Complainant

Respondent

Parties

Sharanjeet  Kaur

Bombay Bhappa Limited t/a Bombay House

Representatives

Sylwia Nowakowska, Migrant Rights Centre Ireland (“MRCI”)

Don Garry

Act

Complaint/Dispute 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-00056805-001

23/05/2023

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

CA-00056805-003

23/05/2023

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

CA-00056805-004

23/05/2023

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

CA-00056805-005

23/05/2023

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

CA-00056805-006

23/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056805-007

23/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056805-008

23/05/2023

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

CA-00056805-009

23/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00056805-010

23/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00057085-001

12/06/2023

The Complainant submitted that she is an Indian national and a single mother of two young children. The Complainant submitted that in 2020, while working as a chef in Malaysia, she was approached by another Indian national who put her in contact with the Respondent’s Director. The Respondent’s Director told her that he had a position for her as a chef in “Bombay House” in Skerries, Co. Dublin. He told her that her salary would be significant and that it would be a life-changing experience for her and for her children, who could later join her. He told her that she would have free accommodation but that she would have to cover her flight costs and work permit. The Respondent’s Director told her that he could organise her work permit and that it would cost approximately €17,000.

The Complainant submitted that her father took out a loan to pay for her work permit. The Complainant submitted that the Respondent’s Director travelled to India in September 2021, where the Complainant’s father paid him in cash. The work permit, submitted in evidence, indicates that the Complainant would be employed as a “Chef De Partie”, earning €30,000 per annum or €576.92 per week. The Complainant purchased her own flight tickets and arrived in Dublin on 23 September 2021. She was collected and driven to accommodation which she shared with seven Respondent employees – six men and one woman. The Complainant shared a double bedroom with that same woman. The Complainant commenced work on 28 September 2021 and her employment was terminated on 26 November 2022.

The Complainant makes a number of complaints pursuant to the Organisation of Working Time Act 1977, as amended; the Unfair Dismissals Act 1997, as amended; the Minimum Notice & Terms of Employment Act 1973, as amended; the Payment of Wages Act 1991, as amended; the Employment Equality Act 1998, as amended; and the National Minimum Wage Act 2000, as amended.

The Complainant provided detailed written and oral submissions.

The Complainant submitted that although she had been employed as a chef, she did not do any cooking. She submitted that on her first day at work, she was told that the Respondent had enough chefs and instead she was required to wash dishes; clean the kitchen; prepare food for cooking; and pack takeaway orders.

The Complainant gave examples of her tasks. One weekly task involved chopping 160kg of onions in one day. The Complainant estimated that she packed approximately €4,000 worth of takeaway orders every weekend. The Complainant submitted that she also had many heavy-lifting duties. One weekend in March 2022 when the tandoor oven was out of service in “Bombay House”, she had to carry a 20kg oil drum full of marinated raw chicken, to another of the Respondent’s restaurants located approximately 250m away, for it to be cooked. The Complainant submitted that it was very painful to carry. She submitted that she also regularly carried large sacks of rice. On 23 October 2023, after carrying several containers of cooked rice, each weighing approximately 20kg, she was in significant pain and brought by ambulance to hospital and certified as unfit for work for four days.

The Complainant submitted that she worked approximately 50 hours per week over six days. She had one daily five-minute lunchbreak, while sitting on an upturned bucket in the kitchen. The Complainant submitted that she was paid approximately €200 for a 50-hour week and that once various payments and deductions (outlined below) were taken into account, she earned approximately €4.46 per hour.

As outlined below, the Complainant submitted that throughout her employment, she was subjected to a catalogue of distressing treatment. She was summarily dismissed on 26 November 2022.

By way of evidence, the Complainant submitted inter alia: her contract of employment; her work permit; some payslips which she received; a full copy of her bank statements from November 2021 until September 2023; and the Respondent’s handwritten letter of dismissal dated 26 November 2022.

CA-00056805-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Sunday Premium:

The Complainant submitted that she worked every Sunday while she was employed by the Respondent. She did not receive any Sunday premium for the entirety of her employment. She is seeking compensation amounting to €4,311 (“53 Sundays * 11 hours per day *€14.79 per hour * 50%”).

CA-00056805-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Breaks:

The Complainant submitted that she received a daily five-minute lunchbreak when she could sit on an upturned bucket in the kitchen. She received no other breaks for the entirety of her employment. She submitted that she had to eat and drink as she worked. She is seeking compensation for the same.

CA-00056805-004 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Public Holiday Entitlements:

The Complainant submitted that she received no additional pay for, or time off in lieu of, bank holidays, for the entirety of her employment. She submitted that she worked six days per week and usually had Mondays off work. However, on bank holidays, her weekly day off was moved to Tuesday. The Complainant submitted that according to her contract of employment, she was entitled to double pay for hours worked on a public holiday. She is seeking compensation amounting to €1,228 (“10 public holidays *8.3 hours per day (average) * €14.79 per hour”).

CA-00056805-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Holiday/ Annual Leave:

The Complainant submitted that she never received paid annual leave for the entirety of her employment. The Complainant submitted that she took annual leave from 26 August 2022 until 29 September 2022 when she returned to India to see her family, but she was not paid during this time. She is seeking compensation amounting to €3,394 (“4.16 weeks * €815.97 per week”).

CA-00056805-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Hours of Work:

The Complainant submitted that she worked approximately 50 hours per week over six days. She submitted that her hours were as follows:

·             Tuesday, Wednesday and Thursday: 4pm until 11:20pm (7 hours and 20 minutes per day);

·             Friday and Saturdays: 3pm until 11:20pm (8 hours and 20 minutes per day); and

·             Sundays: 12:20pm until 11:20pm (11 hours).

