Complainant

Respondent

Anonymised Parties

{An Employee}

{A Food Shop}

Representatives

none 

Tommy Smyth Tom Smyth & Associates

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033149-001

17/12/2019

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

CA-00033149-002

17/12/2019

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

CA-00033149-003

17/12/2019

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

CA-00033149-004

17/12/2019

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

CA-00033149-005

17/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00033149-006

17/12/2019

The Complainant was employed by the Respondent as Manager from 1st July 2013 to 23rd September 2019.

CA-00033149-001

The Complainant claims her employer did not observe her terms and conditions on transfer. She was requested to sign a new contract when her employment was transferred which attempted to escape liabilities under TUPE. The Complainant was company secretary of the Transferor company.

CA-00033149-002

The Complainant claims she was required to work 58 hours weekly in breach of S27 of the Organisation of Working Time Act 1997. She has only been paid 45 hours per week for manager hours.

CA-00033149-003

The Complainant receives a rate of €13.50 per hour despite her business qualifications and qualification as company secretary as Manager. She is required to work shifts seven days. The Complainant’s comparator is male, without qualifications and is paid €14 per hour. He has fixed shifts and receives a payment for travel expenses of €25 per week.

CA-00033149-004

The Complainant claims she was unfairly dismissed on 23rd September 2019 without cause or procedure. She was required to leave the premises immediately and was not allowed to collect her belongings damaging her good name. Due to her carrying out her duty of care under health and safety for employees, she was penalised. She was bullied and was subject to retaliation from her managers due to her concerns about employees working hours, health and safety of employees and customers due to dust and the shop being refurbished. She was shouted at on the phone when she asked to shut the shop, and dismissed 3 weeks later.

CA-00033149-005

The Complainant says she has not been paid correctly in breach of S6 of the Payment of Wages Act 1991 for notice, wages, holidays, unpaid overtime and unpaid expenses and claims €13,165.18. She claims her hourly rate should be €21.25, she should have received a paid lunchbreak of 1 hour, work Monday to Friday 9am-5pm, 4 week’s notice, holidays and bank holidays.

CA-00033149-006

The Complainant claims statutory minimum notice pursuant to S11 of the Minimum Notice & Terms of Employment Act 1973.

The Respondent entered into negotiations with the Complainant and her co-owner to takeover the shop and which took place on 20th June 2019.

The Complainant requested the Respondent would provide her with employment after the takeover which was agreed. A contract of employment was put in place. The position did not work out and the Complainant’s employment was terminated during probation on 23rd September 2019. The Complainant does not have the required service of 52 weeks continuous employment to make the claim. The Workplace Relations Commission has no jurisdiction to hear the claim.

CA-00033149-001

The Complainant owned 51% of the shares of the Transferor company, and took over role of company secretary in August 2018. She was responsible for day to day operation of the company with another co-owner.

The due diligence provided by the Transferor provided contracts and P60’s for employees eligible to transfer, the Complainant’s information was not provided. She was labelled as self-employed with her co-owner. No details of her hours were included on the rosters. She was not an employee but controlling shareholder and self-employed. The Complainant did not transfer.

She requested a job and signed a contract with the Respondent on 21st June 2019. The Respondent relies on Reddy & Reddy v Hypertrust Ltd and Nesbitt & Nesbitt v Secretary of State for Trade and Industry.

CA-00033149-002

The Claimant was employed to work 45 hours per week and was responsible for preparing the roster. The Respondent is mystified that she is claiming information about her hours is false. This conflicts with evidence given to the employer and is not supported with any evidence.

CA-00033149-003

The Comparator named by the Claimant is an employee who transferred under TUPE and his terms and conditions are protected by law. The Claimant requested a position with the Respondent and received a wage comparable with others in the other stores, which are fair and reasonable comparators, not an employee inherited who is ringfenced.

CA-00033149-004

The WRC has no jurisdiction to hear this complaint as the Complainant does not have 52 weeks service.

CA-00033149-005

The Claimant did not transfer. She was offered and signed a contract of employment without dispute on the wages. She is well able to raise a grievance if she had one. She received all holiday pay on termination.

CA-00033149-006

The Claimant is not entitled to 4 week’s notice as her service commenced after the takeover and she was paid 1 week’s notice in accordance with her contract of employment.

I have heard and considered carefully the written and oral submissions of the parties.

CA-00033149-001

The Complainant has made a number of complaints against the Respondent which are premised upon being an employee of a convenience store which transferred to the Respondent pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

Evidence has been produced that the Complainant was company secretary and a controlling shareholder of the business. She entered into a contract of employment with the company on 1st December 2013 and worked as a shop manager. The Complainant managed the business with her co-owner. The Respondent gave evidence that the Complainant was not stated to be an employee in  company due diligence provided by the Complainant, nor was she an employee on payroll. They were informed she was self-employed.

The Respondent took over the lease of the premises and a number of employees transferred on 20th June 2019 pursuant to a business transfer agreement. This did not include the Complainant. The Complainant then accepted a new contract of employment with the Respondent following the takeover on 20th June 2019.

