Complainant

Respondent

Anonymised Parties

A Worker

A Massage Therapy Business

Representatives

Ceile Varley B.L. instructed by Wendy Lyon,  Abbey Law Solicitors

 None

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-00053690-001

14/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00053690-002

14/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00053690-004

14/11/2022

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

CA-00053690-005

14/11/2022

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

CA-00053690-006

14/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053690-007

14/11/2022

The Complainant was employed by the Respondent as a massage therapist from the 1st of February 2020 to the 17th of May 2022.

By way of hearing notification issued on the 31st of May 2023 the Respondent was on notice of the following claims made by the Complainant: 

CA-00053690-001 A Claim for Unfair Dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977

CA-00053690-002 A Penalisation Claim Pursuant to Schedule 2 of the Protected Disclosures Act 2014

CA-00053690-004 A claim pursuant to section 7 of the Terms of Employment (Information) Act, 1994

CA-00053690-005 A claim pursuant to Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00053690-006 A pay claim in respect of holiday entitlements pursuant to section 27 of the Organisation of Working Time Act, 1997

CA-00053690-007 A claim for the recovery of unlawful deductions pursuant to Section 6 of the Payment of Wages Act, 1991

In 2019, the Complainant applied to work for the Respondent and was interviewed by the managers of the Respondent, a couple consisting of an Irish man and a non-Irish woman. She was offered a job, contingent upon her completing a training course in massage with the female manager who, the Complainant was told, runs a massage school in another country. This course cost €500 which was more than the Complainant could afford at the time. Once she saved enough money to pay for the training, she commenced work for the Respondent in February 2020.The Complainant was provided with a few hours of training from the female manager, however, the training course that she paid for never materialised. She was told that she would be provided with a certificate of qualification from the female manager’s training school, but this did not happen. She was never refunded the €500 which she paid for the training qualification. The managers determined the Complainant’s place, hours and conditions of employment. She was never provided with a written contract, but rosters were released each week setting out each worker’s hours. She typically worked 40 hours a week. She was paid €70 per day in cash. The managers assigned clients to the workers on a ‘queue’ system.

Soon after commencing employment, the Complainant noticed that clients were frequently asking for additional services of a sexual nature, stating that other workers in the Respondent’s facility provided such services. The Complainant asked her managers about this. They brought her out to dinner. Over dinner they explained to the Complainant that she could provide additional services, identifying specific services, along with the price that she should charge for such services. She was told that she “could say no” but that if she did, they “could assure her that she wouldn’t get more clients”. She understood this to mean that her managers would cease to assign her clients. Following this conversation, the Complainant began to provide limited sexual services, but the pressure continued to provide an additional range of sexual services. She notified her employers on a number of occasions that she did not want to do this, raising concerns about the nature of the work, as well as concerns about her own health, safety and conditions of work. Despite this, the managers continued to require her to provide sexual services and continued to pressure her to expand her range of services.

The male manager routinely required the Complainant, to provide him with massages for free. When the Complainant provided him with a massage, he would push the boundaries, pressuring her to touch him intimately or to provide him with sexual services. This happened on a number of occasions. The Complainant eventually refused to provide him with massages and supported another worker in refusing to provide him with services. The managers found out that the Complainant was supporting her colleague and began to treat the Complainant differently. She noticed that the female manager became rude, dismissive, and derogatory towards her, and began to schedule her less frequently for work. Eventually the managers also implemented a policy where the Complainant would not be paid unless she saw at least 4 clients during the day, which resulted in multiple occasions where she was refused pay for her day’s work.

In 2020, the business closed for a number of months as a result of the Covid-19 pandemic. After this, the Complainant took leave of absence from her employment from February 2021 – September 2021 in order to return home to her native country. When she returned to work, the colleague whom she had been supporting had resigned, and the conditions of the Complainant’s employment noticeably deteriorated further.

Directly before she was dismissed, the Complainant took two weeks holidays. At the end of her two week’s holidays, the work roster was released for the following week. The Complainant had not been rostered to work any hours. She queried this with her employers and was told that there would not be any more work for her and that she could find another job. This resulted in her dismissal, on the 17th of May 2022

It was contended that the Complainant’s dismissal was unfair within the meaning of the Unfair Dismissals Acts, as the Respondent failed to provide a procedure for dismissal and failed to afford the Complainant fair procedures and natural justice in the course of the dismissal.

