ADJ-00028905

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00028905

Complaints:

Date of Adjudication Hearing:  02/02/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

These complaints were referred under Section 41 of the Workplace Relations Act 2015 and Section 77 of the Employment Equality Act 1998 to the Workplace Relations Commission (hereinafter ‘WRC’) on 26th June 2020.  Following delegation to me by the Director, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence.  They were adjourned pending the introduction of the Workplace Relations (Miscellaneous Provisions) Act 2021 on foot of the Supreme Court Judgement in Zalewski 2021 IESC 24.  Following same, I heard these complaints by remote hearing over several dates pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020. They were further adjourned to enable the Complainant to apply for a refund of monies paid on her behalf by the Respondent from the Revenue Commissioners with a view to resolving matters.  Both Parties were self-represented.  The Complainant was assisted by the Migrants Rights Centre Ireland (MRCI).

By the final hearing date, the Complainant had received a refund from the Revenue Commissioners totalling €4,541.16 and in excess of the sum claimed in respect of her pay-related complaints.  She sought a hearing in respect of all her complaints “so her voice would be heard” and a further sum of compensation.  Written submissions and supporting documentation was received from both Parties.  The changes to hearing procedures under the Workplace Relations (Miscellaneous Provisions) Act 2021 were outlined.  The hearing was held in public.  However, as these complaints relate to children, I direct that no details are published that might identify the Parties in accordance with Section 41(14)(b) of the Workplace Relations Act 2015 (as amended) [as constituting special circumstances] and Section 89(1) of the Employment Equality Act 1998.  The evidence was heard under oath/affirmation.  All of the evidence, documentation and submissions received have been fully considered.  The complaints that were duplicated or not pursued, namely CA-00038382-005, CA-00038382-007, CA-00038382-008, CA-00038382-010, CA-00038382-011, CA-00038382-012, CA-00038382-013 and CA-00038382-015 are treated as being withdrawn.  All of the complaints pursued have been considered under their respective statutory provisions as set out below.  As there was a direct factual conflict between the Parties regarding the breakdown in their relationship with the truth lying somewhere in the middle, findings of fact are limited to determining the complaints herein.

Background:

The Complainant had been employed by the Respondent as an Au Pair between 26th March 2019 until 31st January 2020.  She contended that her hours and duties had increased over the course of her employment and claimed a shortfall in minimum wage, compensation for Sunday work and pay in lieu of annual leave.  She also alleged discrimination on the ground of race in relation to the conditions of her employment.  The Respondent denied the discrimination complaint/s and submitted that the Complainant had received adequate recompense in respect of her other complaints by the refund from the Revenue Commissioners.

Summary of Complainant’s Case in respect of all Complaints:

The Complainant is of Argentinian nationality and at the material time of these complaints was studying English in Ireland whilst her application for an Italian passport was being processed.  She was subject to a Stamp 2 Student visa which entitled her to work 20 hours per week during college term and up to 40 hours per week during college holidays.  She had responded to an ad posted by the Respondent on a social media page advertising Au Pair jobs in Dublin.  Following an interview with the Respondent, she was hired as a live-in Au Pair from 26th March 2019 and moved into the Respondent’s home which she shared with her two children.  Their verbal agreement was for 20 hours work per week over 1-2 weekday afternoons, Saturdays and Sunday mornings.  Each month she would be allowed a Friday night off and would be required to work one full Sunday.  Her duties included minding the children and some light housework.  The Complainant was paid €120 per week plus her full board and lodgings (allowable at €54.13 per week). 

The Complainant maintained that at the time of accepting this employment and throughout, she had been unaware of her employment rights under Irish law and nor did the Respondent appraise her of same.  She contended that she had never been furnished with a contract or written statement of the terms of her employment and her work schedule, job description and duties undertaken were addressed verbally or via WhatsApp messaging.  She alleged that over time, and in breach of agreement, her hours of work expanded up to an average of 30 hours per week.  At the beginning the Respondent would be home by 8pm when the children went to bed and her shift as a taxi-driver had ended.  However, the Respondent came home from her shifts progressively later and occasionally after 12am.  As a consequence, the Complainant was unable to leave the house for free time as the children could not be left unaccompanied.  Her work schedule also increased to 3 weekdays per week and she was required to work weekends.  After the first month, she did not have any free time off.  Her tasks also increased to include washing, ironing and folding the children’s clothes, tidying up the kitchen and the living room, cleaning dishes, tidying up the children’s bedrooms, washing floors, feeding the cat and doing the bins once a week.  She submitted an exchange of WhatsApp messages making such requests in support of her complaints.  The Complainant contended that she was afraid to raise any issues for fear of losing her accommodation and pay.  On 1st February 2020, she had eventually confronted the Respondent about the terms and conditions of her employment when the Respondent had complained that she was not doing housework and required her to do more hours.  The Respondent had reacted aggressively and had stated words to the effect that the Complainant was “illegally working and did not have any worker rights”.  The Respondent also told her to leave her house within 14 days.  Thereafter, the Respondent had ignored her.  Due to concerns for her personal safety, the Complainant left the house on 7th February 2020.  She had felt very let down and upset and went to the MRCI for assistance.  The Complainant denied that she had received any verbal or written warning.  She contended that her pay had fallen below the minimum wage, she was not compensated for Sunday work, she did not receive her full annual leave or pay, and she had never received any payslips.

