ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048773
Parties:
| Complainant | Respondent |
Parties | Keng Hong Leong | Ultra Leisure Limited |
Representatives | Dennis Healy & Co Solicitors | Foley Turnbull Solicitors LLP |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059914-001 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059914-002 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059914-003 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059914-004 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059914-005 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00059914-007 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00059914-008 | 10/11/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00059914-009 | 10/11/2023 |
Date of Adjudication Hearing: March 1 and May 27, 2024.
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, Section 27 of the Organisation of Working Time Act , 1997 , Section 7 of the Terms of Employment and Information Act, 1994 and Section 77 of the Employment Equality Act , 1998 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 .
Background:
On November 10, 2023, The Complainants Solicitors submitted 8 employment rights complaints to the WRC. The Complainant was introduced as a Cashier in a Casino of Portuguese nationality.
On November 17, 2023, the Respondent was placed on notice of the complaints. On 15 January 2024, both Parties were invited to attend a Hearing in these cases at the Cork Office, scheduled for 10 am on March 1, 2024. On 9 February 2024, I wrote to both parties seeking written submissions for the purposes of my preparation in the cases. On 19 February 2024, the Respondent Solicitors came on record in the case. On 26 February 2024, I wrote again seeking submissions.
On 29 February 2024, I received an outline submission from the Complainant side. On the first day of hearing, March 1, 2024, I granted a short adjournment in the case to allow for detailed submissions from both Parties. The Complainant representative submitted that he had been the late recipient of copious documents from the complainant that he had not had the opportunity to condense these in a particularised submission. The Respondent did not oppose the application. I granted a short postponement on exceptional circumstances and advised the parties to approach the case on the resumed date with 1 all cards face up on the table. 2 Background to Chinese/ Macau nationality and EU permission to work. 3 A Comparator in the Employment Equality claim. Both Parties committed to working together to explore a resolution in the submitted claims prior to the resumed hearing. Both Parties attended the resumed hearing, where the 8 claims stood unresolved.
On 23 May 2024, I received an outline submission from the Respondent side. On May 27, 2024, the case proceeded into the second and final day of hearing.
The Complainant took the affirmation to accompany his evidence, at hearing. The Respondent witnesses, Mr. Eamon ODriscoll and Mr. Tom O’ Brien took the oath to accompany their evidence.
On May 29, 2024, I received a message from the WRC Information line requesting that I return the Respondents call, where he had left a mobile number. I wrote to both Parties confirming that the hearing had concluded save for my consideration of some requested documents. This position was accepted by both parties. The Complainant has not heeded my request for supplementary documents in support of his case.
|
Summary of Complainant’s Case:
On 10 November 2023, the Complainants Solicitor submitted 8 complaints on his behalf, which had arisen from the Complainants employment as a Cashier in a Casino, which spanned 17 February 2020 to the date of his resignation on 31 July 2023 . This tenure was later revised by the complainant to reflect an earlier informal start date in October 2019. This period of employment was characterised as “without contract “and as having attracted a payment of Minimum Wage. The period has not been incorporated into any of the claims made. Both Parties accept that this period was followed sequentially by the terms of the February 2020 contract. The Complainant submitted that he received a static weekly payment of €560.00 for a variable working week of between 43.5 – 80 hrs. The Complainant remained unaware of his true workplace entitlements during his tenure. The contract was deficient in that regard. The Complaint made a delayed claim for his entitlements when he learned of those rights but did not receive a positive response from the respondent, which in turn caused him to leave the employment and seek legal assistance to vindicate his rights. The Complainant has not sought to extend time in accordance with section 41(8) of the Workplace Relations Act 1997. CA-00059914-001 Annual Leave This complaint reflected that the complainant had been denied payment for annual leave in 2020 and 2021. The contract dated 17 February 2020, did not reflect the statutory framework of the Organisation of Working Time Act, 1997. “The Employee will be entitled to the following paid annual leave each year during the term of this Agreement or paid annual leave as entitled by law, whichever is the greater: Statutory The times and dates for any annual leave will be determined by mutual agreement between the Employer and the Employee. Upon termination of employment, the Employer will compensate the Employee for any accrued but unused annual leave.” The Complainant sought payment for annual leave years 2020 and 2021 as he had received payment for the years 2022 and 2023. The Complainant sought the application of the Von Colson principles in respect of any deterring remedy. Von Colson v Kamann v Land Nordheim-Westfalen [1984] ECR 1891 The Complainant sought full payment of annual leave together with compensation. CA-00059914-002 Public Holidays The complainant submitted that he had been denied payment for public holidays contrary to Section 21 of the Organisation of Working Time Act, 1997. The Complainant sought full payment and redress as he was deprived of his rights 2020-2023 inclusive. There was no mention of Public Holidays on the contract of employment.
