Workplace Relations Commission (WRC) - RECENT Decisions & judgements
Complainant successful in claim of unlawful deductions in holiday pay
ADJ-00022868
Background:
The Complainant was employed by the Respondent as a Childcare Assistant from 18 April, 2018 until 27 May, 2019 when she resigned her employment. The Complainant worked an average of 40 hours per week and was paid a gross weekly salary of €420.00. The Complainant claims that the Respondent made an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid holiday entitlements on the termination of her employment. The Respondent disputes the claim and contends that no unlawful deductions were made from the Complainant’s wages on the termination of her employment.
Summary of Complainant’s Case:
The Complainant resigned from her employment with the Respondent with effect from 27 May, 2019. The Complainant contends that she did not take any paid annual leave during the calendar year 2019 and that the Respondent failed to pay her outstanding holiday pay entitlements on the termination of her employment.
The Complainant stated that she was obliged to give the Respondent four weeks’ notice under the terms of her contract in circumstances where she wished to terminate her employment. The Complainant stated that she only worked two weeks of the four weeks’ notice period and decided to leave at that juncture to commence alternative employment. The Complainant stated that she received only a payment of €210.00 in respect of accrued annual leave on the termination of her employment and that the Respondent withheld the remainder of her entitlement as a result of her failure to work the other two weeks of her notice period.
The Complainant claims that the amount of the payment which the Respondent withheld in respect her holiday pay constitutes an unlawful deduction from her wages contrary to Section 5 of the Act.
Summary of Respondent’s Case:
The Respondent stated that the Complainant submitted a letter of resignation on 13 May, 2019 to confirm that she intended to leave her employment on 27 May, 2019 as she wished to take up alternative employment.
The Respondent stated that the Complainant’s contract included a term which provided that she was obliged to give four weeks’ notice if she wished to terminate her employment. The Respondent also stated Complainant’s contract provided that any failure to give or work the required notice period would result in her having an amount equal to any additional cost of covering her duties during the notice period not worked deducted from any termination pay due to her.
The Respondent submits that the Complainant was reminded of her contractual obligations on submission of her letter of resignation and advised that the relevant deduction would be made from her pay on cessation if she chose to leave her employment after having worked only two weeks. The Respondent stated that the Complainant indicated that she understood her contractual obligation and was happy to leave after having worked only two weeks of the notice period.
The Respondent stated that the Complainant had accrued an entitlement of 66.28 hours annual leave for the period from 1 January, 2019 until her employment terminated on 27 May, 2019. The Respondent submits that the Complainant received a payment of €210 in respect of 20 hours annual leave as a goodwill gesture on cessation of her employment. It was submitted that the Complainant was not entitled to receive payment in respect of the balance of her annual leave entitlement (i.e. 42.28 hours) as the Respondent was entitled to offset this payment against the expense which it incurred in relation to the additional cost to cover her duties during the final two weeks of her notice period.
Findings and Conclusions:
The Relevant Law
Section 1 of the Payment of Wages Act provides for the following definition of “wages”:
“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including--
(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and
(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”
Section 5 of the Act provides:
5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless:
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
(2) An employer shall not make a deduction from the wages of an employee in respect of--
(a) any act or omission of the employee, or
(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless:
(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and
(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and
(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with:
(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,
(II) in any other case, notice in writing of the existence and effect of the term,
(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and
(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and
(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and
(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.”.
The Complainant referred her complaint to the Workplace Relations Commission on 2 July, 2019. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 3 January, 2019 to 2 July, 2019. I am satisfied that the alleged unlawful deductions which the Complainant claims were made from her wages on the termination of her employment on 27 May, 2019 fall within the cognisable period covered by the claim.
The issue for decision in relation to the instant complaint is whether or not the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to the withholding of the balance of her holiday pay entitlement which was offset against costs incurred as a result of her failure to work the final two weeks of her contractual notice period.
It was not in dispute between the parties that the Complainant had accrued an entitlement to 62.28 hours annual leave for the period from 1 January, 2019 to 27 May, 2019 on the termination of her employment. It was common case that the Respondent made a payment of €210.00 to the Complainant on cessation of her employment in respect of 20 hours annual leave and that the balance of her entitlement (i.e. the amount of €630.00) was offset against the costs incurred as a result of her failure to work the final two weeks of her contractual notice period.
It is clear that the Complainant’s contract contains a term which required her to give the Respondent four weeks’ notice if she wished to terminate her employment. It was not in dispute that the Complainant was fully aware of this contractual term and that she decided to terminate her employment after having worked only two of the four weeks of her notice period.