The MRCI had advised the Complainant on her employment rights and assisted with the drafting of correspondence and her complaint form.  They also assisted with drawing up a table of her hours worked for the full period of her employment and amount claimed in relation to each complaint.  The Complainant contended that over the course of her employment, her hours had increased from 20 hours up to an average of over 30 hours per week.  She worked an average of 21.75 hours per week for a 44-week period.

Under cross-examination, the Complainant accepted that she also had a cleaning job during the same period.  However, she maintained that this was just for two hours per week for a friend and she had remained within her permitted hours of work.  The Respondent also put it to her that she had a good knowledge of employment rights having worked for two other families previously.  The Complainant accepted that she had never furnished her other three employers in Ireland with a PPS number.  However, she maintained that the Respondent had never requested same for tax purposes.  She agreed that she had never raised any issues regarding her employment with the Respondent before their exchange on 1st February 2020.  However, she maintained that she had been unaware of her employment rights.

Summary of Respondent’s Case in respect of all Complaints:

The Respondent outlined her employment relationship with the Complainant in writing and direct evidence.  The Respondent is a single parent and from 26th March 2019 had employed the Complainant as an Au Pair via a social media platform to mind her two children whilst she was out working as a taxi-driver.  She was also required to undertake light housework limited to keeping her own and the children’s spaces clean.  They had discussed and agreed hours of work and wages.  The Complainant had informed her that she was residing in Ireland in order to qualify for her Italian passport as her grandfather had been Italian.  The Respondent had asked the Complainant to provide her PPS number which was never forthcoming.  As set out below, the Respondent maintained that she had furnished her with a contract of employment which she had declined to sign.  At the first hearing, the Complainant provided her PPS number to the Respondent.  The Respondent had hired an accountant to sort out her financial affairs retrospectively and post-dated payslips were issued and furnished whilst these complaints were before the WRC.  Consequently, the Complainant had received a refund of €4,541.16 from the Revenue Commissioners. 

The Respondent maintained that the Parties had enjoyed a good relationship and the Complainant had been part of the family and included in all family occasions.  This was borne out by their text message exchanges.  However, from December 2019, the Complainant had been spending more time in bed and became moody citing personal and health issues.  On occasion between December 2019 and January 2020, the Respondent had to remind her to tidy up after herself in the kitchen.  The Complainant also became less tolerant of the children and on 19th December 2019 had taken a nap leaving them unsupervised during which time a potentially dangerous incident occurred.  There had been a heated exchange about the incident during which the Complainant had made inappropriate comments about access arrangements and the Respondent had given her a verbal warning.  On 16th January 2020, the Respondent had come home from work to find the Complainant in bed and the children unfed.  She had been very upset and the Complainant had apologised.  She had issued a written warning to the Complainant as per draft furnished.  Matters came to a head on 31st January 2020 when the Complainant had grounded the children and left them unfed as punishment for a prank.  There was a further heated exchange.  The Respondent said that she felt she could no longer trust the Complainant to care for her children and terminated her employment.  The Complainant had stated that she would make the Respondent pay.  The following day, when things had calmed down, she gave the Complainant 14 days to find alternative accommodation and offered to help move her belongings.  However, without telling her or the children, the Complainant had left in the middle of the night of 7th February 2020 leaving the front door open.  She had texted a photo of the location of her key and that was the last she had heard from her until these complaints.  The Respondent denied ever being aggressive towards the Complainant or requiring her to work beyond the hours and tasks agreed.

Since the submission of these complaints, the Respondent has also experienced significant adversity.  In particular, her children had suffered serious injury and illness.  Her job as a taxi-driver had ceased during the Covid-19 Pandemic causing her financial difficulty and resulting in the family home being placed at risk.  She had only recently managed to sort out her financial affairs with the Revenue Commissioners.  She was concerned about the impact of publication of a decision in relation to these complaints upon the Parties.