CA-00059914-003 Weekly Rest Periods The Complainant submitted that he worked 7 days a week from 17 February 2020 until his departure from the respondent. He was denied any rest breaks as provided by Section 13 of the Act. He had retained copies of his entire timesheets, 111 weeks, where he had worked. In excess of 48 hrs for 50 weeks, 13 of which were in excess of 58 hrs and a further 19 weeks in the 52-58 hrs realm contrary to Section 15 of the Act. The complainant sought compensation for the infringement and the application of the Von Colson principles to provide “a real deterrent against future infractions “. CA-00059914-004 Excessive Night Hours The Complainant submitted that he was required to work excessive night hours during his employment. Close to 100% of the hours worked, seven days a week, fell between the hours of midnight and 07.00 hrs. There was no Collective Agreement in place. CA-00059914-005 Sunday Working The Complainant submitted that he worked every Sunday of his employment tenure without “special affordances in line with those required by Section 14 of the Organisation of Working Time Act, 1997. “He received a gross payment of €80.00 for each day worked. He only became aware of the provisions of Section 14 of the Act on his departure from the business. The Complainant sought application of Park House Hotels and Wlodarcyk DWT 24/2016 and contended that that Sunday pay was not discernible from the contract of employment, Viking Security and Valent (DWT 1489) The Complainant sought adequate compensation for the omission to pay Sunday Pay. CA-00059914 -007 Breaks, Section 11 of Organisation of Working Time Act 1997 The Complainant submitted that he did not get scheduled breaks during the course of his employment. He was required to work seven days a week between the hours of 23.30 hrs to 07.30 am. During these times, he was a lone worker and was unable to leave his location. He sought the application of Bombay Bhappa and the Von Colson principles in the event of a decided remedy to address the persistent contravention. CA-00059914-008 Statement of Core Terms of Employment The Complainant contended that he did not receive a statement of his core terms in writing under the Terms of Employment (Information) Act, 1994. The contract of employment failed to comply with the provisions of Section 3 of the Act. 1 There was no reference to any hourly or periodic rate of pay. 2 No specific reference to the National; Minimum Wage Act The Complainant sought reliance on the dictum in Felix Guerro and Merchants Arch Company ltd DWT J88 on the statutory obligations placed on an employer in this regard. CA-00059914-009 Discrimination on grounds of Race in conditions of employment The Complainant submitted that he had been discriminated against in the provision of his contract of employment which he argued represented “modern day slavery “towards his recent arrival to Ireland “as would never be presented to or inflicted upon any Irish or mainland EU Citizen. The terms and conditions of employment were discriminatory ab initio and do not need to be judged as against other employees of the company “ The Complainant introduced himself as of Chinese / Macau origin as having been born in Macau pre 1999 from which he drew EU Citizenship through Portugal. He indicated that he would expand on a comparator at hearing. Background: The Complainants Representative confirmed that the Complainant commenced work as a Cashier at the Tudor Casino in October 2019. While there were some breaks in service during the Covid 19 pandemic, the employment was marked by a sharp variance in compliance with employment law. His salary amounted to €560.00 per week, which remained unaltered. He outlined that the Contract of employment provided a reference to Monday to Sunday working as typical work pattern and made no mention of the. Organisation of Working Time Act, 1997. As a result, the complainant was compelled to work across a 7-day week, without breaks, rest periods or Sunday pay. He combined this work with working as a self-employed Delivery Driver. This was the Complainants first job in Ireland, and he was unaware of the protections contained in Irish Employment law. The Complainant worked without incident at the Casino. The Complainants became aware of these protections during 2023 and confronted the Respondent seeking payments under the Organisation of Working Time Act, 1997. He did not secure a positive response and left the employment. The Complainant reduced his hourly commitment towards the end of his employment and ceased afternoon shift in April 2023. It is the Complainant case that his complaint is essentially identical to that considered by the WRC in Kaur v Bombay Bhappa ( t/a ) Bombay House ADJ 45992 and contended that the quantum of compensation awarded must go beyond the economic loss suffered Solid Building Company Ltd v Baranovs DWT 0821, to reflect the “ flagrant disregard of the respondents obligations in Domestic and Community Law and in a manner which was oppressive and exploitative of the complainant . On the second day of hearing, the Complainant submitted a record of hours worked 2 March 2020 to 31 July 2023 at the Casino. I will return to this document when taken against the reported closures during Covid 19 pandemic and a much earlier commencement date in employment in 2019. Evidence of the Complainant: The Complainant outlined that he had grown up in Macau when it was a Portuguese Colony, prior to the Chinese take over. As a result, he was permitted in law to be recognised as an EU National with permission to work in Ireland. He was of Macau origin. In Summer 2019, he applied for the position in the Casino with the support of a Taiwanese girl on a social media app. He arrived in Ireland through Dublin in August 2019 and interviewed for the position in Cork. His wage of €560 was agreed for 7-day cover across days, evenings and nights (12-hour day s) He started work in September 2019 and received a contract in February 2020. He had received Minimum Wage until February 2020. He received as many hours as he wanted for the first three years after 2022, the hours reduced. He worked nights after this time. The Complainant confirmed that the business was closed due to the National Pandemic from 22 March 2020 to July 3, 2020, October 2020 to September 2021 He is seeking payment of annual leave for time worked as 6 months 2020 and 4 months in 2021. During the course of his employment, he did not receive break time or payment for working Sundays. He did not receive public holidays or time off in lieu. The Complainant did refer to a suggestion that someone was to cover his breaks but was emphatic during my clarifications that he was not covered for these periods of time. He explained that he worked alone at night. There were two managers, one of whom has since retired and two casino workers. The Complainant sought €2,500 in respect of Sunday pay. The Complainant sought €2,400 in respect of public holidays. Citing Kaur The Complainant also sought payment of 