Complainant

Respondent

Parties

Shereen  Mahomed

The Carphone Warehouse Limited Currys

Representatives

Ms. C Bruton BL instructed by Ms. J Bielenberg Mason Hayes & Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044323-001

21/05/2021

The Complainant commenced employment with the Respondent on 20th August 2016 on a part-time basis working between 8 and 23 hours per week up until the termination of her employment on 22nd May 2021.  The Complainant submitted a complaint under the Protection of (Part-time Workers) Act alleging that she was a part-time worker and that she had, in respect of her conditions of employment, been treated less favourably than a comparable full-time employee.

 The respondent was a retail outlet who disputed the claim.

The Complainant submitted that she worked as a part time 8hr contract employee for the Respondent for 4.5 years and that her contract was for an 8-hour week.  She submitted that Management/ HR refused to give her an increase to those contractual hours even though she had worked more than her contractual hours for at least 3 years.  She indicated that the rosters demonstrated that fact and she submitted a copy of various rosters post hearing.  She submitted that she felt that there may have been personal reasons why the Respondent refused to give her the increase.

The Complainant submitted that she felt she was being bullied, and harassed, as many other employees in close proximity, were “given opportunities to become Assistant managers, and gain higher contracts.”  She submitted that she felt she was being treated less favourably than a full-time employee on the grounds of her contractual hours and that she had recently been denied the opportunity to be considered for a brand ambassador role based on her contract.  She stated that a full-time employee was given that opportunity. She submitted that while she was not a full-time employee, she always worked at least 20hrs. She submitted that she had learned that the previous manager had given another employee in the store an increase in their contracted hours in October 2020 and that she was overlooked again. She submitted that even though she had a meeting with HR in August 2020 in regards to the matter her request for additional hours was still refused.  She submitted that HR advised her to speak directly with her manager in relation to an increase in contracted hours.

The Complainant submitted that she spoke to the manager at the time on the 14th of August 2020 and that he had said he would consider an increase in the future.  She stated that this was when she started to feel this was more personal and she wondered if it related to her race as she was the only person of colour in the store. In her submission she noted that the Individual who got the contract hours increase, was given the opportunity to become Assistant Manager.

The Complainant further submitted that there was an email sent out circa April 2021 to 130+ staff, showing everyone’s’ contracted hours and how many sales they were achieving versus full time employees. She submitted that an assistant manager in another store was given access to that information and that she was not happy about this and felt it was a breach of GDPR.

The Complainant submitted that a dispute arose in January 2020 when the manager decided to give a Christmas temporary employee a 20hr contract in January and he advised the Complainant that because she was in college, he would keep her on the 8-hour contract. The Complainant noted that the Manager was himself, attending college.  She submitted that her manager asked could she do her degree part time so that she could work more hours. She submitted that he informed her that she would no longer be entitled to continue in the Brand Ambassador programme, as she was not a full-time employee in January 2020.  She submitted that he requested the store keys back, and that she was given less hours and that never before was there a such a lack of available hours.

The Complainant submitted that she raised the matter of her contract hours with the regional manager in February 2020 but he refused to make any changes.  She submitted that she had a number of health a family issues at that time and that she had been seeking additional hours in order to provide additional support to her family.  She submitted that she “opted to remain at home due to the recent change in family dynamics” and that all the extra hours seemed to be going to the 20hr contract employee, they were always guaranteed 28hrs.”  She submitted that she had been given a phone as a Brand Ambassador and that a fight erupted shortly after when it came time to return the phone in March 2020. She submitted that she did not want to keep this phone but that her manager “called the store twice persistently” and requested she was not to leave work until returning the device. She submitted that she advised him politely on the second occasion that she had not backed up her work on the device and needed a replacement phone. She submitted that he began to get impatient when she told him it didn't suit. She submitted that he said he didn't care that she didn't have a replacement phone, that it wasn't his problem and that he wanted the Brand Ambassador phone back. In fact, she submitted that he wanted it returned that day.  The Complainant submitted that the whole experience became unprofessional, that he treated her “like a villain” as though he was under the impression, she was going to leave the company with the phone that day. She submitted that this showed how she was viewed as an employee with 3 years’ service.