The Respondent submits that it was contractually entitled to make the deduction in respect of costs incurred as a result of the Complainant’s failure to work her full period of notice and, in that regard, relies on the following paragraph from its Employee Handbook: “If you terminate your employment without giving or working the required period of notice, as indicated in your individual Statement of Main Terms of Employment, you will have an amount equal to any additional cost of covering your duties during the notice period not worked deducted from any termination pay due to you. This is an express written term of your contract of employment”.
Having regard to the evidence adduced, I am satisfied that the Respondent failed to comply with the requirements of Section 5(2)(iv) of the Act i.e. it did not furnish the Complainant with particulars in writing of the act or omission and the amount of the deduction at least one week before the deduction.
In fact, the final payslip the Complainant received, which was paid on 12 June, 2019, does not include details of the deduction made from her gross pay in relation to this matter.
Having regard to the foregoing, I find that the deduction of €630.00 from the Complainant’s final salary payment was an unlawful deduction within the meaning of Section 5 of the Act. Accordingly, I find that the complaint is well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991, and accordingly, that the claim is well founded. I hereby direct that the Respondent to pay the Complainant the sum of €630.00 subject to any lawful deductions, in respect of unpaid holiday pay.
Unfair Dismissal of Solicitor results in compensation of €13,300
ADJ-00022049
Background:
The complainant was a solicitor employed in a practice which was taken over by the respondent. The respondent sought to impose a new contract on the complainant and, it is alleged by the complainant, he failed to address grievances raised by her. Subsequently, she resigned and claimed constructive dismissal.
Summary of Complainant’s Case:
The complainant was employed in a solicitor’s practice for a period of 10 years and 4 months. When she commenced work the practice belonged to a husband and wife who subsequently sold the practice to the respondent (Mr A) on 29th November 2018.
On taking over the practice Mr A sought to impose a new contract of employment on the complainant and was insistent that the office was a new office and she would be required to undergo a probationary period. The new contract also provided for 12 days annual leave and Mr A was insistent that the start date would not take into account the previous 10 years that the complainant had worked with the firm. The complainant engaged in correspondence with the respondent outlining the issues she had with the proposed contract. Mr A stated that he would not renew the complainant’s Practising Certificate from the Law Society until he received the signed contract. He also stated that he would not be sending the practising certificate renewal form until a good bulk of fee had been brought in by the complainant.
On 28th January the complainant received a call from an auctioneer who had referred a client to her who was purchasing a property. This client had contacted the respondent’s office and asked for the complainant. Mr A had answered the call and stated he did not know who the client was talking about and asked him to send the details directly to Mr A.
Mr A launched a new website for the office on 13th February and the complainant was not included on the page despite having sent Mr A her profile in November 2018.
On 25th January 2019 the complainant could not gain access to Land Direct. Mr A stated that someone had changed the password despite the Land Direct account being linked to his account.
On 28th January Mr A would not acknowledge the complainant on a number of occasions.
On 6th Feb 2019 at 8.39 a.m. the complainant received a text message from Mr A asking if she would be in work that day. The complainant replied that she was out sick that day.
On 26th Feb the complainant arrived into work at 8.32 a.m. at which point she noticed a text sent by Mr A asking if she would be in work or off sick. The complainant went to Mr A’s office and queried why she received the text. Mr A stated that she was late, that it was 8.35 a.m. and she was paid from 8.30. He stated that she was always late.
On 28th February 2019 the complainant wrote to the respondent under the grievance procedure relating to his conduct towards her. A meeting took place on 8th March 2019. The complainant’s grievances were not dealt with and, in fact, further matters were raised by Mr A which added to her grievances. At this meeting Mr A said there was a severance package on offer and the complainant could accept it if she so wished. Another meeting was scheduled for 15th March 2019 at which Mr A withdrew the offer of a severance package as the complainant was not prepared to accept the severance be paid over the course of a year. The complainant asked for her grievances to be dealt with but Mr A refused to do so saying that these had been dealt with the previous week. Later that day she received an email from Mr A confirming that he would attend a meeting with her on 22nd March.
