Complainant

Respondent

Anonymised Parties

 Employee

 Employer

Representatives

none 

none 

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-00036266-001

13/05/2020

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

CA-00036266-002

13/05/2020

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

CA-00036266-003

13/05/2020

The Complainant is an Irish citizen of Sudanese heritage. He commenced work as a retail assistant with the Respondent on 13 November 2019 until the termination of his employment on 1 April 2020. He worked 16 hours per week at a rate of €10 per hour. He is claiming he did not receive a copy of his terms of employment, that the nature of his dismissal was unfair and that he was subject to racial discrimination.  

CA-00036266-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994:

The Complainant said that he asked the Respondent on numerous occasions for a statement of his terms and conditions of employment. This was important to him as he needed clarity on his workhours and salary. He submits that the Respondent kept fobbing him off by referring him to the accountant. He asserts that he never received his written terms as per the statute.

CA-00036266-002 – Dispute under section 13 of the Industrial Relations Act 1969:  

The Employee submits that he was dismissed in an unfair manner. He asserts that he discovered that he had been receiving pay slips for 40 hours per week (which were exhibited) but that he was working only for 16 hours per week. The payslips were causing him extreme difficulty because he submits that he was also receiving social welfare payments for the remaining three days, but the payslips showed him as a full-time employee. The Employee asserts that when he brought this matter to the attention of the Employer he was in effect dismissed because he received no further hours of work.

CA-00036266-003- Complaint under section 77 of the Employment Equality Act 1998:

The Complainant submits that he is of Sudanese heritage and the Respondent is of Syrian heritage. The other employees in the shop were of Syrian heritage and he believes he was singled out because he was not related to the Respondent owners, and he believes that the other employees were extended family members.   

The Respondent did not appear at this hearing

CA-00036266-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994:

The relevant law is found at section 3 of the Terms of Employment (Information) Act, 1994, as amended, where the pertinent sections provide as follows:

 (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 …

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order…

… (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:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(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…

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

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention ofsections 3, 4, 5, 6or 6C  shall do one or more of the following, namely—

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

(b) either—

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

(d)in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977. 

 The Complainant submits in uncontested evidence that he never received a statement of his terms and conditions from the Respondent during the period he was employed. It should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. The Complainant gave cogent evidence that the non-receipt of his terms of employment created hardship for him.  I therefore find that the complaint is well founded. I order the Respondent to pay the Complainant the sum of €640, equivalent to 4 week’s remuneration.

CA-00036266-002 – Dispute under section 13 of the Industrial Relations Act 1969:  

In Beechside Company Limited T/A Park Hotel Kenmare v A Worker LCR21798, The Labour Court stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

In an uncontested account the Employee submits that he was in effect dismissed by the Employer for bringing to his attention discrepancies regarding the hours worked on his payslips. The Employee submits that he was not subject to any dismissal procedures but had his contract terminated. Based on an uncontested account, I find that the Employer did not employ procedural fairness in dismissing the Complainant and I recommend that the Employer should pay the Employee €3,000 as compensation for the unfair manner of his dismissal.  

CA-00036266-003- Complaint under section 77 of the Employment Equality Act 1998:

Section 6 of the Acts state that discrimination for the purposes of this 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]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”) …

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85(a) of the Act states as follows:

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the [Commission] to the [Director General] under section 85(1), facts are established by or on behalf of the [Commission] from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant submitted that he was subject to discriminatory treatment by nature of the fact that the non-Sudanese workers were treated differently at work. However, he gave no convincing evidence that he was treated less favourably than any other worker in the shop. He believed that other workers received written contracts of employment and he had not received a contract. However, he had admitted to having seen no evidence to assert this as a fact. Furthermore, he submitted that he was discriminated against because he was not related to the owners. The Complainant showed no credible evidence of racial discrimination nor unfavourable treatment on race grounds, in relation to his terms and conditions of employment. The Labour Court in Arturs Valpeters   stated that facts have to be established first by the Complainant and that they be of sufficient significance to raise a presumption of discrimination. Having considered the evidence on this complaint I find the Complainant did not establish such facts and he therefore did not discharge the burden of proof as referred to under section 85A of the Acts. I conclude that the Complainant was not subject to discriminatory treatment on the grounds of race. 

I find that the Complaint was not discriminated against.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00036266-001 Complaint under section 7 of the Terms of Employment (Information) Act, 1994:

I find that he Complaint is well founded, and I order the Respondent to pay the Complainant the sum of €640, equivalent to 4 week’s remuneration.

CA-00036266-002 – Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

 I find that the Employer did not employ procedural fairness in terminating the Employee’s contract.    I recommend that the Respondent pay the Complainant compensation of   €3,000. I recommend that the Employee would accept this sum as a final settlement of his dispute.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00036266-003- Complaint under section 77 of the Employment Equality Act 1998:

I find that the Complaint was not discriminated against.

Terms of Employment (Information) Act 1994, section 13 of the Industrial Relations Act 1969, Employment Equality Acts 1998-2015, Race, Discrimination.