Complainant

Respondent

Parties

Ema  Karinauskaite

PJ Export Ltd t/a Sweet Life

Representatives

  Self-Represented

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-00049464-002

01/04/2022

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

CA-00049464-003

01/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00049464-004

01/04/2022

The Complainant was employed from the 11th June 2021 to the 28th of February 2022 as a Kitchen Worker in a Restaurant.

The rate of pay was stated to be €199.95 for a 19 hour week.

The Complainant alleged Discrimination on the Family Status Ground and Discriminatory Dismissal under the Employment Equality Act,1998. She had an associated claim for breaches of the Employment (Information) Act,1994.

Both allegations were vigorously denied by the Respondent.

1:1         CA-00049464-002  Employment Information

The Employer failed to provide any written statements of terms and conditions of employment as required by Law.

1:2       CA-00049464-003  Employment Equality & Discrimination.

The Complainant gave an Oral testimony supported by documentation. She had originally agreed to work three days at 19 Hours- this was to be primarily at weekends. It had been made clear, from the start to the Respondent and accepted that the Complainant was a Single Mother with childcare commitments. She had three young children at home. This was very demanding in terms of Childcare especially when her former Partner returned to Lithuania. The 19 Hour week maximum was a Social Protection requirement to enable the Complainant avail of Social Support Schemes.

The Respondent asked her to change to a four-day week pattern which she found impossible due to childcare issues. A new employee was recruited who was without outside commitments and she got the best shifts and a lot of extra “cash” basis work. This was clearly Discriminatory on the Family Status grounds against the Complainant.

It was also alleged that unapproved (by Revenue) “Cash” payments were being made to this other employee.

During Covid 19 the Complainant fell ill and was not allowed back to work. She was clearly Dismissed.  Respondent Text messages to this effect were produced stating from the Employer that “We could not (the Employment Relationship) make it work”

No procedures or accepted Employment Law standards were followed by the Employer. It was a blatant Discriminatory Dismissal.

Various other allegations were made by the Complainant regarding negative gossip being spread by the Respondent regarding the Complainant’s personal life.

The complainant was cross examined by Ms Egan for the Respondent. Ms Egan raised the issue of the “combative “nature of the Complainant in her dealings with the Owner /Manager, Ms J and her general attitude of non-cooperation. Alleged “Strained” relationships with other staff members were also raised. The Complainant denied she had ever been “Combative” but had raised proper Health and Safety concerns of all staff with the Owner especially regarding proper work breaks.

2:1        CA-00049464-002  Employment Information

The Respondent admitted that there had been a delay in providing written term until the 10th of September 2021 -some three months after the employment commenced. The terms were exhibited in evidence. The Complainant had pointedly refused to sign the documents.

Any breach of the Act was completely inadvertent, and the Employee was absolutely at no loss whatsoever by the delay. Case Law was cited by the Respondent – Philmic ltd t/a Premier Linen Services v Pelrailtis (TED1616) in support of the arguments that any minor breach had to be seen as only of very limited consequence especially where there had been no financial losses by the Complainant.

2:2        CA-00049464-003  Employment Equality & Discrimination.

The Respondent gave an Oral testimony from Ms J, the Owner/Manager supported by a comprehensive Written Submission. The chief Spokesperson was Ms Egan of Peninsula. Ms Egan opened by stating that the Complainant had completely failed to particularise her complaints and was relying on suppositions and assertions. The Burden of Proof rests with the Complainant in Equality cases.

Case Law to this effect was submitted. Reliance was placed on Melbury Developments v Velpeters (EDA0917)

Relying on basic facts Ms Egan pointed out that most of the other employees were also Ladies with children. One colleague was on Maternity Leave.

The Respondent and supported by Oral testimony from Ms J argued that the Employer had gone to considerable lengths to facilitate the family arrangements of the Complainant. The Complainant had constantly changing requirements as regards time off for family matters. While the Respondent was sympathetic, and the Complainant was a good worker they also had a small business to run in a very difficult time pre and post Covid. The complete unpredictably of the Complainant gave rise to serious issues with the other staff and the interpersonal atmosphere became difficult. Other employees began refusing to work on the same shifts as the Complainant. It was not unnatural that staff who were more reliable and personally pleasant with colleagues were given extra work when it became available.

