Complainant

Respondent

Anonymised Parties

A Worker

A Retail Outlet

Representatives

  The claimant represented herself

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-00055847-001

29/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055847-002

29/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055847-003

29/03/2023

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

CA-00055847-005

29/03/2023

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

CA-00055847-006

29/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00055847-007

29/03/2023

The claimant was employed as a Retail Assistant from the 29th.August 2022 to the 30th.September 2022.She submitted that the respondent was in breach of the Organization of Working Time Act , 1997 with respect to rest periods and rest breaks .She submitted the respondent was in breach of the Terms of Employment (Information) Act for failing to furnish her with a written statement of her terms of employment and for failing to furnish her with written notification of a change to her terms of employment .The claimant asserted that she was  dismissed because of a disability .The claimant submitted that she was not given her statutory minimum period of notice on termination of her employment .The claimant submitted that as a part time employee she was treated less favourably than a comparable full time employee. The respondent denied all of the allegations and asserted he had good relations with his staff and had never previously been the subject of complaints to the WRC or the EAT.

Employment Equality Act 1998

The claimant submitted that she was dismissed immediately after she disclosed she had a disability. She said the reason given for her dismissal was she could not work the hours her employer required. This was communicated to her after she questioned the legality of shortening work breaks. The claimant asserted that the reason for her dismissal was falsified as it had been agreed at her interview that she would work 18 hours per week. She submitted this can be confirmed in emails to the respondent. She referenced correspondence to the respondent where she sought corrections to her payslips where she had been described as working 1 week of 24 hours. She said it was evident from the outset that she was limited to working a max of 18 hours per week because of her responsibilities as a carer and parent .The claimant submitted that she worked 18 hours a week for 5 weeks .The claimant said her roster provided for 3 X 6 hour shifts  and asserted that she told the respondent at the interview she could not work in excess of 18 hours per week. She asserted that she came into work after being subjected to rigorous questioning about her personal ailment following disclosure about a cyst on her knee. The claimant submitted that she was not given a contract within 5 days of commencement. She stated she was dismissed on the grounds of disability after she mentioned she had a cyst on her knee. She was told she was not allowed to work until she provided a fitness to work certificate after she had calmly explained it was a long standing issue and did not affect her work. The claimant advanced that she had been querying her break entitlement  as she was getting a 30 min. break and she wanted clarification on the shop rules .The claimant forwarded her GPs letter about the cyst which confirmed she was fit for work. The claimant said she had been hired for 18 hours per week and had worked 18 hours the previous 4 weeks. It was submitted that there was no issue about her hours until the conversation where she disclosed her knee injury.

The claimant asserted that statutes provide that if she worked more than 6 hours which include working between 11.30-2.30 pm she was entitled to a one hour break. The claimant submitted that the respondent advised her that all staff had signed up to the 30 min break and if she had an issue with it why was it only being brought up now. The claimant responded that she had a cyst on her knee and she needed her full break entitlements. The claimant said she was then sent home by the respondent and was told she could not work with her knee like that. She said the respondent said there was no way her doctor would clear her to work and ordered her to get a certificate – she was told she was not allowed to do her job until this letter was provided. This was all after she had explained that her knee injury had no impact on her capability to work. The claimant submitted that she was vey distressed to be sent home and deeply upset after she was fired 3 days later without warning. The claimant submitted that she was discriminated against on the grounds of disability, that she was dismissed for discriminatory reasons that she was victimised and was not afforded reasonable accommodation.

The claimant submitted that she explicitly advised the respondent that she could not work more than 18 hours per week.

The claimant said that she sought clarification on breaks as in other retail outlets where you worked  between 11.30a.m. -2.30pm  , a 1 hour break applied. She was advised that the shop rule re. the 1 hour break did not apply to the respondent’s shop. The claimant said her enquiries were met with hostility by her line manager and the respondent. The claimant said she sought written clarification on the reason for her dismissal but the respondent refused to put it in writing.

The claimant submitted that the respondent’s statement that she was hired for 24 hours per week was wholly untrue. She was rostered for 3 X 6hr shifts and called in sick one week. She was a full time carer and could not work longer hours. It had been agreed that she could finish at 2.30 to collect her daughter. The claimant said hours were never an issue until she raised the matter of breaks. She said she was initially told she could take the one hour break by her line manager but that she wouldn’t get paid for it.She was subsequently told by him that the one hour break only applied to stores that don’t  sell alcohol.