The Complainant submitted that, on occasion, the Respondent’s Director told her to sign a form to confirm that she worked 39 hours per week. When she asked him why, he told her that she had to sign it. In her evidence, the Complainant submitted that she was threatened and blackmailed by the Respondent’s Director. He would threaten that she would be deported. He also threatened to tell her family that she was in an “inappropriate relationship” if she did not do what he said. She is seeking compensation accordingly.

CA-00056805-007 – Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1997 – Unfair Dismissal:

The Complainant submitted that at the end of her shift on 25 November 2022, the Respondent’s Director told her not to come into work the next day. The Complainant submitted that she was frightened and did not know how to respond. The Complainant submitted that she arrived to work the following day at 3pm. She submitted that the Head Chef then told her not to put her uniform on as there was no work for her. The Complainant submitted that the Respondent’s Director arrived at 5pm and angrily told her, in front of all of the employees, that she was dismissed. He then handed her a handwritten letter of dismissal. The letter, which was submitted in evidence, stated that she was being dismissed due to her behaviour and “as staff do not want to work with her”.

The Complainant submitted that she was embarrassed and humiliated. She submitted that every week the Respondent’s Director paid approximately €500 into her bank and then three days later, he would drive her to an ATM when she had withdraw and return €290 to him in cash. The Complainant submitted that in the period prior to her dismissal she refused to do this and she believed that this was the reason why she was dismissed. The Complainant submitted that contrary to what was stated in the letter of dismissal, she never received verbal warnings about her behaviour. She further submitted that contrary to what was stated in the same letter, she did not argue with other employees. She submitted that she “only asked them not to touch [her]” and rejected their sexual advances. She submitted that no procedure was followed regarding her dismissal.

The Complainant submitted that she continued to stay at the shared accommodation for approximately 15 days until the Gardaí removed her. She submitted that she was very upset and that she has suffered from “huge mental tension” as a result of her experience. She submitted that the Respondent’s Director has been in further contact with her family in India and has threatened them. She submitted that the Gardaí are working with “Interpol” to assist her family.

The Complainant submitted that she has been in receipt of social welfare since her dismissal. She submitted that she has a slipped disc and was bed-bound for some months. She submitted that she worked in one other job, for only three days. The Complainant submitted that she has completed a barista course and that she has also passed a QQI Level 4 Guarding Skills Programme to obtain a Security Guard Licence from The Private Security Authority in Ireland. Finally, she submitted that she has been in touch with her local “Intreo Centre”.

The Complainant submitted that since her dismissal, she received two payments (€491.60 and €230.76) into her bank account from the Respondent, but she does not know what they relate to. She submitted that she thinks it was for some of her unpaid wages.

The Complainant submitted that her gross projected earnings from 26 November 2022 (date of dismissal) until 7 November 2023 (first Hearing date) amounted to €49,774.17. She submitted that her total income (social welfare plus one week’s wages) was €11,680.26.  In conclusion, the Complainant submitted that her total loss was €38,090.91.

CA-00056805-008 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973 – Minimum Notice:

The Complainant submitted that on 26 November 2022, she was dismissed with immediate effect. The Complainant submitted that she received no notice prior to being dismissed. She also did not receive any pay in lieu of notice. The Complainant submitted that according to her contract of employment, she was entitled to two weeks’ notice.  She is seeking compensation accordingly.

CA-00056805-009 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991 – Pay:

By way of overview, the Complainant submitted that from September 2021 to April 2022, the Respondent’s Director paid her approximately €200 per week. The Complainant submitted that from May 2022, the Respondent’s Director paid approximately €500 into her bank account each week and then three days later, he would drive her to an ATM when she had to withdraw and return €290 to him in cash. The Complainant submitted that sometimes, they had to drive to more than one ATM, due to lack of cash availability or cash withdrawal limits. The Complainant submitted that the Respondent’s Director told her that the cash amount was tax that she owed to Revenue. The Complainant submitted that the Respondent’s Director threatened her that she would be deported if she did not comply. When the Respondent’s Director was away, she had to return €290 in cash to a man called “Mr. Happy”. The Complainant submitted that the net financial effect was that she was paid approximately €200 for 50-hour week and that once various payments and deductions (outlined below) were taken into account, she earned approximately €4.46 per hour.

The Complainant provided her full bank statements from November 2021 until September 2023, where the lodgements and withdrawal transactions were highlighted. She also provided some of the payslips that she received.

In her submissions, the Complainant provided the following details:

·             From 28 September to 7 December 2021, the Respondent paid the Complainant €200 per week cash in hand. No payslips were provided. When the Complainant queried the amount, she was told that the remainder was paid in tax.

·             From 7 December 2021 until 5 January 2022, the Complainant received no pay. Then on 6 January 2022, she received a bank transfer of €900 from the Respondent. No payslips were provided.

·             From 14 January 2022 to 3 May 2022, the Respondent paid the Complainant €276.92 per week into her bank account. The Complainant submitted that the Respondent started to issue some payslips, but they were not provided regularly and did not always correspond to the amounts lodged into her bank account.

·             On 14 March 2022, the Respondent lodged €5,000 into the Complainant’s bank account with the reference “WEGES SHARN”. The Respondent then drove the Complainant to her bank and instructed her to withdraw €5,000 in cash and hand it to him. These transactions are reflected in the Complainant’s bank statement.

·             On 21 March 2022, the Respondent lodged €744.92 into the Complainant’s bank account. The payslip for that period shows she was paid €974.99 as “Hol/Bonus/Other” in addition to her basic pay of €576.92. The Respondent then told the Complainant to pay back €500 in cash, which she did on 24 March 2022. These transactions are reflected in the Complainant’s bank statement. The Complainant also provided the relevant payslip.

·             From 11 May 2022, the Respondent paid the Complainant €491.59 per week into her bank account. The Respondent’s Director informed her that she now had to return €290 from each weekly payment.

