Complainant

Respondent

Parties

Maris  Pavlovics

Ceramicx Ltd

Representatives

  Appeared In Person

Jerry Lane  Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00056779-001

22/05/2023

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

CA-00056779-002

22/05/2023

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

CA-00056779-003

22/05/2023

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

CA-00056779-004

22/05/2023

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

CA-00056779-005

22/05/2023

On 25 May 2023, the Complainant submitted 5 Complaints and 1 dispute to the WRC. The Complainant introduced himself as a Lay Litigant and requested the support of Latvian Interpreter.

On 9 June 2023, the WRC asked the Complainant to clarify his intentions in relation to the 5 th complaint submitted as a complaint under the Equal Status Act, 2000.

The clarification sought a response from the Complainant on whether he wished to make a complaint of discrimination regarding the workplace ie in accordance with the Employment Equality Act, 1998 or in relation to the provision of Goods and Services in accordance with the Equal Status Act, 2000?

On 27 June 2023, the Complainant confirmed that he wished to make a complaint of Discrimination within the Workplace on grounds of his Religion.

The WRC placed the Respondent on notice of 5 live complaints and one dispute on 20 July 2023.

The Respondent came on notice in the case on 26 July 2023. On 14 September 2023 the Respondent objected to the dispute submitted under Industrial Relations Act, 1969 and that matter was subsequently closed before the WRC. This was notified to the complainant with an option to refer the matter on to the Labour Court.

On 4 January 2024, both parties were invited to hearing in the case.

On 30 January 2024, and in preparation for hearing, I requested a written submission from the Complainant. While the complainant had submitted an abundance of loose documents for the attention of the WRC and the Respondent, I was seeking an outline of the dateline of events pertaining to the complaints submitted.

The Complainant provided an outline of his workplace experience.

The Complainant was welcomed to hearing as a Lay Litigant and was initially accompanied by his wife. The hearing was also supported by an Interpreter in the Latvian language.

At the outset of the hearing, the complainant submitted that his wife would be a witness in the case. As I had observed a number of children present in the waiting area prehearing in the company of the complainant and his wife, I asked the Complainant to address the childcare issue concerning his wife giving evidence. He confirmed that his wife would not be a witness in the case.

The Respondent was represented by Jerry Lane at Peninsula and introduced two witnesses to the hearing.

The Respondent confirmed that they had filed a submission in defence of the claim and brought copies to the hearing. An issue arose that a password protection had delayed the submission, but time was given to the complainant to review the respondent submission, prior to commencing the hearing.

An Interpreter in the Latvian language was present throughout the hearing.

The Respondent acknowledged that they were properly on notice of

CA-00056779-005 as a complaint of Discrimination on grounds of Religion in accordance with the Employment Equality Act, 1998.

I had some concerns when I observed the complainant had not brought any preparatory documents to the hearing. As I always start with an overall review of the complaint form, I took some time to work through this document with both parties.  The Complainant worked from the Respondent booklet.

It is clear to me that the complainant had some difficulty in understanding the revised status of the Industrial Relations claim. The WRC had written to him on this on July 4, 2023. He confirmed that he did not refer the claim onwards to the Labour Court.

The remaining 5 complaints were live before me.  

Both parties raised a preliminary issue each.

The Complainant commenced work as a Warehouse Operator on 29 August 2022 until he was dismissed by email on 17 May 2023. This date was contested by the Respondent who relied on the date of letter of dismissal of 16 May 2023 as the date the employment ended.

The Complainants wife worked at the Plant, and they worked opposite to each other for family reasons.

The Complainant submitted that he worked a 53-hr working week, which was disputed by the respondent and countered as 39.5 hrs. The Complainant submitted that he was paid a gross salary of €734.58 per week.

The Complainant confirmed that he was a Lutheran and his chosen comparator for the purposes of this case was Mr X, A Catholic.

The Complainant participated in the hearing with the support of a Latvian Interpreter.

I have summarised his outline submission as the complainant commenced work in the knowledge that after 6 months his pay would increase.

The Complainant recounted some personal logistical reasons for him missing work on occasions but also recounted that he felt pressurised to produce product.

The Complainant described feeling on the edges of the workplace when he didn’t have sufficient training to undertake the tasks required and he took offence when his supervisor stopped him talking to his wife at work.

The Complainant said that he got sick and before he could submit his sick note from his doctor, he was fired by the Respondent by email.

This event prompted the complainant to look back over his time at the workplace and identify a lot that was wrong in his opinion.

1 the company did not pay petrol money.

2 the company did not provide the company handbook.

3 the company did not pay overtime.

4 his wife did not have access to a safety course.

5 problems with Saturday pay.

