Complainant

Respondent

Anonymised Parties

A Receptionist

A Hostel

Representatives

Self 

N/A 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029980-001

31/07/2019

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

CA-00029980-002

31/07/2019

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

CA-00029980-003

31/07/2019

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

CA-00029980-004

31/07/2019

The Complainant was employed by the Respondent as a Receptionist from 5 September 2016 until she resigned her employment on 3 May 2019. The Respondent is a city centre hostel. The matters at issue relate to a number of complaints as follows:

CA – 00029980-001 Failure to provide written statement of terms on employment in accordance with Section 7 of the Terms of Employment (Information) Act, 1994

CA- 00029980- 002 On the complaint form the Complainant described these issues as the same as above.  

CA – 00029980- 003 Failure to provide breaks in accordance with the section 27 of the Organisation of Working Time Act, 1997

CA – 00029980-04 Discrimination on the protected grounds of race under section 77 of the Employment Equality Act, 1998

CA – 00029980-001 Failure to provide written statement of terms on employment in accordance with Section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submits that when she commenced employment in September 2016 she was not provided with a written statement of terms and conditions of employment by the Respondent and that throughout her employment the Respondent constantly expanded the range of duties assigned to her.   She submits that she was not given a written statement of her terms and conditions of employment, nor was she provided with a job description upon commencement of employment with the Respondent and she outlined details relating to a revised contract which was issued by the Respondent and declined by her in December 2018. She contends that she was advised at interview and again when she commenced employment that her role was mainly that of Receptionist and that she would have some light domestic duties to undertake such as tidying up the kitchen area and putting cups etc in dishwasher. However, she submits that the Manager’s mother, who also has an interest in the business, constantly monitored the reception staff on CCTV and if she observed them having “downtime” she would ring them and tell them to do hoovering of stairs, laundry etc. She contends that the Manager’s mother purchased a laundry press so that reception staff could undertake the ironing of bedlinen etc. She contends that domestic duties had become a significant part of her workload over time. She further submits that the revised contract included a different start date than the date on which she commenced employment, some revised terms and conditions and provided for her working at other locations. She contends that although she did not sign that contract and advised the Manager of her position many of the changes of duties were implemented.

CA- 00029980- 002:

The Complainant confirmed that this complaint is a duplicate of CA-00029980-001.

CA – 00029980- 003 Failure to provide breaks in accordance with the section 27 of the Organisation of Working Time Act, 1997:

The Complainant submits that while in employment with the Respondent she did not get any breaks.   She submits that she worked 8/9 hour shifts with no rostered breaks provided. She stated that she could avail of quiet times to take food and drink but that she had to do so at the desk and was obliged to continue to deal with customers at the desk and phone calls as required. Oftentimes, she said, that her food went cold due to interruptions.

CA – 0029980-04 Discrimination on the protected grounds of race under section 77 of the Employment Equality Act, 1998:

The Complainant submits that she and a number of her colleagues working for the Respondent are Brazilian. She submits that the Manager’s mother has a “racist attitude” towards people of her nationality. She submits that the Manager’s mother continuously monitors the reception staff and directs them to undertake work not provided for in their job description which includes significant heavy domestic duties such as emptying bins, doing laundry, hoovering stairs and cleaning brass work. She submits that it was made clear at the outset that her role involved some light domestic duties such as tidying kitchen tables and putting dishes in dishwasher in addition to her receptionist duties.   She submits that a few weeks prior to her leaving date she was training a new receptionist when the Manager’s mother came into the area. She introduced the new receptionist who was also Brazilian. The Manager’s mother asked where the new staff member was from and the Complainant advised her that she was from Brazil. The Complainant submits that the Manager’s mother replied “of course, the Mother and the world is Brazilian. I hope your English is good”. The Complainant submits that she and the new staff member were left feeling very uncomfortable by what had occurred.

CA – 00029980-001 Failure to provide written statement of terms on employment in accordance with Section 7 of the Terms of Employment (Information) Act, 1994:

The Respondent accepts that the Complainant was not provided with a written statement of terms and conditions of employment at the outset but contends that a contract was provided at a later date. He submits that despite this the Complainant refused to sign the contract. The Respondent acknowledged that additional domestic duties were assigned but submits that this was reasonable in the context of available time and normal flexibility in a small working environment.