The Complainant submitted that she had also trained this manager with a whole new team in 2019 and that she had never had any problems with this manager until January 2020 when a new team was developed and hired. She submitted that the phone was remained unused in the until May 2021. She further submitted that when the pandemic hit in 2020, she sought remedy with HRr as the Manager had dropped her hours to 11 in March 2021 and she submitted that “never in all my years had it been so bad.” She submitted that she then discovered that managers from other stores took the meeting. She submitted that she found this to be a conflict of interest, that she felt her voice never got heard and that they basically disregarded employment laws. She submitted that she highlighted during both meetings that she was being treated less favourably than a full-time employee, due to being in college, but she submitted they were never going to afford her the right to an increase in contracted hours.  She submitted that she had been flexible, had covered in multiple locations and had been capable of doing any tasks assigned to her.  She submitted that she was only seeking an increase to 16hrs or 20 hrs and that many other employees were afforded the opportunity but not her.

The Complainant submitted that while she was absent on sick leave an envelope, containing her previous managers emails, was left at her front door. The emails showed that the previous manager had demoted her the previous year from the Brand Ambassador programme, something she had been a part of for nearly 2 years.  She submitted that she had taken great pride in that role as she had 7 years personal experience with the brand.  She submitted that the current manager had also breached GDPR, in relation to a matter that she had requested remain private.

She submitted that the manager was also trying to investigate her in April 2020 although she was not sure for what.  She submitted that he manipulated her into thinking that the brand representative had requested to remove her from the programme, when in fact, he had interviewed other employees in the store to take over the position.   She submitted that he stopped the investigation as soon as the female employee on a 20hr contract handed in her notice in June 2020 and she submitted that after that she was needed more than before as the Respondent was short staffed.

She submitted that since that time another employee was given an increase in contract hours in October 2020 and that most recently the Respondent had employed a new employee on a 30-hour contract, all while ignoring her request for additional hours.

The Complainant submitted she felt like she was going crazy, that she felt “unsupported, undervalued and being taken advantage of.”  She submitted that the Respondent had refused to give her basic security as an employee and that she felt as if she was being “micromanaged out of the business.”

The Complainant submitted that she was due to go back to work on the 2nd of May 2021, but that the Respondent had ceased operation in Ireland as of April 21st 2021 and she confirmed that she remained an employee until the 22nd of May. She submitted that she still wished to put her case forward as the Respondent will still continue to operate under a new brand. 

Complainant evidence at hearing:

At the hearing the complainant confirmed her complaint as set out in her complaint form.  In considering the preliminary legal matters raised by the Respondent the Complainant confirmed that the comparators referenced in her complaint form were part-time workers, albeit some made have had a greater number of hours that provided for in her own contract.  She accepted the Respondent position that there were no full-time staff working in the same store as her and referred to another Brand Ambassador in the Balbriggan store as full-time.

The respondent provided a submission in advance of the hearing.  By way of general background, the Respondent submitted that the Complainant had commenced in its employment on 20th august 2016 and that her contract of employment provided that it was an 8-hour contract and that she was employed at all times as a customer consultant. The Complainant’s salary was approximately €4284.80 per annum and her employment terminated ion 22nd May 2021 by reason of redundancy.  The Respondent advised that it had ceased operation in Ireland and that all stores had closed with effect from April 2021.

The Respondent also submitted the following:

·         That in September 2019 the Complainant commenced a college course, on a full-time basis and attended college 3-4 days per week.

·         That the store in which the Complainant worked was a small store, in terms of the number of staff employed therein and in terms of footfall.

·         That there was no General Manager in the store and only 2-3 staff on duty at any one time.

·         That there was limited availability of hours, having regard to staff members’ hours of work, their regular hours and the needs of the store, including its opening hours.

·         That within the Respondent there were customer consultants who worked on a full-time basis, working 40-hours per week

·         That other part-time staff worked on contracts of 8 hours per week, or other part-time hours u to 30 hours per week.

·         That Sales Consultants worked part-time hours on the basis of their availability and the requirements of staff within their particular store requirements, in particular the  store opening hours.

·         That in January 2020, the Complainant was requested by her manager to step down from her role as Brand Ambassador as there was a requirement for the role to be undertaken by a staff member who had more store presence, being physically present for more hours in the store.

·         That on the basis of the requirements of the company whose brand was being promoted that the role required a staff member to be present within the store on a regular and frequent basis to train colleagues, and engage with the store team and customers.