6 13 sick days, unpaid

7 Poor scheduling of manual handling training

8 lack of rest period 16-17 March 2023

Preliminary Argument:

The Complainant made application that the Respondent release the CC TV footage on the hearing day. He acknowledged that he had not made formal application previously.

Respondent Preliminary Arguments:

The Complainant listened to the Respondent Preliminary Arguments. He expressed a concern that he could not understand these arguments. I requested that Mr Lane to repeat them to help me gauge a response from the Complainant.

The Complainant then confirmed that he did not agree with the Arguments but did not expand on that. He also confirmed that he understood that the second claim in CA-00056779-002 was conceded by the Respondent.

CA-00056779-001 Payment of Wages Act, 1991

The complainant submitted that he had been fired without minimum notice and did not receive a termination payment after almost 9 months. CA-00056779-002 Daily Rest Period, Organisation of Working Time Act, 1997(Section)

 The Complainant submitted that he was working without 12-hour rest periods between his working days. He submitted that on 16 March 2023, he completed his night shift at 07.00hrs and was rostered again later that day 14.30 hrs to 23.00hrs.

CA-00056779-003 Excessive Night hours Organisation of Working Time Act, 1997(Section

The Complainant submitted that he worked excessive night hours from 23.00 hrs to 07.00 hrs with occasional start time at midnight to 07.00hrs finish. He did not receive “night pay “or overtime pay.

CA-00056779-004 Statutory Minimum Notice

The Complainant submitted that he had not received a minimum notice letter from the Respondent. He stated that he had been on sick leave when his employment was terminated. He attached his letter of dismissal.

CA-00056779-005 Discrimination on Grounds of Religion (Employment Equality Act, 1998)

The Complainant outlined that he had experienced discrimination from his managers following some periods of machine malfunction on the floor. He expressed a dissatisfaction that the company had approached his wife to explain to him about production numbers.

The Complainant submitted that he was approached to turn off a Kiln Oven, when he did not have skills in that area. He was told not to speak to his wife at work. He believed he had been singled out when there was a culture of operators being permitted to socialise. The Complainant believed that he had been treated differently due to his Lutheran religion.

The Complainant sought access to Saturday working as he believed it was paid better but he was refused access.

Evidence of the Complainant by oath.

The complainant outlined that he had joined the workforce at the respondent factory in August 2022 to work nights only. He had not been provided with a staff handbook and he was not paid for overtime.

The Complainants wife also worked for the respondent.

The Complainant confirmed that his wife had populated the complaint form.

He told the hearing that night hours were not delineated on his pay slip. He confirmed that he had raised his dissatisfaction with his pay for night hours amongst his peer group of night shift workers, but not with the respondent management.

He submitted that he had not received a bonus payment. He had also inquired about compensation for fuel but was refused.

The Complainant recalled that his employment was terminated by the Respondent when targets were not met. He was on sick leave at the time.

He declared that it was not acceptable that he be expected to undertake manual handling training at 06.30 am.

I asked the complainant to particularise his claim for nights and he told me that he worked every night of his employment.

The Complainant confirmed that he had submitted the medical certificate after his employment was terminated and the respondent refused to accept it. He clarified that he could not secure an earlier GP appointment.

In relation to the claim for Discrimination, the Complainant recalled that he had requested time off to co incide with Easter some two days before. The Respondent refused to grant him the leave as a co-worker, Mr X, a Catholic had been allowed to go home earlier. He sought out Mr X and asked him if he would be working Easter. He was told that Easter was a big celebratory event.

This was the first occurrence of Discrimination and the respondent had not discussed his concerns with him.

The Complainant confirmed that he had not made a request of the respondent to practice his religion at work.

Some confusion followed as the complainant had submitted that 9 May 2023 was the first occurrence of Discrimination on his complaint form. He submitted that Mr Raini was the Manager who refused him time off and he was of Muslim faith.

The Complainant clarified that these were two separate and distinct events.

During cross examination,

The complainant confirmed that he had signed acceptance of his Terms and Conditions of Employment. He denied that he had received a hard copy of the staff handbook or that it was widely available at the business. He disagreed that the first time he had requested the handbook was 17 May. He confirmed that he had requested it from Ms Davies after his dismissal.

He confirmed that he had not appealed his dismissal as he did not know he could. He countered that he thought that his employers would not change their minds.

He was adamant that he worked a 53-hour week. He was unsure of the conditions which prevailed for application for annual leave. He was informed that he could not have the time off because some staff were already on leave and a shortage would follow.

He denied that he had not raised the topic of leave in any of the three submissions of June 2023.