·             There were three occasions when the Respondent lodged higher payments than €491.59:

(1.) On 1 July 2022, €553.14 was lodged into the Complainant’s bank account and she was provided with a payslip which showed “Basic Pay” as €0 and “Hol/Bonus/Other” as €663;

(2.) On 5 October 2022, €887.09 was lodged into the Complainant’s bank account and she was not provided with a payslip; and

(3.) On 4 November 2022, €728.27 was lodged into the Complainant’s bank account and she was not provided with a payslip.

Finally, the Complainant submitted that it appears she was taxed on an emergency tax basis for several months. She received her PPS Number on 21 April 2022 and after submitting it to Revenue, her status changed to “cumulative”. At that point, the Complainant’s payslip dated 1 May 2022 indicates that she was due a refund of €3,218.17 for PAYE and €598.02 for USC. The Complainant submitted that the Respondent never lodged this amount into her bank account.

In conclusion, the Complainant submitted that she was paid “in an erratic fashion” and that she is due “the difference between her wages properly payable (€44,100) minus the wages actually paid (€13,291)”, which is €30,809. 

The Complainant further submitted that she is seeking reimbursement for the payment of €17,232 for her work permit. She submitted that the Respondent sought payment for her work permit in breach of s.23 of the Employment Permits Act 2006 as amended and she is seeking reimbursement of the amount paid.

CA-00056805-010 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998 – Gender Discrimination, Harassment and SexualHarassment:

In her Complaint Form, the Complainant submitted that she was discriminated against on the ground of gender, harassed and sexually harassed. In her evidence, the Complainant submitted that she experienced this discrimination, harassment and sexual harassment on an almost daily basis for the entirety of her employment. She submitted that for the first five to six months of her employment, she was the only female employee at “Bombay House”. However, a female employee later came from another of the Respondent’s restaurants, to work at “Bombay House” as a dish washer.

The Complainant submitted that there were three main perpetrators of the discrimination, harassment and sexual harassment. She submitted that it appeared that the remaining employees, bar one male employee who was kind to her (a “Friend”), had full knowledge of, and were complicit in, the offending behaviour.

[As noted above, due to the serious nature of the allegations and as the three main alleged perpetrators did not provide evidence by way of rebuttal, they are referred to as R1, R2 and R3.]

The Complainant submitted that during her first week, she showed photos of her children on her phone, to her Friend. The Complainant submitted that R1 was watching her on the kitchen CCTV at the time and took photos of her. He then began to blackmail her. He falsely accused her of having “improper relations” with her Friend and told her that he would show the photos to her family in India and destroy her reputation and her life if she did not comply with his requests. The Complainant further submitted that on a couple of occasions, she went for an ice-cream with her Friend. She submitted that she was followed by R1 and another employee in a car. They flashed the car lights at her, to let her know that she was being followed. The Complainant submitted that R1 berated her for spending time with a man of Pakistani origin. He again threatened to tell her family that she was having “improper relations” with him. The Complainant further submitted that R3 suggested that her Friend licked her lipstick off. The Complainant outlined that she was hugely upset by these incidents.

The Complainant submitted that R3, a female employee, was very friendly with R1 and R2. The Complainant submitted that she and R3 shared her double bedroom in the shared accommodation. The Complainant submitted that R3 reported all of her personal details to R1. She told him about the Complainant’s personal hygiene routines; how she wore her towel after showering; what her genitalia looked like; what her undergarments looked like; when she was menstruating; and what sanitary products she used. The Complainant submitted that R1 would then repeat all of these details to the Complainant at “Bombay House” in front of all of the other employees. R1 would also suggest that the Complainant was having sex on a daily basis and he would comment on her breast size. The Complainant submitted that she begged R1 not to do this. However, she submitted that he continued to harass, torment and humiliate her on an almost daily basis. The Complainant submitted that R1, R2 and R3 “defamed [her] character” and “made [her] life hell”.

The Complainant submitted that R2, who was considerably older than her, would repeatedly tell her that he “wanted [her]”. She submitted that, without her consent, he encroached upon her personal space. He “touched her cheek, arms and upper body”. He said that he “wanted to spend time with [her]”; that “he wanted to kiss [her]”; and that he “wanted to have sex with [her]”. He commented on her appearance. She submitted that the employees knew that there was CCTV in operation in the kitchen and so R2 would follow her into the cold room to touch her. She submitted that she dreaded having to go to the cold room as she feared sexual assault and rape. The Complainant submitted that R2 behaved in a similar way in their shared accommodation. The Complainant submitted that she referred to him as “Uncle” as a mark of respect and she asked him to please show her respect, in return. However, he refused.

The Complainant further submitted that, about five months after she began working for the Respondent, R1 asked her to pack her things and move into his house, while his wife was away in India. The Complainant submitted that she “knew what this meant” and that he wanted her to stay with him “for the wrong reasons”. When the Complainant refused, R1 told R2 to ensure that the Complainant did all of the heavy lifting at work. The Complainant submitted that she understood that this was her punishment.

The Complainant submitted that she was treated this way as she is a woman. The Complainant submitted that R1 and R2 wanted to “have their way with her” and “use her for sex”, but she would not allow it.  Additionally, the Complainant submitted that she was told that her job was a man’s job and not for her.

The Complainant submitted that there was no grievance procedure or sexual harassment procedure at work. The Complainant submitted that she had no one to go to for help. She submitted that she could not believe what she had to endure. She further submitted that she would go to the bathroom to cry.

The Complainant is seeking compensation for the discrimination, harassment and sexual harassment.