·         That there was also a requirement that any Brand Ambassador log into the backstage internal app of the company in order to promote the brand as much as possible by developing relationships and completing in store demonstration models.  This again, placed a requirement of the Brand Ambassador to be physically present within the store and to work hours other than those worked by the Complainant.

·         That the Complainant worked between 8 and 16 hours per week with the respondent and her availability was limited having regard to her attendance at college, which was a full-time course.

Complainants and Grievances

The Respondent submitted that the Complainant’s complaints could be classified as follows:

1.       That she was removed from the Brand Ambassador role and that this was offered to a colleague who had less experience than the Complainant

2.       That her hours of work were not increased and that she was overlooked for hours when hours were offered to other employees within her store

3.       That her grievances should not have been investigated by general managers and rather should have been investigated by HR.

The Respondent submitted the following:

·         That on 3rd April 2020 the Complainant raised grievances regarding those issues and that these were investigation by NC, General Manager of the store in Liffey Valley.

·         That Ms. C conducted a grievance meeting with the Complainant on 27th April 2020 and ultimately did not uphold the complainants by reason that the Brand Ambassador position was generally provided to a full-time employee by virtue of that employee being present in the store to undertake the role in a more fulsome basis, or certainly a staff member with hours in excess of those worked by the Complainant.  Ms. C also found that the Complainant had been furnished with sufficient notice of the requirement that she return the phone which she had been provided as part of her role as the Brand Ambassador, as she had been provided with 5 weeks’ notice by her manager.

·         That Ms. C had also concluded, in relation to the increase in the hours of work sought by the Complainant, that as the availability of the Complainant was limited due to her being in college and the operating hours of the store were also limited, that there was no less favourable treatment of the Complainant.

·         That Ms. C recommended that mediation take place between the Complainant and her manager and that the Manager and the Complainant work together regarding the Complainants college hours and timetables and that the Complainant be shown how to update her availability on the system to ascertain if any additional hours were available in the store or in neighbouring stores.

·         That on 27th June 2020 the Complainant lodged an appeal in respect of those findings and that Ms. A. McG, General Manager from another location, and who was of a higher grade that Ms. C was appointed to conduct the appeal.

·         That Ms. McG met with the Complainant on 3rd August 2020 and considered the 3 grounds of appeal submitted by the Complainant.  Following consideration of those grounds that Ms. McG rejected the appeal and upheld the findings of the original grievance.

·         That Ms. McG noted that each store has allocated hours of work and staff members, such that there was limited scope within the store for an increase in hours if the staff member’s availability was limited, as was the case with the Complainant.  Ms. McG also noted that the Complainant’s availability changed on a regular basis and that although she may have wished for her hours to be increased, she had availability only on specific days which would not have not have suited the trading hours of the store.  Ms. McG had noted that at the appeal hearing on 3rd August the Complainant had accepted that though she wished for her hours to be increased she did not have significant availability having regard to her personal circumstances and her college attendance hours.  In addition, the Complainant had accepted that she was not in a position to work in a different store having regard to her personal circumstances at that time.

·         That in relation to the Brand Ambassador role, Ms. McG noted that the staff member to whom the ambassador role was offered worked longer hours than that of the Complainant and that the brand company was pushing for the role to be held by staff with longer hours in store in order to drive engagement with staff and customers.

·         That the position of Ms. C not being a suitable person to conduct the grievance was also rejected by Ms. McG in circumstances where it was common practice for general managers, with good operation knowledge, to undertake the investigation of grievances.  Ms. McG also rejected the position of the Complainant that she had been overlooked for increased hours given her own limited availability of hours.

·         That by letter of 10 August 2020 the Complainant was issued with a copy of the outcome of her grievances.

The Respondent submitted that the Complainant’s claim was fundamentally misconceived in circumstances where a considerable number of allegations, or complaints (including potentially all of the complaints) are statute barred by reason of not being submitted within:

1.       A period of 6 months from the alleged date of contravention; and

2.       The Complainant had failed to name a valid full time comparator who was allegedly treated more favourably.

Legal Issues:

Issue 1

The Respondent submitted that it was a matter of fact that the complaint was statute barred.  The Respondent outlined that the complaint was furnished by the Complainant to the WRC and received by the WRC on 21st May 2021. The Respondent submitted that Section 41(6) of the Workplace Relations Act 2015 provides that “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 the contravention to which the complaint relates.”  The Respondent further submitted that this matter was considered in the case of HSE v McDermott wherein Mr. Justice Hogan considered the wording of section 41(6), and in particular the meaning of the phrase “beginning on the date of the contravention to which the complaint relates.” 

