Complainant

Respondent

Anonymised Parties

 Spa Therapist

Hotel

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-00029358-001

28/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00029358-002

28/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00029358-003

28/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00029358-004

28/06/2019

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

CA-00029358-005

28/06/2019

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

CA-00029358-006

28/06/2019

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

CA-00029358-008

28/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00029358-009

28/06/2019

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

CA-00029358-010

28/06/2019

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

CA-00029358-011

28/06/2019

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

CA-00029358-012

28/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00029358-013

28/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00029358-014

28/06/2019

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

CA-00029358-015

28/06/2019

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

CA-00029358-016

28/06/2019

I decided to exercise my discretion to anonymise the parties as there were a number of other related and interlinked claims along with the equality claims.

I confirmed that knew of both parties and confirmed that information at the outset of the hearing to the parties.  There was no objection raised and both parties proceeded with the hearing on that basis.

The Complainant worked on a part-time ad-hoc, casual basis since November 2019. In January 2019 the Complainant resigned. On 16 March 2019 the Complainant returned to employment at the Hotel on a part-time basis in a more senior capacity.

The Complainant started work with the Respondent on 16 November 2018 on €11 per hour as a Spa Therapist.  She left on 10 February 2019.  The Complainant recommenced employment in March 2019 as Head Therapist on €15 per hour.

CA-00029358-001 - Section 27 of the Organisation Working Time Act, 1997

The Complainant is alleging she was not given compensation for working on a Sunday under Section 27 of the Organisation Working Time Act, 1977.

The Complainant’s claim refers to not being compensated for Sunday Pay. The Complainant accepted that Sunday compensation was part of her salary on the basis that she got every second Sunday off.  This was not confirmed i.e. to have every second Sunday off in her contract, but this was verbally agreed and she asked for confirmation of this in writing. In her contract the contract states Sunday pay was included in her salary rate.  When the Complainant asked the fact Sunday pay was included on the basis that she got every second Sunday or at minimum one Sunday off to be included in the contact and for it to be amended by the HR Manager and Head of the Spa Department; they refused this request.

CA-00029358-002 - Section 6 of the Payment of Wages Act, 1991

The Complainant is alleging that the Respondent has made an unlawful deduction from her wages under Section 6 of the Payment of Wages Act, 1977. The Complainant stated there was no clarity and there was communication issues in the hotel. A deduction was based on the fact she was paid in accordance with the roster and not the clock in hours she worked which were not the paid hours. Breaks were taken from the wages but were not given also. A deduction was made from every payslip. Payslips came through the work Accountant.  The Complainant stated she did not receive notice from the Respondent of intent to make a deduction.

The Complainant stated she was entitled to 45 minutes break including 15 mins paid and 30 mins unpaid.  The Complainant did not get time to take these breaks fully. From the clock sheets she can show she didn’t get breaks some days at all and the other days she only got 10 min breaks. However, her wage deduction of 30 mins break was taken every day notwithstanding not having been able to take the break. The Complainant was expected to be at work to set up half an hour before the first client came in, however, they were not paid for this time. The Department Manager texted the WhatsApp group shortly before the Complainant left to say that the Manager was thinking of paying them 15 mins of their set up time.  However, she never got paid for this during her employment.

In the Respondent’s clock in and clock out times hours were rounded down and there was no pay given for all the hours she worked even though she was asked to work these hours and clocked for them e.g. on the Complainant’s first day back on 22 March she was down to work 10-6 pm on the roster but she was asked to stay until 8.00 pm but worked until 8.30 pm when she clocked out. However, she was only paid until 6.30 pm.  This happened on a regular basis and she was down €80-€100 every 2 week pay period and she raised this issue. The Complainant worked out that she lost €350 per month due to lunch and break deductions illegally made.

The Complainant outlined her issue regarding the Banking Hours system. When the Complainant accepted the job of Head Therapist she was given 26-31 hours per her contract.  After she made the complaint her hours were reduced to under 26 hours. However, before the complaint she was offered and worked 45 hours after.  She was fully dependent on this job now for her wages when she was getting that number of hours so to have them reduced was a real concern for her. When the Complainant would work over her 31 hours any hours in excess of this her Manager would bank these hours.  They were transferred to holidays to maximum of 8 hours i.e. a holiday day instead of the fact she often worked more than 8 hours.  Her clock in showed this was being done.  She received €150 from Accounts on one occasion reference this.  The Complainant also stated she didn’t get set up time between treatment times.  Her Manager was out sick for a month before she left and she was working extra hours as a result of this.

CA-00029358-003 - Section 6 of the Payment of Wages Act, 1991

The Complainant stated the Respondent has not paid her and has paid her less than the amount due to her under Section 6 of the Payment of Wages Act, 1991.

The parties rely on the same evidence as outlined in claim CA-00029358-002.

CA-00029358-004 – Section 6 of the Payment of Wages Act, 1991 The Complainant stated she did not receive the appropriate payment in lieu of notice of termination of her employment under Section 6 of the Payment of Wages Act, 1991.  The Complainant stated she received a letter on 19 June 2019, 13 days after her termination.

The Complainant stated she only got her wages. The Complainant confirmed she received a letter via registered post on 19 June 2019 when it was delivered dated 6 June 2019 and which said she failed her probation and said she was paid 24 hour notice.  However, the Complainant stated this was her wages for the two weeks previous she worked.

CA-00029358-005– Section 27 of the Organisation Working Time Act, 1997 The Complainant stated she did not get full breaks under Section 27 of the Organisation Working Time Act, 1997.

The Complainant relied on the same evidence as outlined in claim CA-00029358-003 and 004 here.

CA-00029358-006– Section 27 of the Organisation Working Time Act, 1997

The Complainant stated she was not notified in advance of any additional hours under Section 27 of the Organisation Working Time Act, 1997. She worked 8am – 9.30pm. She received breaks depending on daily roster and room settings.

