Complainant

Respondent

Anonymised Parties

An Assistant Manager

A Cafe

Representatives

Dundrum Citizens Information Centre

Kala Management Solutions Limited

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-00032125-001

12/11/2019

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

CA-00032125-002

12/11/2019

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

CA-00032125-003

12/11/2019

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

CA-00032125-004

12/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00032125-005

12/11/2019

The complainant commenced employment on 11 July 2018 and her working week was Monday to Saturday.

She was initially recruited as a catering assistant and her responsibilities included the preparation and serving of food and beverages, and general customer service.

She   was promoted to Assistant Manager in 2019 and her employment ended on 31st August 2019.

The complainant submitted five complaints.

CA-00032125-001 –: Terms of Employment (Information) Act, 1994

The complainant did not receive a statement of her terms and conditions of employment from the respondent, contrary to section 3(1) of the Terms. Of Employment (Information) Act, 1994.

Section 3(1) of the 1994 Act 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”.

The complainant submits that she did not, at any stage of her employment, receive a statement from the Respondent of her terms and conditions of employment.

CA-00032125-002 –Payment Wages Act, 1991

The complainant submits that she was not paid all or part of the wages by the Respondent, contrary to Section 5(6) of the Payment of Wages Act, 1991 Her working week was Monday to Saturday. The pay date would be the following Friday.

The complainant was promoted to Assistant Manager on Monday 16th April 2019 and agreed with the Respondent that she would receive a salary of €520 gross per week (net €451.72)

She says that it was agreed with the Respondent that any hours she worked above or below 39 hours in a given week would be offset by her working less or more hours on the subsequent working week. In other words, that her hours would balance themselves out, and she would receive the agreed salary of €520 per week regardless.

Her claim covers a 20-week period from week ending Saturday 20 April 2019, to week ending Saturday 31 August 2019, during which she was not paid all or part of the wages due to her She calculates the underpayment of wages to her for the 20-week period to be €2,437.

CA-00032125-003 –: Organization of Working Time Act, 1997

The complainant says that during her employment with the Respondent she did not enjoy rest periods she was entitled to under the Act and that she was not informed by the Respondent of her entitlements to rest periods nor was she provided with the procedures to be followed should she not be able to avail of a particular rest break.

She was told to take her rest periods in the café and to be available to serve customers and to support staff as required and not to leave the café for her rest periods.

She gave oral evidence to the effect that this resulted in her breaks being disrupted most days

CA-0032125-004 –Employment Equality Act, 1998

At the beginning of April 2019 while the Respondent was convalescing, he invited the complainant to be his “nurse”. The complainant found this comment degrading and distressing. She does not believe that the Respondent would have made this comment to a male member of staff.

On Friday April 19th 2019 The complainant attended a meeting in the office of the Respondent when he was in his dressing gown, boxer shorts, vest and slippers. The complainant felt very uncomfortable when she entered the office. The Respondent’s dressing gown was open and he complainant could clearly see his undergarments.

The manner in which the Respondent sat on his chair meant his knee was pressed against the complainant’s. The Respondent knew she felt uncomfortable but did not do anything to fix his attire or the position in which he was sitting.

In the course of a discussion about the roster for the following week the Respondent asked how a new employee was doing regarding her training. The complainant proceeded to explain how the new staff member was doing when the Respondent interrupted her and made a comment that contained a sexual innuendo. The complainant was disgusted, felt sick and froze. She didn’t know how to respond.

On the morning of the April 22nd, 2019 the complainant was leaving cigarettes and coffee on the Respondent’s desk and turned to go back downstairs to the café when the respondent made another sexually inappropriate comment.

The complainant felt like crying going back down the stairs after hearing such remark but just laughed. She didn’t know what else to do. She continued working and did not tell anyone about the comment.

She felt she could not raise her concerns with the Respondent because he was the boss. She was afraid if she complained that it would affect her job.

Each of the incidents left The complainant feeling harassed and humiliated and she says her treatment at the hands of the Respondent constitutes discrimination on the grounds of her gender

Discrimination

Under section 6 (1) of the Employment Equality Act,1998 – 2015 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) of the Act.

Sexual harassment.

Sexual harassment is defined in section 14 A(7)(a)(ii) of the Employment Equality Act,1998 –

2015 as:

any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Complaint CA-00032125-005: Unfair Dismissal/Constructive Dismissal was withdrawn.

The respondent concedes that the complainant was not given a statement under the Terms of Employment (Information) Act.

The arrangements for payment of the complainant’s wages involved aggregating her hours so that in any week when she worked less than a full week, her wages would be topped up based on the excess hours she worked in previous weeks.

Detailed evidence was submitted as to how the arrangement worked and the respondent’s bookkeeper gave direct oral evidence on the system. This shows that in fact the complainant had been overpaid for the period.

Regarding her breaks it is accepted by the complainant that while she did get breaks they were regularly interrupted. However, she was well aware of what her entitlements were as she had responsibility for drawing up the rosters and organising breaks for her fellow workers and then providing records of these to the company bookkeeper.

She signed off on the records that were provided. She was also facilitated with regular smoking breaks which were included in working time with all other breaks.

Regarding the complaint under the Employment Equality Acts the comments attributed to the business owner are denied in their entirety. The complainant was familiar with the terms of the company handbook and at so stage made any complaint about the owner’s alleged conduct. The respondent’s procedures allow for complaints to be made to the external HR company and provides for a third party to assist in the process.

