ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00046840

Parties:

Complaint(s):

Date of Adjudication Hearing:  24/04/2024

Workplace Relations Commission Adjudication Officer:  Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.

The matter was heard by way of remote hearing on 25 January 2024, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings. This hearing was adjourned due to the illness of a key witness for the Respondent.

Subsequently in person hearings of the case took place on 28 March 2024 and 24 April 2024.

At the outset of the hearing the following complaints were withdrawn by the Complainant:

CA-00057040-011; CA-00057040-012; CA-00057040-017.

Background:

Preliminary Issue

The Respondent’s representative raised a preliminary issue.  The Respondent submits that the Complainant initially commenced employment on 25 January 2022 as a café worker.  She continued to work until 22 April 2022, when she resigned. She recommenced employment on 10 October 2022, under a part-time contract as requested by the Complainant due to her desire to seek Social Welfare benefits. The employment ended on 9 May 2023 in circumstances where she resigned due to her not being granted four weeks’ annual leave in August of that year. As the Complainant referred her complaints to the WRC on 9 June 2023, it is the Respondent’s submission that the matters alleged from 9 December 2022 to the date of resignation on 9 May 2023 are the applicable dates to these claims.  The Respondent submits that the Complainant has not set out the reasons why an Adjudication Officer would look past the cognisable period as provided for within s.41(8) of the Workplace Relations Act, 2015.

In response to the arguments put forward by the Respondent regarding time limits, the Complainant’s representative accepted that due to the date of referral of the complaint form to the WRC, some complaints do fall outside the 6-month time limit, e.g., the complaint under the Maternity Protection Act, 1994.  However, the time limits can be extended outside the limits if there was a continuation of the detriment. Regarding the specific complaints under the Organisation of Working Time Act, 1997, the Complainant’s representative accepted the 6-month time limit but put forward that the contraventions continued into the cognisable period.  There was an acceptance that the Complainant cannot be compensated for breaches that took place outside of “the window.”

In a written submission the Complainant submits that she commenced employment with the Respondent in April 2021, on a part-time basis, working one hour per day.  She was paid €8 per hour. After several weeks her hours were increased, and she was given extra responsibilities.  Within a short period, she found herself working 12-hour days, commencing at 9.00 a.m., and going through to 9.00 p.m. with no breaks except for occasional cigarette breaks.  Despite the lowly hourly rate, the Complainant submits that she was never paid for the full hours and would invariably be left short at least two hours per day.

Around June 2021, the Complainant was promoted to the role of full-time general operative. She continued to be paid €8.00 per hour.

The Complainant gave evidence on oath.

By way of background the Complainant explained she started working for the Respondent in April 2021, for one hour per day. Not long after this she was asked to work more hours. She was paid €8 per hour at this stage. She stated that she was never given a written statement of employment. She was not getting payslips.  By June 2021, she was typically working from 9.00 a.m. to 9.00 p.m. The Respondent did not keep a record of the hours she worked, rather she kept a note of them herself. She stated that she was never paid fully for the hours she worked.

The Complainant denied the assertion made by the Respondent that she only started working in the shop in January 2022, the Complainant stated that she worked every day from April 2021.  The Complainant verified a photo taken in the shop dated 25 June 2021 at 9.00 a.m. Other photos showing dates in 2021 were said to be genuine by the Complainant, including a photo of her roster.

A former employee, who worked in the same shop as the Complainant, Ms Erin Power, gave evidence at the hearing. Regarding the Complainant’s length of service, Ms Power stated that, she started working for the Respondent in September 2021.  When she started the Complainant was already working in the shop.  Ms Power was still working in the shop in April 2022 and the Complainant was still there, though the witness stopped working there soon after.

In response to questions put to her in cross examination, Ms Power stated that she started working for the Respondent in September 2021 and finished in May 2022.  She enjoyed working with the Respondent and had never made any complaints about her job to the Respondent.

Decision on the Preliminary Issue

Having considered the points raised by both sides in relation to this preliminary issue, I decided that the best course of action to take was to hear the evidence of the parties in full and then decide on time limits for each of the 14 complaints made by the Complainant.

Having heard the evidence adduced at the hearings, noting in particular the evidence given by one witness, Ms Erin Power, I find there was no break in service as proposed by the Respondent.  I find the Complainant’s service to have been continuous from April 2021 until May 2023.

Openings

At the outset the Complainant’s representative stated that he had serious misgivings about the authenticity of many of the documents provided by the Respondent to the WRC.  The Complainant’s representative stated that the documents provided by the Respondent relating to the claims under the Organisation of Working Time Act, 1997, were fabricated. So too was the document purporting to be the Complainant’s contract of employment.  In addition, the Complainant’s representative asserted that the witness statements [related to the Unfair Dismissal claim] purporting to be those of the Complainant were also fabricated.

The Respondent denies this allegation and submits that at all times proper records were maintained pertinent to the Complainant’s employment and legislative requirements.

Working Time

Seven complaints were made under the Organisation of Working Time Act, 1997.  For clarity these complaints are grouped together.

The Complainant submits regarding these complaints that, Section 25 of the Act requires employers to keep written records proving that provisions of the Act are being complied with for a period of at least three years to date.  Section 25(4) states that, where an employer, fails to keep records in relation to a specific employee, the onus of proving compliance with the Act in relation to claims brought by that employee shall fall on the employer.  In this instant case, the Respondent failed to keep written records of compliance with the Act.