CA- 00029980- 002:

This complaint is a duplicate of CA-0002980-001

CA – 00029980- 003 Failure to provide breaks in accordance with the section 27 of the Organisation of Working Time Act, 1997:

The Respondent accepted the Complainant’s account on this matter. The Respondent submits that the Complainant did have an opportunity to have meals/tea/coffee in quiet times while continuing to work. He confirmed that he now has rostered breaks in place.

CA – 0029980-04Discrimination on the protected grounds of race under section 77 of the Employment Equality Act, 1998:

The Respondent submits that he doesn’t think his mother would say something like what is being alleged.

CA – 00029980-001 Failure to provide written statement of terms on employment in accordance with Section 7 of the Terms of Employment (Information) Act, 1994

It is agreed by both parties that no written statement of terms and conditions was provided by the Respondent at the commencement of the Complainant’s employment. It is also agreed that a contract was provided at a later date and was not signed by the Complainant. The Complainant contends that this contract issued in or around the beginning of December 2018 but that many of the terms contained in that contract differed from what applied to her since commencement of employment. She submits that she advised the Manager that she would not be signing the contract and outlined the areas of concern. The Respondent accepted that this is an accurate account of what occurred.   The Complainant submits that the Respondent never provided her with an amended version of the contract. The Respondent confirmed that this was the case.   He also accepted that reception staff were asked to undertake domestic duties and contends that in a small employment situation it is reasonable for the employer to expect flexibility from staff when they are not busy with their core duties.

The Act provides that “where the employer proposes to change any term of the contract of employment in respect of which particulars should be given under s.3 of the Act, written notice of the nature and date of the change must be given to the employee within one month of when it is to take effect.” I note that the Respondent did issue a contract in late 2018 with amended terms and conditions contained therein. Both parties have confirmed this fact. I note also that the Complainant declined to sign that contract and advised the Manager of her position. I note that no further discussions took place in relation to changes to the terms and conditions and no further contract was issued. These facts are confirmed by both parties. It is further confirmed by both parties that the original terms of employment discussed between the parties had been altered and that there had been an increase in domestic duties over time. Following the hearing the Complainant submitted a copy of a contract which she believed was the contract issued in December 2018. The Respondent by way of response sent a different version of a similar contract which he believed was the contract issued. While these two contracts differ, it is very clear from the evidence given by the Complainant at the hearing that she notified the Respondent of her objections to the contract issued and did not sign same. This account was verified by the Respondent.   What is also clear is that neither party has a signed contract in their possession.

I am satisfied, based on the evidence given at the hearing, that no contract was issued prior to or upon commencement of employment and that the contract issued in December 2018 was an attempt by the Respondent to put contractual arrangements in place. I am also satisfied that the Complainant did not sign the contract and objected to many of the terms outlined therein, however, the Respondent did not issue an amended contract. It is clear that the additional duties placed upon the Complainant had commenced some time prior to December 2018 and are not linked to the issuing of the contract at that time.  

In these circumstances I find that the Respondent was in breach of section 7 of the Terms of Employment (Information) Act, 1994 and that the complaint is well founded.

CA- 00029980- 002:

This complaint is a duplicate of CA-00029980-001

CA – 00029980- 003:Failure to provide breaks in accordance with the section 27 of the Organisation of Working Time Act, 1997:

I note that both parties accept that no rostered breaks were provided throughout more than two and a half years of employment.

The fact that the Complainant could eat/drink while she continued to carry out her duties cannot be deemed to meet the requirements of the Act.   I welcome the fact that the Respondent has now put in place a roster to achieve compliance.

In the circumstances outlined and agreed by the parties I find that the complaint is well founded.

