Complainant

Respondent

Parties

John Dineen

Smyths Bridge House Donabate Ltd

Representatives

Not represented

 Niamh McGowan BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00032314-001

19/11/2019

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

CA-00032314-002

19/11/2019

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

CA-00032314-003

19/11/2019

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

CA-00032314-004

18/12/2019

On May 11th 2017, the complainant started working in the respondent’s public house as a barman.  At the hearing, he said that when he started in the pub, he worked between 20 and 35 hours a week.  He was paid €12.00 per hour. 

Chronology of Events Leading to these Complaints

In November 2018, a new manager, Mr Chi, was recruited when another manager left.  In early 2019, the complainant said that his hours were reduced to between 17 and 20 each week and that, in the odd week, he worked 30 hours.  On March 1st 2019, he signed a new contract which provided that he was required to work 20 hours a week between Monday and Sunday, from 4.00pm to closing time.  A roster with the specific hours and days was issued every Monday.  He said that he generally worked Thursdays and Fridays from 8.00pm to 3.00am (7 hours x 2 = 14)  and on Sundays from 11.00am until 6.00pm (7 hours) resulting in a total of 21 hours a week.  He said that he sometimes worked on Saturdays instead of Thursdays.

In July 2019, another new manager joined the pub and the complainant said that he and his two colleagues (one of whom was his son) were told that their hours would be reduced.  On Monday, August 19th 2019, the complainant was rostered to work that week on Sunday only from 10.30am until 6.00pm.  He said that he wasn’t happy about this, but that the manager told him that he couldn’t give him any more hours because the new manager was rostered to work for 45 and 50 hours respectively in alternate weeks.

On October 6th 2019, the complainant said that he was annoyed because Mr Chi and the new manager were late for work, which meant that he had to remain at work for a half an hour extra until 6.30pm.  The following week, he said that Mr Chi informed him that, from then on, he was rostered from 7.00pm until 11.00pm on Sundays, giving him four hours’ work each week. 

On Sunday, October 13th, the complainant said that he arrived in work at 7.00pm.  Mr Chi informed him that he had changed his hours to 4.00pm until 8.00pm and that, as it was now 7.00pm, he had no hours for him that week.  Following that encounter, he has been rostered on Sundays only from 4.00pm until 8.00pm or from 5.00pm until 9.00pm.

On October 23rd 2019, on the advice of his local Citizens Information Centre, the complainant wrote to one of the owners, Mr Paul Greene and the manager, Mr Chi.  He complained about the reduction in his hours.  He also said that, when he commenced employment in the pub, he was paid a Sunday allowance of €3.00 per hour, but that this hadn’t been paid for several weeks.  Although the complainant referred to the extra Sunday pay as “overtime,” I understand that this refers to an additional allowance for working on Sundays.  Mr Greene replied on November 1st, saying that they would get back to him.  He also offered to meet the complainant. 

By November 2019, when he submitted this complaint to the WRC, the complainant said that he was only rostered for four hours a week on Sundays, from 2.00pm to 6.00pm or from 4.00pm to 8.00pm.  He resigned in August 2021, 20 months after he submitted these complaints to the WRC. 

Complaints

Under the Payment of Wages Act, the complainant alleges that he was not paid the wages he was due in accordance with his contract.  In breach of section 5 of the Terms of Employment (Information) Act, he claims that he was not notified of changes to his terms and conditions of employment.  He claims that, contrary to section 6(2)(f) of the Employment Equality Act, he was discriminated against on the grounds of his age.  Lastly, he claims that his employer failed to comply with section 14 of the Organisation of Working Time Act in relation to pay for working on Sundays.

CA-00032314-001:  Complaint under the Payment of Wages Act 1991

It is the complainant’s case that, as his contract specified that his hours of work were 20 hours per week, he is entitled to be paid for 20 hours.  He said that he sometimes worked for 30 hours a week.  Following his argument with Mr Chi on Sunday, October 6th 2019, the complainant said that Mr Chi phoned him and told him that, from then on, he would be rostered for four hours on Sundays from 7.00pm until 11.00pm.  He claims that, as he worked only four hours per week for the last two years of his employment, when his contract specified that he was required to work for 20 hours, he is entitled to compensation for the loss of 16 hours per week.  He said that despite the fact that the pub was “manic” over Christmas 2019, he was still rostered for only four hours a week.