10 months annual leave. The Complainant submitted that he was responsible for cashier, cleaning and security for the last two years of his tenure. The Complainant denied being directed to the Respondent Accountant and recalled signing a contract in the company of Mr O’Driscoll, the Respondent on 15 February 2020. The Complainant confirmed that he had not raised any of the topics claimed of before he left employment, but had informed his immediate manager, Mr O’Brien that he was going to the WRC. During cross examination, Mr Mc Donald asked the complainant why he had lingered on at the business in excess of his finish time to 7a m? The Complainant replied that he was asked to stay by his employer. Night shift involved c 10 people on the premises for the early part of the night followed by 50-6 people on average during the second half. The Complainant presented a self-compiled record of his working hours at the business from 2 March 2020 to 31 July 2023. He denied that the Training Manager had explained the system of breaks to him. This document was presented at the second day of hearing and was not agreed with the Respondent. Week of 8 May 2023 5.30 pm to 4.30 am. Week of 15 May 2023 Week of 27 May 2023 Week of 11 June 2023 He submitted these weeks of 7 days were worked without a 24-hour break. He clarified that he was claiming for every Sunday worked in the cognisable period. The Complainant submitted that he had chased up break time with a previous manager during 2021, but he did not receive a reply. He confirmed that Mr ODriscoll had informed him that his claims were statute barred for annual leave. He explained that his wage dropped on 15 April 2023 and that he habitually had received an additional €20.00 payment for over time. He was disappointed that the Respondent had not kept his side of the Agreement. He decided to leave to take care of his son who is studying here. The Complainant submitted that he had requested his holiday pay on leaving but was informed that the accountant would have to be asked. He accepted that he received annual leave pay for 2022 and 2023 but not for 2021. He confirmed that the claim of discrimination on grounds of Race arose from the differences in his employment contract, rest periods, public holiday, working hours and lack of compensation for rest periods. The Complainant confirmed that he had not received a record of the management of his probation and had not been provided with a staff handbook. He confirmed that he had applied for new work on 10 July 2023 When I inquired why he had delayed before referring his case to the WRC in November 2023, some three months his leaving employment, the complainant replied that he understood that it was being processed from August 2023. I requested PRSI records September 2019 to July 2023 plus pay slips. At the conclusion of the Complainant evidence, I afforded the Parties a break before hearing from the Respondent witnesses. The Complainant did not return at the agreed 1.30 pm. I was informed that the complainant had left to attend to family matters. I directed the Complainant representative, Mr Desmond to arrange for the complainant return. The Case resumed with all parties in attendance. At the conclusion of the hearing, I requested a PRSI record from the Complainant and a Pay Slip record from the Respondent. I received the pay slips but not the PRSI record. I note that on June 27, 2024, the Respondent representative commented that the PRSI record had not been submitted to the WRC. In his closing remarks, Mr Desmond pointed to the overarching application of Bombay Bhappa ADJ 45992 to the facts of the case and sought compensation as a “real deterrent “for the repeated contraventions in employment law. He sought compensation for the financial loss in respect of public holiday working, absence of Sunday pays. He summarised that the maximum 48 hr limit had been breached on July 10, 2023. He requested that consideration be given to the conscious deliberate and ongoing negative effect from the shortcoming of a particularised contract and the direct evidence of the complainant.
|
Summary of Respondent’s Case:
The Respondent operates a Casino Business and has rejected the claims made. The Respondent denied being on prior notice of the complaints listed on the 10 November 2023 WRC complaint form. By way of written submission in advance of the hearing, the Respondent representative submitted that a high level of prejudice followed a lack of particularisation of claims by the Complainant in the run up to the second day of hearing in May 2024. Mr Mc Donald sought to raise this issue once more at hearing. The Respondent expressed a weariness on being expected to address records retained by the complainant, not yet advanced in the case and submitted that this would be contrary to fair procedures and natural justice. The Respondent also submitted that the Complainant was engaged in a parallel employment during the day in a self-employed capacity. While the Respondent concurred, at every validation of same, that the complainant had commenced work on 17 February 2020, he also accepted that the Complainant had actually commenced work the previous October 2019 at the Casino. This is the timeline which unites both parties. It was the Respondent case that he had not denied the complainants requests for payment of sums due as he had not advanced a case for payment during his employment. The Complainant had flagged on a number of occasions that a reduction in available hours was prompting him to consider his position at the business and the Respondent contended that he was actively planning to leave.
CA-00059914-001 Annual Leave The Respondent denied any contravention of the Organisation of Working Time Act, 1997. Mr Mc Donald submitted that a claim lodged on 10 November 2023 allowed for a 6month cognisable period which ran from 11 May 2023 to 10 November 2023. The Respondent exhibited a summary of annual leave 2022 to 2023, which was disputed by the complainant. It was the Respondent case that the Complainant had overtaken annual leave and had a liability to repay the respondent €1, 129.83. 2022 20 days /52 weeks 160 hours availed 133 hours outstanding 27 hrs. 2023 20 days /28 weeks 93.33 availed 201.00 outstanding owed to respondent 80.67 hrs @ €14.00 hr per hour = €1, 129.83 CA-00059914-002 Public Holidays Mr Mc Donald submitted that a claim lodged on 10 November 2023 allowed for a 6month cognisable period which ran from 11 May 2023 to 10 November 2023. During this time there were 3 public holidays, June, August and October 2023. However, the Complainant was not employed during October 2023. The Respondent conceded that €336.00 was owed to the Complainant for these public holidays.
CA-00059914-003 Weekly Rest Periods Mr Mc Donald submitted that there was a dearth of detail in the particulars relied on by the complainant in this claim. CA-00059914-004 Excessive Night Hours Mr Mc Donald submitted that there was a dearth of detail in the particulars relied on by the complainant in this claim.