It was contended that the Complainant made a protected disclosure regarding the conditions and circumstances of her employment (i.e., complaints about being pressured to provide sexual services). The Protected Disclosures Act 2014 (as amended) protects employees from penalisation as a result of making a protected disclosure. The protected disclosure was made by the Complainant to the Respondent directly regarding the nature and safety of the work as well as concerns about her own health, safety and conditions of work. Despite her complaints, the managers continued to require her to provide sexual services and continued to pressure her to expand her range of services. Eventually, the Complainant refused to provide her manager with massages, and supported another worker in refusing to provide him with services. Thereafter the Complainant experienced negative consequences, including derogatory behaviour and reduction of working hours.

It was alleged that the Respondent failed to provide the Complainant with a document setting out the terms and conditions of her employment in breach of the Terms of Employment (Information) Act 1994

It was alleged that the Respondent failed to provide the Complainant with notice or payment in lieu of notice prior to dismissing her in breach of the Minimum Notice and Terms of Employment Acts 1974 to 2005. 

It was alleged that the Respondent failed to pay holiday pay in breach of the Organisation of Working Time Act 1997.

It was alleged that the Respondent withheld pay on a number of occasions, where the Complainant saw fewer than 4 clients during a day, constituting an unlawful deduction of wages contrary to the Payment of Wages Act 1991 (as amended).

No submissions were made nor was there any appearance by or on behalf of the Respondent

The Complainant gave evidence on affirmation at the hearing as per the factual circumstances as summarised above. The Complainant’s evidence was uncontroverted.

CA-00053690-001 The Unfair Dismissal Claim

I am satisfied that the Complainant was at all material times employed by the Respondent and had continuous service for the purposes of the Unfair Dismissals Acts from the 1st of February 2020 to the 14th of May 2022. The COVID 19 lockdown did not break this service and the Complainants extended break thereafter constituted leave of absence which again did not break the Complainant’s service. Accordingly, I find that the Complainant had in excess of 12 month’s service as of the 14th of May 2022.

I find that the Complainant was dismissed by the Respondent on the 14th of May 2022.

Section (6) subsection (1) of the Unfair Dismissals Acts 1977-2015 provides as follows:

Subject to the provisions of this section, the dismissal of an employee shallbe deemed, for the purposes of this Act, to be an unfair dismissal unless, havingregard to all the circumstances, there were substantial grounds justifying the dismissal.

In accordance with the provisions of Section 6 of the Unfair Dismissals Act 1977 as amended, the Respondent bears the onus of proving that there were substantial grounds for the dismissal. In the absence of any such grounds having been adduced, the dismissal is deemed unfair.

The Complainant was out of work and without income of any sort for a period of 20 weeks following her dismissal. I am satisfied that the Complainant attempted to find alternative employment during that period.

When the Complainant commenced employment her weekly remuneration was approximately €70 per day over a 40-hour week being €350 gross per week. Accordingly, I award the sum of €7,000 reflecting the Complainant’s losses by way of compensation for unfair dismissal and the Respondent is directed to pay the said sum to the Complainant.

CA-00053690-002 The Claim Alleging Penalisation Pursuant to Schedule 2 of the Protected Disclosures Act 2014

Applicable Law

The Definition of Protected Disclosure

Section 5 of the Protected Disclosures Act 2014 (prior to the 2022 Amendment Act) provides:

‘A protected disclosure is a disclosure of “Relevant Information”.’

Subsection (2) states that ‘For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.’

Relevant Wrongdoing is dealt with in subsection (3), (4) and (8) (pre amendment) where relevant, as follows:

‘The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

…

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

…

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

…

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.’

Section 6. (1) Provides (where relevant) that ‘A disclosure is made in the manner specified in this section if the worker makes it— to the worker’s employer…’

In the present case the Complainant disclosed to her employer her concerns that wrongdoing was being carried out and further that her health and safety (and that of a colleague) had been, was being or was likely to be endangered.