CA-00038382-001 - Complaint under Section 24 of the Minimum Wage Act 2000 – paid less than minimum wage for the hours worked:

Summary of Complainant’s Case:

The Complainant contends that she was paid a fixed weekly wage of €120 plus food and lodgings.  She further contends that as she was required to work 25-30 hours per week, and some weeks up to 30-40 hours, her wages fell below the minimum wage contrary to Section 15 of the Minimum Wage Act 2000.  Following the termination of her employment and with the assistance of the MRCI, she had made a request under Section 23 of the National Minimum Wage Act 2000 for a written statement of her average hourly pay for the full period of her employment which the Respondent had not provided.  Based upon the applicable hourly minimum wage rate of €9.98 for the hours worked, she estimated an underpayment of €2 per hour.  Deducting the €120 wages per week received from the Respondent and allowing €54.13 per week in respect of food and lodgings (being the maximum allowed under S.I. No. 402/2018 – National Minimum Wage Order 2018), a total underpayment of €2,762.15 was calculated.  The Complainant sought payment of same pursuant to Section 21 of the Act which provides for back-payment upon termination of employment.  She confirmed that this was covered within the refund from the Revenue Commissioners.

Summary of Respondent’s Case:

Whilst it is common-case that the Complainant had paid the Respondent €120 per week into her online bank account on a fortnightly basis, the Respondent contends that she had agreed to work 24 hours per week (with the exception of one week per month when the children stay with her family) at a rate of €10 per hour.  Because the Complainant had not provided her PPS number, the Respondent had withheld €120 per week in lieu of emergency tax.  However, she accepted that she had not issued payslips or made returns to the Revenue Commissioners discharging PAYE, PRSI or USI until receipt of these complaints.  The Respondent had explained emergency tax to the Complainant and reassured her that she would receive a refund upon receipt of her PPS number.  She had not requested the PPS number in writing beyond the initial contract.  She denied the Complainant’s claim that she had been required to work 30 hours plus in any given week.  However, in response to questioning by this Adjudication Officer, she conceded that she had not regarded time when the children were in bed and she was out working her taxi as working time and accordingly, had not included this within her calculations.  She accepted that there had been some Friday nights when she stayed out working as late as 5am.  Whilst she also accepted that the Complainant could not have left the house during those times, she contended that it had suited her to stay at home.

Findings and Conclusions:

The Respondent accepts that she had withheld 50 percent of the Complainant’s wages and following receipt of these complaints, retrospectively put her affairs in order with the Revenue Commissioners and issued payslips.  She further accepts that she had not included the time when the children were in bed and she was out working as working time.  I am therefore satisfied on the balance of probabilities that the Complainant’s hourly wage fell below the applicable hourly minimum wage rate of €9.98.  Accordingly, I find that there was a contravention of Section 15 of the Minimum Wage Act 2000.  In the absence of any working time records recording the Complainant’s working hours, I accept the Complainant’s calculations.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  Section 26(1) of the Minimum Wage Act 2000 provides: “A decision of an adjudication officer in relation to a dispute in respect of the entitlements of an employee under this Act referred to the adjudication officer under Section 41 of the Workplace Relations Act 2015 may contain- (a) a direction to the employer to pay to the employee- (i) an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and (ii) reasonable expenses of the employee in connection with the dispute.”  Noting that the Complainant has confirmed that the sum of €2,762.15 arrears claimed has been satisfied by the refund from the Revenue Commissioners, I direct a further payment of €9 in respect of reasonable telephone/postage/other expenses incurred.

CA-00038382-002 - Complaint under Section 27 of the Organisation of the Working Time Act 1997 – not given compensation for working on Sundays:

Summary of Complainant’s Case:

The Complainant contended that during the course of her employment, she had not been compensated for having to work on Sundays contrary to Section 14 of the Organisation of Working Time Act 1997.  She had calculated that during the course of her employment with the Respondent she had worked 165 hours on Sundays and based upon 25% of a reasonable industry pay increase, sought €404.25 plus compensation.  She confirmed that the €404.25 was covered within the refund received from the Revenue Commissioners.

Summary of Respondent’s Case:

The intended contract had made provision for Sunday work as follows: “You will be paid for 24 hours per week at a rate of 10p/h.  As agreed, the overpayment on the week the children are gone for the weekend, will cover any Sunday hours I may work during the month.”  Initially, the Complainant had worked the odd Sunday but shortly after the commencement of her employment, she had not been required to work any Sundays.  This was evidenced by text messages confirming that she had been away for various weekends.

