Complainant

Respondent

Parties

Mary  Power

Vialand Limited Expert Removals

Representatives

Emily O’Callaghan BL instructed by Jane O`Sullivan Community Law and Mediation

Anna Butler, Peninsula

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-00043829-001

30/04/2021

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

CA-00043829-002

30/04/2021

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

CA-00043829-003

30/04/2021

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

CA-00043829-004

30/04/2021

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

CA-00043829-005

30/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00043829-006

30/04/2021

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

CA-00043829-007

30/04/2021

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

CA-00043829-008

30/04/2021

The Complainant commenced her employment as a Sales Executive with the Respondent on 1 July 2020 and was paid €20 per hour. She stated that the Respondent did not afford her reasonable accommodation in respect of her disability, that she was discriminatorily dismissed on 5 February 2021 and that she was paid less than her male colleague because she was female. She also asserted that she did not receive a written statement of her terms and conditions of employment and that she was paid less than her full-time colleague because she worked part-time.

The Complainant commenced her employment as a Sales Executive with the Respondent on 1 July 2020 and was paid €20 per hour. She stated that the Respondent did not afford her reasonable accommodation in respect of her disability. Specifically, she stated that although she had multiple sclerosis (MS) the Respondent did not put in place any covid proof measures in the workplace or allow her to work from home during the Level 5 restrictions in January 2021. She also alleged that she was discriminatorily dismissed on 5 February 2021 when the Respondent informed her via email that she had resigned even though this was not the case. She also claimed that she was paid less than her male colleague, which she became aware of when he informed her that unlike her he was in receipt of a bonus of €50,000 per year, because she was female. She also asserted that she did not receive a written statement of her terms and conditions of employment and that she was paid less than her full-time colleague because she worked part-time.

The Respondent stated that the Complainant had not highlighted that she had a disability and provided no medical evidence to show that she had multiple sclerosis (MS). The Respondent further asserted that the Complainant had previously worked in the office in October 2020 when the Level 5 restrictions were also in place and made no request to work from home at that time. The Respondent disputed that the Complainant was dismissed and claimed that she resigned on 3 February 2021. The Respondent further asserted that the Complainant was paid €20 per hour and that her male colleague was paid less than her, namely €18 per hour, which meant that she was not discriminated against because of her gender or treated unfavourably because she worked part-time. The Respondent also stated that they provided her with a written statement of her terms and conditions of employment.

CA-00043829-001:

This is a complaint pursuant to the Terms of Employment (Information) Act in respect of the statement of core terms required by section 3(1A) of the Act. This requires that an employee be furnished with a statement of the key terms of their employment within five days of its commencement.

While the Respondent in their written submission stated that this was issued within the required period, the Respondent’s witness stated in direct evidence that it had in fact been sent two weeks after the Complainant began her employment. The Complainant in her evidence stated that she did not receive the statement of core terms within five working days.

I, therefore, find that the Complainant was not provided with a statement of core terms and that this complaint is well founded.

CA-00043829-002:

This complaint was withdrawn after the hearing.

CA-00043829-003:

THE LAW

In section 2 of the Employment Equality Acts:

“disability” means:

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

Reasonable Accommodation

Section 16(3) of the Employment Equality Acts states that:

(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training, unless the measures would impose a disproportionate burden on the employer

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.”

Findings

The effect of s.85A above 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 responsibility is on the Complainant to show that, based on the primary facts, she has been discriminated against because of her disability. 

The Complainant, referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof:

“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 be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

I note firstly the Complainant’s assertion that she had multiple sclerosis (MS) and that the Respondent failed to provide reasonable accommodation for her disability by not implementing any measures to make the workplace Covid proof. The Respondent’s witness stated in evidence however that the Complainant had never made him aware that she had a disability and provided no medical certification to demonstrate that she suffered from multiple sclerosis (MS).

While the Complainant stated that the Respondent must have been aware of her disability and highlighted that she used a stick, I note that in A Worker v An Employer EDA 1927, the Labour Court stated that the Respondent was “not provided with any medical evidence that the Complainant had a disability” and that the Respondent “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”

As outlined above, in a complaint of discrimination under the Employment Equality Acts, the Complainant bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred. In the instant case that burden requires the Complainant to prove in the first instance that Respondent was aware that she suffered from a disability within the meaning of the Acts. As there was no medical certification presented to the Respondent to show either that she had a disability or required reasonable accommodation, I find that she has not established a prima facie case of discrimination.

CA-00043829-004:

The Complainant stated that she was the subject of a discriminatory dismissal on the grounds of disability when she was dismissed on 5 February 2021 without reason.

Specifically, the Complainant stated that approximately one month after she made a request for reasonable accommodation, she received an email from the Respondent, dated 5 February 2021, in which he stated “regarding your resignation I will be sad to see you go and if you need a reference please feel free to use my name. I couldn’t recommend you high enough. I really wish you all the best for the future and would like to thank you for all the great work you did while here.” The Complainant stated that she considered herself to be dismissed on this date.

The Respondent stated that the Complainant contacted him by phone, on 3 February 2021, and asked him if work was busy. The Respondent stated that he informed her that it was quiet enough to which the Complainant replied “will we call it a day?”. The Respondent accepted this as a resignation of the Claimant’s position with the company and confirmed this in writing in the above mentioned email on 5 February 2021.