It should be noted that the wrongdoing involved a potential breach of the criminal law on the part of the Respondent - but not the Complainant. As submitted by the Complainant’s counsel, it is not an offence since the enactment of the Criminal Law (Sexual Offences) Act 2017 for a person to provide sexual services. However the current law criminalises the operation of a brothel, or allowing a brothel to operate from a premises, and the law criminalises persons who control / direct the activities of sex workers, and profit from the provision of sexual services. It is a crime to compel or coerce a person into providing sexual services, and to profit as a result. It should be added that there are no concerns regarding potential illegality of the contract of employment since the contract of employment into which the Complainant entered with the Respondent to provide massage therapy - and nothing more - was perfectly legal. It should also be noted that the concern as to wrongdoing does not require proof that wrongdoing was actually committed, and for the avoidance of doubt nothing in this decision should be construed as making any such finding. 

As regards the Health and Safety concerns raised by the Complainant, the decision of the Supreme Court in Baranya v. Rosderra Meats [2021] IESC 77, is directly relevant. The Complainant’s counsel cited the following passage from the judgement of Hogan J. in relation to complaints of wrongdoing as contemplated by the Protected Disclosures Act:

It is perfectly clear from these words that the complaint does not have to relate to the health or safety of other employees or third parties: a complaint made by an employee that his or her own personal health or safety is endangered by workplace practices is clearly within the remit of the sub-section. Nor does the conduct in question necessarily have to amount to a breach of any legal obligation (although it would generally probably do so): it is sufficient that theemployee complains that his or health or safety has been or is being or is likely to be endangered by reason of workplace practices, as this amounts to an allegation of “wrongdoing” on the part of the employer in the extended (and slightly artificial) sense in which that term has been used by s. 5(2) and s. 5(3) of the 2014 Act. It follows that a complaint made by an employee that his or her own personal health was being affected by being required to work in aparticular manner or in respect of a particular task can, in

principle, amount to a protected disclosure.

I am satisfied that the disclosure made by the Complainant regarding the provision of (and the refusal to continue to provide) sexual services to the Respondent’s clients was ‘relevant information’ in respect of ‘relevant wrongdoings’ within the meaning of those terms in Section 5 and that the same information was disclosed to the Complainant’s employer as envisaged by Section 6 (1) (a). This being so, by operation of Section 5 subsection (8), the disclosure is presumed to be protected within the meaning of the Act and in the absence of any evidence rebutting this presumption I find that the Complainant made a protected disclosure to the Respondent when she objected to the provision of sexual services to the Respondent’s clients.

Penalisation is prohibited by Section 12 (1) as follows: 

(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

 “penalisation” as it was defined prior to the amendment of the Act in 2022 (which took effect in January 2023 and broadened the scope of the definition):

“means any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

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

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

Compensation for breach of Section 12 (1) is governed by Schedule 2 of the Act. Unfair dismissal claims are not included - as per Section 12 (2) - but the present claim relates to penalisation other than dismissal and thus Schedule 2 is applicable to the present claim. Schedule 2 empowers an adjudicator to require an employer to pay such compensation as he/she “considers just and equitable having regard to all the circumstances”.

I find that the Complainant was penalised within the meaning of that term as set out above. This penalisation took various forms including a change in attitude towards the Complainant and a reduction in her remuneration arising from being assigned fewer clients. The Complainant was expressly told that she would get less work if she did not provide sexual services and thus there is a causal link between the protected disclosure and the penalisation. Of even greater concern is the manner in which the demands from the male manager that the Complainant provide him with sexual services persisted, notwithstanding the Complainant’s protected disclosure, in circumstances where she had already informed both the female and the male managers together that she objected to this behaviour. In the absence of any other explanation and based on the uncontroverted evidence of the Complainant I find that the only reasonable conclusion that can be drawn from the continuation of the demands by the male manager for sexual services from the Complainant following the protected disclosure made to management is that such conduct constituted further penalisation in the form of coercion, intimidation, harassment or unfair treatment for the Complainant having made a protected disclosure. 

