ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047145
| Complainant | Respondent |
Anonymised Parties | Employee | Employer |
Representatives |
| Manager |
Complaint:
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-00058013-001 | 28/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058013-002 | 28/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act | CA-00058013-003 | 28/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00058013-004 | 28/07/2023 |
Date of Adjudication Hearing: 10/04/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I was assigned to make all relevant inquiries into the complaints made.
The Complainant commenced these matters by way of a workplace relations complaint form which was issued by her on the 28th of July 2023.
In particular, the Complainant herein has referred a number of complaints under one Act - The Organisation of Working Time Act 1997:
The first complaint is of a contravention under Section 12 of the Act which sets out those circumstances which give rise to Rests and intervals at work:
12.—
(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).
The second complaint is in respect of an alleged contravention of Section 14 of the act which provides for compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated including the payment of an allowance, an increased rate of pay or paid time in lieu.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
A further complaint was made in accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who refers the claim on to the Adjudication services. Again I am the Adjudication Officer appointed to hear this matter. It is noted that the Complainant herein is alleging that she was unfairly dismissed. It is further noted that the complainant has less than one year of service with the Employer. In such circumstances, Section 20(1) of the Industrial Relations Act of 1969 allows the worker to refer the dismissal to the WRC as a dispute under the Industrial Relations Acts.
Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties and on foot of any investigation conducted. In making such recommendations I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. In circumstances where an Industrial Relations dispute has been raised it is appropriate the anonymise the proceedings.
Lastly a complaint has been made under the Employment Equality Acts concerning discrimination. In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has already been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed).
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant seeks redress from the Respondent in circumstances where she claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Race (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…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) …...(the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(h) That they are of a different race, colour, nationality or ethnic or national origins (..the ground of race”),
In the event that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred and/or the victimisation experienced. It is also open to me to direct that a certain course of action be taken by an appropriate party which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Background:
This matter was to be heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party would have been prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and it was possible for me to make all relevant inquiries in the usual way. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was to be conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. Had evidence been given it would have been in compliance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came intoeffecton the 29th of July 2021, and which said legislation accommodates situations where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint. In such circumstances, an oath or an affirmation may be required to be administered to any person giving evidence before me. It is noted that the giving of false statements or evidence is an offence. The Complaint herein was brought to the attention of the WRC on the 28th of July 2023 by way of a workplace relations complaint form.
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Summary of Complainant’s Case:
The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - - and sent to the address provided by the Complainant on the workplace relations complaint form. The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 21st of February 2024 - and emailed to the email address provided by the Complainant on the workplace relations complaint form. I note that eh Complainant had previously consented to email communication and had herself been in contact with the WRC through the email address provided. From the Complaint form provided, I have discerned that the Complainant seeks to establish that she had claims under the Organisation of Working Time, was dismissed in circumstances which were unsatisfactory and that she was discriminated against in the workplace on the grounds of her race. Ther Complainant never provided a further submission outside the limited details included in the Workplace relations complaint form.
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Summary of Respondent’s Case:
The Respondent had representation at this hearing. The evidence for the Respondent entity was to be given by the Managing Director of the Company as well as the Complainant’s line Manager. I understand that the Respondent intended defending the within complaints though was a stranger to the exact details. |
Findings and Conclusions:
The Complainant did not engage with the hearing process. I allowed a half hour to pass before indicating that I would be proceeding to draft a decision based on the non-attendance of the Complainant herein. No contact has been made by the Complainant since that time.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00058013-001 The Complainant did not attend and did not provide evidence substantiating this claim. The Complaint herein is not well founded and fails.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00058013-002 The Complainant did not attend and did not provide evidence substantiating this claim. The Complaint herein is not well founded and fails.
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act CA-00058013-003 The Complainant did not attend and did not provide evidence substantiating this claim. I make no recommendation.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00058013-004 The Complainant did not attend and did not provide evidence substantiating his claim. I make no finding of Discrimination having occurred.
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Dated: 15th of May 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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