The Complainant stated she was not notified in advance of any additional hours under Section 27 of the Organisation Working Time Act, 1977. She worked 8am – 9.30pm. She received breaks depending on daily roster and room settings. The Complainant was given her roster 3-4 days normally but often it was only 24 hour notice of roster for the week ahead. This was a bigger issue for her as she couldn’t take other client work on her days off.  She had to work 7 days a week as a result.  She was also responsible for other tasks like stock control, cleaning etc. but didn’t have time do these tasks.  The HR Manager said at the meeting on 22 May 2019 the General Manager had red flagged the fact the Complainant refused to work late one day he asked her at 2.00 pm as the owner was flying in.  The Complainant could not oblige and she was told that she was too black and white and there was no grey and this wasn’t acceptable, however, she showed she had no problem working over her 31 hours and helping out once it was within reasonable notice

CA-00029358-007– Section 27 of the Organisation Working Time Act, 1997

It is the Complainant’s position under this specific claim that she did not get breaks set out in the Employment Regulations Order and while unclear, it appears from the body of the claim form in this regard that the Complainant is referring to an ERO as regards contract cleaning. The Complainant was employed by the Respondent in the position of Spa Therapist. 

CA-00029358-008 - Section 7 of the Terms of Employment (Information) Act, 1994

The Complainant stated she was not notified in writing of any change to her terms of employment under Section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant stated she has been referred to as “Spa Therapist” in her job title, however, she was referred to as a Head Therapist as part of the Management team and Spa Receptionist.  The Complainant stated this was done via written correspondence on 5 June 2019 and 14 June 2019.  The Complainant said the issue was she didn’t get a clear job role and she failed her probation for not meeting the requirements for Senior Spa Therapist.

CA-00029358-009 & CA-00029358-010 - Section 13 of the Industrial Relations Act

The Complainant stated she was unfairly dismissed as she did not have at least 12 months service under Industrial Relations Acts.  The Complainant is basing her complaint on unfair dismissal due to exercising her right regarding contract, wages and job title. The Complainant stated there was no clear job description given. The Complainant confirmed she was dismissed on 6 June 2019 and was told to leave the building that day with zero notice. The Complainant stated the reason given by the Respondent for her dismissal was they could see her rising frustration at the way things were done and she didn’t fit in.  She was not happy in the workplace and she was not meeting their requirements.  The Complainant states the Respondent stated they could dismiss her as she was on probation. On 8 March 2019 Complainant was offered the Head Therapist position. On 13 March 2019 the Complainant commenced employment with the Respondent as Head Therapist.  The Complainant asked for a Job Description on numerous occasions as the contract stated “Spa Therapist”. The Complainant was interviewed for the position of Head Therapist. The probation review letter stated “Spa Receptionist”. There was not a clear job title or outline of the job.  The Complainant submitted when she asked for clear direction from H.O.B. she was told “you know what to do, just do it”, delegate, delegate, delegate. “You are a senior staff member don’t clean or do general work, delegate”. On 25 April 2019 Complainant stated she requested a meeting to address being accused of being racist. The Complainant wanted to discuss, wages, breaks, job role, clear job outline and hours.  She was told by the Spa Manager “If I have to write down what you have to do I may as well do it myself”. On 23 May 2019 the Complainant stated the Roster was posted and her hours had been reduced to 24 even though she was under contract for 26 hours (27 May – 2 June).  On 3 June 2019 the Complainant stated she was rostered for the week 3 June 2019 – 9 June 2019 and her hours had been reduced to 16 hours. The Complainant stated she texted the Spa Manger to ask if she could use her holidays to bring her hours up to 26 as per her contract and the text was ignored. The Complainant reported they had been no eye contact in the past meeting with the Spa Manager and zero conversation, staff had commented on this. On 5 June 2019 the Complainant confirmed she handed in a letter in relation to her probation meeting. On 6 June 2019 the Complainant stated her contract had been terminated.  She was asked to leave then or could stay until 6.30 pm. No notice was given.

The Complainant feels she was dismissed as punishment due to the fact she raised an issue on the 22 May 2019 with reference to her breaks/hours/payment etc.  In the lead up to the dismissal both her two colleagues saw her treatment as unfair.  The Complainant was given a letter to do probationary review meeting on 5 June 2019 the following day.  The Complainant was told at the probation meeting “you can leave now or finish your shift” which clearly indicated she was being punished.  She was given the chance to have a witness at the meeting and they suggested a girl from Accounts who sat in on the meeting with them.  The Respondent told the Complainant she wasn’t the same person as before and she had changed and they could feel her mounting pressure and she didn’t fit in with the team so she should leave now.  The Complainant asked the person who was a witness for a statement of the meeting and she didn’t get it. The Complainant stated she was told by the HR Manager initially they generally don’t re-employ people back into the hotel other than exceptional circumstances. The Complainant stated when she told the HR Manager at that meeting she would be taking her dismissal further she admitted she didn’t have a leg to stand on. The Complainant stated her Department Manager ignored her and bullied her for a full week before she finished work. The Complainant stated two weeks before she left at a meeting on 23 May 2019 the HR Manager said “you are racist for saying she didn’t think her Manager understood her and she said another employee brought this up to her” and she asked for details of this. In reference to the Health & Safety issues she raised on an ongoing basis to her Head of Department and to her HR Manager e.g. 22 May 2019 by email.  She said these referred to lack of cleaning and she raised the issues with reference to lack of sterilisation and infection control

CA-00029358-011- Section 77 of the Employment Equality Act, 1998

The Complainant stated she has been discriminated against gender, conditions of employment, giving her training, dismissing her for discriminatory reasons, dismissing her because she opposed discrimination, victimisation.  The Complainant stated the most recent date of discrimination was 6 June 2019. The Complainant is claiming a collective agreement containing discrimination provisions.

The Complainant stated she was discriminated due to gender on this basis as in other departments they were paid for all hours worked but in the Spa it was the only department where there was only women and in their department they were discriminated due to gender on this basis.  The Complainant said there were two WhatsApp groups, one for the Spa Team and one for four people in the management team.  On 6 June 2019 they day the Complainant was asked to leave the building after failing her probation.  a WhatsApp message was sent to all the Spa Team stating “regards payment for preparing rooms before your rostered starting time I already requested and I am waiting for the General Manager to come back about this”.