CA-00057040-001 Complaint under section 27 of the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00057040-005 Complaint under section 27 of the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case.

The Complainant submits that she did not receive her Public Holiday entitlements, no extra pay or time off in lieu.

In her direct evidence the Complainant stated that she did not have to work on Public Holidays during the first year of her employment with the Respondent but subsequently she did have to work on Public Holidays, and she did not get any additional benefit for working on these days.

In her evidence Ms Power stated she was never paid for public holidays

Summary of Respondent’s Case

The Respondent submits that the Complainant has failed to submit to what Public Holidays

(seven during the cognisable period) she is referring.  The Respondent submits working time records for the cognisable period.

A Ms Larrisa Rad, an employee of the Respondent, gave evidence on Oath at the hearing.

Ms L. Rad stated that she was paid for working Public Holidays.

Mr David Marsh, a Director of the Respondent company, gave evidence at the hearing on Affirmation.

In his evidence, Mr Marsh stated that he did not know if the Complainant was paid her Public Holiday entitlements.

Findings and Conclusions

Section 21 of the 1997 Act states:

 Entitlement in respect of public holidays.

21.—(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.

Although the evidence adduced at the hearing was conflicted, in this instance I prefer the evidence of the Complainant, particularly in light of the corroborating evidence provided by Ms Power.  I do not accept the records provided by the Respondent at the hearing were genuine records. I find the Complainant was not paid for the Public Holidays she worked in the cognisable period. This complaint was lodged on 9 June 2023; therefore, the Complainant is due to be paid for the following Public Holidays:

• New Year's Day (1 January)
• First Monday in February, or 1 February if the date falls on a Friday
• Saint Patrick's Day (17 March)
• Easter Monday
• First Monday in May
• First Monday in June

A total of 6 days.

As per Section 27(3) of the 1997 Act, I require the Respondent to pay the Complainant six days pay at a rate of €202.50 per day.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is well founded and I require the Respondent to pay the Complainant €1,215.

CA-00057040-006 Complaint under section 27 of the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case

The Complainant submits that she was not paid her annual leave entitlements.

In her direct evidence the Complainant stated that the only annual leave payment she received from the Respondent was when she gave birth, and she was given one week’s pay.

Section 19 of the 1997 Act, mandates that employers must give employees paid annual leave equivalent to 4 weeks’ pay per year.  The Respondent failed to ever pay the Complainant paid annual leave.  The Complainant seeks compensation in respect of same.  In calculating such an award, the Complainant should have been paid €810 per week.  Four weeks at such a rate which would have been payable during the final 6 months reference period of her employment with the Respondent would equate to €3,240.

In her evidence Ms Power stated she was never paid for annual leave.

Summary of Respondent’s Case

The Respondent submits that all annual leave payments were furnished to the Complainant as can be seen from the timekeeping records provided to the WRC.

In his evidence, Mr Marsh stated that he did not know if the Complainant was paid her annual leave entitlements.

Findings and Conclusions

I prefer the evidence of the Complainant, particularly when corroborated by Ms Power’s evidence.  I do not accept the records provided by the Respondent are authentic. I find the Complainant was not paid for her annual leave as required.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is well founded and I require the Respondent to pay the Complainant €3,240.

CA-00057040-007 Complaint under section 27 of the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case

The Complainant submits that she was unable to take her daily rest as mandated under the Act.

In her evidence the Complainant stated that she often worked from 7.00 a.m. to 11.00 p.m. for days in a row.

In her evidence Ms Power stated that when she worked in the shop the Complainant would open at 9.00 a.m. and would close the shop at 10.00 p.m. The witness worked three or four days a week and the Complainant was there; she also saw her when she would pass by the shop at other times.

The Act also states that workers must be given 11 hours consecutive break between shifts in any 24 hours.  The Act states that workers must also be given a weekly rest period of 24 hours.  The Respondent failed to afford the Complainant either daily or weekly rest periods throughout the course of her employment, The Complainant seeks an award of compensation which is just and equitable in such circumstances. 

Summary of Respondent’s Case

The Respondent submits that all employees received their breaks whether weekly or daily.

Ms Larissa Rad stated that the Complainant only worked 19 hours per week and signed the time sheets.

Ms Denisa Rad, an employee of the Respondent, gave evidence on Oath at the hearing.

In her evidence Ms Denisa Rad stated that she got her daily rest and so did the Complainant.

Ms Denisa Rad also stated that the documents presented by the Complainant showing that she worked up to 76.5 hours a week were not correct.

In answers to questions put to her in cross examination, Ms Denisa Rad had difficulty explaining how the time sheet record provided by the Respondent worked and had difficulty identifying some of the names listed on the sheet.

In his evidence, Mr Marsh stated that he the Complainant only worked 19 hours a week. He denied the Complainant’s assertion that she worked long hours. He denied her assertion that she had worked up to 90 hours per week. Mr Marsh stated that the Complainant never worked more than 19 hours per week but if she did, she was paid in cash for those extra hours.

Findings and Conclusions

Section 11 of the 1997 Act states:

Daily rest period.

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

I prefer the evidence of the Complainant in this matter. I do not accept the records provided by the Respondent. Working such long hours meant it would have been impossible for the Complainant to get her daily rests as she was entitled to under the Act.  Although she may not have worked 15 hours per day, every day, it would seem there were many instances when this took place.

As per Section 27(3) of the 1997 Act, I require the Respondent to pay the Complainant 10 days’ pay at a rate of €202.50 per day.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is upheld. I require the Respondent to pay the Complainant €2,025.

