Complainant

Respondent

Anonymised Parties

{A Therapist}

Linthrath Holdings Therapie Laser Clinics Ltd

Representatives

Eoin Haverty IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035346-001

19/03/2020

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

CA-00035437-001

25/03/2020

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

CA-00035573-001

03/04/2020

The Complainant was employed as a part-time senior therapist with the Respondent since 1st July 2003.

The Complainant was on maternity leave in 2016, when she notified her employer of her pregnancy with her third child. She then received a call from the Manager of a clinic that she would not be returning to her Tuesday shift at the clinic, because it would upset clients if she returned and then she left in January to go on maternity leave. The Complainant was to be sent to the call centre or a clinic in Tallaght. She agreed to the change at the time to suit the needs of the business.

Following her third maternity leave in 2017, she was told that she would not be returning to the Kildare clinic and would be going to the Tallaght clinic as they were understaffed. The Complainant agreed to this due to the needs of the business. She found her correct annual leave was not being paid. As a result, her salary was significantly reduced as she was previously paid for holidays not used. During her fourth maternity leave, she requested to take annual leave after her maternity-leave. She was told she did not have 22 days holidays and only had 8% of hours worked annual leave. She reviewed all of her leave since 2016 and saw the discrepancies in her annual leave dating back to her first maternity leave. She gave the company ample opportunity to resolve the issue and pay her annual leave through meetings with HR and management, calls and emails.

The Complainant’s 22 days annual leave was agreed some years previously when she was headhunted by a competitor. She was never given any written grievance procedure. However, the company would not rectify the decision to reduce the Complainant’s annual leave to 8% of hours worked and bring it back to 22 days per year. The Complainant believes this is a fundamental breach of her contract of employment. The Complainant had no option but to resign from her employment of 16 years on 26th September 2019 as a result of this and discrimination. The complaint of constructive dismissal was received by the Workplace Relations Commission on 19th March 2020.

When the Complainant reviewed her annual leave of 22 days, it was changed to 8% of hours worked. She never agreed to this. She is being discriminated against on the basis of her gender as she cannot be employed on less favourable terms and conditions following maternity leave. The complaint of discrimination was received by the Workplace Relations Commission on 25th March 2020.

The Complainant discovered she was owed €8,884.80 in annual leave and bank holidays. The Company offered to pay her €4,711.97 and she told them €8,884.80 was owed. The company then said her leave had expired and no prior arrangement had been made so would not pay her leave due. The Complainant said on each occasion she asked to be paid for leave owed, but it was calculated incorrectly, or the employer said they would notify her of the balance due but didn’t. The Complainant relies on EU rulings that an employer must encourage an employee to take leave before losing leave, and relies on cases C-619/16, C-569/16 and C-570/16 C-429/09, and C-214/16. The Complainant relies on European law whereby if national law restricts the benefit of annual leave this must be disapplied. The worker is the weaker party. In the event of a dispute, under S25 the burden is on the employer to show the employer took appropriate measures to ensure the worker could take their annual leave.

The delay in lodging this complaint is due to the Respondent delay in providing personal data in response to a request in December 2019. This was still outstanding in March 2020. The Complainant believes the company are trying to frustrate the process. The Complainant applies for an extension of time to lodge her complaints due to the unreasonable amount of time her employers took to forward her personal data. The complaint in relation to pay was received by the Workplace Relations Commission on 3rd April 2020. The last payslip the Complainant received from the company saying they would not pay annual leave owed was on 4th October 2019.

The Respondent denies the complaints. The Complainant resigned on 26th September 2019 more than six months before her complaint was made under the Organisation of Working Time Act 1997. The complaint of breach of the Employment Equality Acts 1998-2015 was made on 25th March 2020, nine months after the Complainant resigned.

The Respondent says the time-limit under S6 of the Organisation of Working Time Act 1997 is:

“A Rights Commissioner shall not entertain a complaint under this section if it is presented to the Commissioner after the expiration of a period of six months beginning on the date of the contravention to which the complaint relates”.