The Protected Disclosures Act 2014 is in the nature of protective legislation. Schedule 2 of the Act makes provision for maximum awards of compensation of up to five year’s remuneration in the event of a breach, which is substantially higher than the award-jurisdiction conferred on an adjudicator by any other employment statute in the state. [The only higher jurisdiction in Irish employment legislation is that of unlimited jurisdiction conferred on the Circuit Court by the Employment Equality Acts in relation to gender cases]. In addition, the Act introduced, for the first time in Employment legislation, unique statutory provisions in relation to interlocutory applications to the Circuit Court.   

It is clear that the legislative intention behind the Protected Disclosures Act 2014 was to afford a very high degree of protection to persons making protected disclosures, which protection was in part expressed by the conferral on an adjudication officer of an extended compensation-award jurisdiction. Schedule 2 of the Act empowers an adjudicator to require an employer to pay such compensation as he/she “considers just and equitable having regard to all the circumstances”. That term is not defined in the Act.

Some guidance is available from the jurisprudence of the CJEU (formerly the ECJ) which has held that where a fundamental social right has been breached, national law must provide an effective, proportionate or dissuasive remedy. In Cementation Skanska (formerly Kvaerner Cementation) Ltd v Carroll, DWT0338, the Labour Court, considering the right to annual leave stated:

“The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law…In Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.”

However, in Financial Services Union v. Hanna PDD201, where the quantum of the adjudicator’s award of compensation under the Protected Disclosures Act was the sole issue, the Labour Court further considered Von Colson and made the following finding: 

“In making its submission on the redress to be awarded under the Act, Counsel for the Complainant referred to the Von Colson case, where the CJEU made it clear that where a right which is derived from the law of the Community is infringed the sanction for breaches must be effective, proportionate and dissuasive and must provide a real deterrent against future infractions. The doctrine of conforming interpretation was first formulated in Von Colson, this requires a national Court to interpret and apply its domestic law in light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive. This obligation arises by virtue of the transposition of Community Law, however, protected disclosure legislation is national legislation which has not emanated from the EU. Schedule Two of the Act “Redress for Contravention of Section 12(1)”, provides for an award of compensation which is just and equitable having regard to all the circumstances.”

In that decision that Labour Court did not apply the Von Colson doctrine on the basis that the Protected Disclosures Act 2014 was purely domestic as distinct from Community driven legislation. However, EU Directive 2019/1937 was already in force from October of 2019 when that decision issued (in January 2020), albeit that it had yet to be implemented into Irish Law at that time, or for that matter by the time the circumstances of the present case arose, i.e., between 2020 and 2022. The Directive was implemented by the Protected Disclosures Amendment Act 2022 which came into force on the 1st of January 2023. Thus, strictly speaking the Protected Disclosures Act 2014 in its pre-amended format was purely domestic legislation at the material times giving rise to the present claim but it is also the case that rights arising from the making of protected disclosures have been recognised at EU level since 2019. No further guidance was given by the Labour Court except to cite the wording of the provision – “just and equitable having regard to all the circumstances”.  However, the decision notes that financial losses were agreed at €7,540 yet the award which was made by the adjudicator (whose decision was the subject matter of the appeal) was in the sum of €12,500. The Labour Court affirmed that award and stated that it was not in the nature of remuneration. The award thus affirmed was clearly not restricted to financial losses.

While the specific issue considered in Cementation Skanska was the right to annual leave from a health and safety perspective and Von Colson involved equal treatment in respect of gender, the facts of the present case involve a complaint regarding health and safety as well asan objection by a female to the provision of sexual services generally and to  a male manager (to whom the protected disclosure had been made) in particular.  In my view the logic of these decisions is of assistance when considering the (pre 2022 Amendment Act) penalisation prohibition in Section 12 (1) and the compensation jurisdiction set out in Schedule 2 of the Protected Disclosures Act 2014.  I take the view that Protected Disclosures Act, although it was domestic as distinct from Community law until the Amendment Act 2022, is clearly in the nature of protective legislation which implemented exceptional measures to ensure the protection of persons falling within its ambit.  Moreover, it is also the case that those measures are more far-reaching than those provided for in the areas of health and safety and employment equality which were the subject matter respectively of the decisions in Cementation Skanska and Von Colson. Accordingly, I take the view and I so find that the basis of assessment of compensation under Section 12 (1) and Schedule 2 is not limited solely to financial loss and consideration may be given to other factors which may include an assessment of whether an award is effective, proportionate or dissuasive.