CA-00057040-008 Complaint under section 27 of the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case

The Complainant submits that she typically worked an average of roughly 60 hours per week. She often worked on her own thus she could not take breaks or go to the toilet. She was monitored by CCTV and submits she was regularly berated by the Respondent if she attempted to take breaks.

In her direct evidence the Complainant stated that she worked 15 hours every day.  If there were no customers in the shop she could go out and have a cigarette, however, if a customer came into the shop she had to go back in and serve them. She ate her meals in the kitchen; if a customer entered the shop she had to go out and serve them. She could not leave the shop.  Sometimes when she went out the Respondent called her to tell her to go back into the shop, he was monitoring her on CCTV.  The Complainant stated that the documents provided by the Respondent showing that she got breaks were, fakes.

She stated that she worked alone in a shop in September 2021, except for weekends when one girl assisted her.  She stated she was sometimes alone for 12 hours.

In answers to questions put to her in cross examination, the Complainant stated that she did not really take breaks, she might take five minutes for a cigarette but if a customer came into the shop, she had to go back in to serve them. The Complainant also denied initials on the bottom of timesheets provided by the Respondent were hers.

In her evidence Ms Power stated, regarding breaks, she did get some when she started working first but she was not given proper breaks, she just sat down and ate.

In response to a question put to her in cross examination, Ms Power stated that she had never said to the Respondent that she was not getting breaks. 

The 1997 Act, mandates that employers must afford employees daily rest periods of 15 minutes when more than 4.5 hours are worked and 30 minutes when more than 6 hours are worked. The Act provides that shop workers must be given a 1-hour break when more than 6 hours are worked.

Summary of Respondent’s Case

The Respondent refers to the working time records for the cognisable period of employment within this complaint which the Complainant initialled.

Ms Larrisa Rad stated in evidence that she got breaks, “all of them.”

Ms Denisa Rad stated in her evidence that she got her breaks.  She stated that the Complainant got her breaks too, that the Complainant might stay in her car for two hours and that sometimes the Complainant went home on her breaks.

In his evidence in chief, Mr Marsh stated that the Complainant did get her 15-minute and 30-minute breaks. In a response to a question put to him in cross examination, Mr Marsh stated that he could not say that the Complainant never worked on her own, but people would come and go. When it was put to him that this was contradictory to the evidence given by Ms D Rad, that the Complainant never worked on her own, Mr Marsh asked, rhetorically, “how would she [Ms D. Rad] know.” Mr Marsh also stated that the Complainant never approached him about not getting her breaks.

Findings and Conclusions

Section 12 of the 1997 Act states:

Rests and intervals at work.

12.—(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).

I find the Complainant could not have been able take breaks when she was working in the shop on her own, as seems to have been the case on many days.  I believe a payment of 10 days’ pay at a rate of €202.50 per day is just and equitable in the circumstances.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the complaint is well founded and I require the Respondent to pay the Complainant €2,025.

CA-00057040-009 Complaint under section 27 of the Organisation of Working Time Act, 1997.

The Complainant submits that she did not get her weekly rests as required by the Act.

In her evidence the Complainant outlined the hours and days she worked which she believes demonstrate that she could not have taken the weekly rest periods as required by the Act.

The Act also states that workers must be given 11 hours consecutive break between shifts in any 24 hours.  The Act states that workers must also be given a weekly rest period of 24 hours.  The Respondent failed to afford the Complainant either daily or weekly rest periods throughout the course of her employment. The Complainant seeks an award of compensation which is just and equitable in such circumstances. 

Summary of Respondent’s Case

Mr Marsh stated that the Complainant only worked 19 hours per week and did get her required breaks. He stated that the documents provided by the Complainant which purported to show her working long hours were “fabricated.”

Findings and Conclusions

Section 13 of the 1997 Act states:

Weekly rest periods.

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

From the evidence adduced I find the Complainant did not receive her weekly rest periods as required by the Act.  I believe an award of ten days pay at a rate of €202.50 is just and equitable in the circumstances.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is well founded and I require the Respondent to pay the Complainant €2,205.

A-00057040-010 Complaint under section 27 of the Organisation of Working Time Act, 1997.

Summary of Complainant’s evidence

The Complainant submits that she typically worked an average of roughly 60 hours per week.

In her direct evidence the Complainant stated that she worked a minimum of 50 hours per week, one Christmas she worked more than 90 hours in a week. She had to bring her children to work on occasions.

In her direct evidence the Complainant refuted documents provided by the Respondent purporting to show her hours of work, several of which indicated she had worked 19 hours. The Complainant stated that the initials on these documents were not hers and were forged.  In contrast to the hours entered on these documents, the Complainant had her own records showing hours far in excess of those provided by the Respondent. The Complainant’s own records also showed her working on Saturdays and Sundays unlike those provided by the Respondent.

The Complainant submits that the Respondent failed to keep any or any adequate written records of the Complainant’s working hours. The Complainant is only aware and in possession of one photograph of a record from 2021: the roster of the week 23 August 2021.  This shows that 86 hours were worked in that week alone.  From around May 2022 onwards, the Respondent was required to make a handwritten note of her working hours in a book that was kept in the shop.  At the conclusion of each week, the Respondent would tear out and destroy this hardcopy record.

The Complainant was required to work from opening to closing from Wednesday to Sunday inclusive and from 11.00 a,m. to close on Tuesday. 