The complainant was on sick leave from 18th March until 21st March. She returned to work on 22nd March for the scheduled meeting and saw an email from Mr A dated 19th March asking her to outline her grievances and asking who would be her representative. The complainant emailed Mr A stating that she would have a representative in the office on Monday 25th March and asked him to confirm that this was in order. She received no reply and wrote another email confirming that she would have a representative present on the Monday for a meeting. After she had left work for the day Mr A emailed her stating that he could not meet on Monday and did not propose any follow up meeting. The complainant therefore handed Mr A a letter on 26th March confirming that, due to his unreasonable behaviour towards her and his refusal to address her grievances, she had been left with no other option but to leave her employment. Mr A’s response was to say that she was resentful.
Summary of Respondent’s Case:
It is settled law that an employee bringing a case under the Unfair Dismissal Act must seek to obtain new employment. In relation to the legal profession there are a significant number of jobs available in Dublin and therefore the complainant should have had no difficulty in obtaining employment. It is evident that the complainant was not actively seeking work after leaving the respondent in particular as she was seeking to be elected as a local councillor.
When Mr A took over the business he noted significant breaches of the requirement to issue Section 68 letters and also issues relating to GDPR involving the complainant. The complainant did not appreciate these issues being raised.
The complainant had been furnished with a contract of employment. It did have the clause about service with the previous office not being taken into account. Her original contract was effectively being updated. It is accepted that this was not correct. The issue in relation to holidays was one that is not correct.
The practising certificate was furnished before the end of January.
The issue regarding the referral of a client by the auctioneer arose due to the use of the complainant’s maiden name, with which the respondent was unfamiliar. In any event it would be a matter for the employer to determine what client, if any, would be taken on by the firm.
In relation to the website, an incorrect profile format and no photograph was furnished by the complainant. No employee was or is on the website currently.
In relation to the issue of 28th January – the alleged failure to say hello – this cannot be classified as bullying.
In relation to the 26th of February the position is that the complainant was engaged to start at a particular time. If she is late she is late. It is a matter for the employee to get in on time and it is completely unreasonable for an employee to contend that an employer would not be able to question same.
In relation to the claim for redundancy, if the complainant is claiming she was made redundant then her Unfair Dismissal claim must fall.
In relation to the allegation that the complainant suffered stress related injury the complainant is obliged to produce relevant medical documentation along with the doctor to be examined in relation to the issue.
Findings and Conclusions:
Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:
‘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,’
Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.
In the first test – the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.
The complainant contends that she was constructively dismissed. It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and/or secondly, whether the conduct of the respondent was so unreasonable that the complainant had no alternative but to tender her resignation.
From the evidence presented it is clear that the respondent sought to impose changes in the complainant’s contract of employment, in relation to the calculation of her holidays and, in relation to her commencement date. The respondent acknowledged that these changes could not be implemented unilaterally by the respondent. However, in direct evidence the complainant stated that this position was never communicated to her in advance of her departure and I accept this evidence. I consider the changes required by the respondent to be breach of essential terms of the complainant’s existing contract which was in place at the time of the transfer of undertakings.
In relation to the reasonableness of the respondent’s behaviour, it is clear that the respondent did not comply with its own procedures in relation to addressing the grievances put forward by the complainant. Rather than deal with the issues of concern to the complainant at the meeting convened for this purpose, the respondent sought to deal with performance related issues of concern to the respondent. In light of her experience in this instance the complainant was entitled to view the grievance procedure relied upon by the respondent as meaningless. The respondent cannot rely upon the mere existence of a written grievance procedure if the respondent does not adhere to the terms of the procedure. The offer by the respondent on 12th April 2019 to deal with her grievances was a considerable time after she handed Mr A the letter on 25th March indicating that she was leaving and why.
Accordingly, I conclude that the ‘reasonableness test’ which asks whether the employer has conducted his affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer has been met. The complaint of unfair dismissal is therefore well founded.
The respondent has contended that the complainant made insufficient efforts to mitigate her loss. I note from the complainant’s evidence that she secured suitable alternative employment on 3rd June 2019 and that there were no suitable jobs advertised in the region during that interval. I do not accept the proposition by the respondent that the availability of positions in Dublin required the complainant to apply for one of these. The individual circumstances of a complainant are relevant in determining what options are viable in order to mitigate loss and the existence of work in Dublin, which would have required the complainant and her family relocating, would not be a viable proposition.
In determining the appropriate compensation. I have included a sum of €9100 for loss of redundancy rights. I have also included the sum of €4,200 for loss of earnings.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
I find that the complainant was unfairly dismissed and I order the respondent to pay the complainant the sum of €13,300 in compensation.