In cross-examining by Ms McGowan, the complainant agreed that he was paid for the hours he worked.  In response to a question about when his hours went from 20 to 17, the complainant said that this occurred around August 2019.

In response to questions from me, the complainant said that when Mr Chi joined the pub as a manager, he told the complainant that he was reducing his hours to 17 each week.  The complainant said that he didn’t mind about this, because 17 hours plus the Sunday allowance would be okay.  The complainant’s son was in college and he was also working in the pub.  When the new barman joined in August 2019, his son left because he wasn’t getting enough hours. 

CA-00032314-002:  Complaint under the Terms of Employment (Information) Act 1994

This complaint relates to the complainant’s contention that his terms and conditions of employment were changed when his hours were reduced and that he was not formally notified of the change. 

CA-00032314-003:  Complaint under the Employment Equality Act 1998

In his evidence at the hearing, the complainant said that he is aged 68.  He said that the manager asked him why he didn’t retire and that snide remarks were made about his age.  He said that he feels that his hours were cut because of his age and that there was no problem about his age until Mr Chi joined the pub. 

In cross-examining by Ms McGowan, the complainant agreed that, when he was working for the respondent, he was also working full-time from Monday to Friday as a courier.  She pointed out that, if he was rostered for 20 hours in the pub, he would have worked for 60 hours a week. 

Ms McGowan pointed to evidence submitted by the complainant that shows that between May and August 2019, he worked an average of 35 hours a week for the courier company.  In May 2019, his hours in the pub were reduced to 17 per week and in October, his hours were reduced to four hours per week.  Ms McGowan submitted that the respondent was not permitted to allow the complainant to work for more than 48 hours per week in any job.  The complainant said that the respondent had no information about how many hours he worked with the courier company and that this is irrelevant.

Ms McGowan referred to the manager’s request to the complainant to come to a meeting in the pub, and that he wouldn’t attend unless he was paid, because he was being paid by his main employer.  The complainant said that he was never unavailable for a meeting.  Ms McGowan said that the evidence of the respondent will be that the complainant told other employees that he was working full-time elsewhere.  She submitted that his hours were reduced so that the respondent wouldn’t be in breach of the maximum hours provision at section 15 of the Organisation of Working Time Act.

The complainant said that this issue has only come to light since he made his complaint and that it is an excuse.  He said that one of the owners asked him if he would think about retiring.  He agreed with Ms McGowan that the owner who he claims made this suggestion is the same age as him.

The complainant said that the manager, Mr Chi asked him why he didn’t retire, telling him that he was older than his father.  He said that Mr Chi asked him if he had thought about taking things easy.  Ms McGowan said that Mr Chi will say that he never made these age-related comments.

The complainant said that when he and Mr Chi were working together, Mr Chi “would not acknowledge that I was there.”  He said that, in the four or five months that they worked together up to the Covid-19 closure, there was no conversation between him and Mr Chi.  From October 2019, when his hours were cut, until March 2020, the complainant said that he was ostracised behind the bar. 

From October 6th 2019, when the complainant said that Mr Chi was late for work and they had a row, he said that his hours were reduced.  For the previous two and a half years, he worked for more than 20 hours each week.  When Ms McGowan asked the complainant how this was relevant to a complaint about age discrimination, the complainant replied that his hours weren’t reduced because of his age, but that “the treatment I received was because of my age.”

Ms McGowan asked the complainant if, when he was assigned to work in the front bar, he was told that it was because the customers there were older.  The complainant said that this was how he felt, that he was being pushed out of the way to serve the older people.  He said, “I felt it more than it was being said to me.”

In response to questions from me, the complainant said that when he was at work, he would sometimes be told to work in the part of the pub where the older people drank.  He said that the manager didn’t want him serving the young people, “slowing things down.”