The 1997 Act mandates that employers cannot permit employees to work more than 48 hours per week.  The Respondent required the Complainant to work an average of around 60 hours per week and, at times, up to 80 to 90 hours per week, including during the final 6 months reference period of her employment with the Respondent. The Complainant seeks an award of compensation which is just and equitable in such circumstances.

Summary of Respondent’s Case

The Respondent submits that at no time did the Complainant work more than 48 hours per week during her employment with one exception.

In her evidence Ms Larrisa Rad stated that she never worked more than 30 hours per week and that the Complainant only worked 19 hours per week. In response to a question put to her in cross examination, Ms Larissa Rad stated that she did not accept the authenticity of a document, presented by the Complainant, which indicated that she, Ms Rad, had worked 63 hours in a particular week.

Ms Denisa Rad in her evidence denied that the documents provided by the Respondent showing the hours worked by staff were not genuine.

In his evidence, Mr Marsh stated that it was another Director who was responsible for keeping the working hours records and that the documents provided by the Respondent were an accurate reflection of the hours worked by the staff. These documents were signed by the staff

Mr Marsh stated that the Complainant only worked 19 hours per week and did get her required breaks. He stated that the documents provided by the Complainant which purported to show her working long hours were “fabricated”. He denied the Complainant worked excessive hours. He stated that the Complainant was lying when she had stated that she worked excessive hours.

Findings and Conclusions

Section 15 of the 1997 Act states:

Weekly working hours.

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

I prefer the evidence of the Complainant on this matter. I accept the ad hoc contemporaneous picture records provided by the Complainant are a more accurate reflection of the hours she worked than those provided by the Respondent. I found that Ms Denisa Rad was deliberately evasive in her answers and deliberately obtuse in how she dealt with the questions put to her in cross examination.    I believe an award of ten days pay at a rate of €202.50 is just and equitable in the circumstances.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is well founded and I require the Respondent to pay the Complainant €2,025.

CA-00057040-002 Complaint under section 6 of the Payment of Wages Act, 1991.

Summary of Complainant’s Case

The Complainant submits that despite working an average of around 60 hours per week (and indeed up to 80 or 90 hours per week), the Respondent failed to ever pay the Complainant in full for same.  Typically, the Complainant submits, that the Respondent would only pay the Complainant for 19 hours work through her payslip, amounting to €265.  The Respondent would then sporadically ‘top-up’ this pay with weekly, ad hoc, largely random, and trivial cash payments of less than €100. On occasions where cash receipts were low, the Respondent would not pay the Complainant any ‘top ups’. As such, while the Respondent should have been paying the Complainant a weekly salary of €810 (when using the 60 hour per week aggregate at €13.50 per hour), it typically only paid her a maximum of €365 (and occasionally as little as €265), thus making weekly unlawful deductions to her pay of between €45 and €545.

In her evidence the Complainant stated that she “only got paid 19 hours and that she did not look for any social welfare benefits other than Child benefit. She was never fully paid for the hours she worked. She stated that the pay slips she was provided with showed her only working 19 hours but that she was paid cash in addition, if things were busy this could be €100 or maybe €50 on a Public Holiday. She stated that she was never paid more than €100 per week.

In answer to questions put to her in cross examination, the Complainant stated that she had raised the matter of under payments with the Respondent, but nothing changed. When she worked 100 hours per week, she was given an extra €50 or €100.

In her evidence, Ms Power stated that she had a receipt that says she worked 19 hours, and the Complainant definitely worked more hours than she did.

In response to a question put to her in cross examination, Ms Power stated that she had never been left short in her pay.

Summary of Respondent’s Case

The Respondent submits that during her employment the Complainant never once complained that she was working more than 19 hours per week and not being remunerated accordingly.  She claims that she worked up to 90 hours per week. She never suffered medically once. For a person to work 90 hours per week, one would have to work a minimum of 13 hours per day. This is not sustainable of believable.

On the week prior to resigning her employment the Complainant worked a total of 62 hours. She insisted that this be paid in cash as she was not in a position to receive wages over 19 hours due to her social welfare benefits.

In her evidence Ms Larrisa Rad stated that she was never paid in cash.

In her evidence Ms Denisa Rad stated that she had never been paid in cash.

In his evidence Mr Marsh stated that the Complainant never approached him about her pay. He said matters relating to pay were dealt with by another Director. He said that the Complainant was always given a payslip. He did not accept the Complainant’s assertion that she was paid €8 per hour.

In response to a question put to him in cross examination that the Complainant had been underpaid throughout her time working for the Respondent, Mr Marsh replied by saying, “ [I] just don’t buy it.”

Findings and Conclusions

Section 5 of The Payment of Wages Act 1991 states;

Regulation of certain deductions made and payments received by employers.

5- (1)    An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

(a)   the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b)   The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)    In the case of a deduction, the employee has given his prior consent in writing to it.

It is very difficult to know exactly where the truth lies in this matter.  I find, on the balance of probabilities, that the Complainant worked more hours that she was officially paid for but she did receive top ups in cash.  How much money she was underpaid or what illegal deductions is very difficult to estimate. 

Section 6 of the 1919 Act states:

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

6. (1) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be(after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

(2) (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.

In the circumstances I find the deductions which are the subject of this complaint are clearly not required by statute, did not constitute a term of contract nor were they given by prior consent.  I prefer the evidence of the Complainant in this matter.