CA-00029358-012- Section 77 of the Employment Equality Act, 1998

The Complainant stated she did not receive equal pay because of Gender.  The Complainant stated she was working for no pay as the rooms have to be set up prior to first appointment. The Complainant stated the Spa is the only department expected to work 15-30 minutes each morning with no pay. The Complainant stated hourly staff in other departments are paid once they check in as they start work immediately.  Spa staff which are all women are expected to clock in, prep the rooms and only get paid from the time of the first treatment. The Complainant stated that Kitchen staff are paid for all hours clocked in as they are mainly agency staff. The Complainant stated the date of the first incident of discrimination was 16 November 2018 and the most recent date was 6 June 2019.

Discrimination – The Complainant stated she was exhausted and asked for communication avenues to resolve pay issues.  The Complainant’s hours were reduced post meeting 23 May 2019.  Complainant confirmed her contracted hours were for 26 hours.  The signed contract stated 26-31 hours. The Complainant stated it was flagged to her for not being able to work late at the meeting. It is expected as all Spa staff are all paid hourly, however, staff have to prepare for treatments prior to work (15-30 mins) without pay.  The Complainant stated there was no induction. The Complainant stated she was being accused of being racist.  The Complainant stated when asked for a Job Description it was refused and ignored. On 6 June 2019 the Complainant stated she was told she did not fit in, she was not what they wanted for the team.  She stated that this goes against her review to date from her Manager, Assistant Manager who until 23 May 2019 were very happy with her work ethic. The Complainant was re-employed with a Senior title and more pay, therefore feels it shows she did fit in and worked hard.

Did not receive equal pay: The Complainant stated she was not paid as her clock in hours versus paid hours differed.  The Complainant stated because of bookings and extra job roles e.g. cleaning rooms, stock control she had little time for breaks. On 18 May 2019 the Complainant confirmed a meeting with all Spa staff was held.  The Complainant was given extra areas of responsibility as Head Therapist. The Complainant stated Spa staff are expected to be at work 15 mins prior to work to prepare the rooms for the day.  They receive no pay until their first treatment starts. The Complainant confirmed she was given no notice nor 1 week in termination of position.  The Complainant received a letter 13 days later stating they were paying her a week in lieu for 24 hours.  Her contract was for 26 hours.

The parties rely on the same evidence as outlined in Claim CA-00029358-011.

CA-00029358-013- Schedule 3 of the Employees (Provision of Information & Consultation), Act 2006

The Complainant stated she was penalised for having performed the functions of an employee representative under Schedule 3 of the Employees (Provision of Information & Consultation), Act 2006.

The Complainant stated that she feels that if she didn’t raise issues on 22 May 2019 and before she wouldn’t have failed her probation.

CA-00029358-014- Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant stated she was penalised for complying with or making a complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005.

The Complainant stated that when she was working there the following Health & Safety issues she raised were:

·         There was a smell of vomit in the changing room.

·         The room temperature couldn’t be regulated and one day the temperature was 33 degrees.

·         The sandals and flip flops were filthy and people were getting fungal infections.

·         An employee who was working during Ramadam suffered heat issues as there was no heat regulations.

·         There were issues with getting infections due to the lack of hygiene, no cleaner and no air conditioning working, nor were the filters changed.  The Complainant said she put in the cleaning schedule and there wasn’t one before.

·         The staff also got sick e.g. eye infections, chest infections, she dripped sweat in the rooms.

·         No cleaner being there and no cleaning being done in wet areas so there was black mould which was unhygienic.

·         They had safety issues with water bed which wasn’t maintained.

·         There was no infection control and sterilisation practice in place.

·         They were using the same utensils which were not fit for purpose and not hygienic.

·         Unsafe equipment.

·         The temperature of the hot stone machine wasn’t regulated nor had towel machine.

These issues were raised at the meeting of 23 May 2019 with the HR Manager and her Head of Department.  Two weeks later the Complainant was dismissed. This is the penalisation she suffered due to raising these issues.   The Complainant also stated she raised these issues numerous times before this also.  

CA-00029358-015 & CA-00029358-016 - Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant confirmed she withdrew this complaint as it was a duplicate claim.

TheComplainant stated that on Friday 24th January 2020 at Adjudication a booklet was presented by the Respondent, that she had no previous access to, that contained: A letter she had never received from the HR Manager - Page 76 and discrepancies in the notes that were given as interview notes;

The below is the feedback provided by the Complainant in respect to the same as she was given an opportunity to respond.

·         Page 17 – the Complainant stated she didn't set up a Spa in a different location, she set up a Spa in Killarney. A head therapist is mentioned in interview notes and was denied in all meetings.

·         Page 18 - due to her experience the Complainant would use communication as one of her strong points in interviews, it was written down as her weakness along with needing more patience. The Complainant stated she worked with clients for 10 years now helping them with their communication skills. She does not stand by what these notes claim she said.

·         Pages 77-80 – The Complainant is stating there are many discrepancies regarding the HR Manager and Accounts Assistant conflicting account of the probation meeting where she was asked to leave the premises that day. This is the meeting at Adjudication where the HR Manager claims she whispered "Racist" under her breath. There was no mention of this in any of the notes from either HR Manager or Accounts Assistant.

·         The Accounts Assistant was the only option she was given for a witness, she was also on probation at this time.

·         The Complainant’s assistant manager, when she asked what was going on the day they terminated her contract was told - "You are on probation yourself, this is none of your business and private"

·         The Complainant stated she was not given the opportunity to review the Respondent’s file before adjudication or to defend the claims as stated in the Respondents submission.

The Respondent is part of a group of hotels which comprises of 15 hotels with over 2,000 rooms across Ireland.  The hotel has 74 guest bedrooms capable of catering for approximately 150 guests.  Facilities include an award winning Spa which offers a wide variety of specialised treatments including aromatherapy, skin care and massage. The hotel employs a total of 98 employees across the property, 12 of which are employed in the Spa.

The Complainant commenced employment in the Spa of the hotel in a capacity of Senior Spa Therapist, on a part-time, ad-hoc, casual basis, on 22 November 2018.  As evidenced in the contract of employment, the Complainant’s rate of pay at that time was €11.00 per hour.

In January 2019, the Complainant resigned her position on 29 January 2019. The Complainant then commenced working with a new employer.  However, on 16 March 2019 she returned to employment to the Respondent, on this occasion in the capacity of part-time permanent Spa Therapist, earning an hourly rate of €15.00 per hour, in accordance with the contract of employment.