CA-00032314-004:  Complaint under the Organisation of Working Time Act 1997

Before the appointment of Mr Chi as the manager of the pub, the complainant said that he was paid time and a third for working on Sundays, equivalent to an additional €3.00 per hour.  He said that the allowance was not paid between August 25th and September 29th 2019, a total of six Sundays. 

In response to questions from Ms McGowan, the complainant said that he always got paid time and a third for working on Sundays.  He said that this was indicated on his payslip as “overtime.” 

Following the hearing, the complainant submitted all his payslips to me for examination.  These show that, from May 2018, when he worked on Sundays, he was paid “overtime” of €3.00 per hour.  For a period of six weeks, from August 25th until September 29th 2019, the complainant only worked on Sundays, generally for seven hours from 10.30am until 6.30pm, but he was paid a flat rate of €12.00 per hour.  He was on holidays for one of these Sundays.  The payslips show that the Sunday allowance was restored on October 6th 2019, but, from then on, the complainant’s hours were reduced from seven hours to four hours.

While there are four complaints under investigation, I have not separated the evidence of the respondent’s witnesses into their responses regarding each separate complaint.  I have set out their evidence as it was presented at the hearing.

Evidence of the Owner

Mr Greene said that he is very much in the background in the business, and that his brother, Paul, is more involved in the day-to-day running of the pub.  His brother has been ill and was unable to attend the hearing.

In June 2019, Mr Greene said that it came to their attention that the complainant had another job and that, from Monday to Friday, he was working from 7.00am until 6.00pm.  The complainant had informed them that he wasn’t free during the day from Monday to Friday and he never attended staff training or fire drills.  He generally worked in the pub on Fridays, Saturdays and Sundays for around 20 hours per week and sometimes more.  Mr Greene said that his brother got advice from their representative association, the Licensed Vintners Association (LVA), and they were advised that the complainant should not be working for more than 48 hours each week in his two jobs.  Mr Greene said that they had to take account of this advice.  Mr Greene said that it was clear that the complainant’s hours would have to be substantially reduced.  He accepts the complainant’s evidence that, from August 2019, he worked seven hours a week.  

Mr Greene said that a manager left around November 2018 and Mr Chi was recruited.  He said that the recruitment of Mr Chi has nothing to do with the reduction in the complainant’s hours.

In response to questions from me, Mr Greene agreed that, as there was a provision for 20 hours’ work in his contract, the complainant expected to work for 20 hours a week.  When I asked him why he wasn’t told that his hours were reduced because of the requirement to only work 48 hours between the two jobs, Mr Greene agreed that the communication on the issue was poor.

Mr Greene said that the complainant is younger than him.  He said that he never made comments about his age and he never heard his brother make any such comments.

He said that the pub has difficulties recruiting employees and that they have had older staff working there.  He said that the problem for them was the fact that the complainant was working full-time in another job.  He said that he made no secret of the fact, and that he had come into the pub in the uniform that he wore in his courier job.

Cross-examining of the Owner by the Complainant

The complainant said that he was never requested to attend staff training or a fire drill.  The owner responded that he had been informed that the complainant didn’t attend meetings during the day from Monday to Friday.  The complainant said that he never missed a meeting and that all the meetings that took place were in the evening.

The complainant said that he finds it amazing that Mr Greene’s brother got advice from the LVA and that he didn’t tell him about it.  Mr Greene said that there was a lack of communication and that it wasn’t personal.

Evidence of the Manager, Mr Chi

Ms McGowan referred to the complainant’s evidence that, because of a row on October 6th 2019, his hours were cut from seven hours on a Sunday to four.  Mr Chi said that he didn’t have a row with the complainant.   He said that some shifts are for seven hours and others are for four hours. 

Mr Chi said that he has worked in the pub business for 23 years and that he never had an issue with anyone’s age.

Asked about the complainant’s statement that Mr Chi doesn’t speak to him, Mr Chi said, “I’m the person who never stops talking.”  He said that there were no cold feelings between them.

Addressing the difference in the clientele between the front and back bars, Mr Chi said that there is only a metre of space between the two bars and that three staff “swing” between the two all the time.  He denied that he assigned the complainant to work in the front bar to serve the older customers.