I therefore find that the complaint is well founded and order the respondent to pay the Complainant the sum of 10 days’ pay at a daily rate of €202.50.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is well founded and I direct the Respondent to pay the Complainant €2,025.

CA-00057040-014 Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

Summary of Complainant’s Case

Section 3 of the 1994 Act mandates employers to provide employees with a written statement of the terms of their employment.

The Complainant submits that the Respondent failed to provide her with a statement in writing of her terms of her employment, with an employee handbook or with any policies or procedures, including a grievance policy and procedure. 

In her evidence the Complainant stated that she had never seen the Employee Handbook provided by the Respondent for the hearing, “I worked there from April 2021 and I never saw this book- nor did I give it to new employees.”

The Complainant stated that the signature on the bottom of a contract provided by the Respondent for the hearing was not her signature.

In answer to questions put to her in cross examination, the Complainant was adamant that a signature on a contract provided by the Respondent at the hearing was not her signature.

Summary of Respondent’s Case

The Respondent submits that the Complainant commenced her employment on 10 October 2022 and received her statement of her main terms and conditions of employment on 15 October as presented with the Respondent’s submission to the WRC.

In his evidence Mr Marsh stated the Complainant did not start her employment with the Respondent in April 2022 and that the evidence given by both the Complainant and Ms Power to the WRC, were lies. Regarding the picture provided by the Complainant showing a dishwasher, containing paraphernalia related to an ice cream shop, dated 25 June 2021, and another picture dated 22 July 2021, showing an order for materials for an ice cream shop and a picture of the Complainant wearing a Melt Gelato apron, with a menu board in the background, dated 8 September 2021, Mr Marsh stated that although the shop does have such aprons and such a menu board, the pictures were fabricated  and that “photo shop is very good.”

Regarding the Complainant’s contract of employment, Mr Marsh stated that the Complainant was issued with a contract of employment. In response to questioning in cross examination, Mr Marsh stated that the contract of employment, provided by the Respondent to the hearing, signed by the Complainant on 15 October 2022, was indeed the Complainant’s contract of employment. He had seen her sign it. When it was put to him that it was implausible that he did not sign the document when he had been present at the Complainant’s signing of the document, he stated that another Director had signed it.

Mr Marsh also stated that there was an Employee Handbook available in the shop, there always was, but he could not remember when first available, as another Director looks after that end of things. This Director, he said, contacted Peninsula about a Handbook in July 2023.

Findings and Conclusions

Section 3 of the 1994 Act states;

Written statement of terms of employment.

3.—(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment,

I prefer the evidence of the Complainant in this matter.  I do not accept the authenticity of the contract provided by the Respondent. I find the Complainant was not provided with a contract of employment.

Sectio 7( 2) of the 1994 Act states;

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G,  or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G,  and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977.

(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act,1977.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is founded and I order the Respondent to pay the Complainant two weeks’ pay, i.e. €2,025.

CA-00057040-015 Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

Summary of Complainant’s Case

Section 5 of the Terms of 1994 Act mandates that employers provide employees with notice in writing of changes to the terms of their employment.

The Complainant submits that despite promoting her from cleaner to general operative to manager and increasing her pay from €8.00 to €13.50, the Respondent failed to notify her of such changes in writing.

Summary of Respondent’s Case

The Respondent submits that there was no change in the employment relationship that would cause a breach of section 5 of the 1994 Act.

Findings and Conclusions

I prefer the evidence adduced by the Complainant.  I do not accept the Handbook or other documents pertaining to this particular complaint, provided by the Respondent to be authentic.

I find the Complainant was not informed in writing of changes to her contract of employment.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is well founded and I order the Respondent to pay the Complainant one weeks’ pay, i.e. €1,012.50.

CA-00057040-016 Complaint under section 8 of the Unfair Dismissals Act, 1977.

Summary of Complainant’s Case

To give context to this claim, the Complainant stated that shortly after 11.00 p.m. on 25 March 2023, she was involved in a road traffic accident while driving home from work, she had worked from 07.30 to 11.00 P.M. that day without any adequate daily or weekly rest. The following day the Complainant attended work.  Around midday she told the Respondent about the road traffic accident, that she was not feeling well, and she was in pain. She asked the Respondent to contact a doctor and to allow her to leave work; however, the Respondent refused and she was required to work until 6.00 p.m. Around midnight the Complainant attended hospital, was certified as unfit to work for three weeks and commenced a period of unpaid sick leave. 

On 30 March 2023, despite this certification, the Respondent contacted the Complainant and told her that she had to return to work that day. She duly returned to work despite still being in pain.

The Complainant submits that in May 2023, an altercation took place at work between the Complainant and a colleague during which the Complainant was punched in the chest and pushed back twice by her colleague onto the edge of a metal table. Following the incident the Respondent failed to take appropriate steps to either investigate or address the Complainant’s complaints, the Respondent told the Complainant that such incidents happen all the time.

On 9 May 2023, the Respondent informed the Complainant that the CCTV footage had been reviewed, but it only showed the Complainant running out of the shop crying. The colleague whom the Complainant alleges assaulted her was present at this discussion and started laughing at the Complainant. At this turn of events, the Complainant left the shop and sat in her car. While she was sitting in her car the Complainant was approached by the Respondent and asked to return her keys and to write a letter of resignation in order that the Respondent could issue her with the appropriate termination paperwork.

The Complainant gave evidence to support this series of events.