The Respondent also relies on S77 of the Employment Equality Act 1998 that a claim in respect of discrimination or victimisation may not be referred after the end of the period of six months from the date of the occurrence, or as the case may require the most recent occurrence of the act. The Respondent requests a ruling on their preliminary application there is no jurisdiction to hear the two claims.

Without prejudice to the foregoing, the Respondent says there is no reason why the Complainant could not have pursued her claims within the timeframes under the legislation. The standard required set out in S27(5) of the Organisation of Working Time Act 1997 to allow an extension of time is exceptional circumstances. The Respondent relies the ruling in Byrne v PJ Quigley Ltd [1995] ELR 205 where exceptional circumstances was held to mean “out of the ordinary, unusual and probably quite unusual..”. The Respondent says there is nothing unusual other than the choice of the Complainant not to lodge her complaint. The Complainant must also show exceptional circumstances which prevented presentation of the complaint within 6 months.

The Complainant commenced employment on 1st July 2003 as junior therapist. On 23rd January 2019, the HR Manager emailed the Complainant saying there had been three errors in her pay in 2018, but it was rectified on 4th January 2019. The HR Manager provided a breakdown of annual leave days to the Complainant on 28th June 2019. There were discrepancies noted in 2016 and 2017 which would be paid in payroll. On 1st July 2019 the Complainant wrote seeking holidays due since 2015 were €8,884.80. The HR Manager replied on 8th July 2019 highlighting clause 6.3 which requires holidays to be taken in the leave year, these cannot be carried forward except by prior arrangement. The Complainant replied stating she instructed her solicitor on the issue and would be returning to the doctor as still sick. On 20th August 2019 the Complainant sought annual leave, bank holidays and parental leave until the start of 2020.

The Respondent arranged a meeting to discuss on 20th August 2019. The Complainant submitted a fitness to return to work certificate on 9th September 2019. The HR Manager emailed the Complainant regarding refresher training from 16th to 20th September 2019. There were various emails between the HR Manager and the Complainant regarding annual leave and parental leave. On 25th September 2019 the HR Manager informed the Complainant they could not grant her application for parental leave as it was their busy season, and giving up to date annual leave balances. On 26th September 2019 the Complainant handed in her resignation stating the company were attempting to change her terms and conditions so she was resigning with immediate effect.

The Respondent says the Complainant was initially working full-time hours in 2003. She had 21 days annual leave which was pro-rata for any lesser period. The Complainant was then working part-time hours and her annual leave entitlement changed. It is custom and practice that the company calculates part-time annual leave entitlements at 8% of total hours worked. It is not implemented to discriminate one staff member from another. The Complainant was notified of discrepancies on 8% of hours worked. The Respondent denies the Complainant did not receive equal pay, she was treated the same as other part-time staff.

The Respondent says the Complainant does not meet the test for constructive dismissal under the Unfair Dismissal Acts 1977-2015, as the company operated within the terms of the contract of employment. It relies on the ruling in Conway v Ulster Bank UD 474/1981. The Respondent says it acted reasonably and fairly at all times in accordance with its policies, and best practice. The Respondent relies on Travers v MBNA Ireland Ltd UD 720/2006 and McCormack v Dunnes Stores, UD 1421/2008 which stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers..”

The Complainant failed to utilise internal procedures to resolve her grievance, failed to notify the company of her concerns, and did not exhaust internal procedures. The Complainant’s signed contract of employment refers to the grievance procedure. The Complainant’s actions were not reasonable and they were very surprised to receive the letter of resignation.

I have considered carefully the submissions and evidence of the parties and witnesses at the hearing. Given the sensitive medical details provided as part of the complaints, I am anonymising the identity of the Complainant.