The Complainant denied having any conflict in the workplace. He said that he was “ok “there, otherwise, he wouldn’t have stayed. He acknowledged things had changed at the business and where quality had previously been emphasised before quantity, it had since reversed, which he attributed to a change in Supervisor. He denied that the incident involving the Kiln had occurred as described by the Respondent as it was automatic. This was the reason that he was seeking the CC TV footage to defend himself.

He was aggrieved that he was remonstrated for “chatting “as he saw other staff and family members mingling at work. He felt left out and attributed this to his religion.

 He was aware that his wife was paid less than him for evening and night work.

When asked to address his contention that he did not receive a Christmas bonus, he accepted that €50.00 was usually paid per worker for a party?

In answer to Mr Lanes question, he accepted that he had sought and had been given flexibility regarding both he and his wife’s’ travel to work.

The Complainant acknowledged that he had not raised the issues surrounding night work with any one in authority at the Company, prior to the WRC. 

The Complainant confirmed that his first verbal request for annual leave had been directed at Mr Ranhi. He had not filled in a form. His previous annual leave had followed the Plant universal “shut down”.

The Complainant accepted that he was working a probationary period as provided for in the handbook and that 25 April meeting was scheduled to address his performance.

 He recalled that requests for additional hours had been denied.

The Complainant confirmed that he had 9 recorded dates of absence during his tenure, 3 of which were absent without leave. He confirmed that he had not attended for work on May 15 and had not informed the respondent that he was not attending on the day.

He confirmed that his wife had addressed Ms Davies on 16 May and told her that he was awaiting a medical appointment.

He attended the business on 17 May, on his own initiative, as he wanted to clarify matters, but the respondent had no interest in the medical cert. He denied that he had shouted at Ms Davies but recalled being irate and seeking an explanation.

He accepted that he had threatened the company with the WRC and told them that “it would end badly, just you wait and see “

The Complainant was unaware of when he got new work, and he was uncertain when his wife had left the respondents employment.

The Complainant confirmed that he was resident in Ireland for 8 years. He had secured the job through word of mouth and had not had an Interpreter at his interview. His contract of employment had not been provided in the Latvian language as he said that he had understood most of it.

The Complainant submitted that he had never been informed this his probation had been extended.

When asked to clarify the resolution sought, the complainant responded, “law and justice” He contended that as a family man, he should not have been fired.

In UK and Germany, he argued hours are delineated on pay slips.

The Respondent operates a Manufacturing plant for infra-red heating elements in West Cork. The Respondent has rejected the four claims made by the Complainant.

The Respondent submitted that the matter of a claim for unfair dismissal had not arisen in these proceedings.

The Respondent made a number of Preliminary Arguments.

1 Need to Particularise the claims made.

The Complainant had failed to particularise the claim for excessive night work in CA-00056779-003. This lack of specific detail had placed the Respondent at a particular disadvantage in seeking to defend the claim. The Respondent was reliant on exhibited pay slips.

In relying on the Labour Court case of Abel Security ltd and Mr Hardijs Langsteins DWT 1319

Mr Lane argued that there was an onus on the complainant to set out the basis for his claim which centred on dates and occurrences.

“The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his claim is grounded and must outline the claim with enough particularity to allow a respondent to know what it is they are being accused of. If the Respondent is unable to produce records in the prescribed form, then the onus of proving compliance with the Act would rest on the Respondent in accordance with Section 25(4) ….”

The Respondent was not on notice of the precise nature of the claim before the hearing.

2 Burden of Proof in the claim for Discrimination

The Complainant is required by operation of Section 85(A) (1) of the Employment Equality Act 1998, as amended to establish a prima facie case of discrimination prior to that burden shifts to the Respondent Melbury Developments v Arthur Valpeters, EDA 0917

The Respondent outlined that the Complainant had not set out how he had been treated less favourably than any other employee in the course of his employment. He was obliged to demonstrate this.

3 Duplication of Claims

The Complainant has claimed twice for payment in lieu of notice of termination of his employment.

The Respondent has rejected but of those claims. However, one of these claims must be void for duplication.

CA-00056779-001 Payment of Wages Act, 1991

The Respondent submitted that the complainant had no entitlement to be paid in lieu of notice. This is a duplicate claim. CA-00056779-002 Daily Rest Period, Organisation of Working Time Act, 1997

The Respondent conceded this claim with regard to 16 and 17 March, 2023

CA-00056779-003 Excessive Night hours Organisation of Working Time Act, 1997

The Respondent outlined the complainant had failed to particularise this claim and the claim is denied.

CA-00056779-004 Statutory Minimum Notice

The Respondent submitted that the complainant had no entitlement to be paid in lieu of notice. This is a duplicate claim.

