Complainant

Respondent

Parties

Emma  O'Connor

Kerry Sandwiches Limited T/a O'Brien's Irish Sandwich Bar

Representatives

Darach McNamara BL instructed by  O'Sullivan Reidy Solicitors

Eve Bolster BL instructed by  Brosnan & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042355-001

05/02/2021

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

CA-00042355-002

05/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00042355-003

05/02/2021

The Complainant commenced employment with the Respondent as a catering assistant in February 2015. Further to a road traffic incident in 2017, she acquired a physical disability.

She stated that she was effectively dismissed from her employment in September 2020 both because she could not increase her working hours because of her disability and the Respondent would no longer retain her on the reduced hours she was working because they would no longer be in receipt of the Employee Wage subsidy scheme (EWSS)for her if she earned less than €151.50 per week.

The Complainant commenced employment with the Respondent as a catering assistant in February 2015. Further to the accident which resulted in her disability, following which she was off work for a year, she returned to her employment in September 2017. As a result of the injuries she sustained in the accident, the Complainant became eligible for the disability allowance. Notwithstanding the fact that she was in receipt of the disability allowance, the Complainant wished to continue working, albeit at reduced hours. At all times from September 2017, the Complainant was paid €10 per hour and worked no more than 12 hours per week. Her gross pay was therefore no more than €120 per week. Although the minimum wage increased from €9.80 to €10.10 per hour on February 1 2020, the Complainant did not receive this pay increase and when she raised it with the Respondent she was informed that it would impact on her disability allowance.

Further to the Complainant’s return to work in August 2020 due both to lay off and illness, she spoke with the Operations Manager on 29 August 2020 regarding the soon to be introduced Employee Wage subsidy scheme (EWSS) and met with her again on 2 September 2020, wherein she was informed that her employment was being terminated with immediate effect. Specifically, the Operations Manager informed the Complainant that her employment was being terminated because she was unable to work longer hours as she was on disability allowance and that she was earning less than €151.50 per week, which was the amount she needed to be earning to allow the Respondent benefit from the EWSS in respect of her employment.  

It was also alleged that the Operations Manager told the Complainant at this meeting that the Respondent would not have taken her back to work in 2017 if they had been aware that the Complainant would be in receipt of disability benefit for as long as she had been.

The Complainant commenced employment with the Respondent as a catering assistant in February 2015 and initially worked 28 hours per week. Further to the accident which resulted in her disability, following which she was off work for a year, the Respondent transferred her to a different branch because there were less steps in the new premises and it was therefore easier for her to get around.

In or around 2019, the Complainant approached the Respondent to take personal time to travel in early 2020. Both parties agreed that she would take three months leave. The Complainant worked up until 23 February 2020 and left for her travels. Although she returned to Ireland prior to the end of the three month period, she did not return to work until 8 August 2020 due to a combination of the Respondent’s premises being closed as a result of the pandemic and an illness. When she returned to work, she worked an average of one day per week for eight hours but was paid for 9.5 hours.

In September 2019, all of the Respondent’s employees were spoken to by the Respondent’s Operations Manager regarding their working hours due to a fall off in trade both as a result of Covid 19 and a shortened tourist season. The Complainant was given the option to further reduce her hours or to increase same to three days a week i.e. split a week with another employee. The Complainant made inquiries and reverted to the Respondent with the decision that she would go back on the Pandemic Unemployment Payment (PUP) instead.

The Respondent further asserted that the Complainant was informed that when trading increased she would be brought back to work in the same capacity as before and it was denied that her employment was terminated. 

The Law

Discrimination

Discrimination in accordance with the Acts is set out in section 6 and states:

6.— (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—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

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

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how 85(A) of the Act cited above 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.”

In making my decision, I have regard firstly to the crucial conversations of August 29 and 2 September 2020 of which the Complainant and the Operations Manager, on behalf of the Respondent, have a completely different recollection in respect of certain key aspects. Specifically, while both parties agreed that the Respondent discussed with the Complainant the possibility of increasing her hours, which the Complainant stated because of her disability she was unable to do, much of the rest of the conversation was disputed.

On the one hand, the Complainant stated that the Operations Manager informed her initially in a conversation on 29 August that the owners of the Respondent wanted to dismiss anyone in respect of whom they would not benefit from the new EWSS, which meant that because her wages at the time were less than what would have allowed them to benefit from this, her employment would be terminated. Having had this highlighted to her on 29 August, the Complainant stated that she telephoned her local political representative on 31 August and asked him if any exceptions were being considered to the EWSS for employers who hired people on disability allowance. Having been informed that no such exceptions were being considered, the Complainant stated that, when she met with the Operations Manager again on 2 September, she made her aware of this. The Complainant further stated that the Operations Manager informed her at this meeting that both because no such exceptions were being considered and because the Respondent could not reduce the Complainant’s hours because they would lose out on the wage subsidy and the Complainant could not work more hours because of her disability, her employment was being terminated.  

