ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00036199

Parties:

	Complainant	Respondent
Anonymised Parties	An Accounting Trainee	An Accounting Firm

Representatives

Self-Represented

The Owner

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00047312-001	22/11/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00047312-002	22/11/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00047312-003	22/11/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00047312-004	22/11/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00047312-005	22/11/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00047312-006	22/11/2021
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00047312-007	22/11/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00047312-008	22/11/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00047312-009	22/11/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00047312-010	22/11/2021

Date of Adjudication Hearing September 7th 2022

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015 and Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

The matters were 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. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. (The above did not apply to the Industrial Relations dispute) Full cross examination of Witnesses was allowed.

Background:

The Complainant was an Accounting Technician serving an apprenticeship and his employment was terminated after three months. The Complainant alleged his was discriminated against on the grounds of his disability and the Respondent alleged the Complainants employment was terminated as a long serving employee who was tutoring the Complainant had resigned and the Respondent was then too busy covering that employees work load to train the Complainant.

During the Hearing the Respondent advised that they were examining taking defamation action against the Complainant. I consulted the Parties on the special circumstances of this possibility and the possibility of the Adjudicator concluding that the circumstances presented to the Hearing may necessitate the anonymisation of the decisions. Neither party had an objection to the decisions being anonymised. I have therefore decided that by naming the Parties it might prejudice any potential legal action and the decisions are anonymised accordingly.

Summary of Complainant’s Case:

The Complainant was employed on an Accounting apprenticeship from September 2nd 2021 to November 16th 2021.

The Complainants main case is that he was treated differently due to his disability to full time employees in that he had to work from a table in the canteen area. The Complainant disclosed his cancer diagnosis of a Gastrointestinal Stromal Tumour to the Respondent on October 15th 2021. The Complainant alleged that from the day he informed the Respondent of his diagnosis the Respondent rarely interacted with him and he had become distant. The Complainant alleged he was not given a laptop and not provided with the use of a phone and was concerned at taking work home due to the sensitivity of the client data.

The Complainant alleged that the time of year was the busiest for the Respondents practice and he would have been useful at that time.

The Complainant alleged there were no behavioural issues as stated by the Respondent in his dismissal email to the Complainant dated November 17th 2021.

The Complainant was not issued with a statement of his terms and conditions of employment within two months of the commencement of his employment as required by section 3 of the Terms of Employment (Information) Act 1994 and he did not receive a statement of his core terms within five days of the commencement of employment.

The Complainant was given no notice of his dismissal and was not paid his statutory notice pay.

The Complainant advised in his evidence that he applied for an Accounting Technician apprentice and had a chat with the Respondent in July 2021. He stated he was told the Respondent would set up an office for him and provide a laptop. When he arrived for work a few months after there, was no office ready and he had to work from a table in the canteen. He submitted photographs of him having to place a cup on his lap as he had nowhere to put it. He stated there was little room and no storge. On October 15th he received his diagnosis of cancer and found it difficult to sit in the chair. He stated the Respondents attitude changed towards him them. He raised his concerns with the Accounting Technician body. He advised he was emailed on his way home that his employment was terminated. He stated it took months to get paid what he was due in holidays and pay. He stated he made a data access request and got no reply. He stated there was no H &S safety risk analysis. He stated the Respondent failed in their duty to provide a safe work station. He stated he was discriminated because of his cancer in failing to provide a safe work station. He raised his concerns with the Accounting Body and felt victimised as a result.

The Complainant stated he felt cross at the way he was treated and left go. He stated he spoke to the Respondent at work before leaving and was sent an email on the way home terminating his employment. He stated there was no grievance procedure in place. He stated the manner in which things were done were unfair. He had no close out meeting and was placed in a terrible position of losing his apprenticeship. He stated he was doing a lot of what the employee who left was doing..i.e. excel updating and bank reconciliations. He stated he could have helped the Respondent at the difficult time of year. He said the business decision did not make sense to let him go and he would have helped the Respondent.

Summary of Respondent’s Case:

In evidence the Respondent advised that he had a serious cancer issue and had been undergoing treatment for some time and that as a person with cancer, which was now successfully treated, he did not have the personal capacity to discriminate against a person who had cancer due to his own difficult experiences.

