ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00053503

Parties:

Complaints:

Date of Adjudication Hearing:  13/11/2024

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 Complaints are that the Respondent did not provide the Complainant with breaks, that the Complainant was unfairly dismissed by way of constructive dismissal, that the Respondent discriminated against the Complainant on grounds of race and gender and that as a Part Time Worker, the Complainant was treated less favourably than a comparable Full Time Worker.

Summary of Complainant’s Case:

The Complainant gave evidence under affirmation summarised as follows:

CA-00065359-001             Organisation of Working Time Act 1997

The Complainant worked part-time in the supermarket, generally in the afternoons/evenings.  She was not available for week-end work.  As a Supervisor, she did not have the opportunity to avail of breaks and at some points in her employment, in error the Respondent deducted money for breaks.

CA-00065359-002             Unfair Dismissals Act 1977

The Complainant gave evidence on affirmation, summarised as follows:

She stated that she had an agreement that she would not work week-ends and she generally worked 4-5 hours for 3 or 4 afternoons or evenings ach week.  She refused a Manager job because she could not work week-ends.  When a new Manager was brought in, she was constantly being rostered to work week-ends even though it was known she had difficulties.  Then her hours were cut during the week and it was not worth her while coming to work for such minimal hours.  This constant forcing of her to work week-ends and rostering her for separate days was a means of forcing her out of her employment.  She was approached by Manager Ms I and told she was being disciplined and she had a form to be filled in.  She was told by Mr K that there was a complaint against her but she was not given details.  She went on sick leave and could not return due to the treatment she received.

CA-00065359-003             Employment Equality Act 1988

The Complainant contends that the Respondent discriminated against her on grounds of race and gender.  She seeks equal pay with fellow employee Mr VS.   She stated that she has been disadvantaged by the appointment of Mr VS as Supervisor. The Respondent paid him €50 for duties she also undertook without extra payment.  She contends that as an Indian national coming from the same country as the Respondent he was treated more favourably than her.

CA-00065359-004             Protection of Employees (Part-Time Work) Act 2001

The Complainant contends that as a Part-Time Worker, she was treated less favourably than comparator Mr VS. She said that he could choose what hours he worked and she could not.  She maintains that the Respondent acted in contravention of a verbal agreement she had not to be rostered for week-end hours.

Summary of Respondent’s Case:

The Respondent (Mr K) gave evidence under affirmation and submitted a lengthy document addressing the Complainant’s issues, summarised in his own words as follows:

Allegation 1: hours and Availability of Work

I have Stephanie's contract attached as a proof. please see the copy of contract. She was hired on flexible part-time contract based. I have also attached the copy of weekly rosters to prove her working hours and days has been flexible from start. There is no work pattern. It is true that the company has experienced a period of reduced business hours as the winter trade of business was quiet. These measures included reducing hours across the board for everyone in winter period.

Allegation 2: Unfair Dismissal

Stephanie has never been dismissed from her work position. Her name is still in the roster. She has refused to cover her roster hours on multiple occasions. Please see the emails and text messages attached as a proof. She said she can't work weekends, she can't do mornings, she can't do evening before 4pm, she couldn't work Thursday evening she couldn't do Friday evening, then she said its not worth her while to start from 6pm. So what other hours could I rostered her for. Please see the attached copy as a proof

Allegation 3: Discrimination/ Equality/Equal Status

Everyone has been treated in the company with same respect and equality. Several time staff has complaints about Stephanie's behaviour for bullying the staff. One of our staff has Autism, he couldn't find the job, I gave him a job. one day he left the job sending me a message saying Stephanie was bullying him and making horrible comments about other staff look and gender etc. Stephanie was sending him long messages on his day off giving out him over messages knowing he's suffering from Autism. I have a copy of his message attached.  Once I hired a Ukrainian staff, Stephanie text me saying if she has no English then not to put that Ukrainian girl on roster with Stephanie. I found that behaviour very inappropriate towards new staff. Last year I had around 11 staff and out of those II people I only had one Indian guy hired so I don't know why Stephanie saying I am hiring people from my own country.

