ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048946

Parties:

Complaints:

Date of Adjudication Hearing:  02/12/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant contends that she was discriminated against by the Respondent on grounds of race, that disputed the terms of employment and treatment by the Respondent and that she had her employment terminated without receiving the statutory minimum notice.

Summary of Complainant’s Case:

The Complainant gave evidence by affirmation, summarised as follows:

She stated that as she was in another job and was working, she had not much time to devote to the hearing which was convened to consider her complaints.  She outlined many complaints she had and stated that her issues were contained in her complaint form and she did not wish to hear evidence from the employers.  She had many issues and complaints about the employer including having to work from a broken chair for 5 months, being spoken to in a negative and disrespectful manner by the employer and being told staff could not drink liquids containing milk while on the shop floor.  She stated that she was not paid for public holidays until the WRC Inspector carried out an inspection.  She stated that she did not receive minimum notice or payment in lieu of minimum notice.

Summary of Respondent’s Case:

The Respondent submitted a written submission summarised as follows:

The Complainant who is Ukranian, was employed from 27th February 2023 until 10th October 2023.  It became necessary to terminate her employment, having extended her probation by some 3 months.  The Complainant had many complaints and did not take instruction from the employer.               The employer disputes the facts laid out by the Complainant.  There was a written contract of employment, which she refused to sign.  There was an error where she was not paid for 2 public holidays, but this was corrected.  The Respondent employed people of many nationalities, including people from Algeria, Brazil, Scotland, New Zealand.  There is no evidence whatsoever, even in the Complainant’s submission that she has been discriminated against.  She was let go for reasons of competence not race.

Findings and Conclusions:

CA-00060135-008           Terms of Employment (Information) Act 1994

The Complainant had many issues in relation to her employment terms.  While she did not sign a contract, the Respondent provided one.  I find the complaint to be not well founded.

CA-00060135-009           Employment Equality Act 1997

The Complainant contends she was discriminated against on grounds of race, that she was bullied and harassed in her employment by the owners, that they displayed passive aggressive behaviour towards her and other staff.   In this instant case, I am obliged to investigate the complaints made under the Act.

The applicable sections of the Act

Section 6 of the Employment Equality Acts 1998 and 2011 provides:

• (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’’)…

Section 6 (2)(h) provides

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

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

The burden of proof

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) 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 her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found 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”.

In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.  However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, the Complainant had many complaints against her employer.  I find that she did not set out facts in relation to treatment of her based on her race or nationality and she did not provide a comparator against which she could establish a prima facie case.  I find her complaint to be not well founded.

CA-00060135-010           Minimum Notice & Terms of Employment Act 1973

Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides for minimum periods of notice an employer is obliged to give in order to terminate the contract of employment of an employee who has been in continuous service for a period of thirteen weeks or more as follows:

(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 have not been presented with evidence that the Respondent paid the Complainant her minimum notice entitlement.  I find that the Respondent has not complied with Section 4 of the Act.  The complaint is well founded and I require the Respondent to pay to the Complainant the sum of €445.63.

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.

CA-00060135-008           Terms of Employment (Information) Act 1994

For the reasons cited, I have decided the complaint is not well founded.

CA-00060135-009           Employment Equality Act 1997

For the reasons cited, I have decided the complaint is not well founded.

CA-00060135-010           Minimum Notice & Terms of Employment Act 1973

For the reasons cited, I have decided the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €445.63.

Dated:   13th of February 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: