Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

  Self-represented

 Self-represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act 1946

CA-00058210-001

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act 1946

CA-00058210-002

10/08/2023

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

CA-00058210-003

10/08/2023

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

CA-00058210-004

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00058210-005

10/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act 1946

CA-00058210-006

10/08/2023

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

CA-00058210-007

10/08/2023

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

CA-00058210-010

10/08/2023

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

CA-00058210-013

10/08/2023

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

CA-00058210-018

10/08/2023

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

CA-00058210-019

10/08/2023

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

CA-00058210-020

10/08/2023

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

CA-00058210-021

10/08/2023

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

CA-00058210-022

10/08/2023

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

CA-00058210-023

10/08/2023

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

CA-00058210-024

10/08/2023

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

CA-00058210-025

10/08/2023

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

CA-00058210-026

10/08/2023

The complainant was employed as a member of counter staff at a takeaway premises operated by the respondent .

She referred various complaints to the Commission on 10 August 2023 in connection with her employment and its termination on 6 August 2023.

Summary of complainant’s sworn evidence

The complainant worked as a counter assistant in the respondent’s takeaway business.  She initially worked 11 hours per week over two days. Payment was €70.00 per shift on weekdays and €75.00 per shift at weekends, which increased subsequently to €80.00 per shift on weekdays and €85.00 per shift on Friday, Saturday and Sunday.  From 2022 onwards, the complainant’s hours of work increased, and she was working 3 or 4 shifts per week.  Payment was in cash at the end of the shift; the complainant paid herself from the till.  In June 2023, the complainant asked for payslips as her hours and pay were not documented and she also asked for holiday pay.  She did not receive a contract of employment and she had no set hours of work.  

The complainant’s usual days of work were over the weekend and Monday; she rotated days with the other counter assistant staff member.  There was no set timetable.  The complainant and other staff member would discuss and agree their days of work between themselves. 

The complainant did not receive rest breaks at work and there were no other counter staff on shift with her.

A new chef was hired in 2022.  This person repeatedly made hand gestures towards the complainant which involved sweeping his hand across her breasts.  He also referred to the complainant’s breasts in conversation with the complainant, including following a medical procedure.   When the chef referred to the complainant, he called her “Diddy Mama” or “Big Diddy Mama”.     The complainant’s last day at work was 6 August 2023 following an incident of sexual harassment at work on 5 August 2023 when the chef pulled the complainant’s arms from across her chest and slapped her across her breasts.  The complainant finished her shift on 5 August and asked the other counter assistant staff member to cover her shift on the 6 August, but she was unable to.  The complainant went into work on 6 August; she told the respondent she couldn’t take it anymore and she telephoned her partner to come and collect her. 

The chef’s conduct continued from 2022 until August 2023 when the complainant left work.  It was constant.  The only time the complainant got a break was when the chef had a night off.  The complainant’s work area was a confined space.   The complainant asked the chef to stop; her partner also spoke to the chef about it and told him he had no right to do this to the complainant.  The owner of the business was aware of the chef’s behaviour and did nothing.  He was in the kitchen when this was going on and laughed about it.  The complainant asked the owner to tell the chef to stop, that she couldn’t take it.  The complainant’s partner became involved at that stage.  When the complainant’s partner told the chef to stop, the owner and chef laughed about it.  There was no handbook in terms of how to address harassment and no port of call for the complainant.

The complainant couldn’t leave work because she was under financial pressure.

The complainant did not go to the owner about the incident of 5 August; there was no point because the behaviour had been going on for 1.5 years and the owner had done nothing about it.

The complainant asked for her annual leave and entitlements approximately one week after she left work.  The owner came to her house, but the complainant did not want to engage with him. 

In response to questions from the respondent, the complainant said her working relationship with the owner had been ok at the start and her working relationship with the chef had not been a bad one. 

Summary of sworn evidence of the business owner

In the beginning, the complainant worked 10/11 hours in total per week; on a Tuesday and Wednesday.

He disagreed with the complainant’s evidence that she worked three or four shifts per week.  The complainant only worked two days per week.  The other counter assistant worked 5 days.  The owner left it up to these two staff members to negotiate and agree their shifts. 

The complainant worked part-time therefore there was no need for her to have a written contract or payslips.  She was always paid in cash.  In relation to annual leave and public holiday entitlements, the owner had told the other counter assistant to tell the complainant that there was no annual leave or public holiday payment as this was included in the shift rate of €70, which was subsequently increased to €75 per shift.   The witness referred to a basic shift rate of €52.60. 

The complainant subsequently requested more days and she then probably worked 3 days per week.  The owner was not involved in the negotiation of more working days; this was agreed between the complainant and the other counter assistant.  Initially the owner did not allow the complainant to work over the weekend but then the complainant and other counter assistant agreed it.

The owner agreed with the shift rates outlined by the complainant, which rates he said had been increased by the complainant.   The owner said that there were 5/6 hours in a weekday shift and 7 hours on a weekend shift.  The weekday shift was from when the takeaway opened at 5pm until 11 or 11.30pm and the weekend shift was from when the takeaway opened at 5pm and closed at 12.00am.

There were no break times of fixed duration.  The rule was that you could have a break or cup of tea whenever you wanted; it was very casual. 

The owner said that there was no situation where there was contact or discussion with the complainant after the 6 August.  The owner did not realise the complainant had quit her job.

The owner never found any evidence of harassment from the shop camera.  The first time the owner heard of the complainant’s complaint of sexual harassment was when the complainant referred her complaint to the Workplace Relations Commission.  He had heard the chef refer to the complainant as “Diddy Mama”, but he had not understood what it meant.  He could not recall seeing any gestures or comments towards the complainant in the kitchen.  The relationship between the owner, the chef and the complainant had been very good.  The complainant had invited them to her home on one occasion and invited them to her wedding in 2023 so the owner had thought it a good relationship.  The complainant’s partner had never spoken to him about conduct in the workplace.

The general procedure regarding unacceptable conduct in the workplace was that the owner would have spoken with the chef, however as these things did not actually happen the owner did not have to do this.  The relationship between the complainant and the chef was one where they joked with each other, and the owner did not interfere with them.

The complainant was employed by the respondent as a counter assistant in its takeaway business.

It is clear from the evidence that there was no oversight or proper management by the respondent of aspects of the complainant’s employment, notably her hours of work and pay.  While the respondent initially maintained that the complainant only worked 2 days and the other counter assistant worked 5 days, the respondent subsequently acknowledged in evidence that the complainant and other member of staff agreed what shifts they worked between themselves, that the complainant had wanted to do more hours of work and did in fact do more shifts following negotiations with the other counter assistant.  The respondent concluded that the complainant probably did 3 days per week and acknowledged that the complainant had wanted to do weekend work. 

The complainant did not receive payslips whilst in employment but a payslip with a pay date of 16 July 2023, obtained subsequently, recorded gross pay as €234.00.  I accept the complainant’s evidence that the payslip did not accurately reflect her pay and that the complainant paid herself in cash from the till at the end of a shift, which, at the time her employment ended, was either €80.00 for a shift worked Monday to Thursday or €85.00 for a shift worked Friday to Sunday. 

The respondent in evidence outlined the open and close times of the business; these did not correspond with his initial evidence that a shift was five or six hours.  Based on the respondent’s account of the open and close times of the business, I accept the complainant’s evidence that her hours of work Monday to Thursday were 4.30pm to midnight, and that her hours of work Friday to Sunday were 4.30pm to 12.30am.  

The respondent’s evidence that the basic shift pay was €52.60 and that the shift rate included public holidays and annual leave is neither accepted by me nor is it lawful having regard to the shift hours, on either the complainant or respondent’s account of same. 

For the purpose of this adjudication, I accept that the complainant worked 3 shifts one week and 4 shifts the following week, alternating with the other counter assistant, and I have had regard to the fact that the national minimum wage from 1 January 2023 was €11.30 per hour.   

CA-00058210-001 (Industrial Relations Act 1946)

The complainant was not an employee to whom an employment regulation order applied. 

The complainant confirmed withdrawal of this complaint at the hearing.

CA-00058210-002 (Industrial Relations Act 1946)

The complainant was not an employee to whom an employment regulation order applied. 

The complainant confirmed withdrawal of this complaint at the hearing.

CA-00058210-003 (Terms of Employment (Information) Act 1994)

The complaint presented to the Commission was that the complainant was not provided with a written statement of her terms of employment.

Based on the complainant’s weekly working hours, the respondent was required by section 3(1) of the Terms of Employment (Information) Act 1994 (the “1994 Act”) to provide the complainant with a statement in writing concerning certain particulars of the complainant’s terms and conditions of employment within 2 months of the commencement of her employment with the respondent in June 2021.

I find that section 3(1) of the 1994 Act was contravened by the respondent and that this was a subsisting contravention up until the complainant’s employment terminated on 6 August 2023.  

I find this complaint to be well founded and order the respondent to pay to the complainant compensation of €1,200.00, which I consider just and equitable having regard to all the circumstances.

CA-00058210-004 (Terms of Employment (Information) Act 1994)

The complaint is that the complainant was not notified in writing of a change to her terms of employment.

The complainant was initially employed to work 2 days per week.  Her weekly working hours changed, and she was not notified in writing of this change.

I find that section 5 of the 1994 Act was contravened by the respondent and that this complaint is well founded.

CA-00058210-005 (EC (Road Transport) Regulations 2012 – S.I. No.36/2012)

These Regulations apply to mobile workers and those engaged in international road transport activities.  

The complainant acknowledged that her employment did not come within the scope of the Regulations and withdrew the complaint at the hearing.

CA-00052810-006 (Industrial Relations Act 1946)

The complainant was not an employee to whom an employment regulation order applied. 

The complainant confirmed withdrawal of this complaint at the hearing.

CA-00052810-007 (Unfair Dismissals Act 1977)

The claim under the Unfair Dismissals Act 1977-2015 (the “Acts”) is that the complainant was constructively dismissed on 6 August 2023 due to sexual harassment in the workplace and the respondent’s non-payment of wages and holiday pay for two years.

The Law

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the Acts, as follows:-

“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,”

There are therefore two situations envisaged in which a resignation may be considered a constructive dismissal; where the employer’s conduct amounts to breach of contract or repudiation of the contract (the “contract test”) or is such in relation to the employee that it was reasonable for the employee to resign (the “reasonableness test”).  The Contract Test

The accepted statement of this test is by Lord Denning MR in Western Excavating v Sharp [1978] ICR 221:-

“If the employer is guilty of conduct which 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 discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  … [T]he conduct must … be sufficiently serious to entitle him to leave at once …”

Reasonableness Test

Constructive dismissal may arise where the employer’s conduct was such that it was reasonable for the employee to terminate his or her employment.  Lord Denning MR addresses this concept in the same case:

“It is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving.”

There is a high burden of proof on an employee in a constructive dismissal claim to show that there was no option in the circumstances other than to terminate the employment.  It is clearly the case that the respondent failed to comply with basic employment rights vis-à-vis the complainant’s employment.  She did not receive payslips, a written statement of her terms of employment and did not receive annual leave and public holiday entitlements.  Whilst this is clearly undesirable and far from acceptable, I am not satisfied, on the evidence before me, that it was this conduct that caused the complainant to leave her employment on 6 August 2023.  The complainant worked for the respondent for over 2 years, during which time, on the complainant’s own account, the respondent did not issue payslips and did not properly record the complainant’s hours of work and pay.  It was the complainant’s direct evidence that she asked the owner of the respondent business for payslips and annual leave in June 2023, and for outstanding annual leave and her entitlements in August 2023 after she left employment.

I am however satisfied that the respondent’s conduct was such that the complainant’s trust and confidence in it was breached.  The respondent in this case had no regard to best practice in employment, in particular it failed to have procedures in place to promote a workplace free from harassment and to protect its employees.  I am satisfied that the complainant and her partner raised issues with the respondent owner concerning unwelcome conduct by another employee towards the complainant.  The respondent did nothing about this which had the effect of destroying or seriously damaging the complainant’s trust in the respondent, such that, when a related serious incident occurred in the workplace on 5 August 2023, the complainant was justified in terminating her employment with the respondent.

Redress

The complainant’s preferred form of redress was compensation, and this is what was addressed by the parties at the hearing.  The owner of the business was not in the country at the time of the hearing, and I was informed by the complainant after the hearing that the business is for sale.  Having regard to all the circumstances, I do not consider redress of reinstatement or re-engagement to be appropriate. 

Section 7(1)(c) of the Acts provides as follows: -

“(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following [the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

(a)    …

(b)    …

(c)     (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

…”

Financial loss is defined in section 7(3) of the Acts and includes any actual loss and any estimated prospective loss of income attributable to the dismissal.

The complainant secured alternative employment at the end of September 2023 where she remained working on a part-time basis until the end of November 2023.  The complainant’s evidence was that she suffers from depression and has at all material times been in receipt of disability allowance.  In response to my questions, the complainant advised that, due to a lot of underlying problems, she has been told not to work until she is better.

The complainant has incurred financial loss attributable to the dismissal in respect of the period from 6 August 2023 to the end of November 2023, from which time she has not been fit for work.    I determine compensation of €2,750.00, which is based on an hourly rate of €11.30 and the complainant’s average weekly working hours in employment with the respondent, to be just and equitable having regard to all the circumstances.

CA-00052810-010 (Employment Equality Act 1998)

This complaint was of sexual harassment and the complainant not having received equal pay contrary to the Employment Equality Acts 1998-2015 (the “Acts”). 

Section 85A of the Acts requires a complainant to establish facts from which it may be presumed that there has been discrimination in relation to him or her.  If such facts are established, it is then for the respondent to prove the contrary.  

The burden of proof is therefore on the complainant to show that she was sexually harassed and did not receive equal pay.

In Southern Health Board v. Mitchell (2001) E.L.R. 201, the Labour Court held:

“The first requirement … is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Sexual Harassment

Sexual harassment constitutes unlawful discrimination in relation to an employee’s conditions of employment under section 14A of the Acts.

Sexual harassment is defined in section 14A(7) as follows:-

“(a)…

(i)…

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

I find on the complainant’s evidence that she experienced unwanted conduct of a sexual nature on 5 August 2023 when another employee pulled her arms from across her chest and slapped her across her breasts.  The owner maintained that he had checked the video footage after the complaint and that there was no evidence of any harassment.  I note however there was no reference to video footage by the respondent or on behalf of the respondent prior to the hearing, and that when I asked the owner about the video footage, he said the video footage only recorded a little of the 5 August shift.  It was common case that the complainant’s partner went to the place of business to speak to the owner and perpetrator in the days following the 5 August incident.  The complainant worked on her own at the counter at the respondent’s place of business and I am satisfied that such conduct had the effect of violating the complainant’s dignity and creating an intimidating, degrading, humiliating and offensive environment for the complainant.

The complainant complained of unwanted conduct on a sustained basis over the course of 2022 and 2023 in and around how the same employee referred to her as “Diddy Mama” and made gestures towards her breasts.  I have very carefully considered the evidence relevant to this aspect of the sexual harassment complaint, including the uncontested evidence of the respondent that the complainant invited the owner and employee to her house and to her wedding in 2023. 

The owner of the respondent business was familiar with the fact that this was how the complainant was referenced in employment and there was message chat before me evidencing the complainant referred to as Diddy Mama.  The owner said he did not understand what the reference “Diddy Mama” meant.  The complainant had personal health concerns and underwent a breast check procedure in February and March 2023, of which both the owner and other employee were aware.  The gesturing and inappropriate verbal references continued in and around this time.   I also note the respondent’s evidence that he could not recall seeing any of the complained of gesturing and that the relationship between the complainant and other employee was very good, they told jokes to each other and that he didn’t interfere with them.  On balance, I am satisfied the name calling and gesturing was unwanted conduct and that it had the effect of violating the complainant’s dignity and creating a degrading and offensive environment for the complainant in the workplace. 