Female awarded €30,000 in gender and family status discrimination claims
ADJ-00022879
Background:
The issues in contention concern the alleged Discriminatory Dismissal under the Employment Equality Act, 1998 of a Pharmacist by a Pharmacy Chain. A number of related complaints are also included.
1: Summary of Complainant’s Case:
1:1 Equality Case - CA 00029492-001
The Complainant, a lady with child care commitments, commenced employment with the Respondent in November 2018. It was her understanding that she would be undertaking a Part Time “Job Sharing” role. By agreement with the Respondent, to help out in an unexpected difficulty, she worked an initial full time period until the 14th January 2019 when she took up her Part Time position at a North City Branch of the Chain. Shortly afterwards the Complainant was asked by one of the Co-Owners (Mrs B) of the Respondent business to change her hours to full time on Tuesday and Friday. The Co-Owner was her “Job Share” partner. The Complainant could not facilitate this but offered to work full time on Tuesdays if her weekend commitments were reduced. The Respondent undertook to look at this suggestion but came back in early April with an offer of a Transfer to the Dublin Airport Branch of the chain - from 04:00 to 12:30 hrs. From a child care point of view these hours were impossible and the suggestion was declined. Later in the month of April, the 25th, the principal Co-Owner, Mr. A, met with the Complainant. He informed her that the Part Time role had not worked out as he had hoped, and it was necessary to hire a full time Pharmacist – co incidentally a male. Her employment was ended by the Respondent on the 25th April with the last day of service being the 31st May 2019.
The Complainant maintained that no realistic effort was made to facilitate her Part Time Hours position and for example no effort was made to find another job share partner. Accordingly, the Complainant felt that she had been grossly discriminated against by virtue of her Gender and Family status.
1:2 Minimum Notice & Terms of Employment Act, 1973 CA-00029492-002
This complaint was withdrawn
1:3 Terms of Employment (Information) Act, 1994 CA – 00029492-003
The Complainant did not receive a Contract of Employment or Statement of Terms and Conditions within two months of commencing employment. When a Contract was furnished, in mid-April 2019, it contained a Notice Clause completely at variance with the norms of the business.
1:4 Payment of Wages Act, 1991 CA: - 00000029492-004
The Industry norm is an eight week notice period – the Respondent offered only a One Week period.
On discussion at the Hearing this complaint was also withdrawn.
1:5 General
In relation to the above Complaint’s extensive case law was referenced and comprehensive Oral evidence given.
2: Summary of Respondent’s Case:
2:1 Equality Case - CA 00029492-001
The nature of the retail business is dynamic daily. Job Sharing involving daily Handovers between employees does not work out. It is not in the best interests of customer care or the efficient and crucially safe running of a busy organisation.
The Respondent, probably by his own admission, had not fully realised this when he offered the position to the Complainant.
The arrangement entered into with the Complainant had simply not proved possible to operate and it was necessary to back track and employ a full-time employee. The Gender of the Full timer was irrelevant. The business had an almost 80% female workforce and gender or family discrimination simply did not happen.
As a business they had sought to have discussions with the Complainant regarding how best her needs could be accommodated, work in other Branches were suggested and varying patterns of hours suggested.
There was no intent to Discriminate, in any way. A daily Part Time position, once experienced in early 2019, simply did not fit the business needs of a busy business. It was accepted that they had tried to make it work but it was logistically and medically/clinically impossible and unsafe.
2:2 Terms of Employment (Information) Act, 1994 CA – 00029492-003
It was accepted that there had been a breach of the Act in this case, but it was purely technical, and no detriment had flowed to the Complainant. Case law supporting this point was referenced.
3: Findings and Conclusions:
3:1 The Employment Equality Act, 1998 complaint – CA - 00029492-001
The Law in Employment Equality cases - Employment Equality Act,1998
Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents
In an employment Equality case such as here it is necessary to firstly establish certain Legal issues these being
1. In the Complainant cover by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is she eligible to bring a claim?
2. Was she discriminated against?
3. Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?
4. Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.
There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:
“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.”
Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.
3:2 Was the Complainant covered by the Discrimination provisions of the Act?
In her complaint form she pointed to Gender and Family Status grounds.
Clearly, she was a female and her Family status position as being a mother with children was never contested. Her claim was that she had been engaged to do Part Time work and this was allegedly discriminatorily removed from her.
Reviewing the evidence presented I think it fair to say that she satisfies these Discrimination requirements.
3:3 Was she Discriminated against?