The Complainant stated that her decision to resign was not related to a leave request she made which had been turned down.  The Complainant stated that after the altercation she could not work- she was tired, she was scared.

In response to a question the Complainant stated that she had been unfit to work since she finished up with the Respondent.

The Complainant submits that this dismissal satisfies the two-test required to ground a constructive dismissal; the contract test and the reasonableness test. In this case the Respondent failed to furnish the Complainant with a grievance policy or any policy through which to attempt to raise the issue with it regarding the conditions of work.  It went on to subject her to unreasonable, unbearable, and illegal working times and conditions. The Respondent further subjected the Complainant to a serious assault in the workplace before blaming her for such an assault, withholding CCTV of the assault, failing to investigate such an assault, blaming her for such an assault and asking that she resign her employment. It is submitted that same satisfies both the contract and reasonableness tests and the Respondent constructively dismissed the Complainant.

Summary of Respondent’s Case

The Respondent submits that the Complainant decided not to return to work because she was not granted annual leave for the month of August.

The Respondent submits that the Complainant has less than one year’s continuous service.  She commenced employment on 10 October 2022 and finished on 9 May 2023, in those circumstances she cannot rely on the protections of the Unfair Dismissals Act.

Regarding events in or around 6 May 2023, the Respondent submits that one of the Respondents, Ms Marsh, had assured the Complainant that she would investigate her allegation of assault.

Ms Marsh also enquired of the Complainant as to her holiday plans.  The Complainant told Ms Marsh that she wanted to take four week’s leave to go to Romania in August.  Ms Marsh told the Complainant that she could take two week’s leave but not four as this was the busiest time in the business. The Complainant advised Ms Marsh that she would speak to her husband and let her know the position.  A few moments later the Complainant phoned Ms Marsh back to say she would be going on holidays for the month of August and would be looking for a new job on her return.  She advised that she would work two weeks’ notice until another member of staff returned form leave.

Ms Marsh advised the Complainant of her disappointment but said she had to prioritise the company.  She requested that the Complainant submit her resignation in writing. The Complainant advised that she would send it across by email later that day.

On 9 May 2023 the Respondent submits that some discussion took place in the shop between the Complainant and the colleague against whom she had made the allegation of being assaulted (this colleague’s sister was also in attendance at this meeting). After a heated discussion the Complainant left the shop. Ms Marsh went outside to check on the Complainant’s wellbeing but was subjected to a tirade of abuse from the Complainant’s husband.  Ms Marsh then requested that the keys of the premises be returned as she was concerned that the Complainant’s husband would have access to the premises. The Complainant returned the keys at 8.00 p.m. that evening with her uniforms.  From that day forward the Complainant never contacted the Respondent except bb way of correspondence from the WRC and her solicitors.

The Respondent submits that the Complaint left her employment due to her not being allowed to take the month of August off as annual leave.  It is the Respondent’s contention that the Complainants husband played a role in this by way of his intimidation towards he Respondent and their staff.

The Respondent also submits that at the outset of her employment with the Respondent the Complainant was provided with a copy of the disciplinary procedures alongside the statement of her main terms and conditions of employment.  In addition, the Respondent submits that a copy of the Employee Handbook was made available to all staff at each of the Respondent’s places of business for them to consult.

In her evidence Ms Larrisa Rad stated that she had been in the shop on the day that the altercation took place between the Complainant and another employee, (Ms X Rad, this witnesses sister). Ms Larrisa Rad stated that she heard her sister being threatened by the Complainant. When asked in cross examination whether she had seen an assault, Ms Rad stated that she had covered it in her statement given at the time.

In her evidence Ms Denisa Rad stated that although there had been an argument between herself and the Complainant on 6 May 2023, she had not pushed the Complainant as alleged.

In his evidence Mr Marsh stated that he came to the shop the day after the alleged assault and took statements from the Rad sisters and the Complainant, but had no involvement in the matter thereafter.

During cross examination, Mr Marsh stated that the allegation of assault made by the Complainant was false as he was told this by another Director and by his mother.  Mr Marsh stated that he had checked the CCTV footage from the time of the alleged assault but there was nothing of note on it, He had not provided the CCTV footage to the Complainant as there was no point as there was nothing on it.  He did not provide the footage to the Complainant’s solicitor, when requested to do so, as the system overrides footage after 30 days.  He could not recall if he actually took a statement from the Complainant. He stated there was a conclusion to his investigation, he spoke to everyone. Steps were taken.

When put to him in cross examination that the company had treated the Complainant so badly, she had to resign, Mr Marsh replied, “absolutely not.”

Findings and Conclusions

As outlined above I have found the Complainant’s service to have been continuous from April 2021 until May 2023, therefore she does fall within the scope of the Unfair Dismissals Act, 1977.

This is a complaint of Constructive Dismissal.

The Law

The Act at Section 1(b) defines constructive dismissal in the following manner

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

In cases such as this it is for the Complainant to establish that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act, and the case law since its enactment, has established two circumstances where an employee is entitled, or it would be reasonable, to terminate the employment relationship.

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as follows:

“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”.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed. In the instant case there was evidence adduced by the Complainant that she was never given a contract of employment or Employee Handbook, and this evidence has been accepted.

Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the Complainant so unreasonably that she could not fairly be expected to put up with it any longer. In this context, the Complainant must establish that she also conducted herself reasonably in terms of affording the employer the opportunity to address the issues which ultimately led to the termination of the employment.