It is irrelevant that the owner of the business or the perpetrator did not intend to harass the complainant or that they considered this to be workplace banter.  The owner of the respondent business submitted that he did not see any sexual harassment and he maintained that it had not occurred, because if it had, the complainant would have called the guards.   The complainant was given no documentation relating to her terms and conditions of employment and workplace procedures, including any complaints procedure.  The owner accepted that references to Diddy Mama were made but he did not have time to google search what this meant, and he did not notice or realise that these words were offensive.   

I am not satisfied the respondent had in place any measures to prevent or address harassment in the workplace; had there been any awareness in this regard, the respondent may have been alert to the employee’s conduct and been appropriately responsive to the complainant raising issues in this regard.  The respondent’s evidence on what he would have done if he had been aware is not a defence to the sexual harassment that occurred. The respondent failed to take reasonably practicable steps to prevent the harassment from happening and, in the circumstances, is liable.

I conclude that the complainant was sexually harassed.  I find this aspect of her complaint under the Acts to be well founded and consider an order for compensation to be appropriate in the circumstances of this case.  I award the complainant €8,000.00 in compensation for the effects of the discrimination; this equates to approximately 6 months’ remuneration, which compensation I consider to be effective, proportionate and dissuasive.   

There was no evidence before me of a difference in pay between the complainant and a named comparator and no evidence of a difference in pay being by reason of one of the protected grounds under the Acts.

The complainant has not discharged the probative burden on her in relation to the equal pay aspect of her complaint under the Acts.  In the circumstances, I find the equal pay complaint to be not well founded.

CA-00058210-013 (Protection of Employees (Part-Time Work) Act 2001)

The complaint presented was that the complainant was treated less favourably than a comparable full-time employee in respect of her conditions of employment.

Section 9 of the Protection of Employees (Part-Time Work) Act 2001 provides:-

“(1) Subject to subsections (2) and (4) and section 11(2), 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.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.”

Section 7(1) of the Protection of Employees (Part-Time) Work Act 2001 defines a part-time employee for the purpose of section 9 as meaning “an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her”.

The complainant did not refer to a comparable employee and she did not identify conditions of employment in respect of which she complains she was treated in a less favourable manner than a comparable full-time employee.

On the evidence, I am unable to establish that the complainant was a part-time employee within the meaning of section 7(1) of the 2001 Act.  Accordingly, my decision is that this complaint is not well-founded.

CA-00058210-018 (Organisation of Working Time Act 1997)

The complainant submitted she was not compensated for working on a Sunday.

Section 14 of the Organisation Working Time Act 1997 provides:

“(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.”

The evidence before me was of the complainant having worked on Sundays during the cognisable period, 11 February to 10 August 2023.   Given the information before me on pay, which I have addressed at the outset of my findings and conclusions, I am satisfied there was no provision made for working on Sundays.

I find that the complaint of a contravention of section 14 of the 1997 Act is well founded and require the respondent pay to the complainant compensation in the sum of €610.00, which I consider to be just and equitable having regard to all the circumstances.

CA-00058210-019 (Organisation of Working Time Act 1997)

The complainant referred a complaint that she did not get a daily rest period.

Section 11 of the Organisation of Working Time Act 1997 provides for the entitlement to a daily rest period of not less than 11 consecutive hours in each period of 24 hours during which an employee works for their employer.

On the complainant’s own account of her working hours, I am satisfied that she received the statutory minimum daily rest period.

I therefore decide that this complaint of a contravention of section 11 of the Organisation of Working Time Act 1997 is not well founded.

CA-00058210-020 (Organisation of Working Time Act 1997)

The complainant referred a complaint that she did not get breaks.

Section 12 of the Organisation of Working Time Act 1997 provides as follows:-

“(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

There was a dispute in the evidence of the parties on the number of hours in a shift.  However on either account, the shift hours worked by the complainant entitled her to a reast break at work.

