Complainant

Respondent

Parties

Joanne  Seery

Tom Brunkard

Complainant

Respondent

Anonymised Parties

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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-00058946-001

20/09/2023

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

CA-00058946-002

20/09/2023

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

CA-00058946-003

20/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00058946-004

20/09/2023

The Complainant worked as a kitchen assistant from 20th September 2023 until 29th May 2023.

CA-00058946-001-004

The Complainant was informed by text that the Creche would be closed for work from 7th September 2023 reopening on 12th September 2023.

She worked in the Creche in the morning since October 2021 from 8.30 until 12.30 on the Community Employment Scheme. Since 25th May 2023 she worked from 12.30 until 4pm in a different part of the building. She was informed by text on 11th September 2023 that there would be no extra hours as the work was not completed.

The Complainant rang the Manager of the Creche to find out what was happening. She was told all the staff would be paid except herself and one other person. The Complainant said her afternoon job would be open. The Manager rang and asked her to do 9-4pm on Thursday and Friday. The Complainant refused and said she would do her CE hours 9-1pm Tuesday to Friday. She telephoned Eoghan Brunkard Supervisor and told him she would not be doing the long hours. If the Creche was not open due to the work not being finished, it was not her responsibility and she should be paid for the day.

The Complainant rang Eoghan Brunkard Supervisor the following day and asked why she was not being paid and everyone else was being paid. She says he screamed at her saying she was only CE and he didn’t have to pay her. He also repeated this on a call to the Manager. The Complainant was upset and told the Manager she had to go home. She received a call from the Manager following a meeting with Tom and Eoghan Brunkard. The Manager said if she apologised they would pay her. The Complainant refused to apologise. The Supervisor then said he would pay her.

She alleges discrimination and victimisation on the civil status ground, as she was told she would not be paid when the Creche was closed due to work being done. The Complainant was stressed and upset and was unfit for work due to anxiety. She felt penalised for raising the issue and this never happened before when the Creche closed. She was worried she would not have money for her shopping. In the end she was paid by the Creche for the time it was closed.

She did not receive any statement of written terms and conditions or core employment terms since starting the second job.

The Complainant claims she received less favourable treatment as a part-time worker in comparison to full-time staff.

CA-00058946-001-004

The Respondent says he is not the employer of Joanne Seery and denies all liability.

Tom Brunkard is the Company Secretary, Director and Co-ordinator for the Fountain Resource Group CLG which is a not for profit company. He is an unpaid volunteer. The Complainant was employed by the Fountain Resource Group CLG which operates a community employment scheme, creche, and other services for the community.

The Respondent informed the Workplace Relations Commission that he is not the correct Respondent and he had no objection to changing the name to Fountain Resource Group CLG who is the employer of Ms. Seery. However, Ms. Seery refused. The Respondent objects to the change of name of the Respondent to Fountain Resource Group CLG. The Respondent applied for the case to be dismissed against Tom Brunkard.

Mr. Brunkard has no liability as he is not the employer of Ms. Seery. She is employed by the Fountain Resource Group CLG as a kitchen assistant. Her employment for 19.5 hours per week is funded at an agreed rate by the Department of Social Welfare under the Community Employment Scheme.

A full-time employee went on sick-leave and Ms. Seery agreed to cover half of her hours for the Fountain Resource Group CLG. The extra hours were funded by the Group itself as overtime. There was no second separate employment. Ms. Seery was given two payslips to reflect the payments.

On 12th September 2023 Ms. Seery was due to return to work. She was informed she would not be required to work the extra hours due to the partial closure. She attended work the next day and complained that she was not being paid overtime. The company agreed to pay her even though this was not required. She was informed of this twenty-four hours later. Her wages were paid in the usual way.

Ms. Seery alleged she was too distressed to attend work. She was paid sick-days until this was exhausted and her holidays. Her employment concluded with the CE scheme in mid-October 2023. She was given a positive reference.

She failed to adequately particularise her claims under the legislation. The Respondent denies discrimination under the Protection of Employees Part-Time Work Act 2001. Ms. Seery and one colleague were working overtime hours and they would have been the only staff affected by the closure.

Ms. Seery alleges that she has been discriminated against on the ground of civil status as a married woman. Ms. Seery’s colleague who was working overtime is unmarried. This is denied. All staff married or single were treated in the same manner. They were all paid for their contractual hours and not for overtime.

The company reconsidered the matter and paid both employees overtime as a goodwill gesture.

CA-00058946-001- 004

I heard and considered the evidence and submissions of Ms. Seery and the Respondent.

Ms. Seery alleges breaches of S7 of the Terms of Employment (Information) Act 1994 under CA-00058946-001-2 that she did not receive a statement in writing of her terms and conditions and her core terms from the Respondent. She alleges discrimination on the grounds of civil status pursuant to S77 of the Employment Equality Act 1998-2021 in her conditions of employment and victimisation. She alleges less favourable treatment in her conditions of work due to her part-time status pursuant to S16 of the Protection of Employees (Part-time Work) Act 2001.