Asked if he ever referred to the complainant’s age, Mr Chi said that, three or four times a week, the complainant came into the pub after his job with the courier company.  He would be wearing his uniform and he would tell them where he had been that day.  Mr Chi said that he commented, “you’re great to do that job full-time.”  He said that he never heard any of the staff commenting on the complainant’s age.

Asked about reducing the complainant’s hours, Mr Chi said that he got instructions from the owners that he would have to do reasonable hours.  Asked why his hours were further reduced from seven hours to four on Sundays, Mr Chi said that this was because he was working so many hours in the courier company.  He said that he is unsure if anyone suggested speaking to the complainant about his hours.  He said that he didn’t speak to him about the issue.

In his evidence, the complainant said that Mr Chi asked him why he wasn’t retired, because he is older than his father.  Mr Chi said that his father is 75 and that he didn’t make that comment.

Cross-examining of the Manager by the Complainant

The complainant said that he used to open the pub on Sundays, and get things ready for the day.  He said that after the row that he alleges happened on October 6th 2019, he got a text message instructing him to return the keys.  His shift was changed from 10.30am to 6.30pm to 4.00pm to 7.00pm.

Mr Chi replied, “I never had a row with you.”  He said that the complainant used to work from 12.00pm to 6.00pm on Sundays.  On Saturdays, they generally finished work together around 3.00am.  He said that he couldn’t ask the complainant to come to work at 10.30am, as there would only have been a break of eight or nine hours. 

Legal Submission of the Respondent

CA-00032314-001:  Complaint under the Payment of Wages Act 1991

The complainant’s contract provides that he will be rostered for his actual hours of work each week.  Ms McGowan submitted that the complainant was paid for the work that he did. 

Ms McGowan referred to the complainant’s claim for compensation for lost earnings in the two years before his resignation in August 2021.  She noted that this complaint was submitted to the WRC on November 19th 2019 and that I, as the adjudicator, have jurisdiction to consider a breach of the Payment of Wages Act which may have occurred in the six months prior to the complaint being submitted. 

CA-00032314-002:  Complaint under the Terms of Employment (Information) Act 1994

Ms McGowan referred to the complainant’s amended contract of employment which was issued on March 1st 2019.  This confirmed his start date as May 11th 2017 and provided that his normal hours of work were 20 hours per week and eight hours per day between the hours of 4.00pm to closing time from Monday to Sunday.  The contract provides that the “actual hours of work and days of work will be posted in the weekly roster which will be issued every Monday.”  In accordance with this provision in the complainant’s contract, Ms McGowan submitted that he received written notification of his hours of work every week.

CA-00032314-003:  Complaint under the Employment Equality Act 1998

Ms McGowan referred to the complainant’s evidence that his hours were reduced following a row with the manager of the public house.  She argued therefore that he has provided no evidence of specific treatment on the grounds of his age.  She asserted that the complainant’s evidence goes no further than Mr Chi’s comment that he did a long working day in another job.

Ms McGowan said that the communication regarding the reduction in the complainant’s hours of work should have been better, but he cannot argue that his employer did not want him working in the pub.  If he had continued to work 20 hours a week, the employer would have been in breach of the Organisation of Working Time Act.

CA-00032314-004:  Complaint under the Organisation of Working Time Act 1997

The employer’s position is that the complainant was not paid the Sunday allowance for five Sundays when he worked for seven hours.

In accordance with section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to consider complaints regarding breaches of legislation that may have occurred in the six months before November 19th 2019, the date on which this complaint was submitted to the WRC.  Each of the four complaints submitted for adjudication is concerned with the reduction in the complainant’s hours of work. 

I have examined the complainant’s payslips dating back six months from November 19th 2019.  In the week ending on Sunday, May 26th, he worked for 24 hours, including seven hours on Sunday, for which he was paid €309 gross.  This was the last week during which he worked for more than 19 hours. 

For 11 weeks, from the week ending on June 2nd until August 18th 2019, the complainant generally worked 17 hours each week, including seven hours on Sundays.  In one week, he worked 13 hours and in three weeks, he worked for 19 hours.  His weekly wages were generally between €225 (17 hours) and €249 (19 hours) which included the 25% allowance for working seven hours on Sundays.