In his decision on the matter, he held that:

“In other words, time runs for the purpose of the Act, not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention to which the complaint relates.  As EAT pointed out in its ruling on the matter, had the Oireachtas intended that the time was to run from the date of the first contravention it could easily have so provided.

For the purposes of this limitation period, everything turns accordingly in the manner in which the complaint is framed by the employee.  If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of 6 months beginning on the date of contravention to which the complaint relates, the complaint will nonetheless be in time.

It follows, therefore that is an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January 2014 onwards and which is presented to a rights commissioner in June 2014 will still be entitled for the purposes of section 6(4).  If on the other hand the complaint were to have been framed in a different manner, such that it related to a period from January 2010 onwards, it would therefore be out of time.”

The Respondent submitted that in circumstances where the complaint was framed within a period well in excess of six months prior to the date of the claim being lodged in May 2021, that any claims outside of the six-month period from November 2020 to May 2021 are therefore statute barred.

Issue 2

The Respondent noted that the Complainant had the following two complaints:

1.       That she should not have been removed as the Brand Ambassador and replaced by a staff member who worked 20 hours per week, and that such action on the part of the Respondent constituted less favourable treatment

2.       That she was not given the opportunity and/or was overlooked for an increase in hours, as compared to other staff members with various contractual hours up to 30 hours per week, and that such action on the part of the Respondent constituted less favourable treatment

The Respondent submitted that the foregoing could not constitute less favourable treatment for the purpose of the 2001 Act as alleged or at all.

The Respondent further submitted that in order to ground a complaint under the 2001 Act the complainant must demonstrate, as per section 9(1) that as a part time employee, “in respect of his or her conditions of employment, …. treated in a less favourable manner than a comparable full-time employee.”  In these circumstances the Respondent pointed out that the Complainant must demonstrate less favourable treatment as compared to a comparable full-time employee.

The Respondent submitted that the Complainant had failed to provide any comparable full-time employee to whom she could compare herself and that all of the employees to which the Complainant sought to compare herself had greater hours of employment than her, though none of them were full-time employees.  The Respondent submitted that the employees concerned had hours of employment between 16 and 30 hours per week and that the appropriate comparator for the purpose of the Act would be a staff member working in sales consulting and working a 39-hour week and on a 39 hour per week contract.  The Respondent drew attention to Section 7 of the 2001 Act which provides the definition of a full-time employee to mean “An employee who is not part-time” and further defines a part-time employee as “An employee whose normal hours of work is less than the normal hours of work of an employee who is a comparable employee in relation to him or her.”

The Respondent submitted, that in the circumstances where the Complainant had failed to provide a valid full-time comparator the claim must fail.

No less favourable treatment/objective justification

The Respondent submitted that, without prejudice to the foregoing, there was no less favourable treatment to the Complainant in relation to her conditions of employment for the purpose of section 9(1) of the 2001 Act.

The Respondent confirmed, in its submission that the Complainant’s hours of work were not increased, as she had sought, by virtue of her not having the ability as required by the store hours and the available hours within the store, having regard to the hours of work of other employees.

In the alternative, the Respondent submitted that there were two objective reasons for any less favourable treatment (which was denied), as per Section 9(2) of the Act, in circumstances where the reason for the Complainant not being offered increased hours was due to her lack of availability due to her college course and personal circumstances, and the hours available within the store.  The Respondent submitted that simply because an employee sought increased hours within the Respondent, did not mean that the hours could be increase having regard to the vagrancies of the foregoing.

The Respondent submitted that in relation to the removal of the Complainant from the Brand Ambassador position and this role being offered to an employee who worked a 20-hour week, this employee was not a suitable comparator for the purpose of the Act, in circumstances where the employee in question was also part-time and not a full-time member of staff of the Respondent.

The Respondent submitted that, without prejudice to the foregoing, there were objective reasons for any less favourable treatment (which was denied), in circumstances where there were reasons unconnected to the part-time hours of the Complainant for this treatment, in circumstances where the requirements of the brand company were that a staff member with more presence in the store was required in order to develop the company brand.  The Respondent submitted that this was reasonable on the company’s part, having regard to the requirement of the staff member to develop the brand with staff members and customers, such that employees with greater hours than the Complainant were more suitable to undertake that role.

