Complainant

Respondent

Anonymised Parties

 General Operative

 Recruitment Company

Representatives

Cian Moriarty Fachtna O'Driscoll Solicitors Mr Matthew Maguire BL

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-00030329-001

16/08/2019

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

CA-00030329-002

16/08/2019

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

CA-00030329-003

16/08/2019

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

CA-00030329-004

16/08/2019

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

CA-00030329-005

16/08/2019

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

CA-00030329-006

16/08/2019

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

CA-00030329-007

16/08/2019

The Complainant was employed by the Respondent, an employment agency, who provided agency workers for a meat processing company (The Hirer), to work with the Hirer as a general operative. He was paid €580.00, net €490, per week. He suffered an injury but recovered. He is claiming that the Respondent subsequently discriminated against him, by dismissing him in an action of discriminatory dismissal because of his disability, in breach of the Employment Equality Acts, 1998-2017. The Respondent denies this claim.

The Complainant further submits that he worked excessive hours in breach of the Organisation of Working Time Act,1997. Furthermore, he claims he never received his terms and conditions of employment in breach of the Terms of Employment (Information), 1994 and that he never received proper notice upon termination of his employment under the Minimum Notice and Terms of Employment Act, 1973. The Respondent denies that the Complainant ever worked beyond the maximum permitted average of 48 hours a week. The Respondent also claims that the Complainant signed for his terms and conditions of employment and that he received, and was paid, one week’s notice as per the legislation.

The Complainant also claims that the unreasonable way in which his employment was terminated, is a dispute that needs to be investigated under the Industrial Relations Act. The Respondent submits that it acted reasonably at all times in dealing with the termination of contract.

Discriminatory Dismissal:

The worker was injured at work on the 5th of February 2019 at the premises of the Hirer and took sick leave as a result. The Complainant submits that the abdominal muscle injury was as a result of lifting some crates. He submits that the injury described was debilitating and comes under the definition of disability, as per the Act. He submitted sick certs to the Respondent. On April 18th the worker received a note from his doctor stating that he was fit for work, which he submitted to the Respondent. The Respondent confirmed that they had forwarded his fitness to work certificate to the Hirer. Subsequently, the Complainant made several attempts to agree a return to work date with the Respondent but each time he was told by the Respondent that they were waiting for the Hirer to reply, until the Complainant was told via telephone call with the Respondent on the 23rd of April 2019 that the Hirer informed the Respondent that it “was full” and that there was no need for him to come back. The Complainant does not accept this assertion. He submits that but for his injury he would have resumed employment with the Hirer. He accepts that the Respondent is the employer for the purposes of the action of discriminatory dismissal.

The Complainant also asserted that job opportunities for meat boners/butchers and general operatives were posted soon after his departure by the Respondent. He claims that he was trained for a few weeks for the skilled positions of meat boner/butcher and was able to resume such a role with the Hirer but was not given the opportunity to apply for these positions with the Respondent.

The Complainant gave evidence that he acquired a job soon afterwards with a retail business but the effects of the discriminatory dismissal, had a detrimental financial effect on both him and his family. He asserts that his family had to move back to Croatia as a result.

Hours of Work:

The Complainant submits that he was constantly required to work approximately 10 hours a day, and circa 55 to 60 hours per week, by the Respondent at the premises of the Hirer, which was well more than the 48 hours per week maximum allowed under the Organisation of Working Time Act, 1997.

Terms of Employment:

The Complainant submits that he never received a contract of employment nor did he receive a written statement of his terms and conditions of employment under the Terms of Employment (Information) Act, 1994. He particularly submits the position that the Respondent never supplied him with a statement of the actual hours he was required to work.

Minimum Notice:

The Complainant submits that he did not receive proper notice in line with the Minimum Notice and Terms of Employment Act, 1973.

Industrial Relations Dispute:

The Complainant submits that without prejudice to his discriminatory dismissal claim, that he has a legitimate trade dispute regarding the behaviour of the Respondent in the manner that the termination of contract occurred. He submits that the Respondent acted unreasonably and that a recommendation reflecting this should issue.