From the week that ended on August 25th 2019, the complainant’s hours were reduced to seven hours on Sundays only.  He was not paid the Sunday allowance, but was paid the flat rate of €12.00 per hour, resulting in weekly pay of €84.  This continued for six weeks until October 6th, when the allowance was restored.  The complainant was on holidays for one of these six Sundays.

No payslip is available for October 13th 2019.  On October 20th, the complainant’s hours were reduced to four hours on Sundays and the Sunday allowance was paid, resulting in weekly pay of €60.  Apart from two weeks, he worked for four hours each week until he resigned in August 2021.

In summary, during the 26 weeks from May 20th 2019 until November 19th 2019, the complainant worked the following hours:

24 hours – 1 week

19 hours – 3 weeks

17 hours – 7 weeks

13 hours – 1 week

7 hours – 6 weeks

4 hours – 5 weeks

Holidays / no payslips – 3 weeks

The contract of employment issued to the complainant on March 1st 2019 contains the following preamble:

“This terms letter constitutes the initial terms between John Dineen and Smyths Bridge House Donabate Limited and place of work for the employee (the Company) and you, and include the written particulars of employment required by the Employment (Miscellaneous Provisions) Act 2018 (sic).”

While this clause is a little convoluted, it is apparent that the purpose of this statement is to comply with the amendment introduced at section 3(1A) of the Terms of Employment (Information) Act 1994 by the Employment (Miscellaneous Provisions) Act 2018.  The statement confirms the name and address of the employer, the commencement date, the place of employment, and importantly, for our purpose her, the complainant’s hours of work and rate of pay.  Under the heading, “Hours of Work,” the contract states:

“Your normal hours of work are 20 per week and 8 per day which you will be required to work between the hours of 4/c Monday to Sunday.  The actual hours of work and days of work will be posted in the weekly roster which will be issued every Monday.”

I understand that “4/c” above means “4.00pm until closing time.”  Under the heading “Remuneration and Benefits,” the statement provides as follows:

“Your basic salary is €12 per hour.  This will be paid every Wednesday and will include payment for work done up to and including the previous Sunday.”

It is evident therefore, that the complainant was “normally” expected to work for 20 hours each week and that, at an hourly rate of €12.00, he could expect to earn €240 plus an allowance of €3.00 per hour for Sundays.  It is also evident that, until January 2019, he worked around 20 hours per week, but sometimes he worked less, around 17 hours, and occasionally, he worked for 32 hours.  From January until June 2019, he generally worked around 17 hours a week.  From June until the end of August 2019, he worked for seven hours a week, and for the five weeks from October 20th until November 19th 2019, he worked for four hours a week.

It is the respondent’s position that the complainant’s hours were reduced because he had a full-time job elsewhere as a driver for a courier company.  Neither the pub-owner or the manager spoke to the complainant about the problem of his excessive working hours and no explanation was given for his hours in the pub being reduced.  The complainant thought that he was rostered for less hours because he had an argument with the manager around the end of September 2019.  On October 23rd 2019, the complainant wrote to one of the owners and the manager of the pub, seeking an explanation for the shortfall in his hours of work and the failure to pay him the Sunday allowance.  The owner replied on November 1st, saying “I will revert back to you in due course.”  There was no mention of the advice from the Licensed Vintners Association regarding the need to reduce the complainant’s hours.  The complainant’s evidence is that the first he heard of a problem about his hours was at the hearing of this complaint.

The Relevant Law

Section 5(1) of the Payment of Wages Act addresses the issue of deductions from wages:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

The complainant’s contract of employment provides that his employer agreed to roster him for 20 hours a week between Mondays and Sundays in return for wages of €12.00 per hour.  The complainant agreed to accept this offer and both parties signed the contract confirming their acceptance of its terms.  The contract refers to statutory deductions for PRSI and tax, but makes no reference to a deduction in pay as a result of not being rostered for 20 hours.  There is no mention in the contract of the possibility that there will be less than 20 hours of work available to the complainant in any week.  The only reference to any flexible component of the complainant’s working schedule is the in the statement which provides that his actual hours and days of work will be posted in the roster every Monday.  I am satisfied that the word, “actual,” as it is used here, refers to the specific hours on specific days that the complainant will be expected to work in any week.