The Respondent submits that as the within claims were filed on 28 June 2019 the reckonable period for review under which the claims are filed would commence on 29 December 2018 until 28 June 2019.  However, for the purpose of these claims, it is submitted that the relevant employment period can only commence on 16 March 2019 and accordingly the relevant period for review under the legislation commenced 16 March 2019 and runs until 6 June 2019 (date of termination of contract).

CA-00029358-001 – Section 27 of the Organisation Working Time Act, 1997

The Complainant alleges that she was not given compensation for working on a Sunday.  The Complainant’s signed Contract of Employment specifies clearly and unequivocally, in the Clause entitled REMUNERATION, that the Complainant’s rate of pay was €15 gross per hour and that ‘this rate includes a premium for all hours worked on a Sunday’. Sunday premium was also specified in the Complainant’s Contract of Employment provided in relation to her initial employment with the Respondent that her hourly rate included a premium for all hours worked on a Sunday. It is further worthy of note that the Complainant sought clarification regarding Sunday premium payments from the Respondent in an email dated 18 November 2018 and the Respondent’s reply, it is explicitly set out that the rate quoted to her was inclusive of Sunday premium. The Complainant was paid a composite rate of €15.00.  This took account of the fact that she may be required to work on Sundays.  In the six months prior to the claim the Complainant worked a total of 9 Sundays.

Section 14 of the Act, provides, at Section 14. – (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely –

(a)    by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b)    by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c)     by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d)    by a combination of two or more of the means referred to in the preceding paragraphs.

The Complainant was required to work on some Sundays, a fact of which she was aware from the outset. She was equally aware that she would be paid a composite rate of €11.00 per hour in the initial employment (November 2018) and €15.00 per hour in her second employment with the Respondent. Therefore, as per section 14 of the Act, compensation under section 14 (1) is not legally required under the Act.  Furthermore, as this is the case, the compensatory options in Section 14 (1)(a)-(d) do not apply and on that basis the Respondent respectfully submits that no basis exists for this claim.

CA-00029358-002 – Section 6 of the Payment of Wages Act, 1991

It is the Complainant’s contention that her employer made unlawful deduction from her wages. It is asserted in the claim form that deductions were made from every payslip but the Complainant’s position in this regard is unclear. Notwithstanding the foregoing, the Respondent has provided all payslips for the Complainant during her employment with the Respondent from 16 March 2019 to 6 June 2019. Work records for the Complainant are also included with full hours worked clearly outlined in the period from 16 March 2019 to 6 June 2019. It is clear from the documentation provided that the Complainant was ultimately paid the contracted sum of €15 per hour for every hour she worked at the Respondent hotel. It is accepted however, that there was some confusion and difficulties at the commencement of her employment with the payroll system.  It is clear however, from the records provided, that any and all monies due to the Complainant in accordance with the contract of employment which she herself signed, were discharged in full. Accordingly, the Respondent is at a loss to understand the purported unlawful deduction alluded by the Complainant.

CA-00029358-003 – Section 6 of the Payment of Wages Act, 1991

The complaint is an alleged breach also under the Payment of Wages Act 1991. The complaint in this instance is also unclear.  However, from the details outlined in the claim form it would appear that the issue alleged is that the Respondent has not paid the Complainant or paid her less than the amount due to her. The Respondent relies on the information provided in relation to Complaint Reference CA-00029358–002 above and reiterates that the Complainant was paid in full for any hours worked as evidenced by the pay details and work records provided herein.

CA-00029358-004 – Section 6 of the Payment of Wages Act, 1991

It is the Complainant’s contention, also under the Payment of Wages Act 1991 that she did not receive appropriate payment in lieu of notice.  The Respondent submits that his employment commenced on 16 March 2019 and the Complainant’s contract of employment terminated on 6 June 2019, the period of employment being 12 weeks. The Complainant’s Contract of Employment specifies that notice entitlement commences at ‘over 13 weeks….’ in line with the provisions of the Minimum Notice and Terms of Employment Acts 1973 -2005.  Therefore, no entitlement to payment in lieu of notice exists in favour of the Complainant. The Adjudicator is nonetheless asked to have regard to the payslip on page 104 dated 14 June 2019 and in particular to the handwritten notes appended to the payslip which indicate that the Complainant was paid €15 per hour for 40.75 hours worked in the relevant pay-run and 24 hours at €15 per hour in lieu of notice.  Monies in lieu of notice were nevertheless paid in the amount of €360. 

CA-00029358-005 – Section 27 of the Organisation Working Time Act, 1997

The claim alleges that the Complainant did not get her full breaks. The Respondent refutes this claim in its totality.  An email dated 27 May is instructive in this regard. At the request of the Complainant, a full audit of her hours and breaks was carried out by the HR Manager of the Respondent.  This communication notes that the Respondent, on checking the Complainant’s clock records, that she had not taken her full break entitlement and noted that breaks were ‘imperative’ as required under the instant Act. The HR Manager, in the email specifically states:

‘As discussed when we met on Thursday, break of 30 minutes is inbuilt into Timepoint as this is the requirement under the Organisation of Working Time Act.  In the event that you do not take your scheduled break, you must inform your HOD and also the reason you did not take your break’.

It is clear from this communication that the matter of breaks was discussed, checked and direction given by the Respondent as to the necessity for the Complainant to take her full breaks.

CA-00029358-006 – Section 27 of the Organisation Working Time Act, 1997

The Complainant asserts that she was not notified in advance of any additional hours in contravention of the Organisation of Working Time Act. Again, this is refuted by the Respondent.  The Adjudicator’s attention is again drawn to the emails of the booklet, pertaining to the Complainant’s first employment with the Respondent in November 2018.  The Complainant set out a number of queries in relation to several different aspects of her role, including a specific question as regards how far in advance the roster is planned. In the response from the HR Manager on the same page, it is confirmed that the Complainant’s Head of Department, ‘endeavours to plan for two weeks at a time’.  The emails contained in the within booklet also evidence the Complainant’s knowledge of her hours and shifts.

CA-00029358-007 - Section 27 of the Organisation Working Time Act, 1997.