CA-00057085-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act 2000 – Minimum Wage:

The Complainant submitted that she was not paid in accordance with the National Minimum Wage Act 2000 as amended (the “NMWA”). The Complainant submitted that she was paid approximately €200 for a 50-hour week and that once various payments and deductions (outlined above) were taken into account, she earned approximately €4.46 per hour. On 27 April 2022, the Complainant’s Representative wrote to the Respondent in compliance with section 23 of the NMWA, requesting a statement of the Complainant’s average hourly rate of pay. The Complainant provided a copy of the letter and proof of postage. The Complainant received no response. The Complainant is seeking compensation accordingly.

Application for Extension of Time:

Detective Garda Róisín Reynolds – Evidence:

Detective Garda Reynolds outlined that she is a Detective Garda in the “Human Trafficking Investigation and Co-ordination Unit”, which is part of the “Garda National Protective Services Bureau”.

Detective Garda Reynolds outlined that when she and her colleague, Detective Garda Philip Temple, are alerted to a particular situation they have to assess the potential presence of indicators of human trafficking. She explained that these indicators – including the exploitation of someone for labour and the control of a person – are outlined by the Department of Justice in the Second National Plan to Prevent and Combat Human Trafficking in Ireland and the Criminal Law (Human Trafficking) Act 2008. Detective Garda Reynolds outlined that once they establish that the relevant indicators are present, they are obliged to identify the person at risk and ensure that they are provided with certain services, such as: legal aid; accommodation; HSE services; the Human Trafficking Team services; and the Crime Prevention Officer service. Detective Garda Reynolds outlined that in the instance where the person has no legal standing in the country (i.e. no visa), they receive a 60-day “reflection and recovery period”. During that time, such persons are not deemed to have an illegal status and they are provided with a temporary visa – a “Stamp 1” visa. She outlined that the purpose of this is to give the person a chance to decide on whether they want to travel home or whether they want to talk to Gardaí. She explained that it gives the person an opportunity to decompress and decide for themselves on how best to proceed, rather than make a decision based on panic or fear.

Detective Garda Reynolds outlined that on 15 December 2022, the Gardaí were notified by the Migrant Rights Centre Ireland of grave concerns concerning the Complainant. She outlined that the Gardaí took the information very seriously. Detective Garda Reynolds outlined that at the time, the Complainant was living in shared accommodation in Skerries, Co. Dublin. She outlined that it was apparent to them that there was a person in control of the Complainant’s accommodation and employment. She outlined that when they first met, the Complainant was “very traumatised and damaged”. She outlined that the Complainant had a “very traumatic experience”. She outlined that once the safety of the Complainant was ensured, the Gardaí’s priority was focused on securing evidence and pursuing their investigation. Detective Garda Reynolds outlined that the criminal investigation is ongoing and that there is no case before the courts at this stage. She outlined that, for obvious reasons, the employment complaints and the relevant time limits were not a priority at that stage and that she hoped that that the Complainant would not be negatively affected for any delay in bringing her employment complaints. Detective Garda Reynolds outlined that if the employment complaints had been brought sooner, it could have negatively affected their investigations as the Respondent would have been on notice.

Detective Garda Reynolds further outlined that the Complainant’s father in India was intimidated after the remote Hearing on 7 November 2023 and that “Interpol” are on notice.

The Respondent was on full notice of the complaints against it. The Respondent was also on full notice of the Hearing. In advance of the Hearing, on 27 January 2024, the Respondent filed brief submissions. However, as outlined above, at the outset of the Hearing on 30 January 2024, the Respondent decided to withdraw and therefore failed to present any evidence by way of response.

Preliminary Issue –  Cognisable Period:

The Law:

Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) provides:

“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.”

Section 41(8) of the WRA provides:

“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.”

Case Law:

The established test for “reasonable cause” for the purpose of granting an extension of time is that set out by the Labour Court in Cementation Skanska v. Carroll, DWT0338 as follows:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.  The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between thecircumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The onus is therefore on the Complainant to identify the reason for the delay and to establish that the reason relied upon amounts to reasonable cause for that delay.

Findings and Conclusion:

I am satisfied, on the basis of the Complainant’s and Detective Garda Reynolds’ uncontested evidence, that the Complainant’s failure to present her complaints earlier was due to reasonable cause. In her uncontested evidence the Complainant outlined a distressing catalogue of discrimination, harassment and sexual harassment and mistreatment while living under the constant threat of blackmail and deportation. When Detective Garda Reynolds first met the Complainant in December 2022, she found her “traumatised and damaged”. These circumstances both explain the delay and afford an excuse for the delay and so I find that I can entertain the complaint for a further six months, the maximum permitted under section 41(8) of the WRA 2015.

The Complainant commenced work on 28 September 2021 and her employment was terminated on 26 November 2022. The cognisable periods for her complaints are as follows:

·             The Complainant submitted her first Complaint Form to the WRC (which outlines all complaints except for her complaint pursuant to the National Minimum Wage Act 2000 as amended) on 23 May 2023. In accordance with the sections 41(6) and 41(8) of the WRA, the cognisable period for these complaints runs from 24 May 2022 (12 months prior to submitting her Complaint Form) until 26 November 2022 (the Complainant’s date of dismissal).

·             The Complainant submitted her second Complaint Form to the WRC (which outlines her complaint pursuant to the National Minimum Wage Act 2000) on 12 June 2023. In accordance with sections 41(6) and 41(8) of the WRC, the cognisable period for this complaint runs from 13 June 2022 (12 months prior to submitting her Complaint Form) until 26 November 2022 (the Complainant’s date of dismissal).

Substantive Issues – The Complaints:

CA-00056805-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Sunday Premium:

The Law:

Pursuant to section 14(1) of the of the Organisation of Working Time Act 1997, as amended (the “OWTA”), an employee who is required to work on a Sunday is entitled to be compensated, in the following ways:

“(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.”