Discriminatory Dismissal:

The Complainant was employed by the Respondent which is a recruitment agency engaged by the Hirer to provide general operatives to work at the Hirer’s factory premises. The Respondent accepts that it is the employer for the purposes of investigation of these complaints. The Complainant  worked as a general operative on the 24th of September 2018 in the Slow Cooked Business Unit of the Hirer. The Complainant claims that he sustained an abdominal injury while lifting trays at work on the evening of 5 February 2019 and remained unable to work until he submitted a fit to return to work certificate, from his GP, dated Thursday 18 April 2019, just before the Easter bank holiday weekend.

The Respondent states that it does not accept that the injury to the Complainant was a disability under the Act and, regardless of whether it was or not, the injury had no bearing on the decision to terminate the contract of the Complainant. The Respondent submits that the Complainant was employed based on solely working with the Hirer. When it received notification from the Hirer that it no longer had capacity to re-engage the Complainant, then it had no other option but to terminate the contract of the employment. The Respondent relied on the evidence of the hirer that there had been a downturn in production and hours.

The Respondent does not accept that it recruited workers to carry out work that was previously done by the Complainant and that any further workers recruited at that time were qualified boners/butchers. The Complainant did not have such skills  

In conclusion, the Respondent asserts that there was a clear drop off in production and therefore a subsequent drop off in the requirement for additional staff. The Respondent submits that the Complainant’s contract was terminated but such a termination was for reasons other than on the ground of disability.

Hours of Work:

The Respondent denies that the Complainant worked more than an average of 48 hours per week in breach of section 15 of the Organisation of Working Time Act, 1979. It relied upon records to show that the Complainant had worked 45.5 hours per week over the period of his employment and that the Complainant submits no dates or averaging period to substantiate his claim.

Terms and Conditions of Employment:

The Respondent submits that the Complainant signed a contract of employment and that he also received a detailed employee handbook outlining his full terms and conditions of employment. He signed on receipt of the handbook. The Respondent submits that given the nature of the work at the Hirer, it was not possible to project in advance the required hours of work expected of the Complainant.

Minimum Notice:

The Respondent submits that the Complainant received one week’ pay for minimum notice at the termination of his employment and that this fulfils its obligation under the Minimum Notice and Terms of Employment Act, 1973.

Industrial Relations Claim:

The Respondent submits that at all times it acted reasonably in dealing with the termination of the contract of employment of the Complainant.

Discrimination:

Discrimination is defined as follows under section 6 of the Act:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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 subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Disability:

The Act prohibits discrimination on the grounds of disability. Section 2(1) provides:

“disability” means—

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

The Court has found that a temporary malfunction due to physical injury in the shoulder, back and neck after a road traffic accident in Customer Perception v Leydon 15 ELR 101 could be classed as disability under the definition.

Disability discrimination is found as follows:

Section 6 (2) provides that as between any two persons, the discriminatory grounds are:

… (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) …

8. Discrimination by employers etc.

In relation to—

(1)(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) insofar as such advertisement relates to access to employment.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different...

Prima Facie requirement:

Section 85A (1) of the 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 Company to prove the contrary”. 

In the case Southern Health Board v Mitchell (2001 ELR 201) the Labour Court set down a three-part test to establish proof of discrimination under the legislation. Firstly, the complainant must prove on the balance of probabilities the primary facts upon which she seeks to rely in raising a presumption of unlawful discrimination. Secondly, those facts, if proved, must appear to the Court to be of sufficient significance to raise the presumption contended for. Thirdly, if the burden shifts to the employer it must prove on the balance of probabilities that the impugned decision was in no sense whatsoever influenced by one of the grounds proscribed under the Act.

A further qualification of the required prima facie test was provided by the Labour Court in Barnmac Contracting Ltd v Zilys and Volkovas EDA1022.

Section 85A of the Acts provides, in effect, that a Complainant must prove facts from which discrimination can be inferred before the onus of proving the absence of discrimination shifts to the Respondent. It is well settled that the practical application of this principle requires the Complainant to first prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. The Complainant must then satisfy the Court that the facts so proved are of sufficient significance to raise an inference of discrimination. If the Complainant fails to prove the primary facts relied upon or to satisfy the Court that they are sufficiently significant to establish a prima facie case of discrimination his or her case cannot succeed.The Complainants have not pointed to any other worker of a different nationality who was treated differently by the Respondent in respect to the matters complained of. In these circumstances the it was submitted on their behalf that their case should be considered by reference to how a hypothetical comparator of Irish nationality would have been treated by the Respondent.