To ground a claim under the Payment of Wages Act, the wages claimed must be properly payable.  Section 5(6) of the Payment of Wages Act addresses the circumstances in which wages which are properly payable are not paid:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The issue for consideration in respect of the complainant is, were his wages properly payable when he was not rostered for 20 hours per week, which his contract stated were his “normal hours of work?”  It is clear to me that, in the statement issued on March 1st 2019, with the title, “Amended Contract,” the respondent agreed to provide 20 hours’ work for the complainant at a rate of €12.00 per hour, giving him an expectation of wages of €240 per week, plus a Sunday allowance of around €21.00 per week.  I am satisfied that he had a contract to work for 20 hours per week.  At the hearing, the respondent agreed that the communication regarding the need to reduce the complainant’s hours was “poor;” however, I am entirely satisfied that there was no communication whatsoever with the complainant about this important.

There was no dispute about the fact that the complainant worked up to 40 hours a week in another job.  If his hours in the pub had to be reduced to comply with section 15 of the Organisation of Working Time Act, then he could have been rostered for eight hours and there may be some logic in the decision to roster him for a Sunday shift for seven hours.  However, no explanation has been given for the decision, in October 2019, to reduce his hours to four hours per week. 

Conclusion

Based on the complainant’s contractual entitlement to be paid for 20 hours per week, I find that his properly payable weekly wages were €261.00.  I estimate that, during the cognizable six months from May 20th until November 19th 2019, he was not rostered for 189 hours with the result that he suffered a deduction in his wages of €2,268 plus €45.00 in respect of the Sunday premium that he would have earned if he had been rostered for seven hours on the five Sundays from October 20th to November 19th 2019.

I decide that this complaint is well-founded.  In accordance with section 6 of the Payment of Wages Act, as amended, I am required to direct the respondent to pay compensation as a net amount.  The complainant’s earnings were relatively low and no deductions were taken for PAYE.  As he was over 66, he did not make a PRSI contribution.  Taking account of the small amount that he paid in USC, I direct the respondent to pay the complainant compensation of €2,250.

The Relevant Law

Section 3 of the Terms of Employment (Information) Act addresses the circumstances where there is a change in the information provided to an employee in the original statement of their terms and conditions of employment:

“(1) Subject to subsection (2), 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, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.”

One of the “particulars” referred to in the statement furnished to the complainant on March 1st 2019 was the reference to his requirement to work for 20 hours a week.  At the hearing, the respondent conceded that the complainant was not properly informed of the change to his rostered hours, but their position is that the weekly roster was sufficient to comply with the requirement of section 3 above. 

Conclusion

I do not accept that the posting of the weekly roster is sufficient to communicate the decision of the respondent to reduce the complainant’s weekly hours of work.  It is apparent to me that the roster is intended to inform employees of the specific days of the week and the hours for which they are required to attend work.  The complainant could not be expected to decipher the reason for the reduction in his contracted hours from the information on the roster.  I find that, in their failure to inform the complainant in writing of the decision to reduce his weekly hours of work, the respondent is in breach of section 3 of the Terms of Employment (Information) Act.

I decide that this complaint is well-founded.  Therefore, in accordance with section 7(2)(d) of the Terms of Employment (Information) Act, I am required to order the respondent to pay the complainant compensation that is “just and equitable having regard to all the circumstances, but not exceeding four weeks’ remuneration…”  I decide that the respondent is to pay the complainant €500.00, equivalent to approximately two weeks’ pay.  As this award is made by way of compensation for a breach of a statutory entitlement, it is not subject to any statutory deductions.

The Relevant Law

The legal framework prohibiting discrimination based on age is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”). 

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section 6(2)(f), “the age ground” is listed as one of the nine discriminatory grounds.

The complainant’s case is that he was discriminated against when his hours were reduced that that the respondent reduced his hours because of his age.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than a younger employee.