Allegation 4: Fixed Term and Part Time Work

Stephanie has alleged that her working terms and conditions were changed. However, I would like to point out that she signed a contract on 08/05/2023 that clearly outlines her employment terms, including her hours of work and availability I have attached the contract for a proof. Please see the copy of Stephanie last year and this year working hours. She was working different hours and different days. Stephanie has claimed that she felt undervalued as head supervisor. I would like to clarify that her role was equivalent to that of VS and other supervisors at the time. All individuals were treated with the same respect and held the same level of responsibility. She was never a head supervisor, I don't know where she got title from. Regarding the stress and anxiety mentioned in the complaint, it is important to note that Stephanie had previously communicated with Director (Mr K) about her personal family issues. While we were sympathetic to her situation, we were unaware of any connection between these personal matters and her work performance. Stephanie had mentioned few times to BWG business development manager that she was going through some personal stress in life.    Stephanie texted saying her dad is sick that why she can't work on weekends, I gave her 4 weekends off in a row to look after her dad. Please check the roster attached Stephanie was given all week off for Christmas / Halloween weekend off/ Patrick's day off and any festival or occasions she has asked I have given her off. Even though I don't know why she thinks she wasn't treated right. On 15 May 2024 I removed her from work group after she Stephanie handed me Doctor Cert, I certainly did not want her to be stressed or bothered with work messages.

Conclusion

There was nothing agreed between me (SK) and Stephanie when she started the job. She asked for €13.80 per hour and I gave her €14.00 per hour. I always say to everyone in every meeting that everyone has to cover weekends and whenever business needed. There no other agreement between me and any other staff except the contract. In light of the evidence presented, I believe that the allegations made by Stephanie are unfounded. The company has acted in good faith and has made reasonable efforts to accommodate the changing business conditions. There is no evidence to suggest that Stephanie was unfairly dismissed or subjected to a hostile work environment.

Allegation : Manager Position and Bonus

It is true that Stephanie was offered the position of manager. However, she declined the offer due to her personal commitments. The company then proceeded to fill the position with another candidate. Regarding the bonus given to VS it is important to note that this was a discretionary bonus awarded for exceptional performance. This decision was made based on VS contributions to the company and was not intended to be a reflection on his abilities.

Allegation : Pay and Qualifications

Stephanie has claimed that she was unfairly treated regarding her pay and the qualifications of other staff members. I would like to clarify the following: 

Pay:

When Stephanie was hired, she was offered more salary than she asked. She asked on 02/05/2023 13.85 but I gave her 14 per hour. Please see the message as a proof. 

Qualifications:

The company has hired staff based on their qualifications and experience. While it may be true that some employees may not have formal qualifications in certain areas, they possess the skills and knowledge necessary to perform their roles effectively. It is unfair to compare the qualifications of different employees and suggest that their employment is unjustified. Stephanie has alleged that she was not provided with adequate communication and support. However, I would like to point out that the manager offered to meet with her to discuss her concerns. The manager specifically requested that Stephanie send an email so that arrangements could be made for the meeting. Unfortunately, Stephanie never responded to this request.

Behaviour Issues:

I personally (SK) asked Stephanie to arrange a meeting with manager to discuss her issues and we were willing to work but Stephanie said she will not arrange any meeting with manager as my manager is not qualified. Please see the copy of text message attached as a proof.

One of my current employees is an Irish girl she said she has Stephanie blocked as Stephanie constantly texting her asking stuff about company. I will much appreciate if Stephanie can stop bothering my staff. If Stephanie is stress from work she shouldn't be testing V and B asking whatever going on in work. Once Stephanie asked payroll department to fill her salary cert. Payroll done it based on her current hours, Stephanie text me saying my accountant and payroll are not qualified, they didn't fill the cert correctly. According Stephanie my Payroll is not qualified/ my manager is not qualified/ V as a supervisor not qualified when you can see all the attached documents showing her behaviour towards other employees.