Ms. Seery’s complaint is made against Tom Brunkard. Mr Brunkard is a Director of the Fountain Resource Group Limited. Mr. Brunkard says he is a volunteer. He is not Ms. Seery’s employer and she is employed by the Fountain Resource Group CLG. Ms. Seery was employed as a kitchen assistant with the Fountain Resource Group Limited pursuant to a contract of employment which she signed on 18th October 2021 for 19.5 hours per week. The contract of employment was conditional on funding from the Department of Social Protection pursuant to the Community Employment Scheme. Ms. Seery’s contract of employment was extended on 3rd August 2022 for one further year. All payments made to Ms. Seery under the Community Employment Scheme were made by the Fountain Resource Group Limited.

On 25th May 2023 Ms. Seery agreed to cover an additional 17.5 hours for a member of staff who was on sick-leave on a temporary basis until the staff members return. Ms. Seery’s complaints relate to the additional hours worked.

The Respondent have submitted a copy of payroll for Ms. Seery from the Fountain Resource Group for 19.5 hours under the Community Employment Scheme, and for the additional hours paid to Ms. Seery while providing temporary cover. Ms. Seery received two payslips from the Fountain Resource Group when she commenced working additional hours in May 2023.

It is clear from the evidence submitted that the Fountain Resource Group was the employer of Ms. Seery for all work done, not Mr. Tom Brunkard who is a Director of the Fountain Resource Group. A written Statement of Terms of employment were issued to Ms. Seery by the Fountain Resource Group and signed by her on 18th October 2021.

Accordingly, I find Ms. Seery’s complaints against Mr. Tom Brunkard of breaches of S7 of the Terms of Employment (Information) Act 1994 under CA-00058946-001-2 not well founded.

CA-00058946-003

Ms. Seery alleges discrimination in her conditions of employment and victimisation by Mr. Brunkard on the grounds of civil status pursuant to S77 of the Employment Equality Act 1998-2021.

S77 (1) A person who claims—

(a) to have been discriminated against or subjected to victimisation,

(b) to have been dismissed in circumstances amounting to discrimination or victimisation,

(c) not to be receiving remuneration in accordance with an equal remuneration term,

(d) not to be receiving a benefit under an equality clause, may, subject to subsections (3) to (9), seek redress by referring the case to the Director General.

(2) …

[(3) If the grounds for such a claim arise—

(a) under Part III, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Equal Pay Directive or the Equal Treatment Directive is relevant,

then, subject to subsections (4) to (9), the person making the claim may seek redress by referring the case to the Circuit Court instead of to the Director General.

(4) In this Part, in relation to a case referred under any provision of this section—

(a) “the complainant” means—

(i) the person by whom it is referred, or

(ii) where such a person is unable, by reason of an intellectual or a psychological disability, to pursue it effectively, his or her parent, guardian or other person acting in place of a parent, and

(b) “the respondent” means the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation.

S6 2(b) of the Employment Equality Acts 1998-2021 states discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The “civil status ground” means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved.

It is accepted that Ms. Seery and a colleague were told they would not be paid their additional hours on 11th September 2023 when the creche was partially closed during to work being completed. The Respondent denies discrimination and says all staff performing additional hours were told they would not be paid for the time the creche was closed. Ms. Seery is married and her colleague is a single woman so there was no difference in treatment due to their civil status.

The burden of proof which rests on the Complainant is set out in Section 85A (1) of the 1998-2021 Acts which 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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Labour Court in Southern Health Board v Mitchell [2001] ELR 201 considered the extent of the evidential burden imposed on a Complainant by section 85A of the Act and held:

• “The first requirement is that the claimant 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 is no infringement of the principle of equal treatment.”

I find there is no evidence of discrimination or victimisation adduced regarding Ms. Seery’s status as a married woman and dismiss this complaint.

CA-00058946-004

Ms. Seery alleges less favourable treatment in her conditions of work by the Respondent due to her part-time status pursuant to S16 of the Protection of Employees (Part-time Work) Act 2001.

On 11th September 2023 Ms. Seery was informed there would be no extra hours due to a partial closure of the Creche. She was told the additional weekly hours were not going to be paid to Ms. Seery and another colleague while the creche was closed.

S3 of the Protection of Employees (Part-time Work) Act 2001 defines:

 “employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer;

In CA-00058946-001-2 I found the Respondent is not the employer of the Complainant.

In the circumstances, I find the complaint is not well founded.

The complaints of breaches of S7 of the Terms of Employment (Information) Act 1994 under CA-00058946-001-2 are not well founded.

CA-0058946-003 I find there is no evidence of discrimination or victimisation and I dismiss this complaint.

CA-0058946-004 This complaint is not well founded.