The accepted standard of proof required of a complainant was set out in the decision of the Labour Court in the case of Mitchell v Southern Health Board[1].  Describing this evidential burden, the Labour Court held that,

“The first requirement is that the claimant 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 claimant 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 respondent to prove that there is no infringement of the principle of equal treatment.”

The Primary Facts

The complainant commenced working in the respondent’s pub in 2017, when he was in his mid-60s and he remained in employment until he resigned in 2021.   At the hearing, we learned that the respondent reduced the complainant’s hours of work because he had a full-time job elsewhere.  In his own evidence, the complainant said that he thought that his hours were reduced because of a row with the manager over the manager being late for work.  He also said that the owner and the manager made comments about his age, asking him why he didn’t retire.  He said that he was assigned to work in the part of the pub where older people drank, so that he wouldn’t be “slowing things down” in the bar where the younger customers drank.

Findings

Having considered the evidence at the hearing of this complaint, it is my view that the basic facts submitted by the complainant are not sufficient to lead me to conclude that he his hours of work were reduced because of his age.  It seems to me that the respondent would not have recruited a man in his mid-60s if they felt that there would be a problem with his age.  I note also that the owners of the pub are older than the complainant.  I learned at the hearing that the hours of two younger employees were reduced around the same time as the complainant’s hours were reduced.  The complainant said that the reason for this was to provide full-time hours for a new employee.

Having  heard his evidence, it occurs to me, that the complainant may have been more sensitive about his age than his employer.  It was evident to the owner and manager that the complainant was fit and capable of doing a full-time job for another employer.  No issue was raised about his capability, punctuality or attendance, apart from an awareness that he wasn’t available during the day.  It seems to me that any remark related to age may have been interpreted by the complainant as a criticism.  It occurs to me also that a remark such as “why don’t you think about retiring,” is not the same as a suggestion that he should retire.  The complainant is relatively unusual in that he is aged almost 70 and, up to recently, he had two jobs.  The question about retiring could have been asked out of genuine interest.

It is my view that no discrimination occurred when the complainant’s hours were reduced.  I am satisfied that the reduction from 17 – 20 hours to seven hours was to comply with the requirement to bring his total weekly hours in both his jobs to 48 hours.  Why his hours were reduced from seven hours to four hours a week has not been properly explained; however, I accept the complainant’s own explanation, that it was because of a falling out with the manager.

Conclusion

Having examined the primary facts adduced by the complainant, it is my view that they are inadequate to show that, on the balance of probabilities, he was subjected to age-related discrimination.  For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

I decide that this complaint is not well-founded.

The Relevant Law

Section 14(1) of the Organisation of Working Time Act 1997 sets out the provisions for Sunday working:

“(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.”

Findings

It is apparent from the evidence submitted at the hearing that, until August 25th 2019, when he worked on Sundays, the complainant was paid an allowance of €3.00 per hour in addition to the flat hourly rate of €12.00.  The evidence shows that for five Sundays between August 25th 2019 until September 29th 2019 when he worked for seven hours from 10.30am until 6.30pm, the complainant was paid for 35 hours at a flat rate of €12.00 per hour.  He was entitled to be paid a Sunday allowance of €3.00 per hour, giving a consolidated hourly rate of €15.00.  I find that he suffered a total shortfall of €105.00.

I decide that this complaint is well-founded and I direct the respondent to pay the complainant redress of €250.00, comprising €105.00 in respect of the failure to pay the Sunday allowance and €145.00 for breach of a statutory right.  As this award is made by way of compensation for a breach of a statutory entitlement, it is not subject to statutory deductions.

CA-00032314-001:  €2,250                Redress under the Payment of Wages Act 1991

CA-00032314-002:  €500                   Redress under the Terms of Employment (Information) Act 1994

CA-00032314-003:                              No award is made under the Employment Equality Act 1998

CA-00032314-004:  €250                   Redress under the Organisation of Working Time Act 1997

Total award:            €3,000

Wages not properly paid, change to statement of terms and conditions of employment, discrimination on the age ground, Sunday allowance