The claimant submitted that she was not legally obliged to disclose information about her disability – as long as she got proper breaks she was ok. The claimant said she was humiliated and penalised for raising  the matter under the Working Time Act.

The claimant said she was called to the office at the end of her shift on the 22nd.Sept. and told by the respondent that he had found another girl to work the hours and he was letting her go. He said she could not do the 24 hours and he needed someone for 24 hours. The claimant replied that she was recruited for 18 hours and he replied that he needed someone for 4 days. The claimant said she told the respondent she was being let go because of her disability and for raising the matter of work breaks.

The claimant disputed the respondent’s accounts of events the day she was let go- she said she was fired – one day she had a job and the next day she did not. She said she was not sent to a doctor for her welfare or out of concern – she asserted no employer had a right to question her health – she asserted the tone of the respondent was hostile. She submitted the respondent was alleging that her knee issue was not a disability and proceeds to claim he was so concerned  about her. On the one hand he had said she had no disability but he did not allow her back to work and told her “ you cant work like that”.

The claimant complained that she was not afforded reasonable accommodation by the respondent She  wanted clarification on a longer rest period than half an hour because of the cyst on her knee.She said the cyst had no impact on her capacity to work.She said as long as she got proper breaks she was ok.

The claimant submitted that the respondent discriminated against her by victimising her .

Organisation of Working Time Act 1997

Under the Organisation of Working Time Act, the claimant asserted that she was not facilitated with a one hour break – she had made a complaint about her entitlement to it and believed she was penalised for raising the matter  when she lost her job. The claimant said she was entitled to an hour off as her roster was inclusive of the hours between 11.30 – 2.30.

Minimum Notice & Terms of Employment Act, 1973

The claimant submitted that she was dismissed without notice.

Protection of Employees (Part Time Work) Act 2001.

The claimant said she was treated less favourably than a full time worker who got an hour’s break. When she raised the matter of less favourable treatment she was told to prove it.

Terms of Employment (Information) Act 1994

The claimant asserted that the respondent failed to furnish her with written terms of her employment.

The claimant asserted the respondent failed to give her written notice of the move from 18 to 24 hours a week. The claimant said availability days/hours were 2 different things. The claimant asserted she had not been given a contract.

Employment Equality Act 1998

The respondent submitted that he was in the business for 33 years, had 30 staff and was never previously before an industrial tribunal. He selected the claimant as she had a lot of experience. He  said he never fired anybody and did not fire anyone because of a disability. The respondent said her CV clearly stated she was available to work Mon-Fri and her reference referred to early starts Mon-Fri. He said the first he knew of the 18 hours was when he received an email form the claimant – she made it clear that she could only do 18hours per week. The respondent said a WRC audit was conducted in 2022 – all contracts had been cleared and they specified an entitlement to a half hour break for staff who worked up to 6 hours. He said these were the rules he followed on the advice of the parent company HQ.

When the claimant came to discuss the matter with him, she sat down and had been limping a bit. He said her knee was swollen and the respondent said it looked very swollen and he was very concerned. He said he was not sure if she should be standing on it and told her she could get a clot. He said he would do the same thing tomorrow and told her to go and get it checked out – he did not know she would have to pay for the appointment. The respondent said that at this point he told the claimant that she would need a letter from her GP confirming that she was fit to work. The GP submitted a certificate confirming the claimant was fit to work on the 20th.Sept.

The respondent said that on the 22nd.Sept he had made his mind up – that things were not going to work out when the claimant could only do 3 x6hr. shifts. He called the claimant into the office and advised that he needed a person for a minimum of 4 days per week. The respondent submitted that he never told her she was fired – he told her he was not going to offer her a contract. He asserted that the claimant got up, said we are not proceeding any further and that she was taking a case against him .He said he was very disappointed and made sure the complainant got her full wages. She did not have to come into work for the remainder of the week.

The respondent submitted that he never discriminated against anyone on the basis of disability or otherwise. The claimant told him she had a swollen leg on the 19th.Sept.- he was concerned and required a letter from her doctor. He does not consider the claimant to have suffered from a disability- he asserted it was something that he needed to be aware of as an employer for the claimant’s safety. The respondent denied  the complaints of breaches of the Act arising from failure to provide the claimant with reasonable accommodation and of victimising her.