The Respondent advised that his longest serving employee who was the “engine room” of his business had to resign for personal medical reasons and this left the Respondent under severe pressure and he or other members of staff did not have the time to train the Complainant. The Respondent advised he lost clients during this period as he severe difficulty coping with the volume of work due to the loss of his key employee.

The Respondent stated that he was under stress at the time of the dismissal of the Complainant as a work colleague and close friend had received bad medical news and resigned. He stated it was his first time at the WRC and had good staff relations. He stated the complaints were lies and fabrications. He stated the Complainant fabricated emails. He stated the longest serving employee was out sick for October due to an illness and this placed considerable drain on the Respondent and caused a significant upheaval for months. He stated it was not possible to train an employee at that time. He stated he was a father of four and barely saw his family during this time. He had to deal with the CRO and tax issues as well as clients at this time. He stated it took time to fill the role of the employee who resigned. He stated the Complainant had a table under his work table and did not need to keep a cup of tea on his lap (as submitted in photographic evidence by the Complainant). He stated the storage area behind the Complainant was empty and disagreed with the Complainants evidence that it was full. He stated the kitchenette was an office before and was a large space. He stated he owned the building and had tenants but had no space for the Complainant any where else. He stated he did not expect the Complainant to be in that area for so long. He stated the office held six people before it was converted. He stated a tenant gave back a space but the electricity and internet were cut off so could not use that space for the Complainant. He stated he empathised with the Complainants illness due to his similar illness. He stated the Complainant had sent in false pictures with cables on the floor. He stated he gave the Complainant all the necessary information verbally about his terms of employment and questioned what aspect of the terms the Complainant did not know. He stated that office employees finish at 1pm on Fridays in July and August as he knows that the year-end requires more time from staff. He stated some emails submitted were fabricated and merged and were not date stamped and were copied and pasted. He said he did not give notice as the Complainant was not going to be kept on due to the difficulty training him. He stated the Complainant had concocted a story re victimisation. He stated he was considering a defamation claim against the Complainant. He stated he gave the Complainant any time off he asked for to attend his medical appointments. He stated the Complainant never brought any complaints to him while employed. He stated he was never contacted by the Accounting body about the complaints even though the Accounting Body (ATI) were only across the road from his office. He stated that he was not aware the Complainant had contacted the ATI so could not have penalised him for doing so. He stated the only reason for letting the Complainant go was business related and the long serving employee left at the same time.

Findings and Conclusions:

The Complainant set out 10 complaints against the Respondent in his complaint form to the WRC on November 22nd 2021.

The Complainant submitted four complaints under the Terms of Employment (Information) Act 1994.

The Complainant submitted three complaints under the Organisation of Working Time Act 1997.

The Complainant submitted one complaint under the Employment Equality Act 1998-2011.

The Complainant submitted one dispute under the Industrial Relations Acts.

The Complainant submitted one complaint under the 1973 Minimum Notice & Terms of Employment Act.

The most serious of these was complaints was that the Complainant was discriminated against because of his disability.

The Complainant earned 382.50 Euros per week.

The Complaints under the Organisation of Working Time Act were withdrawn at the Hearing as the liabilities had been paid. (CA-00047312-001 and CA-00047312-002 and CA-00047312-003). Therefore, I find the complaints not well founded.

With regard to the complaints that the Complainant did not receive a written statement of his terms and conditions of employment within the statutory timeframes. Section 3 set out the requirements as follows;

“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.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”

Section 7 (2).d sets out the compensation for breach of the above by an employer.

“7.—(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3 , 4 , 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.

2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following

d) order 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 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 the Respondent breached the Act by not providing the Complainant with a written statement of his terms and conditions of employment within two months of commencing employment as required under section 3 of the Act. I award the Complainant the maximum award of four weeks’ pay amounting to 1,530 euros. (CA-00047312-004).

Claim number CA-00047312-005 related to the Complainant not being notified in writing of a change to his terms and conditions of employment. I have reviewed the Complainants complaint form, his submission and the evidence at the Hearing and concluded that the change the Complainant is alleging he was not notified of is the lack of a laptop being provided. The Complainant used his own computer while employed. While this may be a breach of what the Complainant expected and/or was promised it is not a significant breach.