The OWTA does not entitle the employee to any set rate of compensation. An employee will not be entitled to compensation for Sunday working if the fact of having to work on a Sunday is already reflected in their standard pay, see e.g.Trinity Leisure Holdings Limited t/a Trinity City Hotel v. Sofia Kolesnik and Natali Alfimova, [2019] IEHC 654.

Award:

Section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded. Notably, the right to Sunday Premium is not derived from an EU Directive and so the Von Colson Principles do not apply (discussed under CA-00056805-003 below).

In Viking Security Limited v. Tomas Valentin DWT 1489, the Labour Court provided guidance on calculating Sunday Premium. The Labour Court measured compensation at approximately time plus one third for each hour worked on a Sunday.

Findings and Conclusion:

As noted above, the cognisable period for this complaint runs from 24 May 2022 until 26 November 2022. There were approximately 26 Sundays during this period. The Complainant’s uncontested evidence was that she was required to work every Sunday and was not compensated for doing so. The Complainant’s contract of employment does not provide for compensation for Sunday working.  

At all times the onus is on the respondent employer to ensure that an employee is compensated pursuant to section 14 of the OWTA, particularly where there was no contractual clause providing for the same.

The Complainant’s annual salary was €30,000. If the Complainant worked 39 hours per week, as per her work permit, her hourly wage was approximately €14.79. The Complainant’s uncontested evidence was that she worked 11 hours every Sunday.

I find the complaint is well founded. I find that this breach is at the serious end of the spectrum. Pursuant to section 27(3) of the OWTA, I order the following:

·             The Respondent to pay the Complainant €1,410 gross ((26 Sundays *11 (hours worked) *€14.79 (approximate hourly wage))/3) for the financial loss which the Complainant suffered; and

·             The Respondent to pay the Complainant compensation in the amount of €2,500 (one month’s pay) for the breach of the Complainant’s statutory rights. 

This award is just and equitable having regard to all the circumstances.

CA-00056805-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Breaks:

The Law:

Section 12 of the OWTA provides:

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

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

Award:

As noted above, section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded.

Payment for rest breaks is not statutory entitlement. However, the right to rest breaks is derived from Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (the “Working Time Directive”). Therefore, the right to rest breaks is a right derived from an EU Directive. In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union (“CJEU”) made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions (the “Von Colson Principles”).  

In the Labour Court case of Sandra Cooneys Home Care Ltd v. Deirdre Morgan, DWT1914, the Labour Court noted that the Appellant did not receive rest periods in accordance with the OWTA. The Appellant appeared to have worked approximately 14-hour days, nearly every day, over the six-month cognisable period. In the circumstances the Appellant was awarded a total of €15,000.

Findings and Conclusions:

As noted above, the cognisable period for this complaint runs from 24 May 2022 until 26 November 2022. The Complainant’s uncontested evidence was that she had only a daily five-minute lunchbreak when she would sit on an upturned bucket in the kitchen. She received no other breaks for the entirety of her employment. She submitted that she had to eat and drink as she worked.

I find the complaint is well founded. I note that the right to rest breaks is derived from the Working Time Directive and the Von Colson Principles apply. I find that this breach is at the serious end of the spectrum. Pursuant to section 27(3) of the OWTA, I order the Respondent to pay the Complainant compensation in the amount of €10,000 (four months’ pay) for the breach of the Complainant’s statutory rights.  This award is just and equitable having regard to all the circumstances.

CA-00056805-004 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Public Holiday Entitlements:

The Law:

Full-time employees have immediate entitlement to benefit for public holidays. Pursuant to section 21 of the OWTA, an employee is entitled to:

“(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.”

Award:

As noted above, section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded. Notably, the right to public holiday pay is not derived from an EU Directive and so the Von Colson Principles do not apply.

Findings and Conclusions:

As noted above, the cognisable period for this complaint runs from 24 May 2022 until 26 November 2022. The Complainant’s uncontested evidence was that she received no additional pay or time off in lieu, for public holidays for the entirety of her employment. She submitted that she worked six days per week and usually had Mondays off work. However, on public holidays which fell on a Monday, her weekly day off was moved to Tuesday. The Complainant submitted that according to her contract of employment, she was entitled to double pay for hours worked on a public holiday. The public holidays which fall within the cognisable period are as follows:

·             June Bank Holiday – 6 June 2022;

·             August Bank Holiday – 1 August 2022; and

·             October Bank Holiday – 31 October 2022.

I note that the Complainant’s annual salary was €30,000 and that, if she worked 39 hours per week as per her work permit, her daily salary was approximately €115.

I find the complaint is well founded. Pursuant to section 27(3) of the OWTA, I order the following:

·             The Respondent to pay the Complainant compensation in the amount of €345 gross (approximately three days’ pay) for the financial loss which the Complainant suffered; and

·             The Respondent to pay the Complainant compensation in the amount of €2,500 (one month’s pay) for the breach of the Complainant’s statutory rights. 

This award is just and equitable having regard to all the circumstances.

CA-00056805-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Holiday/ Annual Leave:

The Law:

Pursuant to section 19(1) of the OWTA, an employee is entitled to the following paid annual leave:

“(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leaveyear in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Award:

As noted above, section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded. The right to paid annual leave is derived from the Working Time Directive and the Von Colson Principles apply.

Findings and Conclusions:

As noted above, the cognisable period for this complaint runs from 24 May 2022 until 26 November 2022. According to the Complainant’s contract of employment, she was entitled to 21 days’ annual leave. The Complainant’s uncontested evidence is that she never received paid annual leave for the entirety of her employment. In her uncontested evidence, the Complainant outlined that she took annual leave from 26 August 2022 until 29 September 2022 but she was not paid during this time.

Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. In this matter, the relevant leave year runs from 1 April 2022 until 31 March 2023. From 24 May 2022 until 26 November 2022, the Complainant accrued approximately one half, or 10 days, of her statutory annual leave entitlement.

I find the complaint is well founded. I note that the right to annual leave is derived from the Working Time Directive and the Von Colson Principles apply. I find that this breach is at the serious end of the spectrum. Pursuant to section 27(3) of the OWTA, I order the following:

·             The Respondent to pay the Complainant €1,150 gross (two weeks’ pay) for the financial loss which the Complainant suffered; and

·             The Respondent to pay the Complainant compensation in the amount of €10,000 (four months’ pay) for the breach of the Complainant’s statutory rights.

This award is just and equitable having regard to all the circumstances.

CA-00056805-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Hours of Work:

The Law:

Pursuant to section 15(1) of the OWTA, an employee is not permitted to work more than an average of 48 hours, in each period of 7 days, calculated over a reference period that does not exceed four months (or six months, where applicable).

As noted by the Labour Court in Kepak Convenience Foods Unlimited Company v. Grainne O’Hara, DWT1820:

“The operative words in section 15(1) of the Act are that an employer shall not “permit” an employee to work in excess of 48 hours in the relevant statutory time period.”

Award:

Section 27(3) of the OWTA provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded. The maximum number of weekly hours is derived from the Working Time Directive and the Von Colson Principles apply.

Findings and Conclusions:

As noted above, the cognisable period for this complaint runs from 24 May 2022 until 26 November 2022. The Complainant’s uncontested evidence is that every week she worked 49 hours and 40 minutes per week over six days – more than the maximum number of hours permitted. The Complainant also submitted that, on occasion, the Respondent made her sign a document stating that she worked only 39 hours.

I find the complaint is well founded. I note that the maximum number of weekly hours is derived from the Working Time Directive and the Von Colson Principles apply. Pursuant to section 27(3) of the OWTA, I order the Respondent to pay the Complainant compensation in the amount of €10,000 (four months’ pay) for the breach of the Complainant’s statutory rights.  This award is just and equitable having regard to all the circumstances.

CA-00056805-007 – Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1997 – Unfair Dismissal:

The Law:

Section 6(1) of the Unfair Dismissals Acts 1977-2015, as amended (the “UD Act”) provides that a dismissal is unfair unless there are substantial grounds justifying the dismissal.

Section 6(4)(b) of the UD Act deems a dismissal resulting wholly or mainly from the conduct of the employee, not to be an unfair dismissal. In accordance with section 6(6) of the UD Act, it is for the employer to show that the dismissal resulted wholly or mainly from the conduct of the employee or that there were other substantial grounds justifying the dismissal.

Section 7 of the UD Act entitles an employee who is unfairly dismissed to redress.  It provides for re-instatement or re-engagement or compensation, where appropriate. As regards compensation, section 7(1) provides:

“(c)(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances”.

Section 7(2) of the UD Act sets out the factors for consideration, when determining the amount of compensation payable, as follows:

“(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by theMinister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

Section 7(2A) of the UD Act provides:

“In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.”

“Financial loss” is defined under section 7(3) of the UD Act and includes “any actual loss and any estimated prospective loss of income attributable to the dismissal.”

Finally, S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 – contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice in giving effect to such procedures.

Findings and Conclusions:

The Complainant’s uncontested evidence is that at the end of her shift on 25 November 2022, the Respondent’s Director told her not to come into work the next day. The Complainant submitted that she was frightened and she did not know how to respond. The Complainant submitted that she arrived to work the following day at 3pm. The Complainant submitted that the Respondent’s Director arrived at 5pm and angrily told her, in front of all of the employees, that she was dismissed. He then handed her a handwritten letter of dismissal of that same date. The letter stated that she was being dismissed due to her behaviour and “as staff do not want to work with [her]”.

Since her dismissal, except for three days when she worked, the Complainant has mostly been in receipt of social welfare. She submitted that she has completed a barista course and passed a QQI Level 4 Guarding Skills Programme to obtain a Security Guard Licence from The Private Security Authority in Ireland. Finally, she submitted that she has been in touch with her local “Intreo Centre”. I note that the Complainant submitted that she was bed-bound for some months, due to a slipped disc.

On the evidence, the Complainant was summarily dismissed. Summary dismissal typically features in cases of gross misconduct. Contrary to section 6(4)(b) of the UD Act, there was nothing before me to suggest that the Complainant’s dismissal resulted wholly or mainly from her conduct or that there were other substantial grounds justifying her dismissal. Moreover, the Respondent followed absolutely no dismissal procedure and so the Complainant was also denied the benefit of the fair procedures outlined in S.I. 146/ 2000.

In the circumstances, I find that the Complainant was unfairly dismissed and that the complaint is well founded. As regards compensation, I have taken into account the factors under section 7(2) of the UD Act (outlined above) encompassing the specific circumstances of this case and the loss and income amounts submitted by the Complainant concerning the relevant period. I note that the uncontested evidence of the Complainant was that she had no part in her dismissal and that the Respondent failed to follow any procedure whatsoever in relation to her dismissal. I also note that when Detective Garda Reynolds met the Complainant approximately two weeks after her dismissal, she found the Complainant “traumatised and damaged” by her experience. I note that the Complainant’s work permit, submitted in evidence, was grounded in her employment with the Respondent and that she was also reliant on the Respondent for accommodation. Accordingly, I find that the Complainant’s dismissal left her in a precarious and vulnerable situation and with considerable difficulty in sourcing alternative income to mitigate her loss.

By the First Hearing date, the Complainant was out of work for approximately one year. Pursuant to section 7(2A) of the UD Act, social welfare payments in respect of any period following the dismissal are disregarded. Therefore, I order the Respondent to pay the Complainant compensation in the amount of €30,000 (one year’s gross salary) to cover both financial loss suffered by the Complainant as well as the estimated future loss of income attributable to the dismissal. This award is just and equitable having regard to all the circumstances.

