Complainant

Respondent

Anonymised Parties

A Housekeeper

An Accommodation Provider

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00046918-001

29/10/2021

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

CA-00046918-003

29/10/2021

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

CA-00046918-005

29/10/2021

The Complainant was employed as an Accommodation Assistant (Housekeeper) with the Respondent from 28 December 2018 until 23 July 2022. She stated in her complaint forms to the WRC that her employment rights were breached in several respects.

The Complainant was employed as an Accommodation Assistant (Housekeeper) with the Respondent from 28 December 2018 until 23 July 2022. She stated in her complaint forms to the WRC that her employment rights were breached in several respects. Despite persistent questioning at the hearing however, she failed to present any evidence in relation to the complaints that she had made to the WRC.

The Complainant was employed as an Accommodation Assistant (Housekeeper) with the Respondent from 28 December 2018 until 23 July 2022. She worked an average of 33 hours per week and the last day she has was present in work was 21 March 2020. She had been scheduled to work after this date, but due to the outbreak of the Covid-19 Pandemic, she phoned the Respondent and advised that as her employer could not guarantee a COVID free environment, she would not be attending work anymore as her life would be at risk.

On 23rd March 2020, the Complainant together with other employees, was served with a temporary lay-off letter enabling her to access funds made available by the Irish Government to compensate for the temporary loss of wages.

In May 2021, the Respondent contacted the Complainant and asked her if she wished to return to work in her original position, as they were in need of staff. The Complainant informed them however that she was recovering from a surgical operation and provided a series of unfit for work medical certs, covering the period until 19 December 2021.

At the end of May 2021, the Complainant requested payment for the outstanding statutory entitlements from 2020 and this was paid to her bank account on 1 June 2021. On 23 July 2022, the Complainant sent an e-mail informing the Respondent that she was resigning from her position.

 CA-00046918-001:

Section 18A of the 1997 Act provides in relevant part as follows:-

“(1) Where an employee's contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours specified in the Table to this section.

(2) In accordance with subsection (1), where an employee believes that he or she is entitled to be placed in a band of weekly working hours, he or she shall inform the employer and request, in writing, to be so placed.

(3) The employee shall be placed by the employer in a band of weekly working hours from a date that is not greater than 4 weeks from the date the employee made the request under subsection (2).

(4) The band of weekly working hours on which the employee is entitled to be placed shall be determined by the employer on the basis of the average number of lours worked by that employee per week during the reference period.

…

(14) In this section “reference period” means a period of 12 months after the commencement of employment with the employer and immediately before the employee makes a request under subsection (2), and a continuous period of employment with that employer occurring immediately before the commencement of section 18 A shall be reckonable for the purposes of this section.”

The entitlement to be placed in a band of weekly working hours in accordance with section 18A is subject to the employee having informed their employer and made a written request to be so placed. 

Section 18A(8) of the 1997 Act is clear in providing that a complaint of a failure to comply with section 18A requires a request to have been made in accordance with section 18(A)(2).   

As there was no evidence presented to suggest that the Complainant made a request in writing to be placed in a band of weekly working hours, I find that this complaint is not well founded.

CA-00046918-003:

Discrimination

Discrimination in accordance with the Acts is set out in section 6 and states:

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,

( b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”),

( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),

( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

( g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “ the disability ground”),

( h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “ the ground of race”),

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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."

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The Labour Court stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was discriminated against. It is only when she has discharged this burden that the burden shifts to the Respondent to rebut the prima facie case raised.

In the instant case, the Complainant in her evidence was unable to specify under which specific ground she was discriminated against by the Respondent. In the absence of any facts presented by her “from which discrimination may be inferred”, as set out in the Valpeters case above, I find that she has failed to establish a prima facie case of discrimination and that she was therefore not discriminated against.

CA-00046918-005:

The Complainant stated that she received a statement of her core terms and conditions of employment which contained false/misleading information when she commenced her employment in 2018.

Section 41 of the Workplace Relations Act 2015 applies to the 2005 Act and provides:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. ….

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

As she received a statement of her core terms and conditions of employment when she commenced her employment in 2018 and did not refer this complaint to the WRC until 29 October 2021, I find that I do not have jurisdiction to hear this complaint.

CA-00046918-001:

I find that this complaint is not well founded for the reasons set out above.

CA-00046918-003:

As she failed to establish a prima facie case of discrimination, I find that the Complainant was not discriminated against.

CA-00046918-005:

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.