It is well established that an employer is under a positive duty to ensure that employees receive their rest breaks; the respondent operating on the basis that an employee could have a break whenever they wanted does not discharge the duty.  There were no procedures in place to ensure that the complainant received the breaks to which she was entitled based on the shift hours.  The respondent’s evidence was that there were no set break times of fixed duration.  It follows that the complainant did not know in advance when she would have an uninterrupted rest interval to use as she wished, and which was separate and distinct from her working time.

My decision is that the complaint of a contravention of section 12 of the Organisation of Working Time Act 1997 is well founded and require the respondent pay to the complainant compensation in the sum of €610.00, which I consider to be just and equitable having regard to all the circumstances.

CA-00058210-021 (Organisation of Working Time Act 1997)

The complainant submitted that she did not receive paid annual leave entitlement.

The respondent’s position was that annual leave or holiday pay was included in the shift rate.

Section 19 of the Organisation of Working Time Act 1997 (the “1997 Act”) entitles an employee to minimum paid annual leave in a leave year by reference to hours worked:-

“(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a 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, or

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

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The purpose of section 19 is to enable an employee to have a period of rest and relaxation during which they are paid and without any obligation to work or provide any service to the employer.  The inclusion of holiday pay in the shift pay does not meet the requirements of section 19.  The right to paid annual leave is expressly provided for in Article 31(2) of the Charter of Fundamental Rights of the European Union and is a principle of European social law from which there can be no derogations and

A leave year for the purpose of the 1997 Act is the period from 1 April to 31 March. 

Having regard to the time limits for referral of a complaint of a contravention, as set out in section 41 of the Workplace Relations Act 2015 (the text of which is set out under CA-00058210-024), I find that the complainant did not receive the benefit of paid annual leave in accordance with section 19 of the 1997 Act in respect of the leave year 1 April 2022 to 31 March 2023.  I have addressed the leave year entitlement commencing 1 April 2023 separately under CA-00058210-025.

On the evidence available to me, the approximate monetary value of the complainant’s paid annual leave entitlement for the relevant leave year by reference to section 19(1)(c) of the 1997 Act is €1,200.00.  In terms of redress, I have considered the principle established in Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1981 to the effect that where rights under European law are infringed, redress should not only compensate for economic loss, but provide a deterrent against future breaches. 

I find the complaint of a contravention of section 19 in respect of the leave year 2022/2023 to be well founded and I direct the respondent pay compensation to the complainant in the sum of €2,400.00, which I consider just and equitable having regard to all the circumstances.   

CA-00058210-022 (Organisation of Working Time Act 1997)

The complainant submitted that she never received public holiday entitlements.  The respondent’s position was that public holiday pay was included in the shift rate.

Section 21 of the Organisation of Working Time Act 1997 (the “1997 Act”) provides for entitlement in respect of public holidays in relevant part as follows:-

“(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

Having regard to the time limits for referral of a complaint of a contravention of section 21 of the 1997 Act, as provided for in section 41 of the Workplace Relations Act 2015 (the text of which is set out under CA-00058210-024), the cognisable period in respect of this complaint is the period from 11 February 2023 to 6 August 2023, the date on which the complainant’s employment with the respondent terminated. 

There were 4 public holidays that fell in the period from 11 February 2023 to 6 August 2023, namely St Patrick’s Day, Easter Monday, 1 May and 5 June.

The complainant’s evidence was that she worked on all of the above-mentioned public holidays.  This evidence was not contested by the respondent.  I am satisfied the complainant did not receive public holiday benefit in accordance with section 21 of the 1997 Act.

Accordingly, I find that the respondent has contravened section 21 of the 1997 Act in respect of the relevant public holiday and that the complaint in this regard is well founded. Based on the shift hours and national minimum wage rate, I direct the respondent pay compensation to the complainant in the sum of €340.00, which I consider just and equitable having regard to all the circumstances.   

CA-00058210-023 (Organisation of Working Time Act 1997)

The complaint is that the complainant was not notified of her start and finish times.

