Complainant

Respondent

Parties

Celine  Walsh

Dundalk Institute Of Technology

Representatives

Cait Lynch, IBEC

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-00053924-001

29/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053924-002

29/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00053924-003

29/11/2022

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

CA-00053924-006

29/11/2022

The Complainant stated that she was discriminated against by the Respondent on the grounds of family status following a recruitment competition in June 2022 to backfill her role. The Complainant also stated that she was not paid for the months of July and August 2022. In addition, the Complainant stated that she was not allowed to take her holidays whenever she wanted unlike a colleague of hers, who was on a permanent contract, and who was able to do so. The Complainant also stated that she was not given the opportunity to avail of her statutory work breaks.

CA-00053924-001:

The Complainant stated that on 9 June 2022, the Respondent advertised for a part time technician to backfill her shorter working week request on more favourable terms than they had offered her.  Specifically, she stated that this was discriminatory because the successful candidate, who was of a different family status, was offered a 12-month contract while the Complainant was not paid for the months of July & August. 

CA-00053924-002:

The Complainant stated that she was not paid for the months of July and August 2022

CA-00053924-003:

The Complainant stated that she was not allowed to take her holidays unlike a colleague of hers, who, being on a permanent contract, was able to take her holidays whenever she wanted. However, when questioned, the Complainant was unable to specify the specific dates on which her comparator availed of her holiday entitlements.

CA-00053924-004:

The Complainant stated that she was not given the opportunity to avail of her statutory work breaks, namely the daily break of 15 minutes that she was entitled to.

CA-00053924-001:

The Respondent stated that the Complainant was not discriminated against on the grounds of her family status.

CA-00053924-002:

The Respondent stated that the Complainant was not entitled to be paid for the months of July and August 2022 in accordance with the terms and conditions of her contract of employment.

CA-00053924-003:

As the Complainant did not present any evidence in relation to any alleged contravention of the legislation that occurred within the time periods set out in section 41(6) and (8) of the Workplace Relations Act, 2015, the Respondent did not present any evidence in relation to this complaint.

CA-00053924-004:

The Respondent stated that the Complainant was aware of their Flexitime policy given that she had operated same since the commencement of her employment. It was also asserted that she had never highlighted any issue with her alleged non- taking of breaks during her time with the Respondent.

CA-00053924-001:

Section 6 of the Employment Equality Act, 1998, states:

6.— (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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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.”

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, she has been discriminated against because of her family status.

The Respondent, referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above, I noted her evidence that on 9 June 2022, the Respondent advertised for a part time technician to backfill her shorter working week request on more favourable terms than they had offered her.  She stated that this was discriminatory because the successful candidate, who was of a different family status, was offered a 12-month employment contract while the Complainant was not paid for the months of July & August. 

In examining whether the Complainant has established a prima facie case of discrimination in respect of this complaint, I note that the job advertisement was not targeted at candidates of a different family status to the Complainant. In addition, there was no evidence whatsoever presented to suggest that the successful candidate was offered the role because she had a different family status to the Complainant.

Considering the foregoing, I find that the Complainant has not established a prima facie case of discrimination in respect of this complaint.

CA-00053924-002:

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as: 

“…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”

Section 5(1) of the Payment of Wages Act 1991 provides: 

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” 

The remainder of section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated that a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it will be necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

Regarding the instant complaint, the Complainant stated that she was not paid for the months of July and August 2022. I note however that the Complainant’s contract of employment did not provide for payment for these months. Accordingly, the wages were not properly payable to her.

Considering the foregoing, I find that the complaint is not well-founded.

CA-00053924-003:

Section 6 of the Protection of Employees (Fixed Term Work) Act states:

6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.

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

(6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

(7) The condition of employment mentioned in subsection (6) is a condition of

employment the amount of benefit of which (in case the condition is of a monetary

nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee.

Section 41(6) and (8) of the Workplace Relations Act, 2015 govern the time frame for submitting claims for consideration by the Workplace Relations Commission.  These sections state as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Complainant stated that she was not allowed to take her holidays whenever she wanted, unlike a colleague of hers, who, being on a permanent contract, was able to do so. However, when questioned, the Complainant was unable to specify the specific dates on which her comparator availed herself of her holiday entitlements.

In the absence of any evidence having been presented as to whether the alleged contravention of the legislation occurred within the time periods set out in section 41(6) and (8) of the Workplace Relations Act, 2015 above, I find that this complaint is not well founded.

CA-00053924-006:

The Law.

Section 12 of the Act provides as follows: -

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

The Complainant stated that she usually did not avail of the 15 minute break that she was entitled to during the working day. She was however unable to specify the detail of the dates on which she alleges the breaches of the Act occurred during the cognisable period.

Evidence of compliance with section 25 of the Act.

Section 25 states.

“(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making”    

Section 25 (4) states

“(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

While the Respondent submitted some documentation that they stated demonstrated that the Complainant was able to take breaks, I am not satisfied, having reviewed same, that these met the requirements of the Act.

In the absence of records having been presented by the Respondent that demonstrated the start and finish time of breaks taken by the Complainant every working day, I find that this complaint is well founded.

CA-00053924-001:

As the Complainant has not established a prima facie case of discrimination for the reasons set out above, I find that she was not discriminated against.

CA-00053924-002:

I find that the complaint is not well-founded for the reasons set out above.

CA-00053924-003:

I find that the complaint is not well-founded for the reasons set out above.

CA-00053924-006:

I find that the complaint is well-founded for the reasons set out above and make an award of €1,500 in respect of the breaches of the Act.