In relation to the complaint that the Complainant had the handset taken from her in an unreasonable manner, the Respondent submitted that the Complainant was given 5 weeks’ notice of this action and it was reasonable for the handset to be returned in circumstances where she was no longer the Brand Ambassador.

The Respondent submitted that the Complainant did not take up the offer of mediation as suggested by Ms. C as she felt she did not require such an approach.  The Respondent submitted that that the suggestions put forward by Ms. C and Ms McG were reasonable and would have facilitated the Complainant to gain increased hours within her store, if available, by reason of sitting down with her manager and discussing her availability and uploading same on the availability app.

Respondent Conclusions:

The Respondent submitted that in all the foregoing circumstances:

·         That the claim of the Complainant under the Protection of Employees (Part-time Work) Act 2001 was statute barred

·         That the claims of the Complainant were fundamentally misconceived in circumstances where the Complainant failed to provide a valid full-time comparator as required by Section 9(1) of the Act

·         That without prejudice to the foregoing, there were objective reasons as per Section 9(2) of the Act for any less favourable treatment of the Complainant as a part-time employee

·         That the within claim of the Complainant of less favourable treatment should be dismissed.

Respondent Representative summary of Information at Hearing

The respondent Representative summarised the details outlined in the Respondent’s written submission and specifically drew attention to the complaint being statute barred and to the failure of the Complainant to provide a valid full-time comparator.  The Respondent Representative did not accept the Complainant’s position that the Brand Ambassador in the Balbriggan store was a valid comparator.

Preliminary Matters:

Issue 1 (The Complaint was statute barred)

In considering this issue I reviewed the complaint form and noted that it was a manual complaint for signed and dated by the Complainant on 21st May 2021. The complaint was accompanied by a cover email, also dated 21st May 2021.   Section 41(6) of the Workplace Relations Act states that “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 the contravention to which the complaint relates.”

Based on the foregoing any contravention complained of by the Complainant must have occurred between 22 November 2020 and the date of submission of the complaint on 21st May 2021 in order to be considered in time.  I noted that the specific events described by the Complainant were twofold:

1                     That the Respondent failed to grant her additional hours of work

2                     That the Respondent removed her from the role of Brand Ambassador.

In relation to 1 above the Complainant referred to 3 specific occasions when either she was refused additional hours or others were given additional hours that were not offered to her.  I noted from her complaint form that the dates of these events were listed as being January 2020, August 2020 and October 2020.  I noted that the grievance process in relation to these matters was fully concluded by 10th August 2020 when Ms. McG issued a letter containing her decision in the appeal of these grievances.  A copy of that letter was appended to the Respondent submission and the Complainant did not dispute this matter at hearing

In relation to 2 above I noted that the Complainant was removed from the role of Brand Ambassador in January 2020.

Based on the above dates it is clear that all of the contraventions complained of by the Complainant occurred outside of the cognisable time period for the Complaint and in those circumstances I find that the complaint is statute barred.

Issue 2 (The complaint is misconceived)

I noted that in her complaint form, the Complainant compared her less favourable treatment to those of other part-time workers.  At hearing when this matter was put to her, she referred to another full-time staff member working in a different store but did not describe how he had been treated differently to her.  In any event, the matters she complained of related to others in her store being given additional hours, while she was not and to another staff member (who was also a part-time worker) in her store being given the role of Brand Ambassador after she was removed from the role.  I noted that the Complainant accepted that all of the other staff referred to by her were part-time workers and that all staff in the same store as her were part-time workers.

As this complaint has already been found to have been statute barred it was not necessary to consider this issue, however for the avoidance of doubt I considered it important to address this question.

 Section 9(1) of the Act states that “a part-time employee, shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”  Thus, it is an essential component of grounding a case of less favourable treatment that the Complainant name a full-time employee who has been treated in a more favourable manner.  The Complainant has failed to provide such a comparison.

Accordingly, I find that the complainant has failed to provide an appropriate full-time comparator to ground her complaint of less favourable treatment under the Act.

I have found that this complaint was statute barred and that the complainant failed to provide an appropriate full-time comparator to ground her complaint of less favourable treatment under the Act. In these circumstances, it is my decision that this complaint is not well founded.

Less favourable treatment, part-time worker