I award the Complainant 100 Euros compensation for breach of Section 5 of the Act. (CA-00047312-005).

With regard to CA-00047312-006 with effect from 4 March 2019, an employer must also notify each new employee, in writing, within five days of commencement of employment, of the following core terms of employment:

the full names of the employer and the employee;

the address of the employer;

the expected duration of the contract, in the case of a temporary contract, or the end date if the contract is a fixed-term contract;

the rate or method of calculation of the employee’s pay;

the number of hours the employer reasonably expects the employee to work per normal working day and per normal working week.

Existing employees may also make a written request to an employer for a "Day 5" statement. Upon receipt of a written request, an employer must issue a "Day 5" statement within 2 months of the date of the request.

This is a complaint pursuant to the Terms of Employment (Information) Act. The complainant asserted that he was not provided with a statement of the terms of his employment. The respondent has not denied this assertion. It is the longstanding obligation of an employer to give to the employee a statement of the main terms of their employment. This statement should be provided within two months of the employment commencing and this has been a legal requirement since May 1994. In 2019, employers were also required to provide a 5-day statement. Not only are these obligations of long standing, they are underpinned by EU Directives (91/533/EC and now, 2019/1152). The Respondent did not provide this statement and the Complainant did not request it. While this is a breach of the Act the Respondent also breached the Act by not providing a written statement within two months and, to a degree, this is a duplicate complaint. Accordingly, I find that the compensation should be on the lower end of that allowed and I award the Complainant one week’s compensation of 382.50 Euros. (CA-00047312-006).

With regard to the dispute under the Industrial Relations Act 1969 (CA-00047312-007) the Employee alleged he was unfairly dismissed. As the grounds set out were the same as the Equality discrimination complaint the Recommendation has to take account of my Decision in that complaint as set out below. However, a core element of the dispute related to how the Employee was dismissed, while understanding the Employers difficulties at the time and his acceptance that the manner in which he dismissed the Employee was “not great”, the Employee deserved better in the manner in which he was informed his apprenticeship/employment was being terminated. I recommend in favour of the Employee.

With regard to the complaint under the Employment Equality Act (CA-00047312-008) that the Complainant was discriminated against by being placed at a desk in the office canteen area and not given a phone or laptop the Complainants case does not stand up to scrutiny as all the actions alleged of as being discriminatory had taken place prior to the Complainant informing the Respondent of his cancer diagnosis and therefore could not have resulted from the Complainant informing the Respondent of his disability. In cross examination the Complainant asked the Respondent was he aware of the Health and Safety Act and the Respondent said he had an overview of it and was more than satisfied the area where the Complainant worked was acceptable. When asked was the area a workstation the Respondent replied yes. The Complainant asked did the Respondent consider the ae under the work station a table and the Respondent said yes. The Complainant asked had an analysis of the area been completed and the Respondent replied the HSA had examined the complete office (as a result of an anonymous complaint) and found no issues. The Complainant asked why the Respondent had failed to conduct an eye test as required and the Respondent replied he didn’t do so because the Complainant wore glasses. The Complainant asked the Respondent why he did not give a five-day statement as required and the Respondent replied that the Complainant had the information. The Complainant asked why the Respondent dismissed him and the Respondent stated it as because the long term employee was leaving, that he wanted to see how the first two months worked out, that the Respondent was hopeful the staff member would stay and be the Complainants mentor and that was the deciding factor and that the Complainant was a Trainee and he was more of a hinderance in the office and it was work to keep him occupied and the Respondent didn’t have the time to deal with him. The Respondent agreed with the Complainant that the manner in which he left the Complainant go was not great. The Respondent stated it was a “perfect storm” of problems at once and he did not have the time to train the Complainant and that he was doing very low-level work and could not replace a lot of what the long serving employee had been doing. The Complainant asked who was his mentor and the Respondent replied it was the long serving employee. The Respondent questioned the Complainant as to had he contacted the HSA and Data Commissioner and the Complainant stated he was aware of the complaints.