It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced, and it would clearly be impermissible for the Court reach conclusions of fact based upon mere supposition or speculation.

Conclusion:

Prima facie case:

The first issue to be decided is whether the Complainant has established a prima facie case. The first element of this test, in this instance, is to decide if he had a disability as defined under the Act. The Complainant described how he had suffered an abdominal muscle injury whilst lifting crates at the workplace of the Hirer. I note that medical certificates on the debilitating effect this had on the Complainant, were sent to the Respondent who in turn passed it on to the Hirer.   The Complainant was on sick leave from February 5th to April 18th, 2019. The Complainant’s evidence suggested that he made recovery from his injury. It was only a temporary condition, albeit requiring recuperation and absence from work. The Labour Court found, as in Leydon above, that temporary injury constituted a disability within the meaning of the Acts. I conclude that the Complainant had a disability when he was on sick leave. However, Leydon can be distinguished somewhat in that the Complainant in that case was still restricted in driving a car upon return to work. The disability, although temporary, still pertained. The evidence of the Complainant, in this instant case, is that he basically had no further ill effects. His final certificate stated he was declared medically fit to return to his work, without pre-conditions. The Complainant also gave evidence that the withdrawal of the agency works by the Respondent occurred not when he had a disability, but sometime after he had submitted a fitness certificate.

The Complainant presented no evidence of a comparator nor was any reference made to a hypothetical comparator. The need for a comparator is referred to in Section 6 (2) provides that as between any two persons, the discriminatory grounds are:

… (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) …

I note the Labour Court’s position in Barnmac Contracting, albeit a complaint on race grounds, but nevertheless stands applicable to confirm the principle that a Complainant must have some evidential basis of a suitable actual or hypothetical comparator to fulfil the prima face test. In this instance, it would mean that the Complainant must produce evidence of a comparator, or reference a hypothetical comparator, who does not have a disability, or has a different disability, and who was treated more favourably by the Respondent in not having been dismissed. In following the Labour Court lead, I clearly cannot reach conclusions of fact without such evidence. There is no reliable basis upon which I could assume, without evidence, that the type of default relied upon by the Complainant in this case would not have occurred, if he had not a disability.

In conclusion, I find that the Complainant had a temporary disability which can attract the protection of the Act. I also find based on the evidence given that there was a dismissal. I conclude that the actual cessation of employment occurred when he no longer had a disability. Furthermore, the Complainant produced no evidence of a comparator. Therefore, I find that he did not make out a prima facie case as required under the Act and the Complaint fails.

Working Time:

Section 15 of the Organisation of Working Time Act, 1997 states:

(1) An employer must not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph [3, points (a) to (e)] of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

Conclusion on working time complaint.:

The Complainant gave no dates or further detail on his complaint that he had to work 55 to 60 hours on average. In cross-examination he admits that he may have been basing his complaint on the time he spent at the Hirer’s premises rather than actual working hours. He submits no averaging period, in line with the Act. The Respondent relies upon detailed attendance time and pay records. These records show that the average for all the weeks worked by the Complainant shows an average of 45.5 hours worked; only on three occasions does it shown that he had reached 50 hours per week. No record shows 60 hours per week. Based on the evidence presented to me, I conclude that the Complainant did not show any evidence of having worked the excessive hours he claims. I find that the Complaint is not well founded and therefore fails;

Terms of Employment:

The Terms of Employment (Information) Act, 1994, as amended state:

(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

… (i) any terms or conditions relating to hours of work (including overtime),

… (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:…

…(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week.

This section, as amended by ss.3 and 7 of the Employment (Miscellaneous Provisions) Act 2018, specifies the particulars of the terms of employment which an employer must give in writing to an employee. The information required by subs.(1A) must be given not later than five days after the commencement of employment. The remaining information must be given not later than two months after the date of commencement of employment. Section 6 (infra at AB.221) deals with the rights of existing employees.

The Complainant made the argument that he did not receive his core terms of employment, with specific emphasis on his hours of work. It is clear from reading the handbook and the single sheet entitled “Details of Employment”, that there is no reference to hours of work. I particularly emphasise the obligation under section 3(1A) of the Act where it states, that within 5 days, an employer must supply an employee with:

…(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week.