CA-00056805-008 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973 – Minimum Notice:

The Law:

Notice entitlements are set out under section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended (the “MNTEA”), as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week”.

Findings and Conclusions:

The Complainant’s uncontested evidence was that on 26 November 2022, she was summarily dismissed. The Complainant submitted that she received no notice and that she did not receive any pay in lieu of notice.

The Complainant commenced work on 28 September 2021 and her employment was terminated on 26 November 2022. Pursuant to section 4(2)(a) of the MNTEA, the Complainant was entitled to one week’s notice.  In the circumstances, I find that the complaint is well founded. I direct the Respondent to pay the Complainant compensation in the amount of €575 (one week’s pay).

CA-00056805-009 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991 – Pay:

The Law:

Section 5 of the Payment of Wages Act 1991 as amended (the “PWA”) provides:

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

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

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

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

And

“5(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 5(6) of the PWA was considered in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the PWA has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful.

Findings and Conclusions:

As noted above, the cognisable period for this complaint runs from 24 May 2022 until 26 November 2022 – a period of approximately six months or 26 weeks. The Complainant’s contract of employment confirms that the Complainant’s gross annual salary was €30,000. The Complainant’s uncontested evidence was that she would also be provided with free accommodation but that she would have to cover her flight costs and work permit.

After the Hearing and as requested, the Complainant confirmed that her gross weekly salary was €576.92 and her net weekly salary was €489.38. The Complainant’s uncontested evidence was that the Respondent’s Director paid approximately €500 into her bank account each week and then three days later, he would drive her to an ATM when she had to withdraw and return €290 to him in cash. The Complainant provided a full copy of her bank statements which reflect these transactions.

I find that the weekly wages which were properly payable to the Complainant came to €489.38 net. I also find that over the course of 26 weeks, during the cognisable period, the Respondent received a weekly payment of €290 net from the Complainant, in breach of section 5(1) of the PWA. In the circumstances, I find the complaint partly well founded. I direct the Respondent to pay the Complainant €7,540 net (€290*26).

For completeness, I note that the Complainant is seeking reimbursement for the payment of €17,232 for her work permit, which was sought in breach of s.23 of the Employment Permits Act 2006, as amended. However, pursuant to Schedule 2 of that same Act, I only have jurisdiction in relation to alleged contraventions of s.26(3). Therefore, I do not have jurisdiction to consider this element of the complaint.

CA-00056805-010 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998 – Gender Discrimination, Harassment and SexualHarassment:

The Law:

Discrimination:

Section 6(1) of the Employment Equality Act 1998-2015, as amended (the “EEA”) provides:

 “… discrimination shall be taken to occur where 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…”

In relation to gender discrimination, section 6(2) provides “as between any 2 persons, the discriminatory grounds (and the description 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”).

Harassment and Sexual Harassment:

Section 14A(7) of the EEA provides: -

“(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

The test is a subjective one and the intention of the perpetrator of the harassment or sexual harassment is largely irrelevant. It is sufficient if it has a negative effect on the victim. The conduct should be viewed from the perspective of the victim. Moreover, these provisions must also be read in conjunction with section 15 of the EEA which fixes an employer with vicarious liability under the EEA for the wrongful acts of an employee committed in the course of that employee’s employment.

As noted at paragraphs 34 and 35 of the Code of Practice on Sexual Harassment and Harassment at Work, prepared by the Irish Human Rights and Equality Commission:

“Sexual harassment means unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work. […] The conduct at issue may not be specifically directed at a particular employee but nevertheless has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

Burden of Proof:

Section 85A of the EEA addresses the burden of proof and provides:

“(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.

[…]

(4) In this section "discrimination" includes – […] (c) harassment or sexual harassment”.

Therefore, the burden of proof is on the Complainant to show that she was treated less favourably on account of her gender. The burden of proof is also on the Complainant to show that she was harassed and/or sexually harassed.

In Southern Health Board v. Mitchell (2001) E.L.R. 201, the Labour Court held:

“The first requirement … is that the claimant 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 claimant 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 these 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”.

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Award:

Section 82 of the EEA provides that the maximum amount which may be ordered by way of compensation is two years’ remuneration.  The EEA is derived from the following EU Directives: 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); and 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin. Therefore, the Von Colson Principles apply and any award must provide a real deterrent against future infractions.  

Findings and Conclusions:

In her uncontested evidence, the Complainant outlined a distressing catalogue of discrimination, harassment and sexual harassment which she suffered on almost daily basis for the entirety of her employment. This included:

·             R1 asking her to pack her things and move into his house, while his wife was away in India. The Complainant submitted that she “knew what this meant” and that he wanted her to stay with him “for the wrong reasons”. When the Complainant refused, R1 told R2 to ensure that the Complainant did all of the heavy lifting at work.

·             R2 repeatedly telling her that he “wanted [her]” and encroaching on her personal space. He also “touched her cheek, arms and upper body”. He said that he “wanted to spend time with [her]”; that he “wanted to kiss [her]” and that he “wanted to have sex with [her]”.

·             R1 discussing the Complainant’s: personal hygiene routines; how she wore her towel after showering; what her genitalia looked like; her breast size; what her undergarments looked like; when she was menstruating; and what sanitary products she used, in front of all of the employees.

·             Being accused of having “improper relations” with her Friend who was the only person who showed her any kindness and being blackmailed for the same.

·             Being followed after work by R1 and another employee in in a car, who flashed the car lights at her to ensure that she knew that they were there.

·             Being told that her job was a man’s job and not for her.