Ms J stated that she had long experience of working with and managing a mostly female workforce. Family issues (childcare/pregnancy etc) were nothing new and had always been manged well in her view. There had always to be a certain amount of give and take on all sides to make things work. In this case the Complainant had become very difficult despite all arrangements being made to facilitate her.  The other staff members did not want to work with her anymore. Family issues were not the deciding factor as most of the colleagues were also mothers. In the final analysis Ms J, the Manager/Owner, had to come to the difficult decision that the Complainant was not good / “a good fit” for the business and she had to be let go for purely business reasons.

Ms Egan maintained that the Complainant was relying on vague assertions and suppositions and had no prima facie case as required by the EE Act,1998.

3:1        The Relevant Law –Terms of Employment (Information Act),1994 CA-00049464-002 

Section 3 (1) of the Act, which was then in force, required a written notice of Terms of Employment to be provided within two months of starting employment – in this case by the 11th of August 2021. The information was not supplied until the 10th of September 2021.

A breach of the Act was not denied.

Section 7 of the Act Subsection 2 (d) allows an Adjudication officer to make a compensatory award to an employee that is “just and equitable having regard to all the circumstances”.

In this case the Complainant suffered no loss and was clearly well informed (from her Oral Testimony) of her employment position. Any compensation has to be reflective of the very minor level of the infringement.

Accordingly, a compensation lump sum, for breach of a statutory right, of €100 is made in favour of the Complainant.

3:2        The Relevant Law – Employment Equality Act,1998. (the EE Act,1998) CA-00049464-003 

Section 6 of the Employment Equality Act,1998 defines Discrimination

Discrimination for the purposes of this Act.

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.

The Complainant alleged that she had been discriminated on the Family Status Ground (having children while others did not) and was subject to a Discriminatory dismissal on the same grounds.

The Respondent argued that the Complainant had effectively made no factual – prima facie - case and had relied on “assumptions and assertions” of no merit. In addition, in the oral Testimony of Ms J, the Objective Justification argument- the needs of a small business - was evident. In fairness this was not formally argued by Ms Egan but was apparent to the Adjudication.

However, legal precedents aside, all cases rest on their own evidence and Oral testimony. We have to consider this next.

3:3         Review of the Evidence / Oral testimony presented

In her Oral Testimony the Complainant argued that she had been recruited to do a three-day week of 19 hours spread over the weekend. As a single mother this was difficult and just about manageable. Her situation varied as the three children would sometimes be with their father in Lithuania. However, for the School Terms they were in Ireland. As a result, she often had to seek special arrangements from her Employer and effectively her colleagues for childcare issues. In general, this had been facilitated and this was confirmed by Ms J the Employer.

Ms J explained that the Business had been closed for long periods during Covid and was by 2022 beginning to recover. Staff flexibility to do extra hours became an issue and the Complainant could not accommodate these both because of her Social Welfare 19 hours limit and her family commitments. A new Employee, Ms A, was given many extra hours as she was available. The Complainant, clearly from her oral testimony, was aggrieved with his. The suggestion of “under the counter “cash” hours not properly declared to Social Welfare was raised. The Respondent absolutely denied any unofficial Cash payments being made.

Furthermore, the issue of the attitude of fellow staff members to the Complainant arose.

Ms J, the Owner /Manager, under sworn evidence and further cautioned by the Adjudicator , stated that other staff were refusing to work with the Complainant due to her “negative” attitude and constant last minute absences . This was hearsay evidence.

The Manager Ms J effectively stated that the Complainant was on Sick leave for most of February 2022.  Ms J’s Objective Justification was that the Business and the Staff had gone the “extra mile” many times and that the relationship had simply reached a point of no return. She did not reemploy the Complainant on these grounds.

From an Adjudication viewpoint, reviewing the Oral testimony, the “What if” question had to arise. Ms J stated that when the Complaint was at work, she was a good employee. It appeared to the Adjudicator that if the Complainant did not have the childcare issues, they was every probability of there never being a problem.

On this basis a finding of Discrimination on Family Status grounds seems inevitable. The Discrimination dismissal follows.

However, it has to be stated clearly from the Oral evidence, that the Complainant was difficult to dealt with and contributed significantly to her own ending of employment.

3:4        Summary

A finding of Discrimination on the Family Status grounds is made with a follow through finding of Discriminatory Dismissal.

However, the Adjudication view is that the Complainant did not help her case as regards her employment and any Redress or Compensation has to reflect this fact.

Discriminatory Dismissal, Family Status Discrimination.