It is the Complainant’s position under this specific claim that she did not get breaks set out in the Employment Regulations Order and while unclear, it appears from the body of the claim form in this regard that the Complainant is referring to an ERO as regards contract cleaning. The Complainant was employed by the Respondent in the position of Spa Therapist.  As part of her role in that capacity, she was required to, inter alia, ‘ensure that the Spa is maintained to the highest standards of hygiene and that cleaning schedules were implemented and records kept’.

SI No 25/2014 – Contract Cleaning Joint Labour Committee Establishment (Amendment) Order 2014 sets out those workers to whom the 2014 SI applies as follows:

“SCHEDULE

Workers employed by undertakings engaged in whole or in part on the provision of cleaning and janitorial services in, or on the exterior of, establishment including hospitals, offices, shops, stores, factories, apartment buildings, hotels, airports and similar establishments”.

The Complainant is not one of the workers covered by the above however, notwithstanding which the Respondent’s position as regards the Complainant’s breaks is outlined at Complaint Reference CA-00029358-005 above. Therefore, her claim fails.

CA-00029358-008 - Section 7 of the Terms of Employment (Information) Act, 1994

The Complainant’s claim in this regard is that she was not notified in writing of a change to her terms and conditions.  The Respondent is at a loss to understand the basis for this claim.  Following the Complainant’s resignation in January 2019, she interviewed for the role which commenced in March 2019.  The interview notes are included as is the Complainant’s Contract of Employment.  All of the within documentation evidences the Complainant’s role, terms and conditions, rate of pay, hours etc. to which she agreed and signed up to.  No changes occurred to the Complainant’s terms and conditions while in employment with the Respondent and the Respondent therefore respectfully submits that this claim is unfounded.

CA-00029358-009 & CA-00029358-010 - Section 13 of the Industrial Relations Act

Under the Industrial Relations Act, in circumstances where the Complainant did not have at least 12 months service, the Complainant contends that she was unfairly dismissed and her complaint encompasses a further complaint in relation to disciplinary sanctions. The Complainant was invited to attend a Probationary Period Review meeting by letter dated 5 July 2019 and the purpose of this meeting as set out clearly.  Further communication in this regard via email further clarifies the purpose of the meeting, which was scheduled for the 6th June 2019. Notes of the meeting are available and evidence that it was explained to the Complainant that she had not passed her probation and that her contract with the hotel was to be terminated.  Details of the termination and final payments are contained in the confirmation letter to the Complainant dated 6 June 2019.  The right to appeal this was set out in the letter.  She did not invoke this right but rather filed the within claims. The Adjudicator is asked to consider the failure of the Complainant to appeal the decision to dismiss having been given the opportunity to do so.

In the case of Pungor v MBCC Foods Ltd (UD584/2015) the EAT outlined that the employee has an “obligation” to exhaust internal disciplinary and appeal procedures prior to lodging any unfair dismissal claims.  In this case the employee had been dismissed for abusing a loyalty card scheme and she lodged unfair dismissal proceedings without ever exercising her internal right to appeal.

The EAT stated as follows:

The [employee]… was afforded the right of appeal, which she did not avail of. The [employee] has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally.  She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.

The position has also been endorsed by the Labour Court in the case of Aryzta v Vilnis Cacs UD/17/106

‘The Court also finds that there is an obligation of the Complainant to exhaust available internal procedures and that the Complainant failed to do so. For the reasons stated above and taking account of the failure of the Complainant to exercise his right of internal appeal, the Court finds that the Complainant was not unfairly dismissed’.

It is the Respondent’s position that the Complainant was not unfairly dismissed in these circumstances.

CA-00029358-011 & CA-00029358-012 - Section 77 of the Employment Equality Act, 1998 

The claims under this legislation allege that the Complainant was discriminated against by the Respondent under numerous headings, including gender, conditions of employment, dismissal for discriminatory reasons, dismissal because she opposed discrimination, and victimisation. On review of the complaints outlined in the claim form, the Respondent is at a loss to identify any basis on which the Complainant appears to be claiming unfavourable treatment as against any other staff member. Section 85a of the Employment Equality Acts, 1998- 2015 require a Complainant to present facts from which it can be inferred that s/he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. Section 6 (1) provides “For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated”.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purpose of this Act) are –

(a)    that one is a woman and the other is a man (in this Act referred to as “the gender ground”).

(b)    that they are of different marital status (in this Act referred to as “the marital status ground”).

(c)     that one has family status and the other does not (in this Act referred to as “the family status ground”).

(d)    that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”).

(e)    that one has a different religious belief from the other, that one has a religious belief and the other has not (in this Act referred to as “the religion ground”).

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

(g)    that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).

(h)    that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).

(i)      that one is a member of the traveller community and the other is not (in this Act referred to as “the traveller community ground”).

The Adjudicator is requested to note the contents of two communications furnished to the WRC by the Complainant; an email dated 15 July 2019 and a letter dated 25 July 2019. It is clear therefrom that clarification was sought as to the basis of her complaints under the Equality Acts and her written responses confirm that firstly, there is no comparator for the purposes of her equal pay claim. The Complainant provides the names of two other employees, who, as confirmed in her correspondence to the WRC, work in a different area. The Respondent submits that the two named staff members cannot be comparators and indeed, the Complainant herself, in her email dated 15 July to the WRC, clearly and unambiguously states ‘there is no way to give an example of another staff member doing the same work for different pay’.

In relation to her claim of discrimination on the ground of gender, again, no comparator is provided.  Neither is there any indication, in the claim form or in any of the communications on file, that she was treated unfavourably as against any other member of the Respondent’s staff.

In this regard, the Respondent points to the Labour Court’s position as is well settled in law – that its jurisprudence under Employment Equality legislation, stems from the Court’s analysis in Southern Health Board v Teresa Mitchell, DEE01, [2001] ELR 201, where the Court stated:

“The first requirement is that the Complainant 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 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 those 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 Respondentto prove that there is no infringement of the principle of equal treatment”.

The Respondent submits that the Complainant cannot establish any facts whatsoever such that could be of sufficient significance as to raise a presumption of discrimination or to shift the onus of proof to the Respondent.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred”.

Direct discrimination consists of two elements. The first is the less favourable treatment of the Complainant and the second is the existence of discriminatory grounds for such treatment. Both elements must be satisfied for a claim of discrimination to succeed.  It is respectfully submitted by the Respondent that the Complainant can provide no evidence of less favourable treatment. The Complainant’s allegations are raised without any grounds whatsoever and she has failed to identify any other employee on different salary or of a different gender against whom she was treated less favourably.