CA-00056779-005 Discrimination on Grounds of Religion

The Respondent has submitted that the first and only date of discrimination centred on 9 May 2023. This has amounted to assertions rather than satisfying the burden of proof required in the case.

He contended that the claim should be dismissed as frivolous and vexatious.

Giblin v Bank of Ireland Asset Management ltd (DEC E /2011-161)

Evidence of Samantha Davies Administrator / Human Resources, by affirmation.

 Ms Davies gave a background to the company operations. She submitted that the Respondent employed 107 employees.

40% Irish

60% combination of Polish, English, Welsh and Hungarian nationalities.

She understood that staff were either of catholic or protestant faith but did cross match this in records.

Ms Davies submitted that the Company had positive staff relations as demonstrated in no active grievances or disciplinaries over the past 3 years.

The Respondent arranged for the complainant to be “onboarded on arrival “by Mr D who was a lead operator with 30 years’ experience.

This involved showing him around the plant, familiarisation with terms and conditions, handbook, uniform and deduction in pay agreements. The handbook consisted of details of the company Equality, Health and Safety Policies and details of employee assistance.

He was placed to work on the shop floor with a Senior Operator, where his probation commenced.

Ms Davies explained the Organisation Chart, where operators reported to the Production Supervisor, who in turn reported to the company Managing Director.

The probation period is supported by a computer package which sets alerts. At the end of the probation period, the production supervisor and managing director liaise and if an employee successfully emerges from this process, then probation ends with an issued letter and notification of an increased wage.

The Respondent exhibited an example of this correspondence in the complainant’s wife’s concluded probation dated 15 March 2023. She said this letter had been hand delivered.

In the event of an unsuccessful probation an employee would be informed verbally or by email.

The Plant operated in a number of cellular units where reliability is stressed.

Manual handling training is not required for all staff unless they are lifting greater than 25 Kg. The presentation was in English and the practical assessment through a translated multiple choice.

Mr Hussein was the Production Supervisor.

By September 2022, the Quality Team had identified the complainant as being “below the mark “

By October 2022, some rejected product was linked to the complainant and extra instruction followed.

Ms Davies recalled that the complainant’s wife had queried with her why the complainant was being spied on?

The company linked suitability for continued employment to attendance and both the complainant and his wife developed a problem with absences, with some periods of absent without leave.

Eventually the company permitted a 30-minute lea way to permit the couple the opportunity to travel from home to work.

Ms Davies confirmed that the complainant had not passed his probation, both he and his wife had commenced work on the same day in August 2022.

Ms Davies recalled that the complainant had not attended work, which went unexplained on May 15, 2023.

On 16 May 2023, following discussions at a Production meeting, the decision was taken in the absence of contact from the complainant to terminate his employment. An email to that effect was sent to him on 17 May at 10 am.

In or around 12 noon, the complainant came in unannounced with a medical cert overseen by his wife, who stood at the door. Ms Davies explained that the company had issues with both the complainants’ performance and absence. The Complainant said that he didn’t see a problem and threatened the WRC. He requested access to an electronic handbook.

Ms Davies clarified that both she and the Production Supervisor held the authority to terminate an employee’s employment.

Payroll was completed with final working hours and 55 hours annual leave.

Ms Davies was unaware that the Complainant was of Lutheran faith during the course of his employment, and she had never inquired into his faith. Nothing that occurred was influenced by the complainant s religion. He was not discriminated against.

Ms Davies had not been involved in any application for annual leave.

 He had not raised a grievance. He was not paid in lieu of notice.

Ms Davies recalled that both the complainant and his wife had sought to work extra hours in March 2023, which was initially vetoed but they were allowed to “earn as much as they could “when extra family support was present.

The Complainant was permitted to seek data. CC TV records were retained for 28 days before being wiped.

During cross examination,

Ms Davies reaffirmed that notice was not due to be paid to the complainant.

Ms Davies disputed that there was insufficient supervision on night shift and outlined the arrangement son the plant. She clarified that he did not need to have a fire safety course. The complainant did not contest this.

When he raised the topic of his performance, Ms Davies stated that he had been judged on targets vs availability of working hours.

In addressing the Complainants contention that he was in contact with a Medical Officer during 15 May 2023, Ms Davies responded that there had been no mention of a doctor from 15 May 2023.

Ms Davies confirmed that she had told the complainant when he came to see her that he could speak to “higher than me “in relation to his dismissal. As far as she knew, he had not actioned this.

Evidence of Mr Hussein Raihi, Production Supervisor, under oath.

Mr Raihi is a Mechanical Engineer, who has spent 6 years at the respondent business and has been Production Supervisor since August 2022.