The complaint of discrimination lacks any substance and the complainant has not identified any comparator for the purposes of the complaint.

It is accepted that the complainant visited the owner (whose residence is above the business) but all such interactions were conducted in a professional manner, and on occasion the complainant called to the premises without notice. A text log was submitted to show the cordial, but professional nature of the relationship between the parties.

The respondent considers that it had a good working relationship with the complainant as her promotion confirms, and the tone of the text messages between the parties is further evidence of this. The complainant at no stage raised any issue of harassment or discrimination nor did she use the company Grievance procedure to voice her concerns.

As noted above the complaint under the Unfair Dismissals Act was withdrawn.

This leave four others; three relating to various aspects of the complainant’s general terms and conditions of employment and the fourth arises under the Employment Equality Acts.

While the first of these appeared not to have been disputed by the respondent in fact the respondent had made its concession in relation to a somewhat different point.

There is widespread confusion between, on the one hand the statutory requirement to provide a statement of Terms of Employment and on the other the provision of a written ‘contract of employment’.

Some, if not most contracts of employment will contain the information required by the Act, but some may not.

But there is no legal obligation to provide a written contract of employment beyond the requirement in the Terms of Employment (Information) Act to provide the information set out in that Act.

More significantly, one often hears the defence that an employee declined to sign the document, as some sort of explanation for the failure to provide it.

While it is prudent to seek confirmation of receipt and to request an employee to sign it, the legal obligation on the employer is simply to provide the information and the employee does not have to agree with the contents of the document.

But what the respondent conceded was that the complainant was not given a contract of employment for her new position, which is a different matter, although in this case only partially different as there was not full compliance in the handbook with the requirements of the Act.

In this case it emerged in the course of the hearing that the company handbook did in fact contain some, but not all of the information required by the Act, which does not specify the precise form in which this information must be communicated.

It does appear that this did not meet the full requirements of the Act and therefore the complaint must succeed in part.

The complaint under the Payment of Wages act required a good deal of unravelling. The complainant believed that she was owed €2437.00 in underpaid wages. It was agreed quite quickly that the bulk of this had in fact been paid (approximately €2,200).

The confusion over the balance arose from the system the respondent had of crediting (i.e. not paying for) excess hours in any week where these arose and adding them for payment in a week where the complainant had worked less than a full week.

This was a well-intentioned, if confusing attempt to ensure that there were not significant inconsistencies in the complainant’s weekly earnings, but it led to the confusion which gave rise to that aspect of her complaints.

The company bookkeeper, who is an independent professional and not an employee gave persuasive evidence of the operation of the system and I accept that it did not result in any underpayment to the complainant, so this complaint fails.

The respondent would have been well advised to confirm in writing to the complainant how the system would operate so as to avoid the confusion that almost inevitably arose.

The position regarding the complainant’s breaks is not so straight forward.

Her complaint was that she ‘did had not been informed of her entitlements to breaks, or what to do if she could not avail of them’.

However, it is clear that she knew what they were as she was involved in rostering breaks for co-workers and while she says that she never actually got her full breaks due to being interrupted by customers that is a separate matter.

The respondent argued that it had delegated responsibility to the complainant to organise her own breaks and that here was no obligation on her to interrupt them. While ultimately it is the employer, in this case the business owner on whom the responsibility falls to ensure that his employees are getting their entitlement to breaks the complainant was certifying the breaks each week for the purposes of payment, including her own.

Evidence was produced of a text from the business owner to the complainant on May 18th asking her to ensure that employees did sign in and out for breaks.

In the circumstances, in applying a just and equitable remedy I must have some regard to the complainant’s contribution to the situation she now complains about, even allowing for the respondent’s ultimate responsibility to ensure that there is compliance.

There are two complaints under the Employment Equality Acts.

The first is of discrimination. The alleged act of discrimination was, according to the complainant’s evidence, the failure of the respondent to accurately define her role.

There are a number of problems with this complaint.

It does not meet the elementary requirement that it represents an act of less favourable treatment of any sort and therefore does not meet the threshold of a prima facie case.

The second is that this incident took place on March 27th or 28th 2019 and the complaint was not received by the WRC until November 12th, 2019, almost eight months later and outside the statutory timeframe of six months.

The complainant could offer nothing that would either explain or excuse the delay. For both these reasons this complaint is not well-founded.

The incident when the complainant was in the business owner’s residence when he was allegedly not fully dressed in daytime attire took place on April 19th, and there was a second alleged incident some days later on April 22nd.

These also fall outside the six months’ time limit and again the complainant was not able to provide any explanation for the delay in submitting her complaint.

I note, although this is not decisive, that she failed to raise the matter either with the respondent owner (which may have been understandable) or elsewhere as provided for in the business procedures between then and her departure on August 30th.

Indeed, there was evidence from text message exchanges between the parties in May that the cordial relationship between the parties continued after this alleged incident.

I do not consider this complaint to be well-founded.

I find complaint CA-00032125-001 under the Terms of Employment (Information) Act, 1994 to be well founded and I award the complainant €520.

I find complaint CA-00032125-002 under the Payment Wages Act, 1991 not to be well-founded.

I find complaint CA-00032125-003 under the Organization of Working Time Act, 1997 to be well founded and I award the complainant €500.

For the reasons set out above CA-0032125-004 –Employment Equality Act, 1998 is not well-founded.

Complaint CA-00032125-005 was withdrawn.

Terms of Employment, Breaks, Payment of Wages, Equality,