The Complainant is a non-EU National who came to Ireland to study. She worked for the Respondent to support herself and fund her education. Her first language is not English. The Complainant was an exceptionally vulnerable worker. As a result of her protected disclosure, she was subjected to a change in attitude towards her, marginalisation, cuts to her working hours together with harassment, intimidation and coercion. I am satisfied that in addition to financial hardship the Complainant suffered very significant emotional distress and humiliation at the hands of the Respondent following the making of the protected disclosure.

It was also contended on behalf of the Complainant that the Respondent continues to trade and to advertise for workers on social media “to work in a friendly environment working with ladies from Thailand, Brazil and Mexico”.

In the present most exceptional case, I find that the nature and extent of the penalisation were of such an egregious nature as to merit an award of compensation at the maximum level permitted by the Act (being 260 weeks @ €350 per week) to enable the breaches to be compensated fully and with due regard to the intentions of the legislature.

Accordingly, I direct the Respondent to pay to the Complainant the sum of €91,000 by way of non-remuneration related compensation for the effects of the penalisation as so found. 

CA-00053690-004 The Claim Pursuant to Section 7 of the Terms of Employment (Information) Act 1994

On the uncontroverted evidence of the Complainant, I find that the Respondent failed to provide the Complainant with terms of employment in breach of the Terms of Employment (Information) Act. I assess compensation for the breach in the sum of €1,400 and the Respondent is directed to pay the said sum to the Complainant by way of non-remuneration related compensation. 

CA-00053690-005 The Claim pursuant to Section 12 of the Minimum Notice & Terms of Employment Act, 1973

On the uncontroverted evidence of the Complainant, I find that the Complainant was dismissed without notice and based on her service I award compensation in the sum of €700 representing two weeks remuneration and the Respondent is directed to pay the said sum to the Complainant.

CA-00053690-006 The Claim pursuant to Section 27 of the Organisation of Working Time Act, 1997

Based on the uncontroverted evidence of the Complainant and the submissions of counsel I find that the Complainant did not receive her annual leave entitlement in breach of the Act. I award compensation in the sum of €2,450 representing seven week’s remuneration and the Respondent is directed to pay the said sum to the Complainant.

CA-00053690-007 The Claim Pursuant to Section 6 of the Payment of Wages Act, 1991

The Complainant said that from the 1st of November 2021 to the 31st of March 2022 her working hours were reduced such that her remuneration dropped from the agreed rate of €70 per day down to €20 per day. This reduction in pay, it was contended was an unlawful deduction within the meaning of that term in the Payment of Wages Act 1991.

The claim was initiated in November 2022 and thus any deductions within the six-month period immediately preceding the initiation of the claim can be considered. As the deductions contended for occurred prior to this period, the claim is out of time and no basis constituting reasonable cause was cited in support of an extension of time.

Accordingly this claim is not well-founded.

CA-00053690-001 The Complainant was unfairly dismissed. Compensation in the sum of €7,000 is awarded.

CA-00053690-002 The Claim is well-founded. Non-remuneration related compensation in the sum of €91,000   is awarded.

CA-00053690-004 The Claim is well-founded. Non-remuneration related compensation in the sum of €1,400 is awarded.

CA-00053690-005 The Act was contravened. Compensation by way of remuneration in the sum of €700 is awarded.

CA-00053690-006 The Claim is well-founded. Compensation by way of remuneration in the sum of €2,450 is awarded.

CA-00053690-007 The Claim is out of time and is not well-founded.

Unfair Dismissals Act 1977 - Section 6 - Protected Disclosures Act 2014 – Sections 5, 6, 12, Schedule 2 – Penalisation  - Criminal Law (Sexual Offences) Act 2017 -  Baranya v. Rosderra Meats[2021] IESC 77 - Cementation Skanska (formerly Kvaerner Cementation) Ltd v Carroll, DWT0338 -  Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 - Financial Services Union v. Hanna PDD201 - Terms of Employment (Information) Act, 1994 - Section 7 - Minimum Notice & Terms of Employment Act, 1973 - Section 12  - Organisation of Working Time Act, 1997 - Section 27  - Payment of Wages Act, 1991 - Section 6