He submitted that quantity and quality of product were weighted in that priority.

The Complainant had presented as needing to improve his outputs and had not improved fully over a 6-month timeline. The Respondent had sought to coach him on how to avoid rejected product and while he had recorded a slight improvement, he had failed to measure up to the respondent standard and had been deemed unsuitable.

At the 15 May meeting, the complainant had not provided a notice for his absence and together with problems on targets, “we decided to dismiss” and a letter issued dated 16 May 2023

Mr Raihi had no knowledge of the Complainants religion.

He submitted the request made of him to operate the Kiln was something he had done before.

He clarified that the cellular formations were the place of production and the frequent interactions with the complainant’s wife on “home stories “not “business stories “was not acceptable during a “clocked in “period.

During cross examination, the complainant queried why a Senior Operator intervened with operational instructions?

Mr Raihi explained that this was aimed at raising his output.

The complainant disputed this and pointed to some technological shortfall in cover at night. Mr Raihi responded in saying that any malfunction would not explain why the complainant had consistently missed his targets which were optimally set at 420 and a variable 350. He said that the complainant was not making 290.

The company had identified the rejects as a key performance indicator and the complainant was found to have filled in records himself.

In redirect, Mr Raihi confirmed that turnaround time for malfunctions was 24 hrs.

In closing remarks, the respondent repeated the preliminary arguments made at the outset. The Complainant had not cited a comparator in his employment equality claim.

Mr Lane said that the complainant had not met the burden of proof required here as there was no evidence on the connection between the application for annual leave and the complainant’s religion.

I have been requested to reach 5 decisions in the cases live before the WRC. In reaching these decisions, I have listened carefully to both parties’ evidence and oral submissions. I have read and considered both parties written submissions.

I find it important to share with the parties that as I listened carefully to each party’s narrative in this case, it became very clear this was the story of Probation in a Manufacturing setting where both the Complainant and his wife were then working. Neither party work there anymore.

This probation has not been supported by records that may have helped me gauge the pitfalls for each party as they occurred. A Probation is a trial period of employment.

The Complainant comes to this case believing that he was wrongly overlooked for a pay increase at the conclusion of his probation. He submitted that his wife who commenced work on the same day as he was awarded a pay increase.

The Respondent comes to this case with a strong contention   that the Complainant did not pass his probation and had an extension applied. No record of this extension exists outside of a suggestion by Ms Davies that the Managing Director spoke to the Complainant. The Managing Director was not present at hearing. No records which mentioned an extension were exhibited.

I accept the Complainants evidence that he did not receive a letter which extended his 6-month probation either due to his many absences or through his performance at work.

This goes to the very root of this case and is an issue which both parties should reflect on.

The inconsistency in the communication to the complainant’s wife of March 2023 and the resultant vacuum to the complainant is marked.

I make these observations as a background observation on what I heard in the case but equally to remind both parties that the WRC has no jurisdiction to hear a claim of Unfair Dismissal under the Industrial Relations Act 1969 and I urge the complainant to go back into his WRC file of last July to see where this was explained to him at the time.

In addressing the five complaints set out below, I have had to remind the Complainant on a number of occasions that I have no authority to make a recommendation on   his claim for unfair dismissal, which is closed.

Preliminary Issue for the Complainant

The Complainant accepts that he had not made a formal application for access to CC TV footage prior to hearing .

He did not explain the relevance of this outside of needing it for his defence .

I explained to the parties that documents on which parties intend to rely on needs to be with the WRC 15 days prior to hearing as explained on the notification of hearing .

I accept that the CC TV footage is now extinct at the company and this point is moot .

I find against the complainant on this point and remind the parties on the availability of S76 of the Employment Equality Act 1998 in preparation a case for the WRC .

CA-00056779-001 Payment of Wages Act, 1991.

I accept the Respondent contention that this is a duplicate claim to the claim for minimum notice.

The Complainant has submitted that he should have been paid a termination payment on conclusion of his employment.

I have read the contract of employment which does not make a provision for this payment.  The amount sought was not particularised or quantified by the Complainant.

I have found that a termination payment is not properly payable in accordance with Section 5(6) of the Payment of Wages Act, 1991.

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.

I am satisfied on the evidence before me that the complainant did not raise the payment of a termination payment at any time during his dismissal. I am satisfied that he was invited to speak to a higher manager than Ms Davies and did not do so. He did not raise an internal grievance on this topic. Therefore, I say that this referral to the WRC is precipitous in that regard as internal procedures should be exhausted prior to a referral to the WRC. 

There was a lull of a week from the point of dismissal to the referral to the WRC to raise this matter with the Respondent.

I find the claim is not well founded.

