ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00050885

Parties:

	Complainant	Respondent
Parties	Karla Iglesias	Firebyrd Chicken Limited

Representatives

Zsolt Duruc

Jerry Lucey, Blended HR

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00062279-002	19/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062279-005	19/03/2024

Date of Adjudication Hearing: 05/06/2024

Workplace Relations Commission Adjudication Officer: John Harraghy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 25 of the Equal Status Act, 2000, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

The Workplace Relations Commission (WRC) was contacted by an individual the day prior to the hearing requesting a postponement on the basis that the Complainant was out of the country until sometime in September and the Complainant understood that this was a remote hearing. The individual was advised that such a late application would have to be made in person at the hearing.

Mr Zsolt Duruc attended the hearing on 05/06/2024. He explained that he was a friend of the Complainant’s, and he confirmed that he was the person who sent the e-mail the previous day. Mr Duruc stated that the Complainant had to leave Ireland on 24/03/24 as she had no visa and is awaiting a new visa. She told him that she thought the hearing would be online and was requesting an adjournment on that basis.

The Respondent attended the hearing and was represented by Mr Jerry Lucey, Blended HR. The Respondent had provided a written submission in advance of the hearing. Mr Lucey, on behalf of the Respondent, stated that at no stage was there any suggestion of a remote hearing. The Respondent had gone to considerable time and expense to provide a written submission and attend the hearing and would not be agreeable to any adjournment. They had attended the hearing to provide a full defence of the complaints and any residual issues in relation to the Complainant’s employment were already sorted.

Mr Duruc confirmed that he had no knowledge of the Complainant’s issues and was not in a position to present her case. He was asked to attend the hearing and request an adjournment.

The WRC had also engaged the services of a Spanish interpreter who attended the hearing.

Having considered the application, I decided not to grant the adjournment for the reasons outlined in the Findings and Conclusions section below.

Background:

The Complainant was employed as a general operative “Waitstaff” with the Respondent from 13/03/2023. She was rostered for 10 hours and was paid €10.50 per hour initially and this increased to €13.30. As her student visa expired the Respondent could no longer employ her.

The Complainant submits that she was discriminated against in terms of pay and on the grounds of race and gender. She also claims that she was constructively dismissed on 18/02/2024. She submitted a third complaint in relation to holiday pay.

The Respondent refutes the complaints and submits that they could not continue to employ the Complainant when her student visa expired. The Complainant was properly paid and the discrepancy which arose in relation to holiday pay has since been rectified.

Summary of Complainant’s Case:

The Complainant did not attend the hearing as she was no longer in the country. An adjournment application was not granted. The Complainant’s friend who attended the hearing had no knowledge of the complaints and was only asked by the Complainant to apply for an adjournment.

Summary of Respondent’s Case:

The Respondent provided a written submission and attended the hearing along with its representative. The Respondent objected to the adjournment application, and they were prepared to defend the complaints and provided any evidence required.

Findings and Conclusions:

Mr Zsolt Duruc attended the hearing on 05/06/2024. He explained that he was a friend of the Complainants, and it was he who sent the e-mail the previous day to the WRC. Mr Duruc stated that the Complainant had to leave Ireland on 24/03/24 as she had no visa and is awaiting a new visa. She told him to state that she thought the hearing would be online and was requesting an adjournment on that basis.

Mr Duruc was not in a position to provide any information in relation to the complaints.

The Respondent contested the adjournment application on the basis that they had gone to considerable time and expense to provide a written submission, attend the hearing and would not be agreeable to any adjournment. They had attended the hearing to provide a full defence of the complaints and any residual issues in relation to the Complainant’s employment were now sorted.

Having considered the matter I note that the Complainant submitted her complaints to the WRC on 19/03/2024. The Complainant and the Respondent were notified of the date, time and venue of the hearing into these complaints on 15/05/2024. Both parties were advised that “a postponement of the hearing will only be granted in exceptional circumstances and for substantial reasons”. Both parties were directed to the postponement guidelines and application form on the WRC website. A copy of the application form for postponements was issued to the parties at that time.

The WRC has two postponement processes. The first is where applications received by the WRC within 10 working days starting from the date of the hearing notification letter, accompanied by the written consent of the other party, are generally automatically granted.

Applications made later than 10 working days from the date of the hearing notification letter

and/or applications made without the consent of the other party are considered and dealt

with under Postponement Process 2 explained below.

When applications for a postponement are made to the WRC without the other party’s

consent, or where the application does not fall to be considered under Process 1 above, the

reasons behind the application should be furnished together with any relevant supporting

documentation at the time of the application.

I am satisfied that the Complainant had sufficient time to submit a postponement application but did not avail of this. There were no explanation provided which would explain why a postponement application was not made in a timely manner. I did not consider that the reasons advanced on the complainant’s behalf amounted to “exceptional circumstances and for substantial reasons”. Having considered the matter, I decided not to grant the adjournment.

As the Complainant was not in a position to attend the hearing and give evidence, I find that these complaints are not well founded.

Decision:

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

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

CA-00062279-002: This is a complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998. As the Complainant was not in a position to attend the hearing, I find that the Complainant was not discriminated against.

CA-00062279-005: This is a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977. As the Complainant was not in a position to attend the hearing, I find that this complaint is not well founded.

Dated: 18-06-2024

Workplace Relations Commission Adjudication Officer: John Harraghy

Key Words:

Adjournment application. Discrimination.