I also note section (1)(i) where it states:

An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

… (i) any terms or conditions relating to hours of work (including overtime),

The Respondent has not abided by these provisions. Knowledge in advance of hours of work are a vital necessity for any employee and I do not accept the position of the Respondent that such information could not be given in advance. I therefore find that the Complaint is well founded.

Redress:

Redress in the Act is described as follows at Section 7(2):

A recommendation of an adjudication officer under subsection (1) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b)(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations undersection 17 of the Unfair Dismissals Act 1977,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after a contravention to which the complaint relates, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Having considered all the evidence, I conclude that the failure to give any account of hours to be worked in advance to the Complainant, is a significant breach that would create problems for any employee. The practical needs of every day life outside of working life can be difficult to plan if an employee has no advance knowledge of the hours of work. Under the circumstances I find that the Respondent should pay compensation of three weeks’ pay which, amounts to €1,740.

Minimum Notice:

The minimum period of notice is addressed in section 4 of the Minimum Notice and Terms of Employment Act, 1973 which reads:

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

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

(a) if the employee has been in the continuous service of his employer for less than two years, one week, …

The Complainant asserts that the notice of termination he received was by telephone and text. He does not deny that he received payment of one week’s wages in lieu of notice. The Act does not list the requirements that ‘notice’ must comply with, apart from the period or length of notice. Furthermore, the evidence presented suggests that the Complainant was quite happy to communicate with the Respondent by text on employment related matters. The only compensation I can award is equal to the actual financial loss arising from an employer’s contravention. I conclude that, based on the evidence, the Complainant accepted one week’s pay in lieu of notice therefore the Complaint is not well founded. I find that the Complaint fails.

Complaint under section 13 of Industrial Relations Act 1969.

The Worker submits that the Employer did not act reasonably in the decision to terminate his employment nor in the manner he was treated after submitting a return to work certificate. I have considered all the evidence in this case and have I have concluded that when looked at from the angle of reasonableness and fairness, notwithstanding the legal aspects of this case, that the Worker was treated shabbily by the employer.

I am minded of the effects that the termination of employment had on the Worker. He found himself in dire financial straits because of incurring an injury to the extent that he had to sell his car and then relocate his family back to Croatia. I found it unacceptable that he received his notice of termination by phone and text. There seems to have been a clinical decision made to terminate his employment, without any effort, it appears, to find alternative work with the Employer. The Employer also set up a panel of general operatives for future work, but no place was offered to the Worker.

From the documentary evidence presented, it appears that a legitimate written grievance was raised by the Worker and communicated to the Employer, when he found out there was a difficulty with re-engagement with the Hirer. On page 9 of the Employer’s grievance procedure it states that the employee can raise a grievance with the Hirer. It clearly states that the Employer “will then try and rectify the issue with both parties involved”. On the face of it, there was no evidence produced by the Employer to show that any credible effort was made to assist the Worker in resuming work or assisting with the grievance raised in any way.

Having considered all aspects of this dispute, I find that the Employer acted unreasonably in the way the Worker’s contract of employment was terminated, and I recommend that the Employer pay the Worker €2,000 for the effects that such behaviour had upon him.

CA-00030329-001 Discriminatory Dismissal

I find that the complaint of discriminatory dismissal under the Employment Equality Acts 1998-2015 on the ground of disability is not well founded and therefore fails.

CA-00030329-002 Working Time

I find that a complaint of a breach of section 17 of the Organisation of Working Time Act 1997 is not well founded and therefore fails.

CA-00030329-003 Terms of Employment

I find that a complaint of a breach of section 3 of the Terms of Employment (Information) Act 1994, as amended, is well founded and I award the Complainant compensation of €1,740.

CA-00030329-004 Minimum Notice

I find that the complaint of a breach of the Minimum Notice and Terms of Employment Act, 1973 is not well founded and therefore fails.

CA-00030329-005 Trade Dispute.

I find that the Employer treated the Worker unfairly and I recommend that the Employer pay the Worker €2,000.

Discriminatory dismissal, Hours of Work, Minimum Notice, Terms of Employment, Industrial Relations Act.