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 defines an employee as “ a person of any age, who has entered into or works under ( or where the employment has ceased, entered into or worked under) a contract of employment…”.

The Complainant was requested to provide details of her taxation arrangements while in employment prior to the takeover, this was not provided.

There are a number of tests that can be applied to identify the true nature of an employment relationship, including that of control. The Complainant was a 51% majority shareholder in the business with her co-owner who was the other shareholder. They were owners of the lease of the premises and business which transferred over to the Respondent on 20th June 2019. The Complainant set the rosters for employees, was the manager and ran the business with her co-owner. The Complainant was not taxed as an employee nor was she paid holidays. She took the financial risk and sold the business in 2019.

The Complainant had control and was not subject to the control of any other person.

In light of the evidence and the determinations in Moran v Citywide Leisure Ltd UD 1300/2011 and Butterly v Patrick Butterly & Sons UD 148/2013, I conclude the Complainant was self-employed and was not an employee. She is not subject to the provisions of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The complaint is not well founded.

CA-00033149-002

The Complainant was contracted to work 45 hours per week in a contract of employment with the Respondent commencing on 20th June 2019. The Complainant was responsible for preparing the roster which puts her hours at 45 per week. She claims she worked well in excess of these hours. This is disputed by the Respondent.

There is no evidence that the Complainant worked the hours claimed. Pursuant to S27 of the Organisation of Working Time Act 1997 I find this complaint is not well founded.

CA-00033149-003

The Complainant alleges discrimination by the Respondent in terms of S6 of the Employment Equality Acts 1998-2015 due to her gender as she claims she did not receive equal pay with a male comparator in relation to “like work”.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

S7 (1) of the Employment Equality Acts 1998-2015

“Subject to subsection (2) for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if-

(a)    Both perform the same work under the same or similar, or each is interchangeable with the other in relation to the work,

(b)    The work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c)     The work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The Complainant alleges that she provides work of greater skill than the comparator as she is a manager. Taking into account the decision of the High Court in Murphy v Bord Telecom Eireann [1988] IRLR 267, I will consider whether the Complainant is performing like work to the comparator. S 29(5) of the Employment Equality Act 1998-2015 provides that nothing in the Act shall prevent an employer from paying, on grounds other than the discriminatory grounds different rates of remuneration to different employees.

The Complainant has given evidence of her qualifications in business management and as company secretary which are greater than the comparator. The comparator works a definite roster Tuesday to Saturday and is paid €14 per hour. The Complainant says she works different shifts throughout the week with no definitive rates of pay, and no contribution towards transport.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

It is only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent. I find on the evidence that a prima facie case of discrimination has been made out by the Complainant.

The Respondent denies the comparator is a proper comparator, as the comparator transferred into the Respondent pursuant to TUPE and his terms and conditions are ringfenced. The Respondent says the appropriate comparator is 12 managers of other shops who start on a rate of €12.93 per hour. The Complainant was paid €13.50 per hour.

I am satisfied that the terms and conditions of the comparator used by the Complainant is not representative of the starting salary of managers for the Respondent and the comparator is ring-fenced. I find on the evidence the Respondent has discharged the burden of proof that there are grounds unrelated to gender providing for the remuneration of the Complainant and there is no breach of the principle of equal treatment.

The complaint is not upheld.

CA-00033149-004

The Complainant claims she has been unfairly dismissed.

The definition of employee under the Unfair Dismissals Acts 1977-2015 is “an individual who has entered into or works under a contract of employment..”. In my decision in CA-00033149-001 I have found the Complainant is not an employee of the business which transferred to the Respondent on 20th June 2019.

The Complainant entered into a contract of employment on 21st June 2019 and her employment terminated on 23rd September 2019. The Complainant has less than the required 12 months continuous service in order to make a complaint of unfair dismissal pursuant to Section 2 (1) (a) of the Unfair Dismissals Acts 19977-2015. Accordingly, I have no jurisdiction to hear this complaint.

CA-00033149-005

The Complainant complains that she has not been paid her wages and contractual entitlements under TUPE when she transferred to the Respondent pursuant to S6 of the Payment of Wages Act 1991. I have already found in my decision in CA-00033149-001 that the Complainant was not an employee and the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 does not apply.

The Complainant also claims additional holiday pay in respect of additional hours worked in excess of her contract. Evidence was presented by the Respondent to show the Complainant’s statutory holiday was discharged.

This complaint is not well founded.

 CA-00033149-006

The Complainant seeks payment of 3 week’s contractual notice to which she is entitled in accordance with TUPE. One week’s notice was paid in accordance with the Minimum Notice and Terms of Employment Act 1973.

This complaint is not well founded.

CA-00033149-001

The Complainant is not an employee. The complaint is not well founded.

CA-00033149-002

The complaint is not well founded.

CA-00033149-003

The complaint is not upheld.

CA-00033149-004

I do not have jurisdiction to hear this complaint.

CA-00033149-005

This complaint is not well founded.

CA-00033149-006

The complaint is not well founded.

European Communities Protection of Employees on Transfer of Undertakings Regulations 2003, whether employee or self-employed, majority shareholder