Findings and Conclusions:

Given the Respondent’s admission to withholding 50 percent of the Complainant’s wages with the consequence that they fell below the applicable minimum wage, it follows that the Complainant could not have been compensated for any Sunday work.  I am therefore satisfied on the balance of probabilities that there was a contravention of Section 14 of the Organisation of Working Time Act 1997.  In absence of any working time records recording the Complainant’s working hours, I accept the Complainant’s calculations.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  Section 27(3) of the Organisation of Working Time Act 1997 provides: “A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision 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) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”  Noting that the sum of €404.25 claimed by the Complainant has been satisfied, I direct a further sum of €240 in compensation for this breach as being just and equitable in all the circumstances.

CA-00038382-005 - Complaint under Section 6 of the Payment of Wages Act 1991 – minimum wage, Sunday work compensation & annual leave pay:

Summary of Complainant’s Case:

In her complaint form, the Complainant claimed that the shortfall in minimum wage, compensation for Sunday work and pay in lieu of annual leave constituted unlawful deductions from her wages contrary to Section 5 of the Payment of Wages Act 1991.  In submissions and at the hearing these claims were pursued under their respective statutory provisions as set out herein with the total sum claimed being €3,572.  However, compensation of up to four weeks’ renumeration was sought in respect of the Respondent’s failure to provide her with payslips contrary to Section 4 of the Payment of Wages Act 1991.  It was explained to her that there is no provision for compensation for this particular breach under the Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint.  In circumstances where the Complainant has pursued the shortfall in her wages under other statutory provisions and awards have been made as set out herein, I find that this complaint is not well founded.

CA-00038382-006 - Complaint under Section 27 of the Organisation of the Working Time Act 1997 – did not receive full annual leave entitlement / pay:

Summary of Complainant’s Case:

The Complainant claimed that she had not received her full annual leave entitlement and/or had not been paid in lieu of same contrary to Section 19 and Section 23 of the Organisation of Working Time Act 1997 respectively.  She claimed that €405.60 was outstanding calculated on the basis that this represented 8% of the 951 hours she had worked over the 44 weeks of her employment minus €340 annual leave pay received.  She confirmed that this was covered within the refund from the Revenue Commissioners.

Summary of Respondent’s Case:

The Respondent contended that the Complainant had received all of her requested holidays of choice comprising of six dates as listed in her written submission.  However, she also accepted that the pay for that annual leave had also been reduced by 50 percent to make provision for emergency tax. 

Findings and Conclusions:

Given the Respondent’s admission to reducing the Complainant’s annual leave pay by 50 percent and the fact that only six days were paid in respect of 44 weeks’ employment, I find on the balance of probabilities that there were contraventions of Section 19 and Section 23 of the Organisation of Working Time Act 1997. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  Section 27(3) of the Organisation of Working Time Act 1997 provides: “A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision 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) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”  Noting that the sum of €405.60 claimed by the Complainant had been satisfied, I direct a further sum of €240 in compensation for the breaches as being just and equitable in all the circumstances.

CA-00038382-014 - Complaint under Section 7 of the Terms of Employment (Information) Act 199 – non receipt of written statement of employment terms:

Summary of Complainant’s Case:

The Complainant contends that she was never furnished with a written statement of her terms of employment by the Respondent as required under Section 3 of the Terms of Employment (Information) Act 1994.  She sought the maximum compensation of four weeks’ remuneration in respect of this breach.

Summary of Respondent’s Case:

The Respondent maintains that she had drawn up a contract and furnished it to the Complainant as per a draft furnished to the WRC.  The Complainant had said that she required a friend to look over the contract.  Thereafter she had refused to sign the contract expressing concern that she would not be legally allowed to work after completing her college year and before receipt of her passport.  However, when there was a delay with her passport, she had re-enrolled again late.  The agreed period of employment was for a six-month period but the Complainant had asked to stay on.  As the children liked her, the Respondent had agreed.  With the benefit of hindsight, the Respondent concedes that she made a mistake in permitting the Complainant to work for her without signing the contract but had been undergoing personal difficulties.

Under cross-examination, the Complainant questioned the Respondent as to whether she had proof that she had furnished her with a contract of employment, or a written warning as submitted at the hearing.  The Respondent said that she had prepared a draft contract from templates on the internet in advance of employing the Complainant and as she did not have access to a printer, a friend had printed copies for her.  The Respondent maintained that she had provided a copy to the Complainant who declined to sign and had eventually disposed of her copy.  She confirmed that the copy provided to the WRC was an earlier draft. 

