Complainant

Respondent

Parties

Aleksandra Iwona  Kuczewska

Roots Cafe Claregalway Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058306-001

15/08/2023

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

CA-00058306-003

15/08/2023

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

CA-00058306-004

15/08/2023

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

CA-00058306-005

15/08/2023

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

CA-00058306-006

15/08/2023

The Complainant worked for the Respondent café as a full time supervisor for approximately 7 months. She alleges that she was let go when she asked for time off for exams and then to move to work part-time going forward. She alleges that the Respondent, in doing so, treated her differently due to her race.

The Respondent disputes the Complainant’s allegations. They submit that she voluntarily resigned and requested to return on a part-time basis and that they could not facilitate this request. They point out that the Complainant was not a part-time and seasonal employee. It is common for such employees to frequently leave to do exams but the Complainant was a full-time supervisor.

The Complainant made detailed written submissions and provided evidence under affirmation.

Where relevant this evidence has been referred to in the findings and conclusions section of this decision.

The Respondent’s HR Manager, Ms Amanda O’Donoghue attended the hearing and made detailed written submissions and provided evidence under affirmation.

Where relevant this evidence has been referred to in the findings and conclusions section of this decision.

The Complainant began working for the Respondent in October 2022. She was hired on a fulltime basis. There were a number of part-time workers in the café who were students and who frequently had to take time off for exams and these employees tended to be Irish.

In April 2023 the Complainant had asked for time off to study and to travel to Poland where exams she was completing were being held. These were to occur in June 2023. She also indicated that she would need to go part-time for July and August to complete her thesis.

Her evidence was that her manager had been enthusiastic at the proposal as the café was quiet at the time and indicated that she could choose her own hours when she returned. They agreed that she would continue to work full time for the next few weeks. However, the Complainant noticed that she had been dropped from the roster from the week beginning 6th of May 2023. Her manager was unresponsive when she texted her about this but then later supported the Complainant taking annual leave when the Complainant requested this.

The Complainant then texted her manager about going on job seekers allowance on the basis that her hours had been reduced. Her manager replied noting that the Complainant had given in her notice. The Complainant corrected her manager and stated that she had not given in her notice.

At this point the Complainant had a number of interactions with the accounts department. They texted her that they had been told that she had resigned from her full-time role and had indicated that she would like to take up part time work in August but that this was unavailable. The Complainant disputed this and was clear that she never resigned.

She was issued two letters by the Respondent for the Department of Social Protection. The first letter said they had reduced her hours due a downturn in trade. When the Complainant indicated that this was not the case, they issued a second letter which said she had been full time but this no longer suited her so they let her go on the 7th of May 2023.

The Complainant then lodged a complaint with HR regarding her termination and the actions of her manager in suggesting she resigned.  Ms O’Donoghue looked into the matter but did not issue her findings as at that point she had initiated these complaints.

Ms O’Donoghue did accept that the Respondent had mishandled aspects of the Complainant’s exit from the company and that the procedure hadn’t been clear. However, she was clear there was no element of discrimination to their actions. The Complainant’s role as full time supervisor was entirely different to the part-time seasonal student workers. She submits that they are not accurate comparators.

Ms O’Donoghue was unable to provide any direct evidence that the Complainant had received a contract but pointed out many of the key company policies and terms and conditions were accessible through their online system. The Complainant denied receiving any contract or documents through their online system.

 CA-00058306-003 – Employment Equality Act

The Complainant alleges that she was discriminated against on the basis of race. She alleges that because of her nationality she was treated differently to Irish staff who were allowed work part-time and occasionally in order to suit their studies. The Complainant could only identify these staff by first name and did not dispute Ms O’Donoghue’s evidence that they were hired on a part-time seasonal basis.

The Employment Equality Acts place the burden of proof on the Complainant. However section 85A.1 outlined that Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

On review of the evidence of both the Complainant and Ms O’Donoghue I am of the view that she has failed to establish facts from which discrimination can be presumed. The staff she puts forward as her comparator where not employed on a full-time basis as she was. It would be unreasonable to presume that her treatment as compared to theirs had anything to do with her nationality rather than their status as part-time seasonal workers.

CA-00058306-001 – Terms of Employment (Information) Act

On review of the evidence available to me I am not satisfied that the Respondent gave the Complainant a statement of particulars of her terms of employment, as required by Section 3 of the Act.

Section 7 of the act provides the WRC jurisdiction to award up to four weeks pay in compensation. In the circumstances I believe this is appropriate. The Complainant was paid €13.50 per hour and worked a 40-hour week.

CA-00058306-004 /CA-00058306-005 / CA-00058306-006- Minimum Notice and Terms of Employment Act

The Respondent has failed to put forward any evidence contradicting the Complainant’s version of events regarding her request for study leave and to work part-time. They have submitted an email from her manager and written statement from a different employee but did not provider either as a witness. They acknowledge that they sent a letter indicated that the Complainant had been let go, though stress that this was at the Complainant’s request.

In the circumstances I conclude that the Complainant was dismissed but was not paid notice.

She was entitled to one week’s notice. Section 12 of the act provides the WRC with jurisdiction to issue a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention of the act.

These complaints all relate to the same failure to provide the Complainant her notice in the circumstances I find each of them well founded but can only issue an award under complaint no. 004. I can see no other loss arising from the Respondent’s failure to pay notice other than one week’s pay.

CA-00058306-001

I find that the complaint is well founded and direct the Respondent to pay the Complainant €2160 in compensation.

CA-00058306-003

I find that the complaint is not well founded.

CA-00058306-004

I find that the complaint is well founded and direct the Respondent to pay the Complainant €540 in compensation.

CA-00058306-005

I find that the complaint is well founded.

CA-00058306-006

I find that the complaint is well founded.