ADJ-00030753

Complainant

Respondent

Parties

Jolanta  Baskakoviene

Milne Foods Limited

Representatives

Natasha Hand                                           Richard Grogan Richard Grogan & Associates

Fiona Egan

Peninsula Group 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-00041077-001

16/11/2020

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

CA-00041077-002

16/11/2020

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

CA-00041077-003

16/11/2020

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

CA-00041077-004

16/11/2020

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

CA-00041077-005

16/11/2020

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

CA-00041077-006

16/11/2020

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

CA-00041077-007

16/11/2020

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

CA-00041077-008

16/11/2020

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

CA-00041077-009

16/11/2020

CA-00041077-001, CA-00041077-002, CA-00041077-004  and CA-00041077-006 were withdrawn by the Complainant at the hearing.

The Complainant commenced working for the respondent 31 October 2018 as a general operative. She received notice of the termination of her employment on 18/7 September 2020. Her employment ended on the 25 September 2020.

She was paid the minimum wage for the hours she worked.

The Complainant went on sick leave on 17 August 2020 having suffered a back injury in the workplace.

CA-00041077-003:  Minimum Notice

The Complainant submitted that she did not receive her minimum notice. She was entitled to one weeks’ pay.

CA-00041077-005:  Breaks

This complaint related to her breaks under section 12 of the Organisation of Working Time Act 1997.  The Complainant submitted that she did not receive her breaks.

CA-00041077-007:  Hours of work

This complaint related to information regarding her working hours under section 17 of the Organisation of Working Time Act 1997.  The Complainant submitted that her start and finishing times were not specified in her contract. Her contract stated

 "with start and finish times as per the roster Monday to Saturday".… "You may be required to work overtime win authorise and as necessitated by the needs of the business. In the event that you are required to work overtime the company will aim to give you a minimum of 24 hours’ notice. However, due to the nature of the business this may not always be possible".

The Complainant submitted that the roster was not set out in a conspicuous position in the workplace. She submitted that she was advised of her working hours when she attended at work and that was dependent on the orders for work that the Respondent had. She referred to Lucey Transport Ltd v Serenas DWT 141/2013 and Musgrave Ltd v Vasilijevs DWT 25/2018.

CA-00041077-008:  Payment of holiday pay in advance

This complaint related to holiday pay in advance and a breach of section 20 (2) of the Organisation of Working Time Act 1999.  The Complainant explained that she received her holiday pay in arrears.

CA-00041077-009: Discrimination on grounds of race 

The Complainant explained the background to her dismissal. The Respondent operated out of two factories. Factory 1 looked after food orders and had manufacturing lines. Factory 2 looked after smaller orders such as preparing foods for hospitals, schools and hotels. The Complainant worked in Factory 2.

The Complainant was on sick leave since 17 August 2020 having suffered a back injury in the workplace.

On the 18 September 2020 she received a telephone call from the HR manager who informed her that her employment would end on 25 September 2020. The reason given to her was because "the factory business is falling down".

No written notification was submitted to the Complainant and there was no procedure leading to the notification.  While the Complainant was aware that she did not have to 2 years’ service with the Respondent, there were no fair procedures applied in the period leading to the termination of her employment. The Staff handbook made no reference to the redundancy policy of Last In/First Out.

The Complainant was not fully aware of what was happening and submitted a further a sick certificate on 13 October 2020. Following this she was again advised that her employment had ended and she was advised not required to submit any further sick certificates.

The Complainant explained that there were three employees working in Factory 2 at the time, the Complainant, a Supervisor and a Co-worker. Both the Supervisor and Co-worker were Irish born and the Complainant explained that both workers continued in employment with the Respondent and moved to Factory 1 when Factory 2 ceased manufacturing.

The Complainant also gave evidence that prior to her termination, she was given more difficult jobs to complete than her Irish co-workers. She explained she was assigned difficult work processing oranges. She explained that this was a more time-consuming/tedious job and her co-workers were assigned to easier jobs that were quicker to complete.  She submitted that while working preparing oranges she was not able to take breaks.