Her employment was terminated on the grounds that her Part Time role could not be accommodated by the Respondent. Whether or not this was a Discriminatory act must be discussed below in conjunction with the Burden of Proof question.
3:4 The Burden of Proof.
The Employment Equality Act Section 85(A) requires that the Respondent Employer effectively establish that the alleged Discrimination did not occur. Reviewing the evidence, I came to the view that the Burden of Proof rested with the Respondent employer.
In this case the employment was ended by the Employer. The Respondent employer maintained that this was for “Objective Reasons” due to the nature of the business. Split or Shared Shifts did not work for a local style business. The example was given of a patient presenting at 10:00 in the morning with a complicated prescription. Details would be taken by the Pharmacist and further contact would be required later in the day. If there was a changeover in Pharmacist during the day serious complications could arise from a Patient Safety point of view. It was a risk a very busy Pharmacy could not take and accordingly after an experiment with Part Time hours the view was that they had to revert to full time hours per shift.
They had no issue with the Complainant doing a pattern of full days spread over a week or a fortnight. They were completely flexible on this question but the Complainant had been difficult. She had effectively insisted on her part time working pattern as initially set out.
The Respondent defence was one of Objective Justification, i.e. there was a real an objective reason, for ending the Part Time hours arrangement.
3:5 The Objective Justification Argument and Part Time working.
This is not as straight forward as it might appear in this case
This is demonstrated by Bank of Ireland Group v Morgan [EDA 096] where the Labour Court held that it:
“… would be manifestly unreasonable to hold that an employer must provide a woman with a facility to job-share in every case in which such a facility is requested and such a result could not have been intended. It is self-evident that such facilities can only be made available within the exigencies of the business.”
In this case is there a sustainable argument that Full time shifts are an “Exigency” of the Respondent’s Retail Pharmacy business.?
Local issues came to the fore as well here – the other Lady who was sharing the work – the Co-Owner, Mrs. B, it was alleged, apparently soon found the arrangement cumbersome as she was not used to having fixed, albeit pat time hours of attendance.
During the Hearing the issue of Part Time or Shared Pharmacist shifts in other large Retail Pharmacy chains was discussed. A prominent UK Chain, operating in many Dublin locations, was mentioned.
It was speculated that with their well know opening hours it would be impossible to have the same pharmacist there all day. Hand overs between Pharmacists would have to happen. The Respondent maintained that their Pharmacies were on the main streets of suburban Dublin. They were much more family /patient focused, offering local care to long standing patients, that the multinational chains based in big Retail Centres.
3:6 Adjudicator conclusions
In the normal run of Equality cases this case should lead to a direct finding of Discrimination against a lady in a Part Time Hours situation.
The question here is complicated by the Objective grounds defence.
On balance, having reviewed the evidence, and after careful reflection I had to come to the view that the Respondent failed to adequately ground his defence.
Part Time Hours had been offered and were then clearly withdrawn by the ending of the employment. There appeared to have been no real evidence of any significant efforts to see how the Daily Part Time Pharmacist position could possibly have been made to work other than by a pattern of flexible but full-time days. The Oral evidence pointed to the Respondent being well intentioned but unable to find a solution.
The Objective defence of the need for Full Shift daily attendance in a Pharmacy simply was not demonstrated sufficiently or in any realistic sustainable fashion.
Accordingly, there is no doubt but that the Complainant was discriminated against, on the gender grounds, the family status grounds, on the conditions of employment grounds and by a Discriminatory Dismissal, under the terms of the Employment Equality Act,1988.
Appropriate Redress will be consideed in Section 4 of this Adjudication below.
3:7 Terms of Employment (Information) Act, 1994 CA – 00029492-003
It was accepted that a Technical breach of this Act had occurred – the statement of Terms and Condition of Employment was not provided within Two Months of the commencement of Employment.
4: Decision:
4:1 Complaints under the Minimum Notice & Terms of Employment Act, 1973 CA 00029492-002 and Payment of Wages Act, 1991 CA - 00029492-004 were withdrawn during proceedings.
4:2 The Employment Equality Act, 1998 complaint – CA - 00029492-001
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.
Legal precedent regarding awards in Discrimination cases of this nature often reference the Fox v Lee case DEE6/2003 quoted below.
… not only the financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings.”
Put simply it is possible to award Compensation for both a Discriminatory dismissal and also the acts of Discrimination themselves. However, a review of the relevant case facts is also appropriate.
