ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033360

Parties:

	Complainant	Respondent
Anonymised Parties	Head of Finance & Operations	Consultancy Company

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00044047-001	13/05/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00044047-002 CA -45058-001	13/05/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00044047-003	13/05/2021
Complaint seeking adjudication by the Workplace Relations Commission under Reg 18 of the EC (Road Transport) Organisation of Working of Persons Performing Mobile Road Transport Activities Regs 2012	CA-00045058-002	06/07/2021
6666Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Employment Equality Acts	CA-00045058-003	06/07/2021

Date of Adjudication Hearing: 09/08/2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

The Complainant was employed as Head of Finance & Operations from 29th January or 15th February 2021 to 31st March 2021. He was paid €333.33 per month. He has claimed that he did not receive a written contract of his employment, did not receive minimum notice when his employment was terminated, his employer discriminated against him, he did not receive holiday entitlement. The Respondent has rejected these claims

1) Minimum Notice & Terms of Employment Act 1973 CA 44047-001

Summary of Complainant’s Case:

The Complainant stated that he did not receive minimum notice when his employment was terminated.

Summary of Respondent’s Case:

The Respondent stated that he did not qualify for minimum notice.

Findings and Conclusions:

I find that the Complainant was employed for a period of 8.5 weeks maximum. The Minimum Notice & Terms of Employment Act provides that for the period 0 to 13 weeks there is no entitlement to notice.

I find that this claim is misconceived and so is not well founded and so it fails

Decision:

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

For the above stated reasons, I have decided that this claim is not well founded and so it fails.

2) Organisation of Working Time Act CA 44047-002/45058-001

S Summary of Complainant’s Case:

CA 44047 002

He stated that he received no holidays during this employment. He has claimed that he is owed 4.3 days holidays. He stated that the €402 payment was a tax rebate because he was on emergency tax.

CA 45058-001

This claim was also in respect of the claim for no holiday pay despite an unexplained payment to him after he left the employment.

Summary of Respondent’s Case:

CA 44047 002

The Respondent stated that he was paid €402 extra and so is due €30 only. The Respondent stated that the €402 payment was not a tax rebate.

CA 45058-001

The Respondent restated that he paid €402 which was in respect of holiday pay.

Findings and Conclusions:

CA 44047 002 CA 45058-001

I find that both these claims are in respect of holiday pay.

I note that the Respondent has accepted that he owes the Complainant €30 in holiday pay.

I find that the Respondent has stated that there was an overpayment of €402, which he has attributed to holiday pay.

I find that there is an obligation on the Respondent to maintain records and to clearly show what holiday entitlement the Complainant had accrued and what, if any, was paid.

I find that he has failed to do so.

I find that no records were submitted.

I find on the balance of probability that the Complainant is owed 3 days holidays amounting to €461.52

Decision:

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

I have decided that the Respondent has failed to produce records to show what holidays the Complainant was entitled to and what was paid.

I have decided that this claim is well founded.

I have decided that the Respondent should pay the Complainant €461.52 (3 days holidays) within six weeks of the date below.

3) Terms of Employment (Information) 1994 CA 44047-003

Summary of Complainant’s Case:

The Complainant stated that he did not receive a written statement of his terms and conditions of employment.

Summary of Respondent’s Case:

The Respondent stated that this Act provides that a written statement should be issued within two months of the commencement of employment. The Complainant had not worked for two full months by the time that he was let go. The Respondent had another 10-15 days before the contract should have been issued. Therefore, he had no entitlement to a written statement by that date. The claim is rejected.

Findings and Conclusions:

Sec 3 (1) of the Terms of Employment (Information) Act states, “ An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”.

Based on that provision, the Complainant was not employed for two continuous months and so he is not entitled to redress under that section of the Act.

On 4th March 2019 the Employment (Miscellaneous Provisions) Act 2018 came into force. This Act which amended the principal Act requires that an employee must receive a written statement of 5 core terms within 5 days of starting a job. This requires information to be provided on

1)The full name of the Employer and the Employee

2)The address of the Employer

3) The expected duration of the contract

4) The rate or method of calculating pay and the pay reference period for the purposes of the National Minimum Wage Act 2000

5) What the Employer reasonably expects the normal length of the working day and week to be, in a normal working day and in a normal working week.

I find that this amendment came into force on 4th March 2019 and this employment did not commence until February 2021. So, this employment was covered by the amendment to the main Act.

I find that the Respondent has breached the Act.