The termination of employment in this case centred to a great deal on matters which took place in early May 2023, when there was an alleged assault on the Complainant by a colleague. Although the Respondent asserts that a conversation between the Complainant and a Director of the Respondent company supports the contention that the Complainant had it in her mind to resign her employment, this Director Ms Marsh did not give evidence at the hearing.  

Whatever the truth in the matter of the alleged assault, an employer is duty bound to carry out an investigation into any such allegation.  This investigation must be thorough and fair.  An employee is entitled to expect their employer to take such a matter seriously and attempt find out exactly what happened.  An employee is entitled to tell their story, to have it recorded in a statement and to see the statements given by other protagonists in the matter.  In this case I find the employer, the Respondent, took a cavalier approach and did not attempt what could be seriously be defined as an investigation, let alone a thorough and fair investigation.  The Complainant sought the CCTV footage but conveniently, according to a Respondent Director, it did not show anything untoward taking place, however, the Complainant was never shown the CCTV footage. I find the Respondent’s attitude to the matter to have been wholly unreasonable.

The requirement on a Complainant to exhaust the Respondent’s grievance procedure prior to a resignation in order to succeed in a claim of unfair dismissal has been emphasised repeatedly by the Employment Appeals Tribunal (EAT) and the Labour Court.  The most relevant case in this regard is Conway v Ulster Bank Ltd (UD 474/1981) where the EAT found that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case. In constructive dismissal cases it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Desmond Ryan BL also set out the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist they should be followed”

I note that the Complainant did not raise a formal grievance in respect of the actions of the Respondent after the alleged assault and the so-called investigation. However, importantly, she did not have access to a grievance procedure as she did not have a contract of employment nor an Employee Handbook. The de facto situation was that Grievance Procedures did not exist. In those circumstances it was not unreasonable that the Complainant was unable to initiate a grievance procedure.  In addition, if the Complainant’s evidence is correct, she was asked to resign and hand back her keys when she fled the shop on 9 May 2023, tantamount to a dismissal.

Having considered the matter carefully, I find, on the balance of probabilities, that this was an unfair dismissal.

Regarding mitigation of loss, the Complainant stated that she was not nor has she been available to work since her dismissal.  Although medical reports were furnished to the hearing by the Complainant, I do not find them to be sufficient to prove that the Complainant’s unavailability for work lies solely with her treatment at the hands of her former employer. In the circumstances the maximum award I can make is four weeks’ pay.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Decision

This was an unfair dismissal and I order the Respondent to pay the Complainant €3,240.

CA-00057040-018 Complaint under section 77 of the Employment Equality Act, 1998

Summary of Complainant’s Case

The Complainant submits that the Respondent discriminated against her by treating her less favourably in terms of employment by reason of her Family Status, essentially matters related to her pregnancy, maternity period and status as the mother and primary caregiver of two children.

The Complainant submits that the treatment she reived surrounding her maternity leave, the refusal to allow her avail any more than two-week maternity leave, the excessive hours she was required to work, often at short notice necessitating her having to bring her daughter and new born baby into the workplace to remain in the kitchen for the entirety or large portions of her 15-hour shifts.

The Complainant gave evidence to support her contention that she was not allowed avail of more than two weeks maternity leave after the birth of her child. She said she was paid for only one of these two weeks.

The Complainant accepts that although the denial of her maternity leave entitlements occurred outside of the 6 months’ cognisable time limit, the requirement for her to bring her children into the workplace during shifts continued up until the termination of her employment and during this 6 months’ period. The Complainant submits that there is a clear continuum between such discriminatory acts within the cognisable window and such acts prior to the cognisable window. It is submitted that this brings all such acts within the jurisdiction of the WRC for determination.

Summary of Respondent’s Case

The Respondent submits that the Complainant was never subject to discriminatory treatment at work during her pregnancy or at any other time during her employment.

The Respondent submits that they did not request the Complainant to work two weeks post the birth of her child, where her children were placed in the Respondent’s kitchen for days on end. 

The Respondent submits that whereas the Complainant grounds her complaint on the basis that there was a continuum of discrimination; to do so discrimination must occur within the cognisable period and outside the cognisable period. In this instant case, neither occurred.

The Respondent submits that the Complainant has failed to set out a prima facie case of discrimination.

In her evidence Ms Larrisa Rad stated that although she had seen the Complainant’s Children with the Complainant in the shop this had only been when the Complainant was not working. She did not recall seeing the children in the storeroom or cloakroom.

In his evidence Mr Marsh stated that the Complainant had stopped working in the shop long before she had her baby and came back a period of time later; she did not come into work when she was on maternity leave.

Mr Marsh stated that he would not expect anyone to bring their kids into work. He denied the Complainant was compelled to come back to work after two weeks of giving birth to her child.

Findings and Conclusions

The Complainant gave birth on 11 May 2022.  A complaint form was received by the WRC on 9 May 2023. The events surrounding this complaint are related to that specific date.

Section 77 of the 1998 Act states:

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

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

 The 11 May 2022, is well outside the six-month time limit.  No reasonable cause has been provided to extend the reference period. 

As no contravention of the Act occurred within the cognisable period for his compliant, the Complainant was unable to establish any legal basis for her claim.

Having regard to the above, I am satisfied that the Complainant’s complaint was presented to the Workplace Relations Commission outside of the relevant statutory time limit provided.