CA-00059914-005 Sunday Working The Respondent has denied the claim for Sunday pay as the Complainant was in receipt of a salary which was paid whether he worked the 40 hrs or not, this constituted an incorporation of Sunday pay and nothing was outstanding. CA-00059914 -007 Breaks, Section 12 of Organisation of Working Time Act 1997 The Respondent has denied any liability for this claim. It was the Respondent position that the complainant was a lone worker at night, where he self-directed his break time. He was not obliged to work beyond the 4.30 am end of shift but chose to stay on frequently. The Complainant was provided with free access to snacks and drinks, with a cumulative consumption of €3, 150 during the course of his tenure. CA-00059914-008 Statement of Core Terms of Employment This claim was denied in full and submitted that the complainant was fully aware that he had received his core terms within the contract of employment. CA-00059914-009 Discrimination on grounds of race in conditions of employment The Respondent once more pointed to a dearth in detail in the complainant’s submission of this claim, which they regarded as “of frivolous and vexatious nature and is completel7y baseless in law and in fact “ Mr Mc Donald confirmed that the Complainant was employed as an EU Citizen of Portuguese / Macau origin, and he had not advanced a comparator to demonstrate less favourable treatment. The majority of the Respondent staff were of Asian origin. Jacobs AG Schorbus V Land Hassen ECLI: EU C 2000:370. (Opinion) He submitted that the burden of proof rested with the complainant to prove that he had been in receipt of discriminatory treatment, and he had not done so. Mitchell v Southern Health Board DEE 11, [2001] ELR 201 The Respondent contended that the Complainant was fixed with the window of time permitted within the 6-month cognisable period immediately preceding his claim to WRC. Evidence of Mr O Driscoll, Proprietor. Mr O Driscoll confirmed his 34-year association with the Casino business. He outlined that he dealt with the complainant when he commenced work in 2019. He denied that he placed a 7-day attendance obligation on the working relationship. He recalled the complainant saying that he was interested in night work. He recalled that very shortly into the working relationship, the complainant commenced a food delivery business which originated from two Restaurants in Glanmire and Blackpool which commenced at 4 pm -midnight Saturday and Sunday and 4 -11 weekdays. He did not seek approval for this position. He was a night worker, who worked a maximum of 4-5 hrs nightly at the respondent employment. He was paid a night rate of €14.00 per hour for a maximum of 40 hrs per week. He recalled that he habitually met with the complainant once a month on Fridays. He described him as an “excellent guy “and “very happy “who was managed by an on-site manager. Mr ODriscoll confirmed that he had not been approached by the Complainant to address any area of dissatisfaction at any time during the employment. By mid-2022 the issue of the complainant’s untaken annual leave had emerged. He observed that the complainant was exhausted and prompted to take his annual leave. He submitted that the complainant had sought to delay taking his leave to enable him to travel to Macau. He recalled seeing photos of the Complainant visiting both London and France during his tenure of employment. Mr O Driscoll confirmed that the complainant was fully aware that he could self-direct his break times during the nighttime. He accepted that he was a lone worker, but it was open to him to avail of break times throughout his employment. During his spans of duty, he was known to make video calls to his partner on the company phone which was not permitted. He was asked for records and responded that the complainant was using his own phone. Mr ODriscoll argued that the complainant had availed of break time as he had consumed free beverages and chocolate on duty estimated as €3,500 in costs. The Complainant had not been pursued for this sum. He denied treating the complainant in a discriminatory manner and referred to the majority of the staff being of Asian origin at the Casino. Mr O Driscoll had no recollection of hearing the complainant attribute his reason for leaving as family. He had informed him that he wanted to move into a different business. During cross examination, Mr ODriscoll confirmed that numerical hours of work, Sunday working, and rest breaks were not specifically set down in the contract of employment. He accepted that the complainant had a Monday to Sunday pattern but refused to work 7 days. He accepted that the accountant had prepared the contract of employment. Mr O Driscoll spoke with conviction when he replied that the complainant had not wanted annual leave during the years of 2020, 2021 and 2022. He did not provide records of annual leave and mentioned a localised system regarding accessing annual leave. Mr ODriscoll disputed that the business carried any liability for Sunday pay as he was paid over the minimum wage. He had very limited exposure to working on public holidays. There was an absence of staff handbook and grievance procedure. Evidence of Mr Tom O’Brien, Manager Mr O Brien gave evidence that staff approached him if they required annual leave. He submitted that a special book existed for applications, after which he would notify the staff. Mr Obrien recalled that the complainant started work at either 11 pm or midnight as he had another work commitment 6 to 11 pm. He recalled that break time was flexible, and time was allowed for smoking breaks and coffee. He frequently deputised for staff breaks. He refuted that the complainant was subjected to discriminatory treatment. During cross examination, Mr O’Brien confirmed that he signed staff time sheets. He had taken over in 2022 and breaks were encouraged. He recalled that he informed the complainant that “you need to take annual leave “but he didn’t take this time. In conclusion, Mr Mc Donald contended that the complainant had failed to set out the grounds for his claim of discrimination on race grounds. Instead, he argued that the claim was being used to bolster other claims. 80 to 90% staff were Asian origin, and this claim should be dismissed as frivolous and vexatious. He denied that the complainant had been treated less favourably by the respondent and he had failed to introduce a comparator. The Respondent had overpaid the complainant for annual leave. He undertook to submit pay records. The Respondent had provided evidence that Break times were encouraged and availed of by the complainant when he was “stood outside on phone calls “ Mr McDonald acknowledged that “bad drafting “may have been a point of consideration in relation to the contract of employment, however, the Respondent concluded that the complainant was fully aware of his obligations and benefits at work.