On the other hand, the Respondent asserted that in the meeting of 2 September the Complainant was given the opportunity both to reduce or increase her hours and while she did not want to work more hours, she was happy to go on the PUP because it made financial sense, further to a telephone call she had with her political representative during the course of the 2 September meeting when the Operations Manager was present. It is also worth noting that the Operations Manager denied in evidence that she had flagged to the Complainant when she spoke with her on 29 August that she had given any clear indication as to what the 2 September meeting was about.

Having carefully considered the evidence of both parties, I prefer the evidence of the Complainant and believe that, on the balance of probabilities, a reduction of hours was not offered to her (the Complainant) because the Respondent would not have been entitled to receive the wage subsidy if she earned less than €151.50 per week.  While I noted the Respondent’s assertion that agreeing to a reduction in hours instead of availing of the PUP made no sense from a financial point of view for the Complainant, I also note that the Complainant was already at a very significant financial loss as a result of her decision to start back to work in August 2020 and not avail of the PUP at that time. Accordingly, I believe that a further reduction in hours after the 2 September meeting and the introduction of the EWSS would have made little difference to her compared to what she had been earning with the Respondent prior to this.

I also noted the Complainant’s assertion that she notified the Respondent of the increase in the minimum wage in February 2020 but that the Respondent refused to apply the increase because she was on disability benefit. While the Respondent’s Operations Manager denied this in evidence and asserted that the Complainant had never sought a wage increase as well as highlighting that the failure to pay her the 10 cent wage increase was an oversight, I once again prefer the evidence of the Complainant in this regard. Specifically, while I noted the Respondent’s assertion that the Complainant went travelling on 23 February and that the increase only applied from 1 February, which meant that it was easily overlooked, the Complainant returned to the Respondent’s employment on 5 August and the wage increase was still not applied at that stage. While I am not suggesting for a moment that the failure to pay her the 10 cent increase was attributable to any parsimony by the Respondent, I find on the balance of probabilities that it was due to the Complainant being on disability benefit and a belief by the Respondent that this would impact her disability benefit. This supports the assertion made by the Complainant that the Respondent stated that they would not have taken her back to work in 2017 if they had been aware that the Complainant would be in receipt of disability benefit for as long as she had been.

While I have found on the balance of probabilities that the Complainant’s version of events is more credible, I was struck by the Complainant’s assertion in her direct evidence that she was expecting to be called back to the Respondent’s employment in December 2020, which is somewhat at odds with her assertion that she was dismissed.

I nonetheless find that the Complainant has established a prima facie case of discrimination which the Respondent has failed to successful rebut. Specifically, I find that she was discriminatorily dismissed from her employment both because she was unable to work the longer hours suggested by the Respondent, because of her disability, and because she was not afforded the opportunity to either continue working the hours she was doing or work fewer hours because her earnings would have been less than €151.50 per week and her employer would not have been able to avail of the wage subsidy from the EWSS.

CA-00042355-001:

I have found that the Complainant has established a prima facie case of discrimination which the Respondent has failed to successful rebut and that she was therefore discriminated against on the grounds of disability.

Having examined the evidence and in making a decision on redress, I note the principles contained in Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR1891, that remedies proposed when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive”. I also have regard to the Labour Court decision in the matter of Lee t/a Peking House v Fox EED 036 which stated that “In measuring the appropriate quantum of compensation the Court must have regard to all the effects which flowed from the discrimination which occurred. This includes not only the financial loss suffered by the complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings”.

Bearing these two decisions in mind and recognising both that the Complainant did not suffer any financial loss as a result of her dismissal and that she was willing to resume her employment in December 2020 had the opportunity so presented itself, which would suggest that she was not very negatively impacted by her alleged mistreatment, I direct that the Respondent pay the Complainant an award of arrears of €3,120, namely 26 weeks pay, in respect of this complaint.

CA-00042355-002:

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.

As I have found that the Complainant was dismissed, I find that the Respondent has contravened the provisions of Section 4(2) of the Act by failing to provide the Complainant with her statutory notice entitlements. Accordingly, I find that the complaint is well founded.

I hereby order that the Respondent pay the Complainant the sum of €480 (being the equivalent of four weeks’ pay) in compensation for the loss sustained by reason of the contravention.

CA-00042355-003:

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.

The parties did not dispute that a payment of €18.80 was due in respect of the 188 hours that the Complainant worked between 1 February 2020, when the national minimum wage increased to €10.10 per hour, and her dismissal on 2 September 2020.

Accordingly, I find that the complaint is well founded and direct that the Respondent pay the Complainant an award of arrears of €18.80 in respect of this complaint.