The limitation periods set out in the 1998 Act are clear and precise and it is confined to those limitation periods. I cannot assume a jurisdiction which has not been conferred to me by statute and I do not have a ‘discretion’ to vary the time limits set down in relevant statutes.  A failure on the part of a Complainant to present a complaint in time deprives the me of jurisdiction to hear the claim. 

Decision

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I do not have jurisdiction to hear this complaint.

CA-00057040-019 Complaint under section 77 of the Employment Equality Act, 1998.

Summary of Complainant’s Case

The Complainant submits that the Respondent discriminated against her by treating her less favourably in terms of employment by reason of her Gender, essentially matters related to her pregnancy, maternity period and status as the mother and primary caregiver of two children.

The Complainant submits that the treatment she reived surrounding her maternity leave, the refusal to allow her avail any more than two-week maternity leave, the excessive hours she was required to work, often at short notice necessitating her having to bring her daughter and new born baby into the workplace to remain in the kitchen for the entirety or large portions of her 15-hour shifts.

The Complainant accepts that although the denial of her maternity leave entitlements occurred outside of the 6 months’ cognisable time limit, the requirement for her to bring her children into the workplace during shifts continued up until the termination of her employment and during this 6 months’ period. The Complainant submits that there is a clear continuum between such discriminatory acts within the cognisable window and such acts prior to the cognisable window. It is submitted that this brings all such acts within the jurisdiction of the WRC for determination.

Summary of Respondent’s Case

The Respondent submits that on the first occasion upon which the Complainant was employed by the Respondent, she informed the Respondent that she was expecting a baby in May 2022.  The Respondent offered her employment in the knowledge that the Complainant was pregnant.  This was not a factor in offering her employment nor was it a factor at any time during her employment.

discrimination.

In her evidence Ms Larrisa Rad stated that although she had seen the Complainant’s Children with the Complainant in the shop this had only been when the Complainant was not working. She did not recall seeing the children in the storeroom or cloakroom.

In his evidence Mr Marsh stated that the Complainant had stopped working in the shop long before she had her baby and came back a period of time later; she did not come into work when she was on maternity leave.

Mr Marsh stated that he would not expect anyone to bring their kids into work. He denied the Complainant was compelled to come back to work after two weeks of giving birth to her child.

The Respondent submits that the Complainant has failed to set out a prima facie case of discrimination.

Findings and Conclusions

The Complainant gave birth on 11 May 2022.  A complaint form was received by the WRC on 9 May 2023. The events surrounding this complaint are related to that specific date.

Section 77 of the 1998 Act states:

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

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

 The 11 May 2022, is well outside the six-month time limit.  No reasonable cause has been provided to extend the reference period. 

As no contravention of the Act occurred within the cognisable period for his compliant, the Complainant was unable to establish any legal basis for her claim.

Having regard to the above, I am satisfied that the Complainant’s complaint was presented to the Workplace Relations Commission outside of the relevant statutory time limit provided.

The limitation periods set out in the 1998 Act are clear and precise and it is confined to those limitation periods. I cannot assume a jurisdiction which has not been conferred to me by statute and I do not have a ‘discretion’ to vary the time limits set down in relevant statutes.  A failure on the part of a Complainant to present a complaint in time deprives the me of jurisdiction to hear the claim. 

Decision

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I do not have jurisdiction to hear this complaint.

CA-00057040-020 Complaint under section 30 and 31 of the Maternity Protection Act, 1994.

Summary of Complainant’s Case

The Complainant submits that she did not receive her entitlements under this Act.

The Complainant submits that she fell pregnant in August 2021, with a due date of 11 May 2022. The complainant asked that another employee be taken on, but she was told that the Respondent could not afford to recruit any other employees, that it could not afford to pay her for her full hours worked, that its expenses were too high and that it was running out of money. In January 2022, the Complainant threatened that she would leave her employment.  Assurances were given to her by the Respondent, but nothing changed.

Despite having a due date of 11 May 2022, the complainant submits that the Respondent required her to work until 9 May 2022, to train in her replacement and would not allow her to leave work at an earlier time.

The Complainant gave birth to her baby on 11 May 2022. Despite having only given birth two weeks previously, the Complainant submits that she was to return to work on 25 May 2022.  When the Complainant sought to object to this, The Respondent told her that she was required toreturn to work on this date to avoid being dismissed and that she was only entitled to a single paid week’s leave as maternity leave. As such, she was forced to return to work on 25 May 2022, having availed of two week’s leave and only having been paid for one of those weeks.

In her evidence Ms Power stated that she on one occasion she had witnessed the Complainant working while her, the Complainant’s, child was in the storeroom

Summary of Respondent’s Case

The Respondent strongly denies that it deprived the Complainant of her maternity entitlements. Moreover, it was not a matter for the Respondent to compel the Complainant to return to work at any stage.

In his evidence Mr Marsh stated that the Complainant had stopped working in the shop long before she had her baby and came back a period of time later; she did not come into work when she was on maternity leave.

Mr Marsh stated that he would not expect anyone to bring their kids into work. He denied the Complainant was compelled to come back to work after two weeks of giving birth to her child.

Findings and Conclusions

Section 41(6) of the Workplace Relations Act, 2015, states;

(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.

The complaint made under the Maternity Protection Act, 1984, relates to a maternity and birth which took place in May 2022. It therefore falls outside of the cognisable period; it is out of time and I do not have jurisdiction in the matter.

Decision

I do not have jurisdiction to hear this complaint.

Dated:   15th of August 2024

Workplace Relations Commission Adjudication Officer:  Roger McGrath

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