CA-00056779-002 Daily Rest Period, Organisation of Working Time Act, 1997

The Complainant has submitted that he was denied a daily rest period of 12 hours between 16 and 17 March 2023.

The Respondent has conceded this claim.

Section 11 of the Organisation of Working Time Act, 1997 provides.

Daily rest period.

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer

Article 3 of the Working Time Directive refers.

The Labour Court has considered the circumstances of contended breaches of Section 11 in

Tifco Ltd v Smietana DWT 124/2011,

Rosters were   designed to reflect an 11-hr rest period.

The Labour Court, however, found that, on a number of occasions, the reality was that it was not possible for him to avail of those breaks.

 The Court also found that the details of those occasions were “readily discernible” from the respondent's records upon which the claimant's weekly pay was calculated.

 Accordingly, the Labour Court held that “there was an ongoing opportunity for the respondent to put systems in place to alert it to the occurrence of such breaches of the Act and to put remedial measures in place that would ensure that compensatory rest was provided (west law)

And

Mr Kevin Foley, Chairman of the Labour Court took some time to explain the central importance and positive duty for employers regarding workers taking rest in accordance with both Sections 11 and 13 of the Act in:

Sandra Cooney’s Home Care ltd and Deirdre Morgan in DWT 1914 in 2019.

The question of whether the Working Time Directive, from which the Act of 1997 is derived, imposes an obligation to provide workers with the opportunity to take breaks or a positive obligation on an employer to ensure that the breaks are actually taken was considered by the then ECJ in Case C-484/04, Commission v United Kingdom [2006] IRLR 888.

This case concerned guidelines issued by the UK Authorities on the application of statutory provisions equivalent to the Act of 1997. These guidelines provided that “employers must make sure that workers can take their rest but are not required to make sure they do take their rest”. The Commission brought proceedings against the United Kingdom claiming that in issuing these guidelines it had failed to fulfil its obligation to effectively implement the Directive. The Court held that the impugned guidelines amounted to an incorrect statement of Community law.

In its’ Judgment the Court held as follows: -

• Workers must actually benefit from the daily and weekly rest periods provided for by Articles 3 and 5 of the Directive. Those provisions impose clear and precise obligations on the member states as to the result to be achieved by such entitlement. A member state which, in the national measures implementing the Directive, provides that the workers are entitled to certain rights to rest but which, in the guidelines for employers and workers on the implementation of those rights, indicates that the employer is nevertheless not required to ensure that the workers actually exercise such rights, does not guarantee compliance with either the minimum requirements laid down by Articles 3 and 5 or the essential objective of the Directive, which is to secure effective protection of the safety and health of employees by allowing them to enjoy the minimum periods of rest to which they are entitled

It is clear from this passage that employers are obligated by the Directive to ensure that the prescribed periods of rest are actually taken.

In this case it is clear and undisputed that the minimum daily rest period prescribed by Section 11 and the minimum weekly rest period prescribed by Section 13 were disregarded. It is equally clear to the Court that the Respondent took no practical steps to ensure that that its obligations under the Act in that regards were observed. Accordingly, the Court is satisfied that Section 11 and Section 13 of the Act were contravened in relation to the Claimant.

While I appreciate that the period of time scrutinised by the Court was more extensive and enduring than the single date before me of March 16-17, 2023, I have established that the Respondent did not take a practical step to ensure compliance with Section 11 of the Act.

I have found a contravention of Section 11 of the Act between 16 and 17 March, 2023.

The claim is well founded.

I would add obiter, that this is another matter worthy of local discussion through the grievance procedure at the time of occurrence.

CA-00056779-003 Excessive Night hours Organisation of Working Time Act, 1997

The Complainant has submitted that he was not paid night payment or overtime money and that he worked excessive night hours.

At hearing, the Complainant acknowledged that he was paid more than the evening shift for his night work.  The Respondent submitted that the night rate   was a composite rate. The Complainant took issue that this rate was not broken down and explained as a premium rate on the pay slip as he had seen in the UK and Germany. He had not pursued this or an overtime rate during the course of his employment. It is note that the complainant did work enhanced hours prior to his dismissal at his own behest.

The contract stated that payment “for any additional hours are paid at your normal rate of pay “

My jurisdiction in this complaint arises from Section 16 of the Act.

16. Nightly working hours

(1) In this section—

“nighttime” means the period between midnight and 7 a.m. on the following day.

“Night work” means work carried out during nighttime.

“Night worker” means an employee—

(a) who normally works at least 3 hours of his or her daily working time during nighttime, and

(b) the number of hours worked by whom during nighttime, in each year, equals or exceeds 50 per cent of the total number of hours worked by him or her during that year.