		Section 7 of the Act of 1994 is amended—
		(a) by the insertion of the following subsection after subsection (1):
		“(1A) An employee shall not be entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of section 3(1A)—
		(a) unless the employee has been in the continuous service of the employer for more than 1 month, or
		(b) if the employer concerned has been prosecuted for an offence under this Act in relation to the same contravention.”,
		(b) in subsection (2)—
		(i) by substituting “section 3, 4, 5, 6 or 6C” for “section 3, 4, 5 or 6” in each place where it occurs,
		(ii) in paragraph (d), by the insertion of “in relation to a complaint of a contravention under section 3, 4, 5 or 6, and without prejudice to any order made under paragraph (e)” before “order the employer”,
		and
		(c) by the insertion of the following paragraph after paragraph (d):
		“(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 17 of the Unfair Dismissals Act 1977 .”.

I find that compensation is warranted.

Decision:

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

For the above stated reasons, I have decided that the Respondent has breached the Act.

I have decided that the Respondent should pay the Complainant compensation of €1,000 within six weeks of the date below.

4) Regulation 18 of the EC (Road Transport) Organisation of Working Time Act of Persons Performing Mobile Road Transport Activities Regulations 2012 S.I. N CA 45058-002

Summary of Complainant’s Case:

The Complainant has claimed that the Respondent did not maintain any employment records, health & safety records, no safety statement etc.,

Summary of Respondent’s Case:

The Respondent commented on the alleged hours that the Complainant had to work and denied that he had to work excessive hours

Findings and Conclusions:

I note that this claim is taken under Regulation 18 of the EC (Road Transport) Organisation of Working Time Act of Persons Performing Mobile Road Transport Activities Regulations 2012.

I note that the Complainant has confirmed that he does not work as a mobile road transport worker.

Therefore, I find that this claim is misconceived.

Decision:

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

I have decided that as the Complainant is not employed as a person performing mobile road transport activities, this claim is not well founded.

I have decided that this claim is misconceived.

4)Employment Equality Acts 1998-2015 CA 45058-003

Summary of Complainant’s Case:

1)Sexual Orientation / Victimisation & Discriminatio

The Complainant stated that in the last two weeks of March the Respondent made comments about him to another employee who then informed him of this. The Respondent allegedly referred to him as the Big Loud Gay”. He stated that the Respondent asked other staff to spy on him, to be come his ‘eyes and ears’. He stated that the Respondent didn’t like him because he was loud and opiniated.

He stated that he didn’t challenge the Respondent on these alleged comments.

2) Discriminatory dismissal

He stated that he was dismissed because the Respondent knew that he was uncovering things that were fraudulent.

3) Opposing discrimination

He stated that he challenged the Respondent about spying on him, also about operational issues, Health & Safety issues, the need for correct protections regarding Covid and Revenue issues.

4) Harassment

He stated that he was not harassed at work, but harassment arose after he left this job.

Summary of Respondent’s Case:

1)Sexual Orientation / Victimisation & Discrimination

The Respondent stated that he knew the Complainant before he employed him as his mother has worked with them for many years. He knew that he was a gay man, it was not an issue. He employs another gay man in this business. He never raised any such issue with them His mother is a Barrister and so there was no reason why he would not raise an issue if there was one. There was no discrimination shown towards him in this employment.

2) Discriminatory Dismissal

The Respondent rejected this claim that the Complainant was dismissed on grounds of discrimination for his sexual orientation.

They stated that he was dismissed because he was not working out in the job. It had nothing to di with his sexuality, it was based on his work performance or lack of it.

3) Opposing discrimination

The Respondent denied that he was spying on him. The issue of discrimination did not arise. This claim was rejected.

4) Harassment

There was no issue with harassment at work, no grievance was ever raised. His mother who is a Barrister and who works for them would surely have been able to advise him if there was a problem.

Findings and Conclusions:

Sec 85 A5(1) of this Act states “Where is 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

I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination.

I find that the test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent.

I find that if the complainantdoes not discharge the initial probative burden required her case cannot succeed.

I find that the Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant 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 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 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”.

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Court stated in respect of the provision in S 85A that; “This requires that the complainant must 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 must 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.”

In Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”.

I have examined the case put forward by the Complainant.

1)Sexual Orientation / Victimisation & Discrimination

I find that the Complainant has failed to establish any discrimination. He has relid upon hearsay and he had no witness to support his allegation.

I find that he had s failed to establish a prima facie case of discrimination.

2) Discriminatory dismissal

I find that the Complainant has stated that he was dismissed for uncovering fraudulent activity.

I find that no correlation was established to discrimination.

I find that he has failed to establish a prima facie case of discrimination.

3) Opposing discrimination

I find that he failed to provide any evidence of opposing discrimination.

I find that he has failed to establish a prima facie case of discrimination.

4) Harassment

I find that the Complainant has advised that the harassment did not apply when he was in this employment.

I find that the Complainant has not established a prima facie case of harassment/discrimination.

Decision:

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

For the above stated reasons I have decided that this claim is not well founded and so it fails.

Dated: 13th October 2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Failure to establish a prima facie case of discrimination