Organisation of Working Time Act 1997

The respondent said that any person who works up to 6 hours is entitled to a half hour break – which she got. He submitted that he complied with WRC guidelines and they complied with the WRC manual. He submitted that having been the subject of a WRC inspection his understanding was that he was compliant with the Act and “the shop workers rule is where an employee works over 6 hours  they are entitled to a one hour break”.

Minimum Notice and Terms of Employment Act 1973.

It was submitted that the claimant did not have 13 weeks service but in any event had been paid notice. He submitted that when he told the claimant he was not going to sign her contract , she walked out but he still gave her a week in lieu.

Protection of Employees (Part-Time Work) Act 2001

The respondent submitted that anyone who worked 8 hours was entitled to an hour’s break – he submitted that they insisted that staff take their breaks. Half of his staff are part time and all take a half hour break. As far as the shop was concerned part time and full-time staff were treated the same and in accordance with the provisions of the Working Time Act.

Terms of Employment (Information ) Act 1994

The respondent accepted the claimant was not furnished with a contract because she wanted the one hour break included. He told her he needed to check it out and make enquiries about her entitlement and that was why no contract was issued.

The respondent said when the claimant applied for the job she indicated availability Mon-Fri and never mentioned she could only do 3 shifts. It was only when she later sent an email that he realised she could not  do more than 18 hours. It was the first time he knew she could only do 18 hours . When she applied for the job she had indicated Mon-Fri availability 8.00a.m. – mid afternoon.

Employment Equality Act 1998 CA-00055847-001

Complaint of discriminatory Dismissal

I note that the parties are in dispute as to whether the cyst on the claimant’s knee constituted a disability within the meaning of the Act. In this regard, I found the deliberations of the Labour Court in EED0317 to be particularly pertinent and relevant. The temporary nature of a disability is explored in extensive detail and comparisons are drawn between different definitions of disability in the US legal system and the Irish legislation which it was submitted was modelled on Australian statute.

The complainant submitted that her knee injury fell within the definition of disability. The respondent for their part contended that the injury was temporary and relatively minor and consequently did not meet the definition of a disability. In EED0317 it was determined that

“It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a Court of Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.

Applying these well-known principles of statutory construction, it is clear that the term disability must only be given the meaning ascribed to it by Section 2 of the Act. It would be impermissible for the Courts to rely upon a definition derived from any other source, including American authorities Further, in construing the plain language used in this definition, words must be given their ordinary and natural meaning.

Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.

For all of the foregoing reasons, the Court has no doubt that the complainant’s condition amounted to a disability within the meaning of the Act “.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.   If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.   In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

 I heard oral evidence from the Complainant and the Respondent  and both parties were afforded the opportunity to examine and cross-examine each other’s evidence as part of the hearing.Neither party availed of the opportunity to cross examine the other party .

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.

The first issue that I will consider relates to the claim of discriminatory dismissal on the grounds of disability. Section 6(1) of the Employment Equality Acts provides that 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) ...”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a person with a different disability”.

I am satisfied   that the claimant’s cyst on her knee comes within the definition of disability under the Act.I believe this is consistent with the principles set out by the Labour Court in EED0317.

 I note that the claimant took issue with  the  respondent’s requirement  to confirm her fitness to work  .I note that  no evidence was advanced either documented or otherwise to support the contention that this was common practise and applied across the board to other  workers without a  disability or with  a different disability. I accept the claimant’s evidence that this referral was made in response to the claimant’s disclosure about the cyst on her knee in the context of her seeking clarification re her entitlements to work breaks. The respondent produced no evidence to demonstrate that any of the claimant’s colleagues without a disability or with a different disability had their employment terminated.

The chronology of events indicate that the claimant’s knee condition was a factor in the  termination of the claimant’s employment .The claimant was dismissed 3 days following this disclosure. I found the respondent’s account of his motivation for dismissing the claimant to be based on his requirement for a 24hour per week attendance to lack credibility in circumstances where the claimant sought part time work in her cover letter of application for employment and was working an 18 hour week for the duration of her employment with the respondent. I note that the exchanges between the parties on the matter of a 24 hour week is in dispute – however I consider it significant that this was never raised as an issue with the claimant until after she disclosed that she had a knee issue. In this regard, I have also taken into account the respondent’s letter of termination where he failed to set out the reasons for the claimant’s dismissal.  While I note the respondent has sought to distinguish between the claimant’s description of being fired and his own portrayal of not giving her a contract, I find the evidence and testimony of the claimant to be more convincing than that of the respondent .