(2) Without prejudice to section 15, an employer shall not permit a night worker, in each period of 24 hours, to work—

(a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,

(b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(i) 2 months, or

(ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24.

(3) In subsection (2) “special category night worker” means a night worker as respects whom an assessment carried out by his or her employer, pursuant to a requirement of regulations under [section 58 of the Safety, Health and Welfare at Work Act 2005], in relation to the risks attaching to the work that the night worker is employed to do indicates that that work involves special hazards or a heavy physical or mental strain.

(4) The days or months comprising a reference period shall, subject to subsection (5), be consecutive days or months.

(5) A reference period shall not include—

(a) any rest period granted to the employee concerned under section 13(2) (save so much of it as exceeds 24 hours),

(b) any rest periods granted to the employee concerned under section 13(3) (save so much of each of those periods as exceeds 24 hours),

(c) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

[(cc) any period during which the employee was absent from work while on parental leave, force majeure leave[, leave for medical care purposes, domestic violence leave or an approved flexible working arrangement within the meaning of the Parental Leave Act 1998] or carer's leave within the meaning of the Carer's Leave Act 2001,]

(d) any absences from work by the employee concerned authorised under the Maternity Protection [Acts 1994 and 2004], or the Adoptive Leave [Acts 1995 and 2005], or

(e) any sick leave taken by the employee concerned.

I can accept that the Complainant is a night worker for the purposes of the Act. He was unable to place a particularised reference period of a specific two-month period before me. There was no collective agreement for me to consider.

On a careful consideration of the records of pay slips exhibited by the Respondent, I have been unable to identify a contravention in Section 16 of the Act on this occasion.

I have no jurisdiction to decide on whether the correct nighttime rate was paid or whether overtime at an enhanced rate should have been paid.

The claim is not well founded.

CA-00056779-004 Statutory Minimum Notice

Having listened to the evidence in this case, I have established that the Employer drew this employment to a close by email dated 16 May 2023

“Due to poor performance and poor attendance”.

 The Respondent has recognised that a notice period exists in the employment documents.

 In the Probation Section of the Handbook, they call on their right.

“To dismiss in accordance with the notice provisions contained in your individual statement of main terms and employment.”

The Respondent cannot rely on the exclusionary clause in Section 8 as the Dismissal was not prefaced by any sort of investigation or findings of gross misconduct in line with natural justice or fair procedures.

As the complainant had almost 9 months continuous service by the time of his dismissal, on May 16, 2023, I find that he can avail of the statutory protection of Section 4(2) a in that regard.

Minimum period of notice.

4.— (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,

I find the claim is well founded.

CA-00056779-005 Discrimination on Grounds of Religion

I have listened carefully to both parties in this claim. The Complainant has submitted that his employment was heavily affected by episodes of repeated discriminatory acts. He believed that he was singled out as an employee needing to improve his production numbers.

He raised an incident where a named Catholic worker was given annual leave at Easter whereas he was refused. I needed some clarity on this date line as Easter 2023 occurred before 9 May 2023 the date the complainant attributed to the discriminatory actions.

The Complainant attributed the difference in how he believed he was treated at the plant was due to his Lutheran religion. He believed he was prevented from accessing Saturday work because of this religion. He added that he was denied necessary training because of his religion.

The comparator provided was in the context of the annual leave was a named Irish Catholic.

The Respondent has denied discrimination and has submitted that they had no awareness of the Complainants religious beliefs. He had not sought to practice that religion at work, and he had not raised his disquiet regarding his treatment during the time he worked at the Plant.

The Respondents response to the claims of discrimination centred on the background and context an unsuccessful probationary period where the complainant was assisted to meet the targets but did not. He also presented with a management of attendance issue with 9 absences, some of which were unsupported by explanation.

It is common case that while the complainant and his wife started the same day in August 2022, she concluded her probation with a wage increase in March 2023, while his probation was left open ended, and it drifted. Nobody gave evidence of having given the complainant the difficult conversation of extending his probation. Nobody exhibited the record of extension.

I accept the Respondent evidence that the Respondent was keen to get the Complainant to secure reasonable not optimal targets, in that I found Mr Raihi very clear and cogent in his account of the challenges presented by the Complainant.

The law on Discrimination on grounds of religion is provided in Section 2 of the Act

“Religious belief” includes religious background or outlook.

Section 6 (a) prohibits Direct Discrimination on grounds of religion.

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned

I cannot accept that the request for annual leave two days before Easter 2023 i.e. April 7-9, 2023, prompted a discriminatory response from the Respondent.

While I take the respondent point that the annual leave occurrence had not factored in any prehearing submissions, I have recognised the complainants lay litigant status and permitted an inquiry of this submission at hearing.