Findings and Conclusions:

Without the necessity to adjudicate on the conflict in evidence, I am of the view that the Respondent could have made more of an effort to agree written terms of employment with the Complainant and furnish same.  It was clear from the evidence that there was a lack of clarity as to what terms had been agreed.  Accordingly, there was a contravention of Section 3 of the Terms of Employment (Information) Act 1994.  I further find that the Complainant was disadvantaged in terms of enforcing her statutory rights as a result.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  In addition to various remedies directing the provision / content of a written statement, Section 7(2) provides that an Adjudication Officer may “…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 the Regulations under section 17 of the Unfair Dismissals Act 1977.”  Noting both the prejudice to the Complainant and the Respondent’s challenging circumstances, I direct a further sum of €480 (2 weeks’ remuneration) in compensation for this breach as being just and equitable in all the circumstances.

CA-00038382-016 - Complaints under Section 77 of the Employment Equality Act 1998– discrimination on ground of race – employment conditions & dismissal:

Summary of Complainant’s Case:

The Complainant contended that as a non-Irish national migrant, the Respondent had discriminated against her on the ground of race contrary to Section 6(2)(h) and Section 8 of the Employment Equality Act 1998 in relation to the conditions of her employment.  She alleged that the Respondent had taken advantage of her status as a non-Irish national migrant in the knowledge that she was dependent upon her for wages and accommodation.  She further alleged that when she had challenged the Respondent about her employment situation on 1st February 2020, she had reacted aggressively stating words to the effect that the Complainant was “illegally working and did not have any worker rights”.  She did not elaborate any further or challenge the Respondent’s account of the events leading to the termination of her employment either in submissions or at the hearing.  Neither did she pursue her complaint of discriminatory dismissal.

Summary of Respondent’s Case:

The Respondent vehemently denies that she discriminated against the Complainant on the ground of race or referred to her status as a foreign worker.  She has a diverse social network and would never discriminate against anyone.  She submitted that there was absolutely no basis for this complaint.

Findings and Conclusions:

Noting that the complaint of discriminatory dismissal has not been pursued, the issue for my determination is whether the Complainant was subjected to discrimination by the Respondent on the ground of race based upon her nationality in relation to her conditions of employment contrary to the Employment Equality Acts 1998-2015.  It is firstly necessary to set out the requisite statutory provisions as follows:

Section 6(1) of the Employment Equality Act 1998 provides for complaints of discrimination on nine grounds including race as follows: “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,…”.  In relation to the ground of race, Section 6(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as ‘‘the ground of race’’),…”.  Section 8(1) specifically prohibits discrimination by employers against employees on a number of grounds including conditions of employment.  Section 85A(1) of the Employment Equality Act 1998 sets out the burden of proof which applies to all discrimination complaints: “Where in any proceedings 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.” 

In Southern Health Board -v- Mitchell, DEE011, [2001] ELR 201, the Labour Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.  The Labour Court has provided further guidance on the evidential burden which must be discharged by a complainant before a prima facie case of discrimination is established in a number of other oft cited cases.  Particularly pertinent to this case, in Margetts -v -Graham Anthony Company Limited EDA038, it stated: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Turning to the complaint herein, essentially the Complainant is asserting that the Respondent had exploited her position as a non-Irish national migrant and on one occasion had stated aggressively that she was “illegally working and did not have any worker rights”.  Overall, I found the Complainant’s evidence to lack specificity and detail in relation to this complaint and the context in which this comment was allegedly made.  When afforded the opportunity to elaborate at the hearing, the Complainant offered no further detail.  Nor did she challenge the Respondent’s account of the facts giving rise to the termination of her employment including the heated exchanges and abandoned her complaint of discriminatory dismissal.  Whilst finding that the Respondent had breached the Complainant’s employment rights, there was no evidence to infer that she would have treated a similarly situated person of Irish nationality any differently.

Decision:

Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to these complaints.  I have concluded my investigation of these complaints and based upon the aforesaid reasoning, find pursuant to Section 79(6) of the Acts, that the Complainant has not established in the first instance, facts from which either direct or indirect discrimination on the ground of race and in this case, nationality may be inferred requiring the Respondent to rebut same.  These complaints therefore fail.

For the avoidance of doubt, as the total sum of €4,541 ordered against the Respondent equates to the refund received by the Complainant via the Revenue Commissioners no further payment is directed.

Dated: 14/02/2024  

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Minimum Wage Act 2000 – Organisation of Working Time Act 1997 – Payment of Wages Act 1991 – Terms of Employment (Information) Act 1994 – Discrimination on the ground of race / nationality - prima facie case - Section 6(2)(h), Section 8 and Section 85A of the Employment Equality Acts 1998-2015