|
Findings and Conclusions:
I have been requested to make a decision on all 8 claims in this case. In arriving at these decisions, I have listened to and carefully considered both parties evidence and written submissions. I have also had regard for the records of requested pay slips received. I have drawn an inference from the complainant’s omission to furnish the record of his continuity of employment by furnishing PRSI records. The Complainant was very clear, when he told me at hearing that he had freedom of movement to work in the EU as a Portuguese National. This was not questioned at any time during his employment tenure. Surprisingly, I have found an air of secrecy surrounding this employment. I have found the wording of the eventual contract of employment of 17 February 2020 to be most unusual and reflective of a vague and opaque workplace without reference to specific provisions of Irish Legislation. I appreciate that the workplace is a casino, which has at its heart risk taking, gambling and fun, however it is also a workplace which needs to be built on an orderly conduct of the employment relationship by both parties. I found significant gaps in how this employment relationship was managed at recruitment, probation, application of terms and conditions, notification of grievances, and in the absence of a staff handbook. Both parties must take responsibility for these gaps, with the lion’s share of the responsibility falling on the Respondent. I found the Complainants omission to mention his real start date in 2019 to be misleading and for me it affected my analysis of his evidence as it pointed to an unwelcome editing. I have also found that the Complainant was not denied an opportunity to exercise his rights at work, but for some unknown reason waited until the employment had concluded to chase these up. I do not accept that the climate or culture was so negatively pervasive as to prevent him asserting his rights . It is not lost on me that the Complainant was actively running his own business during his time as an employee and that may well have taken his mind from his terms and conditions as an employee. The Contract Employment paperwork, documentation and policies are the foundation of a good workplace. In the absence of a staff handbook, curiously referred to as “an employee manual” in the contract, I would have liked to have met the Contract Drafter introduced as the Business Accountant to help me understand contextual contractual components such as “In consideration of the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the parties to the Agreement agree as follows …… 0r indeed Section 48 on remedies. I took some encouragement from Section 52 on the Laws of Ireland which governed the employment relationship. However, with the exception of a passing reference to the Minimum Notice and Terms of Employment Act 1973, no other law was mentioned by name. In truth , so much law has been available for employees and employers since 1973 . I found this omission to go to the heart of the frailty of this employment relationship. When I questioned the Respondent on the availability of a staff handbook as referenced in the contract, I was taken aback by his repeated vague responses. In short, the contract of employment exhibited by both parties did nothing to regulate this employment as it seemed to be more directed more towards outside interests. Recruitment I found the process of recruitment to the role at Cashier to be equally vague and opaque. The Complainant told me that he learned of the Casino from a Taiwanese colleague, and this led to his recruitment from Macau. The Respondent told me that virtually all of his staff are of Asian origin. In light of the international workforce, it is vital that the terms of employment are set out coherently and in full regard for the presiding law in a contract of employment from day 1 of employment. For me, reference to a probationary period was moot as no records existed. The contract set down that permission was necessary on the complainant’s behalf if he wished to work elsewhere in any capacity. The Complainant operated in full view of the Respondent for many months as a Food courier without any record of permission sought or granted to any correlation of working time. Application of the facts of ADJ 45992 Sharanjeet Kaur V Bombay Bhappa Limited t/a Bombay House, March 2024. I have read this 23-page decision very carefully as proposed by the Complainant representative. The Complainant contended that this case recounted a very similar experience to his own. This was strongly disputed by the Respondent. Neither Party made submissions on whether this case has been appealed to the Labour Court. I found some distinguishing features between both cases which permitted me to conclude that this was not an analogous case. Kaur reads to me as a story of a vulnerable worker linked to an employment by a work permit. She was miscast as a Chef and received €200 for a 50-hr week prior to her dismissal after 14 months of employment. There were some concerns regarding a potential human trafficking situation. The Complainant on the other hand presented to this case through a reliance on a freedom of movement within the EU and was not bound by a work permit due to his Portuguese nationality. There was no dispute about his job title or function. He was paid €560 .00 regardless of attendance. He resigned and then mounted his current action before WRC, some 4 months after leaving his employment. The Complainant had an excellent command of the English language and did not require an Interpreter. I could not identify common threads of vulnerability between both cases, and I do not accept that the case is on all fours with the instant case. I did not observe any sign of fear exhibited by the complainant in the presence of his former employer across both dates of hearing. I did notice some exasperation by the Employer in relation to his clear recollection that the complainant had been encouraged to take leave and he did not take it. I find that I have been asked to examine a period of employment which faltered from a lack of specific clarity on terms and conditions of employment from the very outset. The employment ended by voluntary resignation in July / August 2023 and apart from an unsuccessful attempt to resolve annual leave prior to his departure, the complainant did not seek to resolve the matters complained of today within the confines of the employment tenure. I will return to all this as I traverse the 8 claims.
CA-00059914-001 Annual Leave The claim here is for 10 months accrued but untaken annual leave during the course of calendar years 2020 (6 months) and 2021 (4 months) The Complainant had access to 20 days statutory leave per year. The Complainant has not made an application for an extension of time for reasonable cause in accordance with Section 41(8) of the Workplace Relations Act, 2015. The Complainant has not made any claim for the time he spent at work from October 2019 to when he commenced a contract of employment in February 2020. I can only presume that no issue arose regarding annual leave here. I will now consider the parameters of Section 23 of the Organisation on Working time Act, 1997 on cesser pay. Compensation on cesser of employment. 23.— (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 she would have received had he or she been granted that annual leave. (b) In this subsection— "Relevant period" means— (i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year, (ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year— (I) the current leave year, and (II) the leave year immediately preceding the current leave year, (iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the leave year immediately preceding the current leave year, or (iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) — (I) the current leave year, and (II) the 2 leave years immediately preceding the current leave year.
This means that an employee is entitled to receive a payment in lieu of accrued but untaken annual leave arising from a defined period Section 23(1) b, relevant period, refers, on cessation of employment only. The topic of avoiding monetisation of accrued but untaken annual leave has been considered by Court of Justice of the European Justice in a number of cases. The Court seeks to protect the objectives of the EU Directive and the Charter of Fundamental Rights when it seeks to enshrine annual leave as a worker’s unequivocal right during employment or computation to an allowance only on leaving employment. Kreuziger v Land Berlin C-619/16, a Legal trainee who did not take annual leave. Max Planck v Shimizu C-684/16 Grand Chamber 2018 A legal Executive owed 51 days leave on cessation of employment. Bu Commune di Copertino. Article 7 of EU Directive 2003/88. Annual leave 1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. Article 7 has relevance here as the leave is of statutory nature. The UK Supreme Court case of NICA and Agnew [2024] ICR 51, distinguished Max Planck V Shimizu C-684/16 Grand Chamber, 2018 This was a Preliminary Reference from the German Court on the circumstances of a Legal Executive seeking payment in lieu of respect of accrued, but untaken annual leave to the level of 51 days over 2 years. In this case the CJEU made a very decisive ruling which confirmed the Supremacy of Article 7, Directive 2003/88/ EC, underpinned by the principles “fair and just working conditions “of Article 31(2) of the Charter of Fundamental Rights of the EU In the event that it is impossible to interpret national legislation such as that at issue in the main proceedings in a manner consistent with Article 