In all that the Complainant told me regarding this issue, I could see that he was angry at the respondent. I could also see that he had carried that anger from his dismissal to the hearing and by which time he had identified a series of unsatisfactory events at work.

However, I note that he had not brought these to the respondent’s attention during the probationary period.

My attention is drawn to a Circuit Court case concerned with a claim of discrimination on grounds of religion under the Equal Status Acts, where Circuit Court judge (Groarke J) distinguished between disagreeing with the views of persons, even if those views are based in religion, and discrimination on grounds of religion. The Court went on to state:

Burke v NUI Galway, Circuit Court, 29 November 2021

“It matters not a whit what, if any, religion is practised by a person, if one disagrees with their opinion not because of their religion but because you dislike their opinion on a particular topic. One must respect the entitlement of any person to form an opinion even though one may have an adverse view on the opinion itself … To establish religious discrimination, one must prove that the words or actions themselves are partly or wholly motivated because of the religious beliefs held and it is not sufficient for the complainant to prove disagreement or antipathy on an opinion even if fervently held”.

I have found that the complainants request for annual leave submitted two days before Easter did not prompt a discriminatory response from the Respondent.

The Complainant did not suffer a detriment due to his religious beliefs.

I have considered the complainants contention that he suffered discriminatory treatment in relation to the management of his work performance.  He felt  particularly aggrieved at being criticised when chatting with his wife at work. I thought Mr Raihi made a very profound and cogent response to this assertion when he explained that this was “ clocked in time “ . The Complainant did not accept this reason .

While I have found a lack of clear records of a probation report, I accept the evidence of Mr Raihi that the respondent was struggling in seeking to manage the complainant’s performance and attendance from two months into his employment to his dismissal in May 2023.

I have not found that the dismissal was linked to the complainants’ religious beliefs. Dept of Defence v Barrett EET 081, applied.

I would of course have preferred to have seen a much more inclusive process adopted by the Respondent in how this message of dismissal was communicated.  A probation is a two-sided process.

I found that the Complainant was not treated less favourably due to his religious beliefs as these beliefs were not known by the Respondent within the lifetime of his employment. While he gave me a comparator for the annual leave refusal , he did not provide a comparator for the other matters complained of .

I am troubled by the undisputed evidence shared by Ms Davies that she was threatened with the WRC  and a bad outcome by the Complainant in the follow up to his dismissal. By then the complainant accepts that he had requested the company handbook (electronic version), and he overstepped the mark when he threatened the respondent.

I would have preferred to have seen the Complainant take up the invitation for him to discuss his dismissal with a higher manager.

I have found that the complainant has not raised facts from which I can infer that he was discriminated against on grounds of his religion.

He has not satisfied the burden of proof required to pass that burden to the respondent.

Instead, I find that both parties engaged in an incomplete probation.

The Complainant has not raised a prima facie case of Discrimination on grounds of religion against the Respondent.

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

Payment of Wages Act, 1991

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the provisions of Section 5 of that Act.

CA-00056779-001

I have found the claim is not well founded and a partial duplicate with CA-00056779-004.

CA-00056779-002 Daily Rest Period, Organisation of Working Time Act, 1997

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to this complaint in accordance with Section 11

 I have established a contravention of Section 11 of the Act across March 16 and 17, 2023. The Respondent has conceded the claim.

In accordance with my powers under Section 27 of the Act, I require this employer to demonstrate compliance with Section 11 on Rest Periods within 4 weeks of this Decision.

I also order that the Respondent pays the Complainant €1,500 as just and equitable compensation in respect of the contravention of Section 11 of the Act. Sandra Cooney’s Home care, applied.

CA-00056779-003 Excessive Night hours Organisation of Working Time Act, 1997

I have found this complaint is not well founded.

CA-00056779-004 Statutory Minimum Notice

Section 12 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in accordance with Section 4 of that Act.

I have found the claim to be well founded. The Complainants pay slips demonstrated a variable pattern of payments per week from a lowest at 15 hrs to a highest of 53 hrs.

Section 12 of the Act provides:

Decision of adjudication officer under section 41 of Workplace Relations Act 2015

12. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

I direct the Employer to pay the Complainant €533.61 as compensation for the loss of a standard weeks’ pay by reason of the contravention.

CA-00056779-005 Discrimination on Grounds of Religion

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 have found that the Complainant has not adduced evidence that the detriment he experienced in the workplace occurred because of his religious beliefs (religious ground). He has not satisfied the burden of proof required in Section 85(A) of the Act.

He has not raised a prima facie case of Discrimination on grounds of religion.

An unsuccessful employment from both employer and employee perspectives.