that the complainant was treated less favourably that his younger colleagues. Whilst I accept that the respondent was experiencing serious financial difficulties, they did, in their attempts to reduce their financial outgoings target the complainant, based on his age, when they reduced his hours.

No evidence was adduced to show that the respondent’s decision was objectively and reasonably justified by any aim, legitimate or otherwise, or that the means of achieving that aim was appropriate and necessary. The respondent, due to the lack of evidence, has failed to prove that there was no infringement of the principle of equal treatment.

The complainant is well founded.

Section 82(4) of the Employment Equality Act 1998, as amended makes the following provision for compensation where discrimination has occurred:

‘(4) The maximum amount which may be ordered by the by way of compensation under subsection (1)(c ) or (1)(f ) shall be —

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of —

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned,’

The Complainant’s evidence was that he very distressed and upset that he had been singled out and discriminated against solely on the grounds of age. He loved his work and was fit, health and perfectly capable of continuing on. The Complainant was at a direct loss of 14 hours pay per week over a 31-week period from 15th July 2018 to 17th February 2019 totalling the sum of €6,389.44.   In addition, he contends that he has an entitlement to compensation for the ongoing distress and upset suffered over a period of seven months.

In Citibank v Ntoko [2004] ILR 116, the Labour Court stated:

“in measuring the appropriate quantum of compensation, regard must be had to all the effects which flowed from the discrimination which occurred, including compensation over and above economic loss which was awarded for the complainant having been deprived of “his fundamental right to equal treatment and freedom from racial prejudice.”

In all of the circumstances I find that the appropriate award is € 16,000.00

CA 30137 -002 ( Minimum Notice)

The complainant’s uncontested evidence was that his employment was terminated without paying him his notice. The complainant commenced employment with the respondent on the 1st July, 2005. His employed ceased on the 6th February, 2019. Based on the documents produced at the hearing, I accept the complainant’s uncontested evidence in relation to the duration of his employment.

S4(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be -

(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,’

The complaint is well founded and accordingly succeeds. The complainant at the time his employment ceased was working 20 hours per week and was paid €14.00 per hour. On that basis, I award the complainant € 1,848.00.

CA 30137 -003 (Annual Leave, Public Holidays during the notice period)

The complainant’s uncontested evidence was that he was not given his annual leave or public holiday entitlements for the six weeks period of notice. He stated that he is entitled to 2.3 days annual leave which he acquired during the six weeks period of notice together with one public holiday.

Schedule 2 section 1 of the Minimum Notice and Terms of Employment Act 1973, as amended states:

‘RIGHTS OF EMPLOYEE DURING PERIOD OF NOTICE.

Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.’

Section 19 of the Organisation of Working Time Act provides for annual leave for employees 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):

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.’

With regard to Public Holidays, Section 21 of the Organisation of Working Time Act provides:

‘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.’

I am satisfied based on the uncontested evidence of the complainant that he was not paid his annual leave or his public holiday entitlements which would have accumulated during the six weeks notice period. He is entitled to 2.3 days annual leave and one public holiday. The complainant was working 20 hours per week and was paid €14.00 per hour.

The complainant is well founded.

Based on the figures provided, I am awarding the complainant €128.80 in respect of his annual leave and €56.00 in respect of the Public Holiday, amounting to € 184.80

CA 30137 -002 The complaint is well founded. I award the complainant €1,848.00

CA 30137 – 003 The complaint is well founded. I award the complainant €184.80

CA 30137 -001 The complaint is well founded. I award the complainant €16,000.00