Section 17(1) of the Organisation of Working Time Act 1997 (the “1997 Act”) provides as follows:-

“(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week[,and the employee's employer shall ensure the work takes place within predetermined reference hours and days.”

The complainant gave evidence of her daily working hours which were based on the opening and closing time of the business, which were dependent on the day of the week.   It was common case that the arrangement in employment was for the complainant and another member of the respondent’s counter staff to agree between themselves the days they would work each week.  the evidence does not establish the respondent proposing to require or requiring the complainant to work at particular times or days.  There was no evidence of the respondent requiring the complainant to start or finish work at a particular time or on a particular day.  The complainant agreed her days of work with a co-worker.  There was no variation in daily start or finish times as they coincided with the opening and closing hours o the business.

The complainant has not established a contravention of section 17 of the 1997 Act.

I find the complaint to be not well founded.

CA-00058210-024 (Organisation of Working Time Act 1997)

The complaint is that the complainant was not notified in advance of any additional hours.

Section 17(2) of the Organisation of Working Time Act 1997 provides:-

“If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.”

The complainant’s evidence was of the complainant and the other counter assistant agreeing between themselves what shifts they would work.  The complainant submitted that she was required to work daily for 3 weeks after she returned from a 3-month leave period from February to April 2022, to give the staff member who had covered for her a break.

There are time limits for referral of a complaint under the Organisation of Working Time Act 1997 (the “1997 Act”) which are set out in the Workplace Relations Act 2015.

Section 41 of the 2015 Act provides as follows:-

“(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 the 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.”

A complaint of a contravention of section 17 of the 1997 Act regarding notification of additional hours of work on the complainant’s return to the workplace in April/May 2022 has been referred outside of the statutory timeframe, as set out above. 

In the circumstances, I find that this complaint is not well founded.

CA-00058210-025 (Organisation of Working Time Act 1997)

The complaint is of non-payment of annual leave entitlement on cessation of employment.

Section 23 of the Organisation of Working Time Act 1997 provides:-

“(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.”

The relevant period in respect of this complaint is the period from 1 April 2023 to the termination of the complainant’s employment on 6 August 2023.

This is not simply a case of the respondent failing to pay for loss of the complainant’s annual leave on cessation of her employment.  The respondent’s position was that pay for annual leave was included in the complainant’s shift pay.  I note the owner’s response to the complainant’s request for holiday pay in June 2023 when the business was closed, to the effect that he would give the complainant a loan.  This was a case where the respondent did not observe the complainant’s entitlement to paid annual leave.

On the evidence available to me, the approximate monetary value of the complainant’s paid annual leave entitlement for the relevant leave year by reference to section 19(1)(c) of the 1997 Act is €439.00.  In terms of redress, I have considered the principle established in Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1981 to the effect that where rights under European law are infringed, redress should not only compensate for economic loss, but provide a deterrent against future breaches. 

I find the complaint of a contravention of section 23 of the 1997 Act to be well founded and I direct the respondent pay compensation to the complainant in the sum of €878.00, which I consider just and equitable having regard to all the circumstances.   

CA-00058210-026 (Organisation of Working Time Act 1997)

The complaint is that the complainant was not compensated for loss of public holiday entitlement on leaving.

Section 23(2) of the Organisation of Working Time Act 1997 provides:-

“Where—

(a) an employee ceases to be employed during the week ending on the day before a public holiday, and

(b) the employee has worked for his or her employer during the 4 weeks preceding that week,

the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day's pay calculated at the appropriate daily rate.”

The complainant’s employment ceased on 6 August 2023.  The complainant did not receive public holiday entitlement in accordance with section 23(2) of the 1997 Act in respect of the first Monday in August public holiday, which fell on 7 August 2023.

I find this complaint of a contravention of section 23 of the 1997 Act to be well founded and I direct the respondent pay compensation to the complainant in the sum of €84.75, based on the shift hours and national minimum wage rate, which I consider just and equitable having regard to all the circumstances.   