The Complainant submitted that she was directly discriminated on grounds of her race. She is Lithuanian. She submitted that it was irrelevant what the intention the Respondent had, once the effect of the direct discriminatory behaviour was unfavourable towards her.

The Complainant submitted she had reached the burden of proof required by section 85 A of the Employment Equality Acts and sought two years compensation or €40,000.00 for her discriminatory treatment.

CA-00041077-003:  Minimum Notice

The Respondent's case was that the Complainant was placed on notice that her employment was to cease on the 7 September 2020. Her last day of service was 25 September 2020. The Respondent submitted that she was provided with her notice entitlement. As the Complainant was on sick leave and the Respondent does not operate as sick pay scheme, she was not entitled to be paid for this notice.

CA-00041077-005:  Breaks

The Respondents case was that staff were consistently requested to ensure they take their breaks correctly. The Respondent maintained records of the breaks taken. These records identified 6 days where breaks were taken beyond the requisite time limit in which they should have been taken.

The Complainant’s break lasted between 14 and 16 minutes and the Complainant worked more than six hours in all six cases. The shortest being 6 hours 20 minutes and the longest 7 hours 24 minutes.

CA-00041077-007:  Hours of work

The Respondent submitted that it informed the Complainant and other staff of their working times on the Friday preceding the Monday of the next working week. On occasion, it submitted that the business needs would require alteration to the start or end times.  However, this was always known in advance and would be communicated to all affected employees at least 24 hours and normally 48 hours in advance of any change.

CA-00041077-008:  Payment of holiday pay in advance.

The Respondent submitted that the cognisable period was 16 May 2020 to 25 September 2020. During that period, it confirmed that the Complainant took 12 days paid annual leave.  The Respondent confirmed that the Complainant was paid weekly in arrears for this annual leave.

CA-00041077-009:  Discrimination on grounds of race

The Respondent submitted that the Complainant was dismissed by reason of redundancy. It explained that it ceased to carry on business at the site at which they Complainant was employed, namely Factory 2.

The Respondent agreed that there were three employees working at the site.

It explained that the Complainant had service of 22 months.

It maintained that in accordance with its Last in/First out policy, the other employees who had service more than 24 months each were offered alternative roles available at Factory 1.

It explained that one of the other employees (OC) accepted a role in the Factory 1 as an alternative to redundancy. It explained that employee (PN) resigned prior to accepting any offer to move to Factory 1. The Respondent explained that both OC and PN had longer service than the Complainant.

Evidence was given at the hearing by the HR manager. She explained that she told the Complainant that Factory 2 was to close and that unfortunately due to the length of her service, her employment would cease. She told the Complainant about the Last in/First out policy that was being applied by the Respondent.

The HR manager explained that the Last in/ First out policy was used by the Respondent in March 2020. On that occasion a Latvian co-worker was made redundant. She had only worked with the Respondent for a short period of time. Overall the Respondent implemented 25 redundancies in the period March/April 2020. Factory 2 was left with three employees at the end of September 2020.

The HR manager explained that the Complainant's co-worker (PN) commenced working for the Respondent in 2016. Co-worker (OC) commenced working for the Respondent in 2017.

The HR manager gave evidence that the application of the Last in/First-out policy was on the full employee list employed by the Respondent and not just the three employees working in Factory 2.

She denied that the Complainant was replaced by a Manager's wife.  She explained that the worker in question had employed by the  Respondent since 2012.

The Respondent maintained that there was no alternative work for her and because of this the Complainant's role was made redundant. It submitted that the Complainant was not dismissed for discriminatory reasons.  It submitted that the Complainant was aware of the Last In/ First Out policy as it had been used in the past. It submitted that the Factory 2 site closed and more staff in Factory 1 had been made redundant since the Complainant's employment ended on the same selection basis. This was the Last In/ First Out policy. The Respondent admitted that there was no written policy that outlined this policy or procedure. 

As regards the allegation of discriminatory work practices, the Respondent submitted that it had no record that the Complainant was unhappy working preparing oranges.