In summary, I find the evidence of the Respondent that due to his own personal medical situation and the departure of his key employee that he had no time to train the Complainant was very credible and reasonable especially at the busiest time of his business and the fact he could not service some clients. The circumstances regarding the Complainants work station existed before he made the Respondent aware of his disability therefore cant be attributed to the Complainant informing the Respondent of his disability. There was also no evidence that the Accounting Body contacted the Respondent and therefore his allegation that he was penalised as a result of noticing them of his comments was not proven, It is unfortunate that these circumstances combined to not allow the Respondent give time to the Complainant and there was no suggestion that the Complainant had been not performing in his role. I find that the Complainant was not discriminated against.( CA-00047312-008)

Employee Protection against Penalisation

The Employment (Miscellaneous Provisions) Act 2018 introduces new provisions to protect employees against penalisation for invoking their rights under the Terms of Employment and Information Act 1994.

The new provisions provide that an employer shall not penalise or threaten penalisation for

(i) Invoking any right under the Act

(ii) Opposing in good faith an action that is unlawful under this Act (e.g. refusing to conspire in falsifying contracts of employment)

(iii) Giving evidence in any proceedings under this Act (e.g. being a witness for somebody else pursuing a case under the Act in the WRC or Labour Court)

(iv) Giving notice of the intention of doing any of the above.

Penalisation is defined broadly in the new legislation to mean any detriment to the employee’s terms and conditions of employment including:

(a) suspension, lay-off or dismissal or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

An employee who believes they have been penalised for invoking a right under the 1994 Act (as amended) may refer a complaint to the WRC.

Where a complaint is upheld, an employee may be awarded compensation not exceeding four weeks’ remuneration.

Given the complaint of penalisation was made after the Complainant left his employment, I found no evidence that the Complainant was penalised by threating to invoke or invoking his entitlement to same. The Respondents grounds for terminating the employment relationship are set out above and do not amount to penalisation. I find in favour of the Respondent. (CA-00047312-009.)

The Complainant was dismissed without notice on November 17th 2021 and the 1973 Minimum Notice & Terms of Employment Act requires that a person with less than two years’ service be given at least one weeks’ notice. Section 4 of the Act states “4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
*(a)* if the employee has been in the continuous service of his employer for less than two years, one week,”

As no notice pay was paid to the Complainant Under Section 12 of the Act, I find the Respondent breached the Act. (CA-00047312-010) and award the Complainant 382.50 Euros compensation.

( ,

Decision and Recommendation:

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

The Complaints under the Organisation of Working Time Act were withdrawn at the Hearing by the Complainant as the liabilities had been paid. I find the complaints not well founded. (CA-00047312-001/002/003).

With regard to the complaints under the under the Terms of Employment (Information) Act 1994 the Complainant alleged he did not receive a written statement of his terms and conditions of employment with five days and also within two months. I find the complaint well founded and award the Complainant 1.530 Euros compensation. (CA-00047312-004)

I find the complaint well founded and award the Complainant 100 Euros compensation. (CA-00047312-005.)

I find the complaint well founded and award the Complainant 382.50 Euros compensation (CA-00047312-006)

With regard to the dispute under the Industrial Relations Act this was a duplicate complaint to other complaints primarily related to the unfair dismissal equality discrimination allegation. Simultaneous complaints for unfair dismissal and unfair dismissal arising from discrimination are prohibited by the Equality Acts. While the dispute was brought under the Industrial relations Act the matters involved are the same as the equality complaint and is dealt with above under the Equality Act. However, the Employer did not follow fair procedures in relation to advising the Employee he was terminating his employment. While a lot of the dispute is a duplicate complaint to the discrimination complaint, I recommend in favour of the Employee on the basis that proper and fair procedures were not followed to inform the Employee his employment was being terminated. Having considered all matters involved in the employment relationship I recommend the Employer pay the Employee 500 Euros compensation for the manner in which he terminated the Employee. (CA-00047312-007).

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. I find that the Complainant was not discriminated against. CA-00047312-008.

I find the complaint not well founded. CA-00047312-009.

With regard to the Complainant under Section 12 of the Minimum Notice and Terms of Employment and Minimum Notice Act 1973, I find the Respondent was in breach of the Act and under Section 12 of the Act I award the Complainant one week’s wages of 382.50 Euros. (CA-00047312-010).

Dated: 27/09/2022

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Discrimination