The Complainant submitted that she begged R1 and R2 to stop, but to no avail. She submitted that she was punished for not letting R1 and R2 “have their way with her” and “use her for sex”. She feared going into the cold room at work in case she was sexually assaulted or raped. She submitted that there was no grievance procedure or sexual harassment procedure at work, but in any event, it appeared that all of the employees (except for her Friend) and management had full knowledge of, and were complicit in, the offending behaviour. She submitted that she had no one to go to for help. She submitted that she could not believe what she had to endure and that she would go to the bathroom to cry. The Complainant submitted that she was harassed, tormented and humiliated and that R1, R2 and R3 “made [her] life hell”.

In the circumstances, I find that the Complainant was discriminated against on the ground of gender; that she was harassed; and that she was sexually harassed. Therefore, I find that the complaint is well founded. The maximum compensation, in accordance with section 82 of the EEA, is two years’ remuneration. In view of the serious nature of the Complainant’s uncontested allegations I am compelled to award the maximum compensation of two years’ remuneration. According to her contract of employment, the Complainant’s annual salary was €30,000. I therefore award the Complainant compensation in the amount of €60,000.

CA-00057085-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 – Minimum Wage:

The Law:

The National Minimum Wage Act 2000 (the “NMWA”) modifies all existing contracts of employment, collective agreements or legislative provisions insofar as they provide for less favourable remuneration than is provided for by the NMWA. The 2022 minimum hourly wage for those aged 20 and above was €10.50.

Award:

Section 26 of the NMWA provides:

“(1) 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,

(b) a requirement that the employer rectify, within a specified time (not being later than 42 days after the date the decision is communicated to the employer) or in a specified manner, any matter, including the payment of any amount, in respect of which the employer is in contravention of this Act, or

(c) both such direction and such requirement, as the adjudication officer considers appropriate.”

Findings and Conclusions:

The Complainant’s uncontested evidence was that she worked approximately 50 hours per week and that once various payments and deductions (outlined above) were taken into account, she earned approximately €4.46 per hour. On 27 April 2022, the Complainant’s Representative wrote to the Respondent, requesting a statement of the Complainant’s average hourly rate of pay. The Complainant provided a copy of the letter and proof of postage. The Complainant submitted that she received no response.

As outlined above, I have already made findings in favour of the Complainant in relation to her working excessive weekly hours (CA-00056805-006); and the unlawful weekly payment of €290 (CA-00056805-009). I note that the NMWA does not require an election between complaints and in the circumstances, this complaint is properly before me.

As set out above, the cognisable period for this specific complaint runs from 13 June 2022 (12 months prior to the Complainant submitting her Complaint Form) until 26 November 2022 (the Complainant’s date of dismissal). It was the Complainant’s uncontested evidence that during this approximate 24-week period, she worked almost 50 hours per week, earning approximately €4.46 per hour. The minimum hourly wage at that time was €10.50. In the circumstances, I find the complaint well founded. I direct the Respondent to pay the Complainant an award of arrears of €7,248 (24*50*€6.04).

CA-00056805-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Sunday Premium:

For the reasons set out above, I find the complaint is well founded. I order the following:

·             The Respondent to pay the Complainant €1,410 gross for the financial loss which the Complainant suffered; and

·             The Respondent to pay the Complainant compensation in the amount of €2,500 for the breach of the Complainant’s statutory rights. 

CA-00056805-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Breaks:

For the reasons set out above, I find the complaint is well founded. I order the Respondent to pay the Complainant compensation in the amount of €10,000 for the breach of the Complainant’s statutory rights. 

CA-00056805-004 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Public Holiday Entitlements:

For the reasons set out above, I find the complaint is well founded. I order the following:

·             The Respondent to pay the Complainant compensation in the amount of €345 gross for the financial loss which the Complainant suffered; and

·             The Respondent to pay the Complainant compensation in the amount of €2,500 for the breach of the Complainant’s statutory rights. 

CA-00056805-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Holiday/ Annual Leave:

For the reasons set out above, I find the complaint is well founded. I order the following:

·             The Respondent to pay the Complainant €1,150 gross for the financial loss which the Complainant suffered; and

·             The Respondent to pay the Complainant compensation in the amount of €10,000 for the breach of the Complainant’s statutory rights. 

CA-00056805-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997 – Hours of Work:

For the reasons set out above, I find the complaint is well founded. I order the Respondent to pay the Complainant compensation in the amount of €10,000 for the breach of the Complainant’s statutory rights. 

CA-00056805-007 – Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1997 – Unfair Dismissal:

For the reasons set out above, I find that the Complainant was unfairly dismissed and that the complaint is well founded. I order the Respondent to pay the Complainant compensation in the amount of €30,000.

CA-00056805-008 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973 – Minimum Notice:

For the reasons set out above, I find that the complaint is well founded. I direct the Respondent to pay the Complainant compensation in the amount of €575.

CA-00056805-009 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991 – Pay:

For the reasons set out above, I find the complaint partly well founded. I direct the Respondent to pay the Complainant €7,540 net.

CA-00056805-010 – Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998 – Gender Discrimination, Harassment and SexualHarassment:

For the reasons set out above, I find that the Complainant was discriminated against on the ground of gender; that she was harassed; and that she was sexually harassed. Therefore, I find that the complaint is well founded. I award the Complainant compensation in the amount of €60,000.

CA-00057085-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 – Minimum Wage:

For the reasons set out above, I find the complaint well founded. I direct the Respondent to pay the Complainant an award of arrears of €7,248.

Total Amount Awarded for all Complaints: €143,268.

The Organisation of Working Time Act 1977; the Unfair Dismissals Act 1997; the Minimum Notice & Terms of Employment Act 1973; the Payment of Wages Act 1991; the Employment Equality Act 1998; the National Minimum Wage Act, 2000.