The Complainant subsequently replied to the Respondent, on 28 March 2021 disputing that she had resigned to which the Respondent replied by email of the 5th April stating “It is evident there has either been some cross wires or a break down in communications”  and that “As you have raised some concerns, I would like to give you the opportunity to discuss this further by raising a grievance, this will give you an opportunity to discuss your concerns, with a view to resolving them to a solution that is mutually acceptable to both parties. If you are interested in engaging in this process further, please email your concerns to me in writing no later than 10 working days.”

Given that it is in dispute that the Complainant was dismissed, I note that it took her over seven weeks to reply to the Respondent’s correspondence of 5 February 2021 wherein he informed her that she had resigned. Although she stated in her evidence that she was very unwell with Covid during this period and that it took her a number of weeks to recover, which she asserted explained her delayed response, I also noted her evidence that she had found a new role and started working there in March 2021. Given that it took her over seven weeks to dispute the Respondent’s assertion that she had resigned and that she had the ability to find and start a new role in the same period, I prefer the evidence of the Respondent and find on the balance of probabilities that the Complainant resigned. In making this decision, I also found it significant that the Complainant did not correspond with the Respondent after his email to her of 5 April 2021 wherein he informed her that there many have been a “break down in communications”.

Given my finding that the Complainant resigned, she cannot therefore have been subject to a discriminatory dismissal.

CA-00043829-005:

The Law

Part II of the Employment Equality Act, 1998, deals with discrimination on the gender ground. Section 19(1) of the Act provides where A and B represent two persons of the opposite sex that:

“It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.”

Findings

The Complainant alleged that the Respondent discriminated against her contrary to section 19(1) of the Employment Equality Act, 1998 above as she did not receive equal pay for like work performed by a named male comparator who was also employed as a telephone sales person. Specifically, the Complainant stated that her colleague who was doing the same role as her informed her that he was in receipt of €50,000 commission.

As highlighted above in the case of Arturs Valpeters v Melbury Developments, the Labour Court stated that “the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case.. they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

While the Complainant in the instant case asserted that the male comparator told her that he was in receipt of €50,000 commission, I do not consider that such hearsay evidence is credible enough to support this allegation of discrimination and therefore find that she has not established a prima facie case in respect of this complaint.

CA-00043829-006:

The applicable law

Sections 7(2) and 7(3) of the Protection of Employees (Part-Time Work) Act, 2001 states as follows:

7(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

( b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

(3) The following are the conditions mentioned in subsection (2)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

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

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.  

Section 9 (1) and 9(2) of the Protection of Employees (Part-Time Work) Act, 2001 states as follows:

9(1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

Findings

No credible, direct evidence was adduced to support the assertion that the named full-time comparator was paid more than the Complainant. While she did say that the comparator had informed her that he, unlike her, was paid €50,000 per year by way of commission, I am satisfied that a mere assertion, as opposed to direct evidence, is wholly insufficient to support the allegation made.

CA-00043829-007:

This complaint is a duplicate complaint of CA-00043829-003 above.

CA-00043829-008:

Section 3 of the Act imposes an obligation on employers to provide their employees with a written statement of terms and conditions relating to their employment within two months of commencing employment. 

Specifically, section 3 of the Act provides:

3.— (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 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, 1963),

(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,

(f) 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,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Findings

This is a complaint pursuant to the Terms of Employment (Information) Act regarding the section 3 requirement to provide an employee with a statement of the terms of their employment. It also requires that the document is signed by the employer and retained on file for at least a year after the ending of that employee’s employment. It is a requirement that transposes EU law, the Written Statement Directive of 1991 (91/533/EC and latterly, Directive 2019/1152). The requirement set out in section 3 has been law since 16 May 1994. 

Although the Respondent alleged that he provided the Complainant with a written copy of her terms and conditions of employment, the Complainant stated that she did not receive it. Apart from the direct evidence of the Respondent however there was no supporting evidence such as a registered letter or an email to confirmed that the contract was issued. I also noted that although the letter of offer was sent by email, the Respondent stated that the contract was issued in the post.

In the circumstances, I prefer the evidence of the Complainant and therefore find that this complaint is well founded.

CA-00043829-001:

While I find that the complaint is well founded, I note that Section 7 2(d) of the Act states that “in relation to a complaint of a contravention under change section 3, 4, 5, or 6” I may make an award “not exceeding 4 weeks’ remuneration” and I have already made an award of four weeks remuneration in respect of CA-00043829-008.

As the same set of facts pertain as in CA-00043829-008, I make no award in respect of this complaint. This in line with the decision of the Labour Court in the matter of A School v A Worker EDA 122 where it was found that “The Complainant cannot rely on the same set of facts to obtain redress under more than one head of liability under the Acts”.

CA-00043829-002:

This complaint was withdrawn after the hearing.

CA-00043829-003:

As the Complainant has not established a prima facie case of discrimination, I find that she was not discriminated against for the reasons set out above.

CA-00043829-004:

As the Complainant was not dismissed, I find that she was not discriminated against for the reasons set out above.

CA-00043829-005:

As the Complainant has not established a prima facie case of discrimination, I find that she was not discriminated against for the reasons set out above.

CA-00043829-006:

I find that this complaint is not well founded for the reasons set out above.

CA-00043829-007:

This complaint is a duplicate complaint of CA-00043829-003 above.

CA-00043829-008:

I find that this complaint is well founded for the reasons set out above. In making a decision on what compensation to award in respect of this complaint, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks average remuneration, namely €2,105.