The Complainant’s complains of unfair dismissal pursuant to S 6 of the Unfair Dismissals Act 1977-2015 and that she was constructively dismissed on 26th September 2019 under Section 1 of the Act. The Complainant alleges discrimination on the gender ground and not receiving equal pay, which complaint was received by the Workplace Relations Commission on 25th March 2020. The Complainant claims arrears of annual leave and bank holidays dating back to 2016, which complaint was received by the Workplace Relations Commission on 3rd April 2020.   

Preliminary Issue:

S77 (5) (a) of the Employment Equality Acts 1998-2015 provides a person who claims to have been discriminated against:

“Subject to paragraph (b) a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be the date of its most recent occurrence.

(b) On application by a Complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the Complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such direction is given, this Part shall have effect accordingly.”

S19 (1) of the Acts provides that in relation to a claim for equal pay:

“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 time or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section relevant time in relation to a particular time is any time (including a time before commencement of this section) during the 3 years which precede, or the 3 years which follow the particular time.”

S41 of the Workplace Relations Act 2015 applies to the complaint of failure to pay annual leave and bank holiday pay. This provides;

(6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates…..

(8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration) as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The Complainant resigned on 26th September 2019. Her complaint of discrimination was received by the Workplace Relations Commission on 25th March 2020 which is 1 day after expiry of the statutory six month time-limit. The Complainant’s complaint under S 27 of the Organisation of Working Time Act 1997 was received by the Workplace Relations Commission on 3rd April 2020, which is almost 9 months after the Complainant discovered she was due annual leave and bank holidays in June 2019.

The Complainant gave evidence that she had a three maternity-leaves and sick-leave due to pregnancy related illness during the period 2015-2019. She sought payment of all leave due to her which was 22 days (regardless of hours worked) each year at the end of the year. She was not aware she had been paid incorrectly until June 2019. The Complainant made a personal data request to the Respondent as she did not have enough information for her complaint. Christmas and Covid-19 delayed this. She submitted a request for investigation of her complaint of non-payment of leave on 25th March 2020, but ticked the wrong box on the complaint form. The Workplace Relations Commission subsequently contacted her. Following this she withdrew the complaint and resubmitted her complaint for leave unpaid, which was received by the Workplace Relations Commission on 3rd April 2020. The Complainant says there was reasonable cause for her delay.

The Respondent says there is nothing unusual other than the choice of the Complainant not to lodge her complaint. She could have lodged her complaint while her personal data request was pending and given detail later. She never lodged a formal grievance in relation to her leave.

The Complainant is unrepresented. She had lodged a complaint regarding non-payment of leave within the six month statutory time-limit. However, she subsequently discovered this form was incorrect, so then she lodged the correct form, which was received on 3rd April 2020.

Normally, ignorance of the person’s legal rights, as opposed to the facts giving rise to the complaint cannot provide a justifiable excuse for the failure to bring the complaint within time. But there are special circumstances in this case. There was a delay due to the lodging of the incorrect form regarding pay outstanding. The delay in lodging the complaint form regarding the discrimination complaint was short. The Covid-19 pandemic had just occurred. In the circumstances, I find there is reasonable cause to extend time in relations to the two complaints.

CA-00035346-001

The Act defines “dismissal” in relation to an employee as:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached her contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Complainant has been employed with the Respondent since 2003. She has a written contract of employment from 2011 as part-time therapist which sets out her entitlement to annual leave:

“is 21 days per calendar year (and pro-rata for any lesser period)..”Annual leave must be taken in the current leave year and cannot be carried forward from one leave year to the next except by prior arrangement”.

The Complainant has produced emails to evidence her claim that the Respondent agreed to 22 days holidays per annum for her per annum from 2014 (notwithstanding hours worked). This was a private agreement. The Complainant was paid for 22 days annual leave in 2015. This was agreed as additional compensation.

The Respondent disputes they breached the Complainant’s contract. They say the Complainant was paid 8% of part-time hours worked from 2016 which is standard for all part-time staff.