In this case the Complainant left a full-time position to accept the Respondent’s job offer of a Part Time position. It is reasonable to argue that the Complainant would not have carried out this job change if she had known that it was going to end in approximately six months. Accordingly, an award of €25,000 is made in Compensation for the Discriminatory Dismissal -this being approximately 26 weeks’ pay with an additional award of €5,000 as Compensation for the effects and distress of the Discriminatory acts in relation to her Family Status. Neither award is for any loss of Renumeration pre or post the Dismissal. A Total compensation award of €30,000 is therefore made in favour of the Complainant.
4:3 Terms of Employment (Information) Act, 1994 CA – 00029492-003
A purely technical breach of the Act occurred here – no material loss was suffered by the Complainant as a result. An Award of € 100 is made in favour of the Complainant as Compensation for Breach of this Statutory Right.
4:4 Taxation
The treatment of this award from a Taxation point of view must be subject to advice from the Revenue Commissioners.
ADJ-00022868
Background:
The Complainant was employed by the Respondent as a Childcare Assistant from 18 April, 2018 until 27 May, 2019 when she resigned her employment. The Complainant worked an average of 40 hours per week and was paid a gross weekly salary of €420.00. The Complainant claims that the Respondent made an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid holiday entitlements on the termination of her employment. The Respondent disputes the claim and contends that no unlawful deductions were made from the Complainant’s wages on the termination of her employment.
Summary of Complainant’s Case:
The Complainant resigned from her employment with the Respondent with effect from 27 May, 2019. The Complainant contends that she did not take any paid annual leave during the calendar year 2019 and that the Respondent failed to pay her outstanding holiday pay entitlements on the termination of her employment.
The Complainant stated that she was obliged to give the Respondent four weeks’ notice under the terms of her contract in circumstances where she wished to terminate her employment. The Complainant stated that she only worked two weeks of the four weeks’ notice period and decided to leave at that juncture to commence alternative employment. The Complainant stated that she received only a payment of €210.00 in respect of accrued annual leave on the termination of her employment and that the Respondent withheld the remainder of her entitlement as a result of her failure to work the other two weeks of her notice period.
The Complainant claims that the amount of the payment which the Respondent withheld in respect her holiday pay constitutes an unlawful deduction from her wages contrary to Section 5 of the Act.
Summary of Respondent’s Case:
The Respondent stated that the Complainant submitted a letter of resignation on 13 May, 2019 to confirm that she intended to leave her employment on 27 May, 2019 as she wished to take up alternative employment.
The Respondent stated that the Complainant’s contract included a term which provided that she was obliged to give four weeks’ notice if she wished to terminate her employment. The Respondent also stated Complainant’s contract provided that any failure to give or work the required notice period would result in her having an amount equal to any additional cost of covering her duties during the notice period not worked deducted from any termination pay due to her.
The Respondent submits that the Complainant was reminded of her contractual obligations on submission of her letter of resignation and advised that the relevant deduction would be made from her pay on cessation if she chose to leave her employment after having worked only two weeks. The Respondent stated that the Complainant indicated that she understood her contractual obligation and was happy to leave after having worked only two weeks of the notice period.
The Respondent stated that the Complainant had accrued an entitlement of 66.28 hours annual leave for the period from 1 January, 2019 until her employment terminated on 27 May, 2019. The Respondent submits that the Complainant received a payment of €210 in respect of 20 hours annual leave as a goodwill gesture on cessation of her employment. It was submitted that the Complainant was not entitled to receive payment in respect of the balance of her annual leave entitlement (i.e. 42.28 hours) as the Respondent was entitled to offset this payment against the expense which it incurred in relation to the additional cost to cover her duties during the final two weeks of her notice period.
Findings and Conclusions:
The Relevant Law
Section 1 of the Payment of Wages Act provides for the following definition of “wages”:
“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including--
(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and
(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”
Section 5 of the Act provides:
5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless:
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
(2) An employer shall not make a deduction from the wages of an employee in respect of--
(a) any act or omission of the employee, or
(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless:
(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and
(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and
(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with:
(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,
(II) in any other case, notice in writing of the existence and effect of the term,
(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and
(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and
(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and
(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.”.
The Complainant referred her complaint to the Workplace Relations Commission on 2 July, 2019. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 3 January, 2019 to 2 July, 2019. I am satisfied that the alleged unlawful deductions which the Complainant claims were made from her wages on the termination of her employment on 27 May, 2019 fall within the cognisable period covered by the claim.