7 of Directive 2003/88 and Article 31(2) of the Charter of Fundamental Rights, it follows from the latter provision that a national court hearing a dispute between a worker and his former employer who is a private individual must disapply the national legislation and ensure that, should the employer not be able to show that it has exercised all due diligence in enabling the worker actually to take the paid annual leave to which he is entitled under EU law, the worker cannot be deprived of his acquired rights to that paid annual leave or, correspondingly, and in the event of the termination of the employment relationship, to the allowance in lieu of leave not taken which must be paid, in that case, directly by the employer concerned. In C-218/22 BU di Copertino, an Italian case of a Public Servant denied 79 paid annual leave days 2013-2016 on voluntary resignation due to early retirement. Press Release from January 2024 The Court therefore concludes that it is only where the worker deliberately refrained from taking his or her days of leave, even though the employer encouraged him or her to do so and informed him or her of the risk of losing that right at the end of the leave year or carry-over period, that EU law does not preclude the loss of that right. It follows that, unless the employer is able to show that it has exercised all due diligence in order to enable the worker actually to take the paid annual leave to which he is entitled, which is for the referring court to verify, it must be held that the loss of the right to such leave at the end of the authorised leave year or carry-over period, and, in the event of the termination of the employment relationship, the corresponding absence of a payment of an allowance in lieu of annual leave not taken, constitutes a failure to have regard, respectively, to Article 7(1) and Article 7(2) of Directive 2003/88 and Article 31(2) of the Charter. In the instant case, I did not have the benefit of records of annual leave granted to the complainant as set down in Section 25 of the Act. The Respondent is on proof of these records. The document presented at hearing does not fulfil that purpose as it is an aerial and not an exact record. The pay slips submitted post hearing were silent on annual leave. Instead, I was given a summary of annual holidays 2022-2023, disputed by the complainant. I cannot accept this document as a cogent record of annual leave granted in 2020, 2021, albeit that I accept there were business closures due to covid pandemic. I am not swayed by the complainant’s lack of comprehension of statutory leave in the contract. I am satisfied from the respondent, in both Mr ODriscoll and Mr O’Brien’s’ evidence that the complainant was encouraged to take annual leave accrued and did not do so. However, I cannot establish that the complainant deliberately refrained from taking the leave accrued despite explicit invitation. I have found that the Respondent did not advice the complainant of the implications for not taking accrued but untaken annual leave. The issue just drifted to where it has crystallised as a claim for monetarisation of a perceived acquired right under the EU Directive 2003/88. The time claimed here is for calendar year 2010 and calendar year 2021 to a total of 10 months. The Employers annual leave year is calculated on a calendar year rather than the statutory April to April as provided in section 2 of the Act. “Leave year” means a year beginning on any 1st day of April. For me, the claim veers outside of the relevant period described in section 23 (1) (b). Both parties accept that annual leave was paid for calendar years 2022 and 2023 up to the conclusion of employment. The Complainant confirmed that he was informed that his claim for time preceding 2022 was statute barred. My jurisdiction in this matter is clear. Section 41(6) of the Workplace Relations Act, 2015 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. I have carefully considered this claim and fully understand that the complainant believes that he was denied annual leave for a relevant period , however , I cannot elasticate the provisions of section 23 to establish a contravention of the Act as I have not been able to find a contravention within the cognisable period permitted to me under section 41( 6) of the Workplace Relations Act 2015 . The Complainant was paid in accordance with Section 23 of the Act for the relevant period permitted of S 23(1) (b) on cessation of employment. I do not have jurisdiction to address the earlier period claimed. C-218/22 BU di Copertino, distinguished. I find the claim is not well founded.
CA-00059914-002 Public Holidays The Complainant submitted that he had never received the provisions of section 21 of the Organisation of Working Time Act, 1997 by way of public holidays. The Complainants representative submitted that there was no mention of public holidays on the contract of employment. The Respondent accepted that . No records were exhibited on compliance with Section 21 of the Act . 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. I am satisfied that the Respondent did not comply with his statutory obligations in Section 21 during the cognisable period of the claim from May 11, 2023. I find the claim is well founded.
CA-00059914-003 Weekly Rest Periods The complainant has submitted that he has not been given any rest days in accordance with section 13 of the Act. My jurisdiction in this matter falls under Section 13 of the Act 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. The cognisable period of them claims 11 May 2023 to 10 November 2023. The complainant left work on 17 July 2023. I must now consider the application of Section 13 to the facts raised. The Act provides that employees must have an interrupted rest period of at least 24 hrs in any 7-day period, the maximum working week is 5 days or 10-day fortnight. “The employee’s usual workdays are Monday to Sunday “ Neither party referred to exemptions under the Act, Park Rite v OToole DWT 17 /2019 at the Labour Court where the Court found that the car park attendant was not “wholly or mainly engaged in an exempted activity “and was found to be entitled to be facilitated with the rights provided in section 13. The question being asked was whether the worker was engaged in security or surveillance? While the complainant presented a log of time worked up to and 31 July 2023. These did not correspond with records maintained under section 25 of the Act. There were some extracts from copied rosters which had the complainants name on the top left-hand side. I have not had the benefit of rosters signed by both parties. These rosters ceased week ending 18 September 2022 and did not fall within the cognisable period. I find that it was open to the Respondent to exhibit rosters at hearing which underpinned compliance with this Section. In the absence of those rosters, I am troubled. I find that it falls to the Respondent to demonstrate compliance with Section 13 from May 11, 2023, to when the employment ended on 31 July 2023, I find that in the absence of exhibited rosters such as those appended to the complainant submission up to 18 September 2022, I find that the Responded contravened Section 13 of the Act. I find the claim well founded. CA-00059914-004 Excessive Night Hours The complainant submitted that he was a latter-day recipient on the provisions of Section 16(2) of the Act from where my jurisdiction is derived. 2) Without prejudice to section 15, an employer shall not permit a night worker, in each period of 24 hours, to work— (a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours, (b) in any other case, more than an average of 8 hours, which is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed— (i) 2 months, or (ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24. He submitted that close to 100 % of the hours worked were between the hours of midnight and 07.00 hrs and sought that the 43.5 hrs usually worked by him should be apportioned as if same were a five-day working week, average excess of eight hours. The Respondent rebutted this and responded on the lack of particularisation of the claim. During the hearing, the Complainant acknowledged that this claim could not be substantiated. There was no Collective Agreement in this case. I have found that the claim is an assertion by the complainant, and he has not proved a contravention of the Act. I find the claim is not well founded. CA-00059914-005 Sunday Working Section 14 of the Act provides that where an employee is required to work on Sundays, additional compensation should follow. Sunday work: supplemental provisions. 14.— (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. This entitlement follows where the rate of pay does not encapsulate Sunday working. The parties are at complete polar opposites in this case. The Respondent relies on the weekly payment of €560.00 as a catch all amount. The Complainant disagrees and points to a lack of a delineation on Sunday Pay in the signed contract. Valent I have found that the complainant was paid in excess of the Minimum wage from February 2020. There are 12 Sundays in the cognisable period of the claim May 11 to July 31, 2023. The Complainant submitted that he worked them all. Neither Party presented a roster which would have confirmed that record of work. In a 2017 Decision, the Labour Court applied Valent in Master link Logistics and Jakub Rudzinski DWT 171
I am satisfied that the compensation for the obligation to work on Sundays in this case was not clearly discernible from the contract of employment and no clarity followed in the course of any negotiations, I find the claim is well founded.