I accept the evidence of the Complainant regarding the agreement with the owners for payment of 22 days holiday leave annually from 2014 (regardless of hours worked). There were no witnesses present from the Respondent who were involved in the arrangement. The Complainant then sought payment of arrears of leave due based on the agreement in emails, and provided evidence of the agreement to the company.  A meeting took place between the Complainant and the company to discuss the issue, and the company subsequently refused payment of the leave.

It is clear to me from the evidence adduced that the Respondent was aware of the dissatisfaction of the Complainant with failure to pay the leave and refused to pay for the leave. The Complainant was a valued member of staff and highly skilled as a therapist. The Complainant was not provided with the formal grievance procedure, nor was she directed to this. The Respondent says it was surprised that the Complainant resigned, but there were no efforts to resolve the situation following her resignation.

The breach of contract is ..“ a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance “ Western Excavating (ECC ) Ltd -v- Sharp [1978] IRLR 27.

I find the Complainant was unfairly dismissed. The Complainant seeks financial compensation as redress. It is just and equitable that she be awarded her financial loss of gross €450 per month for a period of six months totalling €11,700 and I direct payment of this by the Respondent.

CA-00035437-001

The Complainant complains that she has been (i) discriminated against in terms of S6 (2) (a) and S 6 (2A) of the Employment Equality Acts 1998-2015 due to her gender, or pregnancy or maternity leave a woman employee is treated contrary to any statutory requirement less favourably than another employee is, has been or would be treated and (ii) that she failed to receive equal pay.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

The burden of proof is set out in Section 85A (1) of the 1998-2015 Acts which provides that:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant alleges she was treated less favourably than another person is has been or would be treated. The Complainant has not adduced evidence of less favourable treatment by reference to a comparator. The Respondent’s HR Manager has given evidence that all employees are paid 8% of their annual leave pro-rata per hours worked which is compliance with S19 (c ) of the Organisation of Working Time Act 1997, the Complainant was paid the same as other staff so there was no less favourable treatment.

The Complainant has not raised a prima facie case of discrimination in relation to equal pay.

CA-000 35573-001

Following the hearing the Complainant provided further details of the sums claimed. My jurisdiction regarding annual leave under the Organisation of Working Time Act 1997 is set out in S19 (1) of the Organisation of Working Time Act 1997 which provides:

“…an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to-

(a)    One-third of a working week for each month in the leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)    One-third of a working week for each month in the leave year in which he or she works at least 117 hours,

(c)     Or 8 percent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

I have no jurisdiction to consider payment of contractual leave outside of the statutory entitlement.

The Complainant’s complaint was received on 3rd April 2020 and the relevant leave year commences on 1st April 2019 as determined by the High Court in Royal Liver Assurance Limited v Mackey & Ors unreported 15 November 2002. From 1st April 2019 until 30 June 2019, the Complainant was on maternity leave and was due payment in respect of 8% of an average of 18 hours worked which is 17.28 hours. She was also entitled to annual leave in respect of certified sick-leave at 8% which accrued from 1 July 2019 until 26 September 2019 which is 8% of 18 hours worked for twelve weeks. The total hours due for annual leave are 34.56 hours. She claims payment for bank holidays for the period which is a further 40 hours. The Complainant’s payslip shows receipt by her of 98 hours on 29th September 2019 from the Respondent. I find the complaint of breach of S27 of the Organisation of Working Time Act 1997 is not well founded.

CA-00035346-001

The Complainant was unfairly dismissed. It is just and equitable that she be awarded her financial loss of gross €450 per month for a period of six months of €11,700 and I direct payment of €11,700 by the Respondent to the Complainant.

CA-00035437-001

The complaint of discrimination fails.

CA-00035573-001

The complaint of breach of S27 of the Organisation of Working Time Act 1997 is not well founded.

Constructive dismissal, breach of contract, non-payment of term of contract, discrimination due to gender and pregnancy