Consequently, it is the Respondent’s position that the Complainant cannot establish a prima facie case of discrimination on any of the grounds cited and as such the burden cannot shift to the Respondent.  It is not this basis the Respondent respectfully submits that as the Complainant has not provided facts from which a prima facie case of discrimination can be established, that there is no case to answer by the Respondent and accordingly the matter should be dismissed”.

CA-00029358-013 - Schedule 3 of the Employees (Provision of Information & Consultation), Act 2006

Under this legislation the Complainant alleges that she was penalised for having performed the functions of an employee representative. The Complainant was neither appointed nor elected as an employee representative in the course of her employment with the Respondent and accordingly falls outside the scope of this Act.

CA-00029358-014 - Section 28 of the Safety, Health & Welfare at Work Act, 2005

The allegation under the above legislation is that the Complainant was penalised for making a complaint under the legislation. The burden of proof is on the Complainant to demonstrate that there is a casual connection between the lodging of proceedings and alleged adverse treatment by the company. In Tony & Guy Blackrock Limited v Paul O Neill, 2010, HSC/09/05 (case appendix 17), the Labour Court outlined:

“The commission of a protected act must be an operative cause in the sense that ‘but for’ the Complainant having committed the protected act he/she would not have suffered the detriment… the Complainant must establish, on the balance of probabilities, that he made complaints concerning (health & safety).  It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal.  If those limbs if the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard that the complaint relied upon did not influence the Complainant’s dismissal”.

The Complainant at no time raised a Health & Safety concern, and it is therefore not possible to establish a causal link in accordance with the Act.  The Adjudicator is respectfully requested, on the basis of this submission, documentation provided and evidence adduced to find in favour of the Respondent.

CA-00029358-015 - Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Respondent didn’t respond to this complaint.

CA-00029358-016 - Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Respondent didn’t respond to this complaint.

The Complainant was employed for two periods.  She resigned the first time and was re-employed for a more senior role the second time.

CA-00029358-001 - Section 27 of the Organisation Working Time Act, 1977

The Complainant’s claim refers to not being compensated with Sunday Pay compensation. The Complainant accepted that Sunday compensation was part of her salary on the basis that she got every second Sunday off.  This was not confirmed i.e. to have every second Sunday off in her contract but this was verbally agreed and she asked for confirmation of this in writing and said even though every second Sunday was agreed she would appreciate one Sunday off per month. In her contract the contract states Sunday pay was included in her salary rate.  When the Complainant asked this to be amended by the HR Manager and Head of the Spa Department they refused.

This claim comes under the Organisation of the Working Time Act.  Section 14 of the Act, provides, at Section 14. – (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely –

(a)    by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b)    by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c)     by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d)    by a combination of two or more of the means referred to in the preceding paragraphs.

The Complainant was required to work on Sundays, this was confirmed in her contract from the outset.  It stated that she would be paid a composite rate of €11.00 per hour in the initial employment (November 2018) and €15.00 per hour in her second employment with the Respondent. Therefore, as per section 14 of the Act, compensation under section 14 (1) is not legally required under the Act once the employee’s rate of pay was increased accordingly as compensation which was the case here and on that basis the Adjudication finds that the claim fails which is in line with the recent Labour Court case of Trinity Leisure Holdings Limited trading as Trinity City Hotel and Sofia Kolesnik and Natalia Alfimova   

CA-00029358-002 & 03 – Section 6 of the Payment of Wages Act, 1977

I am going to address both of these complaints together as the same legislation and evidence was given for both claims.

This claim refers to unlawful deductions.  The Complainant stated she was entitled to 45 minutes break including 15 mins paid and 30 mins unpaid.  The Complainant did not get time to take these breaks fully. From the clock sheets she can show she didn’t get breaks some days at all and the other days she only got 10 min breaks. However, her wage deduction of 30 mins break was taken every day notwithstanding not having been able to take the break. The Complainant was expected to be at work to set up half an hour before the first client came in, however, they were not paid for this time. The Department Manager texted the WhatsApp group shortly before the Complainant left to say that the Manager was thinking of paying them 15 mins of their set up time.  However, she never got paid for this during her employment.

In the Respondent’s clock in and clock out times hours were rounded down and there was no pay given for all the hours she worked even though she was asked to work these hours and clocked for them e.g. on the Complainant’s first day back on 22 March she was down to work 10-6 pm on the roster but she was asked to stay until 8.00 pm but worked until 8.30 pm when she clocked out. However, she was only paid until 6.30 pm.  This happened on a regular basis and she was down €80-€100 every 2 week pay period and she raised this issue. The Complainant worked out that she lost €350 per month due to lunch and break deductions illegally made.

The Complainant outlined her issue regarding the Banking Hours system. When the Complainant accepted the job of Head Therapist she was given 26-31 hours per her contract.  After she made the complaint her hours were reduced to under 26 hours. However, before the complaint she was offered and worked 45 hours after.  She was fully dependent on this job now for her wages when she was getting that number of hours so to have them reduced was a real concern for her. When the Complainant would work over her 31 hours any hours in excess of this her Manager would bank these hours.  They were transferred to holidays to maximum of 8 hours i.e. a holiday day instead of the fact she often worked more than 8 hours.  Her clock in showed this was being done.  She received €150 from Accounts on one occasion reference this.  The Complainant also stated she didn’t get set up time between treatment times.  Her Manager was out sick for a month before she left and she was working extra hours as a result of this.

The Respondent stated that the total hours worked by the Complainant since she returned to work under the second employment term were 380.9 hours. The Respondent stated the employee wasn’t set up on the clock system for the first week but was set up the week later. The Respondent confirmed the clock machine was 5/6 minute walk away from where the Complainant worked. This meant the employee wouldn’t even have enough time to get a cup of tea so it wasn’t logical to go and clock for it. Therefore, the Respondent is saying she received her break even though she did get to take it and she was rostered. 

The HR Manager said she confirmed in writing that it was imperative that all employees got their breaks and if not to let your Manager know.  This was confirmed on 27 May 2019 and the employee left on the 6 June 2019. The Respondent states her interview notes and contract clearly outlined her hours and what was expected of her.