CA-00052810-001 (Industrial Relations Act 1946)

The complaint was withdrawn by the complainant at the hearing.

CA-00052810-002 (Industrial Relations Act 1946)

The complaint was withdrawn by the complainant at the hearing.

CA-00058210-003 (Terms of Employment (Information) Act 1994)

For the reasons set out above, I find that this complaint of a contravention of section 3(1) of the 1994 Act is well founded and order the respondent to pay to the complainant compensation of €1,200.00, which I consider just and equitable having regard to all the circumstances.

CA-00058210-004 (Terms of Employment (Information) Act 1994)

For the reasons set out above, I find that this complaint of a contravention of section 5 of the 1994 Act is well founded.  I make no further order under section 7(2) of the 1994 Act.

CA-00058210-005 (EC (Road Transport) Regulations 2012 – S.I. No.36/2012)

The complaint was withdrawn by the complainant at the hearing.

CA-00052810-006 (Industrial Relations Act 1946)

The complaint was withdrawn by the complainant at the hearing.

CA-00052810-007 (Unfair Dismissals Acts 1977-2015)

I decide that the complainant was unfairly dismissed for the reasons set out above and direct the respondent pay to the complainant compensation of €2,750.00.

CA-00052810-010 (Employment Equality Acts 1998-2015)

For the reasons set out above, I find that the complaint under the Acts is in part well founded and, in accordance with section 82 of the Acts, I direct the respondent pay to the complainant €8,000.00 in compensation for the effects of discrimination, namely sexual harassment.

CA-00052810-013 (Protection of Employees (Part-Time) Work Act 2001

For the reasons set out above, I find that this complaint is not well founded.

CA-00058210-018 (Organisation of Working Time Act 1997)

For the reasons set out above, my decision is that this complaint of a contravention of section 14 of the Organisation of Working Time Act is well founded.  The respondent is directed to pay to the complainant compensation in the sum of €610.00, which I consider to be just and equitable having regard to all the circumstances.

CA-00058210-019 (Organisation of Working Time Act 1997)

For the reasons set out above, my decision is that this complaint of a contravention of section 11 of the Organisation of Working Time Act 1997 is not well founded.

CA-00058210-020 (Organisation of Working Time Act 1997)

For the reasons set out above, my decision is that this complaint of a contravention of section 12 of the Organisation of Working Time Act 1997 is well founded.  The respondent is directed to pay to the complainant compensation in the sum of €610.00, which I consider to be just and equitable having regard to all the circumstances.

CA-00058210-021 (Organisation of Working Time Act 1997)

For the reasons set out above, my decision is that the complaint of a contravention of section 19 of the Organisation of Working Time Act 1997 in respect of the leave year 2022/2023 is well founded.  The respondent is directed to pay to the complainant compensation in the sum of €2,400.00, which I consider to be just and equitable having regard to all the circumstances.

CA-00058210-022 (Organisation of Working Time Act 1997)

For the reasons set out above, I find that the complaint of a contravention of section 21 of the 1997 is well founded and I direct the respondent pay compensation to the complainant in the sum of €340.00, which I consider just and equitable having regard to all the circumstances.   

CA-00058210-023 (Organisation of Working Time Act 1997)

For the reasons set out above, my decision is that this complaint is not well founded.

CA-00058210-024 (Organisation of Working Time Act 1997)

For the reasons set out above, my decision is that this complaint is not well founded.

CA-00058210-025 (Organisation of Working Time Act 1997)

For the reasons set out above, I find the complaint of a contravention of section 23 of the 1997 Act to be well founded and I direct the respondent pay compensation to the complainant in the sum of €878.00, which I consider just and equitable having regard to all the circumstances.   

CA-00058210-026 (Organisation of Working Time Act 1997)

For the reasons set out above, I find this complaint of a contravention of section 23 of the 1997 Act to be well founded and I direct the respondent pay compensation to the complainant in the sum of €84.75, which I consider just and equitable having regard to all the circumstances.   

Multiple complaints - Constructive dismissal – Sexual harassment - Annual leave – Public holidays – Rest breaks