CA-00059914 -007 Breaks, Section 12 of Organisation of Working Time Act 1997 The complainant submitted that he did not receive rest breaks at any time during the course of his employment. The cognisable period before me is May 11 to July 31, 2023. This is the claim for which the Respondent, on whom the burden of proof rests, articulated the strongest defence. However, that defence was not accompanied by a record of breaks maintained under section 25 of the Act. Instead, the Respondent has relied on the complainant’s autonomous role as a lone worker where he was free to determine his own rest periods with an enlarged opportunity for access to free snacks and beverages. The Respondent also contended that the complainant was a habitual user of his phone during these rest periods. He also availed of smoking breaks. This was denied by the complainant. The 1997 Act is underpinned by Health and Safety objectives, breaks must be provided at 15 mins in every 4.5 hrs and 30 minutes in every six hours. These breaks must be uninterrupted periods of free time except in case of emergency. The workplace was a casino with extended opening times. It Is not a workplace governed by an exemption / compensatory rest period. The Respondent has argued that exigencies of the business required flexibility in this area. In my consideration of this claim, I am struck by the inconsistency of record keeping and just how the respondent was able to detail the cost of the snacks eaten by the complainant but not the rest times which require recording under Law. I note that there was a loose arrangement for cross cover for breaks which was denied by the complainant. I found Mr O’Brien very clear on his recollection of seeking to manage breaks. I accept his evidence that the complainant did have rest time, but was it uninterrupted in a casino when he was the sole member of staff on duty? In this I am drawn to examine the High Court in Stasaitis v Noonan Services Group ltd and Labour court [2014] 25 ELR 173 where Kearns J examined the rest breaks operational in an exempted employment under Section 6 of the Act and held Kearns P., in dismissing the appeal:
Kearns J musings are of interest here. On a purely factual basis, it is difficult to see how it could possibly be argued that the appellant in this case is less well off by virtue of the arrangements put in place for compensatory rest in his case. It is common case that, when not required to operate the barrier or check vehicles in or out of the premises, the appellant could move to an area in the security hut where he had available to him kitchen and other facilities, although, of course, he was not at liberty to move away from the security hut. It is not in dispute but that these were the arrangements for breaks and that the appellant availed of them. I accept that this decision emerged from an exempted employment, governed by Collective Agreement and as a result may be in part distinguishable. However, I am struck by the acceptance of the allowance from mobility within the workplace and facilities for rest. In the instant case, I have established that the Respondent has not submitted records of breaks. I accept that the complainant availed of rest time on his own terms during the cognisable period. However, this was not un - interrupted time as the complainant was not free to pursue his own interests completely during this time as customers were presented in the Casino and as such constitutes a contravention of the Act. I cannot accept that his bill for snacks can be diminish that contravention as that may well be a simple debt recoverable in law. However, I cannot accept that is can mount a collateral attack on the pillars of Section 12 of the Act. I find the claim well founded. CA-00059914-008 Statement of Core Terms of Employment My jurisdiction in this complaint arises from Section 3(1)(A) of the Act, core terms, rather than Section 3(1) 1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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, There was a mandatory obligation which has not been met by the contract of employment signed by the Respondent 17 February 2020. It makes no mention of the earlier employment. I have identified subsisting breaches in relation to Section 3(1) (A) (c) as the expiry of temporary contract was undated (d) no pay reference for National Minimum Wage (e) no description of normal working day and week (i) incorrect start date (j) on overtime (k) on probation. I find the claim is well founded. CA-00059914-009 Discrimination on grounds of race in conditions of employment The Complainant has submitted that he has been discriminated by reason of his race in his conditions of employment. He has introduced himself as an Eu Citizen of Macau origin (link to Portugal). He submitted that his most recent date of discrimination was 31 July 2023. He did not offer a Comparator. The Complainant introduced his case as “In its totality, this employment contract represents modern day slavery, inflicted upon Mr Leong in such manner as was calculated to prey upon him as a recent arrival to this country, in such fashion as would never be presented to or inflicted upon any Irish or Mainland EU citizen….” and this rendered the terms and conditions as discriminatory ab initio without a need for a comparator. The Respondent has persistently denied discrimination. Section 8 of the Employment Equality act 1998 outlaws’ discrimination in employment. Section 9 of that Act renders a Collective Agreement null and void in the face of discrimination. The Complainant has relied on Section 6(2)(h) Race as his ground on which he has built his claim of Discriminatory treatment. 6. Discrimination for the purposes of this Act [(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,
Despite my best efforts, I have been unable to get him to identify a Comparator. The circumstances do not allow me to abandon this hurdle and move to a Hypothetical Comparator. The Complainant is entitled to choose his own Comparator and did not. Wilton Steel Company of Ireland [1999] 10 ELR 1 and I am obliged to make a comparison with that person. I found the Complainant to be very short on detail in this claim. He accepted that he met with the Respondent frequently in the course of his work but did not approach him to address the contractual shortcomings on which he now relies. He did make a brief reference to following up on break times during the contract but no concrete detail. I have a great difficulty accepting that the complainant was unfavourably treated in this employment but find instead that he was accommodated in his dual role of food courier up to and including being allowed to change roster start times and a change in work patterns in the afternoons. This permissiveness stands in sharp conflict with the climate relied on by the complainant. I cannot agree with the complainant representative when he described this employment as modern day slavery. I listened very carefully to both parties’ evidence and asked my own clarifications. I have found that this instant employment was wedged by the complainant himself into self-employment with which it co -existed from 2020. I asked the Respondent if the Complainant had sought permission to launch his own business as there appeared to be certain limitations to this within the contract of direct employment.? He had not sought permission, but the Respondent did not curtail his progress there. I have found that the Complainant moved on from the contract at that point and concentrated more on his self-employment venture. I could not find evidence of derogatory or insulting verbal exchanges as advanced by the Complainants representative but not expanded on in the complainants’ own evidence. These were denied by the Respondent.