Section 6 of the legislation

6.—(1) An employee may present a complaint to a rights commissioner that his employer has contravened section 5 in relation to him and, if he does so, the commissioner shall give the parties an opportunity to be heard by him and to present to him any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(2) Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—

                (a) the net amount of the wages (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

I find the employee did not get paid for all the hours she worked due to the system that was in place with the employer which the employee raised as an issue with the employer however it was not addressed; she alleged her loss was 350 per month which equates to a 3 months period ie 1,050 in lost wages for the relevant claim period for the legislation.

CA-00029358-004 – Section 6 of the Payment of Wages Act, 1977

The Respondent claims the Complainant did not get paid in lieu of notice.  There was no obligation on the Respondent to pay notice per legislation as the Complainant hadn’t worked 13 weeks so wasn’t entitled to it per legislation, however, she was paid 24 hour notice as a gesture of good will per Respondent and payslip said this was time in lieu of leaving.  The Respondent showed a timesheet which showed she worked 40 hours and 75 mins for 1 week period, however, the payslip showed paid these hours and for 24 hour time in lieu. The Complainant stated she only got her wages. The Complainant confirmed she received a letter via registered post on 19 June 2019 when it was delivered dated 6 June 2019 and which said she failed her probation and said she was paid 24 hour notice.  However, the Complainant stated this was her wages for the two weeks previous she worked. This claim fails as the Complainant hadn’t met the legislative requirements of 13 weeks work to be entitled to same. 

CA-00029358-005 – Section 27 of the Organisation Working Time Act, 1977

The Complainant stated she did not get full breaks under Section 27 of the Organisation Working Time Act, 1977. The claim alleges that the Complainant did not get her full breaks and raised this issue with her employer. The Respondent refutes this claim in its totality.  I prefer the Complainants evidence in this regard and based on her evidence she raised the issue of not being able to take her break yet she was deducted for this in her wages.  It is the employer’s obligation to ensure the employee is given the opportunity to take her breaks in line with the legislation and I am not satisfied this occurred and based on the evidence presented was breached on regular occasions therefore the Complainant’s claim is upheld.

CA-00029358-006 – Section 27 of the Organisation Working Time Act, 1977

The Complainant stated she was not notified in advance of any additional hours under Section 27 of the Organisation Working Time Act, 1977. She worked 8am – 9.30pm. She received breaks depending on daily roster and room settings. The Complainant was given her roster 3-4 days normally but often it was only 24 hour notice of roster for the week ahead. This was a bigger issue for her as she couldn’t take other client work on her days off.  She had to work 7 days a week as a result.  She was also responsible for other tasks like stock control, cleaning etc. but didn’t have time do these tasks.  The HR Manager said at the meeting on 22 May 2019 the General Manger had red flagged the fact the Complainant refused to work late one day he asked her at 2.00 pm as the owner was flying in.  The Complainant could not oblige and she was told that she was too black and white and there was no grey and this wasn’t acceptable, however, she showed she had no problem working over her 31 hours and helping out once it was within reasonable notice. The HR Manager said that their system requirement rosters are done the Wednesday a week in advance. The HR Manager said she didn’t say this or remember the conversation of 22 May 2019.  The Respondent also said there was a daily WhatsApp of the following days roster. I find this claim fails as she received her entitlement to the act based on the evidence presented.

CA-00029358-007 - Section 27 of the Organisation Working Time Act, 1977.

The Complainant stated this claim was non-applicable under Section 27 of the Organisation Working Time Act, 1977. However, the Complainant was not employment in the contract cleaning industry therefore the ERO is not applicable. This claim therefore fails.

CA-00029358-008 - Section 7 of the Terms of Employment (Information) Act, 1994

The Complainant stated she was not notified in writing of any change to her terms of employment under Section 7 of the Terms of Employment (Information) Act, 1994. The Complainant stated she has been referred to as “Spa Therapist” in her job title, however, she was referred to as a Head Therapist as part of the Management team and Spa Receptionist.  The Complainant stated this was done via written correspondence on 5 June 2019 and 14 June 2019.  The Complainant said the issue was she didn’t get a clear job role and she failed her probation for not meeting the requirements for Senior Spa Therapist. The Respondent stated the role of “Spa Therapist” which is in her contract is the correct title and they are unsure of who referred to her with different titles and do not understand any detriment she suffered as a result of same.

Section 5 (1) of the act states that

"…..whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 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".

The Adjudicator finds that the complaint is not well founded and finds that the Complainants terms and conditions were not changed and therefore the claim fails.

CA-00029358-009 & CA-00029358-010 - Section 13 of the Industrial Relations Act

The Complainant feels she was dismissed as punishment due to the fact she raised an issue on the 22 May 2019 with reference to her breaks/hours/payment etc.  In the lead up to the dismissal both her two colleagues saw her treatment as unfair.  The Complainant was given a letter to do probationary review meeting on 5 June 2019 the following day.  The Complainant was told at the probation meeting “you can leave now or finish your shift” which clearly indicated she was being punished.  She was given the chance to have a witness at the meeting and they suggested a girl from Accounts who sat in on the meeting with them.  The Respondent told the Complainant she wasn’t the same person as before and she had changed and they could feel her mounting pressure and she didn’t fit in with the team so she should leave now.  The Complainant asked the person who was a witness for a statement of the meeting and she didn’t get it. The Complainant stated she was told by the HR Manager initially they generally don’t re-employ people back into the hotel other than exceptional circumstances. The Complainant stated when she told the HR Manager at that meeting she would be taking her dismissal further she admitted she didn’t have a leg to stand on. The Complainant stated her Department Manager ignored her and bullied her for a full week before she finished work. The Complainant stated two weeks before she left at a meeting on 23 May 2019 the HR Manager said “you are racist for saying she didn’t think her Manager understood her and she said another employee brought this up to her” and she asked for details of this. In reference to the Health & Safety issues she raised on an ongoing basis to her Head of Department and to her HR Manager e.g. 22 May 2019 by email.  She said these referred to lack of cleaning and she raised the issues with reference to lack of sterilisation and infection control. The HR Manager stated she did not call the Complainant a racist.  The Respondent said there was a conversation at the probation review meeting between the Head of Department where she said she didn’t think the Complainant fully understood her and she asked was it because of her not having English and she said it was the Complainant who muttered racist under her breath and not her who said it.