In all of the circumstances I find the claimant has produced a prima facie case of discrimination on the grounds of disability which the respondent has failed to rebut.

 Accordingly I uphold the complaint.

Complaint of failing to provide reasonable accommodation.

The claimant indicated that she was raising the matter of rest breaks because of the cyst on her knee and this is confirmed by the respondent’s submission where he refers to the claimant “ went on to say that her knee was swollen and she needed to rest it.”The employer’s response by his own admission was to refer the claimant to her GP who confirmed that the claimant had a Baker’s cyst and “ there is no reason why she cannot continue to perform her job due to this and is fit to continue doing so “.Both parties were aware that breaks were not paid.

While I accept the claimant’s contention that she raised the matter of  a longer break in the context  of a discussion  in which she was   seeking clarification on her entitlements to breaks the claimant submitted in her direct evidence that her condition did not impact on her capacity to work Consequently , I find that reasonable accommodation as set out in Section 16 of the Act was not sought from the respondent and accordingly I do not uphold the complaint.

Complaint of Victimisation

  The complainant states that she was subjected to victimisation by the respondent

  Victimisation is defined as : (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

I find no evidence of the respondent being put on notice of a claim of discriminatory treatment under the Employment Equality Act 1998- 2015 prior to her dismissal .Consequently , I do not uphold the complaint of victimisation.

Terms of Employment (Information) Act 1994 CA-00055847-002

The   claimant submitted the respondent was in breach of the Act for failing to furnish her with details of her core terms of employment within 5 days of commencement She further submitted the respondent was in breach of Section 5 for failing to notify her of a change to her hours of work  from 18 hours to 24 hours  week.

Section 3(1A) of the Act requires that:

“Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) [the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;]

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week,

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer's policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee's contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

Based on the evidence of the Respondent, I find the respondent was in breach the provisions of section 3(1A) of the Act in relation to the Complainant and I am upholding this element of the complaint

Section 5 CA-000847-003

As the claimant was not furnished with a statement under Section 3 , a claim cannot succeed under Section 5 and accordingly I am not upholding this complaint.

Organisation of Working Time Act 1997 CA-00055847-001

The claimant confirmed that she was rostered for 6.5 hours – 6 hours working plus an unpaid break of half an hour. The explanatory note set out in S.I. No.57/1998- Organisation of Working Time (Breaks at Work for Shop Employees)Regulations, 1998  states “These Regulations provide that shop employees whose hours of work include the period from 11.30a.m.-to 2.30p.m. , shall after 6 hours work , be allowed a break of one hour which must commence between those hours (provided such commencement would not result in the break occurring at the end of the working day). The complaint regarding a breach of the Act with respect to breaks is not upheld in circumstances where the claimant did not work in excess of 6 hours per day.

While the claimant did submit that she was penalised for making a complaint under the Organisation of Working Time Act 1997 at the hearing , the claimant did not include this either in her complaint form to the WRC or in the narrative contained therein.

Accordingly I have no jurisdiction to investigate this element of the complaint.

Minimum Notice and Terms of Employment Act , 1973.CA-00055847-006

The claimant did not have the requisite 13 weeks service to enjoy the protection of the Act and consequently I have no jurisdiction to investigate this complaint.

Protection of Employees (Part-Time Work) Act , 2001.CA-00055847-007

The claimant submitted that she was treated less favourably than full time workers who were entitled to an hour break – she said when she raised the matter with the respondent she was told to prove it. The respondent submitted that he complied with the WRC guidelines, that half of his staff were part time and get a half hour break and that there was no question of less favourable treatment.

No evidence was advanced by the claimant to demonstrate that the entitlements of part time employees was other than equality of treatment on a pro rata basis and consequently I do not uphold the complaint.

CA-00055847-005

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.

I am upholding the complaint of discriminatory dismissal. Having regard to the requirement pursuant to Article 17 of the Framework Directive as interpreted by case law that the sanction be “effective, dissuasive and proportionate “I require the respondent to pay the claimant €5,000 compensation.

CA-00055847-002

Section 7 of the Terms of Employment (Information) Act requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I am upholding the complaint of a breach of Section 3 and require the respondent to pay the claimant compensation €594.

Discriminatory Dismissal