The issue for decision in relation to the instant complaint is whether or not the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to the withholding of the balance of her holiday pay entitlement which was offset against costs incurred as a result of her failure to work the final two weeks of her contractual notice period.
It was not in dispute between the parties that the Complainant had accrued an entitlement to 62.28 hours annual leave for the period from 1 January, 2019 to 27 May, 2019 on the termination of her employment. It was common case that the Respondent made a payment of €210.00 to the Complainant on cessation of her employment in respect of 20 hours annual leave and that the balance of her entitlement (i.e. the amount of €630.00) was offset against the costs incurred as a result of her failure to work the final two weeks of her contractual notice period.
It is clear that the Complainant’s contract contains a term which required her to give the Respondent four weeks’ notice if she wished to terminate her employment. It was not in dispute that the Complainant was fully aware of this contractual term and that she decided to terminate her employment after having worked only two of the four weeks of her notice period.
The Respondent submits that it was contractually entitled to make the deduction in respect of costs incurred as a result of the Complainant’s failure to work her full period of notice and, in that regard, relies on the following paragraph from its Employee Handbook: “If you terminate your employment without giving or working the required period of notice, as indicated in your individual Statement of Main Terms of Employment, you will have an amount equal to any additional cost of covering your duties during the notice period not worked deducted from any termination pay due to you. This is an express written term of your contract of employment”.
Having regard to the evidence adduced, I am satisfied that the Respondent failed to comply with the requirements of Section 5(2)(iv) of the Act i.e. it did not furnish the Complainant with particulars in writing of the act or omission and the amount of the deduction at least one week before the deduction.
In fact, the final payslip the Complainant received, which was paid on 12 June, 2019, does not include details of the deduction made from her gross pay in relation to this matter.
Having regard to the foregoing, I find that the deduction of €630.00 from the Complainant’s final salary payment was an unlawful deduction within the meaning of Section 5 of the Act. Accordingly, I find that the complaint is well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991, and accordingly, that the claim is well founded. I hereby direct that the Respondent to pay the Complainant the sum of €630.00 subject to any lawful deductions, in respect of unpaid holiday pay.
Unfair Dismissal of Solicitor results in compensation of €13,300
ADJ-00022049
Background:
The complainant was a solicitor employed in a practice which was taken over by the respondent. The respondent sought to impose a new contract on the complainant and, it is alleged by the complainant, he failed to address grievances raised by her. Subsequently, she resigned and claimed constructive dismissal.
Summary of Complainant’s Case:
The complainant was employed in a solicitor’s practice for a period of 10 years and 4 months. When she commenced work the practice belonged to a husband and wife who subsequently sold the practice to the respondent (Mr A) on 29th November 2018.
On taking over the practice Mr A sought to impose a new contract of employment on the complainant and was insistent that the office was a new office and she would be required to undergo a probationary period. The new contract also provided for 12 days annual leave and Mr A was insistent that the start date would not take into account the previous 10 years that the complainant had worked with the firm. The complainant engaged in correspondence with the respondent outlining the issues she had with the proposed contract. Mr A stated that he would not renew the complainant’s Practising Certificate from the Law Society until he received the signed contract. He also stated that he would not be sending the practising certificate renewal form until a good bulk of fee had been brought in by the complainant.
On 28th January the complainant received a call from an auctioneer who had referred a client to her who was purchasing a property. This client had contacted the respondent’s office and asked for the complainant. Mr A had answered the call and stated he did not know who the client was talking about and asked him to send the details directly to Mr A.
Mr A launched a new website for the office on 13th February and the complainant was not included on the page despite having sent Mr A her profile in November 2018.
On 25th January 2019 the complainant could not gain access to Land Direct. Mr A stated that someone had changed the password despite the Land Direct account being linked to his account.
On 28th January Mr A would not acknowledge the complainant on a number of occasions.
On 6th Feb 2019 at 8.39 a.m. the complainant received a text message from Mr A asking if she would be in work that day. The complainant replied that she was out sick that day.
On 26th Feb the complainant arrived into work at 8.32 a.m. at which point she noticed a text sent by Mr A asking if she would be in work or off sick. The complainant went to Mr A’s office and queried why she received the text. Mr A stated that she was late, that it was 8.35 a.m. and she was paid from 8.30. He stated that she was always late.