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

The Complainant does have an obligation to exhaust the internal process before taking the matter to an external source.  The Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”. The Complainant has failed that obligation therefore Complainant is not entitled to have the claim under the Industrial Relations Acts heard and a recommendation issued.   I find the employee did not exhaust the internal procedures in this case therefore I recommend this should have been done in this case.

CA-00029358-011 - Section 77 of the Employment Equality Act,1998 & CA-00029358-012 - Section 77 of the Employment Equality Act,1998

The claim under this legislation allege that the Complainant was discriminated against by the Respondent under numerous headings, including gender, conditions of employment, dismissal for discriminatory reasons, dismissal because she opposed discrimination, and victimisation. The Complainant stated she was discriminated due to gender on this basis as in other departments they were paid for all hours worked but in the Spa it was the only department where there was only women and in their department they were discriminated due to gender on this basis.  The Complainant said there were two WhatsApp groups, one for the Spa Team and one for four people in the management team.  On 6 June 2019 they day the Complainant was asked to leave the building after failing her probation.  a WhatsApp message was sent to all the Spa Team stating “regards payment for preparing rooms before your rostered starting time I already requested and I am waiting for the General Manager to come back about this”. The Respondent representative said that she cannot outline a prima facia case nor can she show a male comparator that’s treated more favourably.  The Respondent also said the Complainant was paid for all hours worked.

Section 6 of the Employment Equality Acts 1998-2015 provides the following:

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different marital status (in this Act referred to as “the marital status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

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

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the traveller community and the other is not (in this Act referred to as “the traveller community ground”).

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –

"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and 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 on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The burden of proof is on the Complainant to satisfy that she fits within one of the nine discriminatory grounds and that one of those grounds was materially relevant to the dismissal of her employment. It is for the Complainant to establish facts from which it may be presumed that discrimination and prohibited conduct has occurred in relation to her. 

I do not find the employee was discriminated under any of the specified grounds therefore her claim fails.

CA-00029358-013 - Schedule 3 of the Employees (Provision of Information & Consultation), Act 2006

The Complainant stated that she feels that if she didn’t raise issues on 22 May 2019 and before she wouldn’t have failed her probation. The Respondent stated the Complainant wasn’t elected per the Act and therefore doesn’t meet the requirements of the Act.

Section 15 of the legislation states:

       (1) Disputes between an employer and one or more employees or his or her representatives (or both) concerning:

(a) negotiations under section 8 or 10

(b) interpretation or operation of any agreement under section 8 or 9

(c) interpretation or operation of the Standard Rules under section 10 (as set out in Schedule 1) or the procedures for election of employees’ representatives (as set out in Schedule 2), or

(d) interpretation or operation of a system of direct involvement under section 11

may, subject to subsection (2), be referred by the employer, one or more than one employee or his or her representatives (or both) to the Court for investigation.

(2) Such a dispute may be referred to the Court only after—

(a) recourse to the internal dispute resolution procedure (if any) in place in the employment concerned has failed to resolve the dispute, and

(b) the dispute has been referred to the Commission which, having made available such of its services as are appropriate for the purpose of resolving the dispute, furnishes a certificate to the Court stating that the Commission is satisfied that no further efforts on its part will advance the resolution of the dispute.

The Complainant’s complaint fails as she does not meet the requirements of the legislation.

CA-00029358-014 - Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant stated that when she was working there the following Health & Safety issues she raised were:

·         There was a smell of vomit in the changing room.

·         The room temperature couldn’t be regulated and one day the temperature was 33o’s.

·         The sandals and flip flops were filthy and people were getting fungal infections.

·         An employee who was working during Ramadam suffered heat issues as there was no heat regulations.

·         There were issues with getting infections due to the lack of hygiene, no cleaner and no air conditioning working, nor were the filters changed.  The Complainant said she put in the cleaning schedule and there wasn’t one before.

·         The staff also got sick e.g. eye infections, chest infections, she dripped sweat in the rooms.

·         No cleaner being there and no cleaning being done in wet areas so there was black mould which was unhygienic.

·         They had safety issues with water bed which wasn’t maintained.

·         There was no infection control and sterilisation practice in place.

·         They were using the same utensils which were not fit for purpose and not hygienic.

·         Unsafe equipment.

·         The temperature of the hot stone machine wasn’t regulated nor had towel machine.

These issues were raised at the meeting of 23 May 2019 with the HR Manager and her Head of Department.  Two weeks later the Complainant was dismissed. This is the penalisation she suffered due to raising these issues.   The Complainant also stated she raised these issues numerous times before this also.

The Group HR Manager said external Health & Safety audits are done twice a year. There were also internal audits by other Spa Managers.  The General Managers have to send monthly Health & Safety reports also and Head office would do spot checks also.

The Company asked the Complainant to confirm if she had medical evidence of these issues. The Respondent said she had a medical homeopathy qualification.

The HR Manager gave evidence to say that each department has a department cleaning schedule that’s checked by the Manager on duty.  The night porter was responsible for cleaning combined with each Therapist were responsible for cleaning.  There is a Health & Safety report which show the company’s audited externally by an external consultant and they are audited twice a year.  They stated their standards met the required standard.  They said no complaints were formally raised. They did say the air conditioning issue was raised.  At the meeting of 23 May 2019 the HR Manager said the only matter raised was the smell of vomit on that day.  She said it wasn’t their policy to reuse towels.  No accidents were reported.  Regarding staff training the HR Manager said the Complainant was trained to the required standard.

CA-00029358-015 & 016 - Section 11 of the Minimum Notice & Terms of Employment Act, 1973

These are duplicate claims in relation to not getting notice and the Complainant has confirmed these claims were withdrawn by her.

Mitigation of Loss

With reference to the mitigation since the Complainant was terminated she is running her own business and it has taken her until December of this year to do this.   She had to get a loan to tie her over in the interim.

The Complainant has been applying for jobs also in the interim and she has had interviews.  Because she was self-employed when she was terminated she couldn’t apply for Social Welfare which put her in a difficult situation.

I have considered all information and evidence presented to me in conjunction with the legislation and case law in reaching my findings.