The Complainant is required to satisfy the burden of proof as set down in Section 85 A 85A. Burden of Proof (1) Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary. The Labour Court in
Melbury Developments Ltd v Valpeters EDA 17/2009 “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. I must be satisfied that there are facts of sufficient significance for me to infer Discrimination on grounds of Race. I have given the complainant every opportunity, including an adjournment on day 1 of hearing to allow him sufficient time to state his case. What I have learned is that he under reported the real span of his employment tenure. This created a doubt in my mind surrounding his evidence at hearing. The Complainant was a temporary worker but did not advance a complaint that he was treated less favourably than permanent workers. I cannot conclude that he was less favourably treated here due to his race. He asserted that he was involved in a contract which amounted to Modern Slavery. While I have expressed my concern at the incompleteness of his real employment tenure, I also have concerns at both copies of his resignation letters, one year apart, exhibited by the Respondent, which were respectfully worded and highly complementary of the employment. The Complainant confirmed his signature. The Complainant did not accede to my request for his PRSI records. I can only infer there is something in these records he did not wish to have investigated by the WRC. A Complainant is required to approach a case with all cards face up in the face of Equality of Arms. My attention was drawn to Clare Civil Engineering v Ostojic et al at the Labour Court, EDA 101, Mr Ostojic was a Croatian National who together with Latvian National Labourers raised a number of complaints of Discrimination on grounds of Race. The Labour Court could not draw a conclusion that the complainants had been discriminated against on grounds of their Race. They did not identify a nexus between the ground relied on and less favourable treatment. In the instant case, the Complainant was clearly working in a “light touch “managed contract of employment, which was virtually bereft of records and a staff handbook. Most importantly, the Respondent gave evidence that over 80% of the staff were Asian in origin which matched the Complainants origin. I have not been provided with a Comparator by the Complainant. I find that the Complainant has not satisfied the burden of proof set down in Section 85 A and I cannot draw a conclusion that he was discriminated against on grounds of his Race in relation to his conditions of employment. I have heard a sequence of assertions which have not been proved by the Complainant. I would have liked to have seen an in-house engagement by both parties prior to referral of this claim to the WRC. The Complainant has not satisfied the prima facie test for Discrimination on grounds of Race, Section 6(2) (h) of the Act. This claim cannot succeed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. CA-00059914-001 Annual Leave Section 27 of the Organisation of Working Time Act, 1997 requires that I make decisions in relation to the below mentioned complaints in accordance with sections 19-23, sections 12,13 14, 16(2) and 21 of that Act (6 complaints)
I have found the claim is not well founded. CA-00059914-002 Public Holidays I have found the claim well founded. I order the Respondent to pay the complainant €1,000 as just and equitable compensation in respect of that contravention. I also order the Respondent to incorporate the provisions of Section 21 of the Act in all contracts of employment.
CA-00059914-003 Weekly Rest Periods I have found the claim well founded. In accordance with my powers under Section 27 of the Act, I order the Respondent to pay the Complainant €750.00 as compensation in respect of the contravention of section 13. I also order the Respondent to action and maintain compliance with Section 13 of the Act. CA-00059914-004 Excessive Night Hours I have found that this claim is not well founded. CA-00059914-005 Sunday Working I have found the claim is well founded. I award the complainant €500.00 in compensation for contravention of Section 14 of the Act within the cognisable period. I also order the Respondent to incorporate the provisions of Section 14 of the Act in all contracts of employment . CA-00059914 -007 Breaks, Section 12 of Organisation of Working Time Act 1997 I have found the claim is well founded. I have taken account of the Respondent evidence in accepting that the Complainant was not indentured and did indeed avail of rest breaks. However, I find this practice was not compliant with Section 12 of the Act. I have found the claim is well founded. I award the complainant €300.00 in compensation for contravention of Section 12 of the Act within the cognisable period. I order the Respondent to maintain records in accordance with Section 25 of the Act.
CA-00059914-008 Statement of Core Terms of Employment Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with the provisions of Section 3 of that Act. I have found a serious and continuous breach of section 3(1) (A) of the Act which intensified in impact for want of provision of an employee manual mention in the contract of Employment. I award the complainant €2,240 as just and equitable compensation for the continuous breach of Section 3(1)(A) of the Act. CA-00059914-009 Employment Equality Act, 1998. Section 77 of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with Section 79 of that Act. The Complainant has not satisfied the prima facie test for Discrimination on grounds of Race, Section 6(2) (h) of the Act. This claim cannot succeed. |
Dated: 7th August 2024
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claims on Conclusion of Employment, Organisation of Working Time Act, Employment Equality Act, Core terms of employment |