Complainant

Respondent

Parties

Patricia  Kenny

Trispace

Representatives

  Self-represented

Ruth Heenan IBEC

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-00051171-001

15/06/2022

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

CA-00051171-002

15/06/2022

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

CA-00051171-003

15/06/2022

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

CA-00051171-004

15/06/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent gave their evidence under cross examination.  All witnesses were cross-examined by the opposing party.

The second day of hearing opened with the respondent accepting that there was a breach of the Terms of Employment (Information) Act, (CA-00051171-001) and by the complainant accepting that the matters referred to in compliant CA-00051171-002 had been resolved by way of payment of the Sunday premium.  The hearing continued with reference to complaints -003 and -004 only.

CA-00051171-003 Part-time work

The complainant submitted that she was treated in a different fashion to her full-time colleagues and that there was a breach of the Protection of Employees (Part-Time Work) Act, 2001.

CA-00051171-004 Discrimination

The complainant submitted that she was discriminated against and victimised on the basis of a disability in that her hours were reduced.

Complainant testimony:

The complainant stated in evidence that she was provided with shorter working hours than was mentioned in her contract.  She noted that at the start of her contract she was told she would be working 20 hours a week, but it was also mentioned to her that things would be quieter during the summertime as she would be working on a university campus.

She stated that in March 2022 her hours were reduced.  She noted that her hours were reduced because she was part time and because she was taking too much time off for medical consultations. She said she was looking for a meeting with her managers boss but that this did not happen while she was employed with the respondent.  She said that because her hours had been reduced, she was afraid to take hospital appointments and therefore began to cancel some. She said following her phone call with the line manager, she was being ignored and thereafter was not getting the hours according to her contract.

Under cross examination she confirmed that her medical appointments were accommodated. She confirmed that she was never asked to cancel medical appointments. She also confirmed that she did not know of any other staff member in full-time employment who was being accommodated for medical appointments. When it was put to her that the concept of discrimination was not really raised with the respondent, she said that it was raised in her telephone conversation with her line manager.

CA-00051171-003 Part-time Work

The respondent submitted that the complainant was treated no differently to her colleagues in that following the students return to campus after the Covid 19 she was treated in a different fashion to her full-time colleagues and that there was a breach of the Protection of Employees (Part-Time Work) Act, 2001.

CA-00051171-004 Discrimination

The respondent submitted that the complainant was not treated less favourably than any other employee, that she never informed them of the existence of a disability nor that she ever raised a compliant of being discriminated against that resulted in her being less favourably treated.

Witness testimony:

Witness #1 – line manager

The witness stated that she was aware that the complainant had a medical issue but was not aware that the complainant had a disability. She stated that she could not recall the complainant ever saying that she was discriminated against but confirmed that she had never treated the complainant differently to any other employee.

Under cross examination she was asked whether she remembered the meeting in June, however she stated that she could not remember the meeting and that it may have related to a conversation where the complainant indicated that she felt uncomfortable.

In response to a question regarding why the complainant did not get hours, the witness said that there was an oversight regarding one week where she did not get hours (Easter week).  She stated thereafter there was a complete change in the roster as the university was now on summertime hours.

Witness #2 the general manager

The witness stated he was never aware of any medical issue or any possible disability until the matter was raised with him subsequent to the complainants leaving the respondent’s employment. During that conversation he recalls the complainant indicating she was not being treated fairly but he does not remember that the complainant made any reference to any comparators.

He noted that as regarding the weeks in question around Eastertime, the company would be generally reducing staff hours and additionally in the post COVID environment it was hard to commit to any hours at all for some staff.

Under cross examination the witness confirmed that he did not receive any request for a meeting with complainant until after she had finished up work.

Witness #3 the HR associate

The witness confirmed that the employee was scheduled for leave in March and then requested an additional weeks leave up until the end of March. She confirmed that the lack of assigning hours to the complainant appears to be nothing to do with her being part time or otherwise and seems to be an oversight.  Under cross examination, she outlined the attendance record of the complainant and noted that during this time period from the beginning of April onwards full-time employees also had their hours reduced due to the period of the year, that is exam time. She noted that in 2022 most exams were online and any that were face to face did not take place at the site where the complainant was employed.

The witness also confirmed that there was an Easter camp taking place that year.

CA-00051171-001 Written terms and Conditions of Employment

The respondent accepted that there was a breach of Terms of Employment (Information) Act.  Accordingly, I find that the compliant is well founded and order the employer to pay compensation equivalent to four weeks remuneration which I consider to be just and equitable in all the circumstances.

The respondent confirmed in writing that the complainant was paid an hourly rate of €11.20.  In evidence, it was confirmed that the complainant was hired on the basis of 20 hours per week.  Accordingly, I calculate four weeks remuneration as €224 x 4 = €896

CA-00051171-002 Sunday Premia

The complainant agreed that she has been paid an additional amount in respect of Sunday working and therefore I find that this compliant is not well founded.

CA-00051171-003 Part-time Work

The complainant was employed on a part-time basis.  Under cross examination the complainant confirmed that she was not aware of any full-time employee who was treated in a different fashion, nor in a more favourable manner than she was treated.  On the basis of this testimony, it is difficult to conclude that the complainant was treated less favourably than any other employee. Accordingly, I find that this complaint is not well founded.

CA-00051171-004 Discrimination

The complainant outlined that she was treated in a less favourable fashion that other employees and that this was as a result of her disability.  She did not provide evidence of informing her employer of the existence of a disability, only noting that her line manager was aware of her medical condition as she herself suffered with similar symptoms.  The compliant did not go into detail regarding any less favourable treatment, simply noting that she was ignored and did not get hours one week.  The third respondent witness noted that all employees were on short hours after the easter break as the work slowed down.  The first witness noted that lack of scheduling for the complainant for a week was an oversight while the third witness noted that the week of the oversight was preceded by a week of preauthorised leave followed by weeks leave that was sought at last minute while she was already on leave.  The complainant has not established less favourable treatment and further has not linked any alleged treatment to one of the grounds specified in the Act.

Under Section 85A of the Employment Equality Act, there is an onus on the complainant to establish facts “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”.  Having regard to the written and oral evidence put forward by the complainant, I am not satisfied that she has established such facts so as to shift the burden of proof onto the respondent.  Accordingly, I find that the compliant is not well founded.

CA-00051171-001 Written Terms and Conditions of Employment

Having considered all the written and oral evidence in relation to this matter, my decision is that the complaint is well founded, and I order the respondent to pay the complainant compensation in the amount of €896 which I consider to be just and equitable in all the circumstances.

CA-00051171-002 Sunday Premia

Having considered all the written and oral evidence in relation to this matter, my decision is that the complaint is not well founded.

CA-00051171-003 Part-time Work

Having considered all the written and oral evidence in relation to this matter, my decision is that the complaint is not well founded.

CA-00051171-004 Discrimination

Having considered all the written and oral evidence in relation to this matter, my decision is that the complaint is not well founded.

Terms and conditions of employment not provided in writing – award of compensation – Sunday payment made – not well founded – no difference in treatment established – not well founded – no facts established to infer discrimination – not well founded.