CA-00041077-003:  Minimum Notice

The Complainant's contract of employment set out that the Respondent "reserves the contractual right to give pay in lieu of all or any part of the above notice by either party".

It also stated "there is no contractual sickness/injury payments scheme in addition to state benefit."

Where an employee is working out a period of notice, he/she is entitled to the full benefits of her contract of employment as if notice of dismissal had not been given.

In this case, the Complainant was not available to work due to illness during the notice period. The Respondent did not pay sick pay.

The Complainant had no contractual right to pay in lieu of notice unless granted by the Respondent.

This complaint is not well founded.

CA-00041077-005:  Breaks

Section 12 of the Organisation of Working Time Act 1997 sets out

12. Rests and intervals at work

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

By their own admission, the Respondent accepted that the Complainant did not receive her statutory 30-minute break within a six-hour working period on six occasions.

In The Tribune Printing & Publishing Group v Graphical Print & Media Union DWT 6/2004 (reported at [2004] E.L.R. 222), the Labour Court held that an employer was under a positive duty to ensure that employees received their rest breaks:

 “Merely stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty”.

This complaint is well-founded. 

CA-00041077-007: 

Section 17 of the Organisation of Working Time Act 1997 provides that an employee shall be entitled to be notified in advance of the hours which the employer will require the employee to work, subject to unforeseen circumstances justifying a change in the notified times.

Section 17 of the Organisation of Working Time Act 1997 sets out

17. Provision of information in relation to working time

(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.

I was presented with evidence that the staff times were given verbally to staff but in general with a 7am or 8 am start.  I accept that the roster was dependent on orders placed with the Respondent however the legislation requires that in order to maintain some degree of work/life balance reasonable notice of starting and finishing times must be furnished by the employer.

I preferred the Complainants evidence and on the basis of same, the complaint is well-founded.

CA-00041077-008: 

Section 20(2) and 20(3) of the Organisation of Working Time Act 1997 sets out

20. Times and pay for annual leave

(2) The pay in respect of an employee's annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave. 

Section 27 sets out that 

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision 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) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment

I find that the complainant is well-founded.  I direct that the Respondent review its Holiday Request form contained in the staff handbook to take into account the provisions of section 20 of the Organisation of Working Time Act 1997. 

I note that the Complainant did not raise the breach of Section 20 during her employment and only did so after her employment terminated. This does not excuse the Respondent from liability for its breach of the legislation but is of relevance in measuring the amount of compensation that was just and equitable in all the circumstances. 

CA-00041077-009: 

I am conscious that the claim before me is of discrimination and not a claim for a Redundancy Payment or unfair selection for Redundancy / unfair dismissal.

Section 85A of the Employment Equality Acts 1998-2015 lays the onus of proof with the Complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A of the Acts provides that facts must be

“established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her …” which it may be presumed that prohibited conduct has occurred in relation to him/her …”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded that”

 “a complainant 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 these 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 was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

Section 6(2h) of the Employment Equality Act, 1998 as amended recognises that discrimination on the race ground shall be taken to occur where

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

I am alert to the fact that the motive or reason for an impugned decision may be conscious or subconscious. The Labour Court in Nevins, Murphy, Flood v Portroe Stevedores Limited [2005] 16 E.L.R. 282 confirmed the English position that discrimination can be conscious or sub-conscious and can therefore be difficult to prove. Here, in a case involving age discrimination, the Court held:

“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.” 

Further in O’Higgins V UCD 2013, EDA 131, the Labour Court in varying the decision of the Equality Tribunal that the complainant had not made out a prima facie case of discrimination held that

 “It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn”. 

There was agreement between the parties that Factory 2 closed at the end of September 2020 and three employees were working in the factory at the time.

The evidence presented to me was that the Complainant received only a telephone call of the her pending termination of employment with the Respondent.  The Complainant was not given any notification of the termination process in writing or given a right of appeal.

I note the evidence submitted to me that there was further engagement with the Complainant’s two Irish co-workers and they were offered alternative roles in Factory No. 1.