CA – 0029980-04 Discrimination on the protected grounds of race under section 77 of the Employment Equality Act, 1998:

The Complainant cited a number of issues by way of demonstrating discriminatory behaviour on the part of the Respondent, namely that she and her colleague on reception (also Brazilian) were being constantly monitored on cctv, that she and her colleague were being asked to carry out duties well outside the scope of their role and specifically the comments which she alleges were made by the Manager’s mother as set out above. The Respondent offered little by way of defence of these matters. He acknowledged that the cctv was being used to monitor the reception area and he considered it reasonable to request staff to carry out other duties when not busy with their core duties. The Respondent submits that the comment attributed to his mother “didn’t sound like her.” At the hearing he confirmed that this issue had not come to his attention until he received the complaint from the WRC. The Complainant acknowledged that she had not made a complaint as the incident occurred shortly before she was due to leave the employment, but she also submits that the Respondent was aware of the incident as the new staff member turned down the job as a result. The Respondent accepted that this was the case. When asked what enquiries the Respondent had made into the matter upon receipt of the WRC complaint the Respondent confirmed that he had asked his mother and that she had said she didn’t make the comment.   The Respondent confirmed that he had not sought to interview the other staff member nor any other potential witnesses.

When asked, the Respondent confirmed that he did not have a grievance procedure in place, nor did he have any policy on diversity in the workplace. He further confirmed, when asked, that he had not provided any training to the workforce in relation to diversity nor was there any promotional material in use to support a culture of dignity at work.    

Section 6(1) of the Employment Equality Act,1988 states that 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 regard the wording of section 6 “would be treated” allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment.

In this instance the reception staff and cleaners were Brazilian and the new employee taking up the role was also Brazilian. The Complainant points to the expansion of her reception duties to include heavy domestic duties, the monitoring of her work on cctv and the alleged comments made by the Manager’s mother to demonstrate discrimination on the grounds of race. The Respondent considered the use of cctv and the expansion of duties described to be reasonable actions. The Respondent advised that his mother denies passing the alleged comment. In considering the case I am struck by the fact that the Respondent had no contract or job description in place. Neither had the Respondent any relevant policies in place (e.g. Grievance Policy, Disciplinary Policy, Dignity at Work Policy, Use of CCTV policy) and no training had been provided to staff and managers in relation to respect in the workplace. The role of the Respondent’s mother in the business remained ambiguous throughout the hearing with the Respondent describing her as “owning the premises”. It remained unclear as to whether she held a management role in the business, nonetheless, I am satisfied that she assumed a management role on a day to day basis. It is also evident that the Respondent did not make any real effort to look into the incident that occurred when the newly recruited receptionist did not take up the post nor when he received the complaint from the WRC.

I have reached the conclusion that the Respondent had little or no regard to the rights of this complainant and displayed a “laissez-faire” attitude to his obligations as an employer. I am satisfied that the Respondent was aware of his mother’s behaviour in terms of monitoring staff on cctv and assigning duties well beyond the scope of their role and that the Respondent took no steps to ascertain what had occurred in relation to the alleged racial slur. I am also satisfied that the Respondent had no policies or other measures in place to safeguard the dignity of employees or to enable employees to raise concerns regarding disrespectful and undermining behaviour. Furthermore, I am satisfied that the Respondent would not have treated an Irish person in such a manner. In these circumstances I find that the Complaint’s case of discrimination on the grounds of race is well founded.

CA – 00029980-001 Failure to provide written statement of terms on employment in accordance with Section 7 of the Terms of Employment (Information) Act, 1994

The Respondent did not issue any statement of terms and conditions of employment to the Complainant upon commencement of employment. More than two years later a contract was issued containing revised terms and conditions. The Complainant refused to sign the contract and returned same to the Respondent outlining her objections. No further contract was ever issued. In these circumstances I find that the Respondent was in breach of the provisions of the Act and so it is my decision that the Complainant is awarded four week’s pay by way of compensation for this breach.

CA – 00029980-002:

This is a duplicate of CA-00029980-001

CA – 00029980- 003:Failure to provide breaks in accordance with the section 27 of the Organisation of Working Time Act, 1997:

The Respondent did not provide any rostered breaks to the Complainant throughout her employment and consequently I find the Respondent to be in breach of the provisions of Section 27 of the Organisation of Working Time Act, 1977. I therefore decide to award the Complainant the sum of €1600 as compensation for the breach of her rights.

CA – 0029980-04 Discrimination on the protected grounds of race under section 77 of the Employment Equality Act, 1998:

I have found that the Respondent did discriminate against the Complainant on the grounds of race and it is my decision to award the Complainant the sum of €15000 for the effect of the discrimination.