Please see the message attached as a proof from other supervisor at that time. Stephanie was planning to take me to the WRC or Labour court last year even just few months after Stephanie started to work. 

Manager Ms I.G. gave evidence on affirmation.  She stated that the interview she wished to conduct with the Complainant was a return to work interview, not a disciplinary issue.  

Findings and Conclusions:

CA-00065359-001             Organisation of Working Time Act 1997

I note the Complainant’s contract provides that rest breaks are provided in accordance with the Organisation of Working Time Act 1997.

Section 12 of the Act provides:

“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).”

The records provided by the Respondent show the start times and finish times of the Complainant.    It is noted on the rosters that employees are entitled to rest breaks.  The Respondent stated that all employees know their entitlements and all got breaks.  In the records provided and in the evidence, it appears that the Respondent erroneously deducted wages for half hour breaks by calculating the total hours worked in some weeks.  This was an error.  I find that on the balance of probabilities, the Complainant was not always provided with her statutory entitlements to rest breaks in accordance with the Act.  I find her complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €500 compensation.

CA-00065359-002             Unfair Dismissals Act 1977

The Complainant contends that she left her job due to hours being cut, feeling undermined by a new Manager being brought in and feeling that she was being pushed out of her employment.   The evidence shows that she had difficulties with rostering, had limited availability for week-end work and was dissatisfied with treatment of her by the Respondent in comparison with the Manager or Managers or Supervisors recruited after her. 

The definition of constructive dismissal as provided for in the Unfair Dismissals Act 1977 (as amended) is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

In a claim of constructive dismissal, the onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment.  In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

I note the emails from the Complainant in June 2024 when she stated she would not be returning to work due to rostering issues.    

Where grievance procedures exist they should be followed.   Grievance procedures are outlined at clause 17 of the Complainant’s contract.

The failure of the Complainant to lodge a formal grievance renders her complaint to be unsustainable as the Employer could not carry out a formal investigation.  I find the complaint to be not well founded.

CA-00065359-003             Employment Equality Act 1988

The Complainant contends that the Respondent discriminated against her on grounds of race and gender.  She seeks equal pay with fellow employee Mr VS.   The recruitment of Mr VS, an Indian national gave rise to her complaints.  She contends that he was paid more than her by way of a €50 bonus.  I note the Respondent’s evidence that the €50 bonus was paid as a discretionary bonus to him.  Employers are entitled to pay discretionary bonuses to staff and this is not automatically a sign of discrimination or denial of equal pay.

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.

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.

In this instant case, I find that the Complainant has drawn a conclusion to the fact that the Respondent gave a bonus to a fellow employee and the conclusion is not evidence of discrimination.  I find the complaint to be not well founded.

CA-00065359-004             Protection of Employees (Part-Time Work) Act 2001

The Complainant contends she was treated less favourably that fellow employee, Mr VS whom she contends was allowed to choose what hours he worked and she was not.

Section 9 of the Act provides that a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee. 

I note that the Respondent had to bring in a Manager and another employee (Mr VS) partly due to the fact that the Complainant could not work week-ends. The rosters show that Mr VS covered Sundays quite a few times.   I find that this does not constitute unfavourable treatment of the Complainant.      I find the complaint to be not well founded.

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-00065359-001             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 the complaint in accordance with the Act.

For the reasons cited, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €500 compensation.

CA-00065359-002             Unfair Dismissals Act 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

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

CA-00065359-003             Employment Equality Act 1988

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.

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

CA-00065359-004             Protection of Employees (Part-Time Work) Act 2001

Section 16 of the Protection of Employees (Part-Time Work) Act 2001 provides that I make a decision in relation to the complaint in accordance with that Act.

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

Dated:   17 01 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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