I note that the Complainant was the only person whose employment ended when Factory 2 closed and on the basis of same I find the Complainant has raised an inference of discrimination in the sense that her race is within the range of possible reasons why the Respondent treated her differently following the closure of Factory 2.  

The burden then shifted to the Respondent to disprove that it was for grounds other than her gender that the Complainant was selected from the pool of workers affected by the closure of Factory 2.  

I note the reference to two years’ service is in the context of a right to redundancy payment under Section 7 of the Redundancy Payments Act 1967 as amended. 

An employer who proposes to dismiss an employee is required to give the employee notice of redundancy. Historically an RP50 form was used for this procedure.  Part A was to be completed in all cases and Part B was to be completed in circumstances when an employee is to receive a statutory lump sum. 

The Respondent’s case is that I accept that there have been many redundancies in the organisation and these were all on basis of the impersonal policy of Last In / First out procedure.  It sought to rebut the inference of discrimination by explaining that due to the impact of Covid -19 Pandemic, the numbers employed in the overall workplace reduced and Factory 2 closed in its entirety. 

I accept that the Respondent was in a difficult position due to the impact of the pandemic and was entitled to reduce the numbers employed due to reduced business. However, the changes in the Respondents organisation were decided in a vacuum relative to the Complainant.  She had no opportunity to be part of the decision-making process involved in same. The Complainant was not advised in writing of how the decision-making process came about or an opportunity to comment on same.  This does not appear to be the case in the situation of her two Irish co-workers who were engaged in a process of consultation and were offered positions within Factory 1.  Evidence was presented that one of those co-workers declined to take up that offer of redeployment.  

Whether the Complainant was eligible or not for redeployment is not a matter for me to decide.   The fact is that she was not involved in the consultation process whereas her Irish co-workers were.  She was presented with the termination of her employment as a fait accompli. 

I am conscious of the observations of the Labour Court in Campbell Catering Ltd v Rasaq DEE 8/2004 (reported at [2004] E.L.R. 310, 318) must be noted. The Court said:

“It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in making a defence. In such cases, applying the same procedural standards to a non-national worker as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.”

I note that the Complainant in this case continued to submit sick certs to the Respondent after the date of the termination of her employment and had to be asked by the Respondent not to do so. 

This is evidence of the lack of understanding by the Complainant on what was taking place. 

In A Government Department v An Employee (Ms. B) (2) the Labour Court took account of the decision in Nagarajan v London Regional Transport and Swiggs (3) (1999) IRLR 572, HL in holding

 "that the prescribed ground need not be the sole or even principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a significant factor".

The latter decision also recognised the potential for unconscious bias to influence an employer’s behaviour.

The Labour Court in O’Higgins v UCD stated that

 “where the onus of proof is on the respondent the question the Court must ask itself is whether it is more probable than not that the complainant's gender had nothing to do with her failure to be promoted. If, on the basis of all the evidence, the Court answers this question in the affirmative the respondent will have discharged its burden. If the Court cannot answer that question in the affirmative, or if it concludes the probabilities are equal, the respondent will not have discharged that onus and the complainant must succeed.”

Taking all of the above into account, I find that the Respondent is unable to rebut the presumption. I find that the Respondent discriminated against the Complainant on the grounds of race regarding the treatment of the Complainant in relation to the selection process for Redundancy following the closure of Factory 2 contrary to Section 8(1) of the Employment Equality Acts.

The Complainant also advanced the unequal distribution of the workload as evidence of discriminatory treatment on grounds of race.  The evidence submitted to me as regarding working conditions with oranges did not raise an inference of discrimination.

As regard the calculation of redress, the payslips submitted to me showed a net pay of circa €330 per week paid to the Complainant. 

CA-00041077-003:  This complaint is not well founded.

CA-00041077-005:  This complaint is well founded. I award the Complainant €500.00

CA-00041077-007:  This complaint is well founded. I award the Complainant €850.00

CA-00041077-008:  This complaint is well founded. I award the Complainant €330.00

CA-00041077-009:  This complaint is well founded. I award the Complainant €8,500.00

Discrimination.  Less favourable treatment.  Race.  Redundancy selection.