On 28th February 2019 the complainant wrote to the respondent under the grievance procedure relating to his conduct towards her. A meeting took place on 8th March 2019. The complainant’s grievances were not dealt with and, in fact, further matters were raised by Mr A which added to her grievances. At this meeting Mr A said there was a severance package on offer and the complainant could accept it if she so wished. Another meeting was scheduled for 15th March 2019 at which Mr A withdrew the offer of a severance package as the complainant was not prepared to accept the severance be paid over the course of a year. The complainant asked for her grievances to be dealt with but Mr A refused to do so saying that these had been dealt with the previous week. Later that day she received an email from Mr A confirming that he would attend a meeting with her on 22nd March.
The complainant was on sick leave from 18th March until 21st March. She returned to work on 22nd March for the scheduled meeting and saw an email from Mr A dated 19th March asking her to outline her grievances and asking who would be her representative. The complainant emailed Mr A stating that she would have a representative in the office on Monday 25th March and asked him to confirm that this was in order. She received no reply and wrote another email confirming that she would have a representative present on the Monday for a meeting. After she had left work for the day Mr A emailed her stating that he could not meet on Monday and did not propose any follow up meeting. The complainant therefore handed Mr A a letter on 26th March confirming that, due to his unreasonable behaviour towards her and his refusal to address her grievances, she had been left with no other option but to leave her employment. Mr A’s response was to say that she was resentful.
Summary of Respondent’s Case:
It is settled law that an employee bringing a case under the Unfair Dismissal Act must seek to obtain new employment. In relation to the legal profession there are a significant number of jobs available in Dublin and therefore the complainant should have had no difficulty in obtaining employment. It is evident that the complainant was not actively seeking work after leaving the respondent in particular as she was seeking to be elected as a local councillor.
When Mr A took over the business he noted significant breaches of the requirement to issue Section 68 letters and also issues relating to GDPR involving the complainant. The complainant did not appreciate these issues being raised.
The complainant had been furnished with a contract of employment. It did have the clause about service with the previous office not being taken into account. Her original contract was effectively being updated. It is accepted that this was not correct. The issue in relation to holidays was one that is not correct.
The practising certificate was furnished before the end of January.
The issue regarding the referral of a client by the auctioneer arose due to the use of the complainant’s maiden name, with which the respondent was unfamiliar. In any event it would be a matter for the employer to determine what client, if any, would be taken on by the firm.
In relation to the website, an incorrect profile format and no photograph was furnished by the complainant. No employee was or is on the website currently.
In relation to the issue of 28th January – the alleged failure to say hello – this cannot be classified as bullying.
In relation to the 26th of February the position is that the complainant was engaged to start at a particular time. If she is late she is late. It is a matter for the employee to get in on time and it is completely unreasonable for an employee to contend that an employer would not be able to question same.
In relation to the claim for redundancy, if the complainant is claiming she was made redundant then her Unfair Dismissal claim must fall.
In relation to the allegation that the complainant suffered stress related injury the complainant is obliged to produce relevant medical documentation along with the doctor to be examined in relation to the issue.
Findings and Conclusions:
Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:
‘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,’
Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.
In the first test – the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.
The complainant contends that she was constructively dismissed. It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and/or secondly, whether the conduct of the respondent was so unreasonable that the complainant had no alternative but to tender her resignation.
From the evidence presented it is clear that the respondent sought to impose changes in the complainant’s contract of employment, in relation to the calculation of her holidays and, in relation to her commencement date. The respondent acknowledged that these changes could not be implemented unilaterally by the respondent. However, in direct evidence the complainant stated that this position was never communicated to her in advance of her departure and I accept this evidence. I consider the changes required by the respondent to be breach of essential terms of the complainant’s existing contract which was in place at the time of the transfer of undertakings.
In relation to the reasonableness of the respondent’s behaviour, it is clear that the respondent did not comply with its own procedures in relation to addressing the grievances put forward by the complainant. Rather than deal with the issues of concern to the complainant at the meeting convened for this purpose, the respondent sought to deal with performance related issues of concern to the respondent. In light of her experience in this instance the complainant was entitled to view the grievance procedure relied upon by the respondent as meaningless. The respondent cannot rely upon the mere existence of a written grievance procedure if the respondent does not adhere to the terms of the procedure. The offer by the respondent on 12th April 2019 to deal with her grievances was a considerable time after she handed Mr A the letter on 25th March indicating that she was leaving and why.
Accordingly, I conclude that the ‘reasonableness test’ which asks whether the employer has conducted his affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer has been met. The complaint of unfair dismissal is therefore well founded.
The respondent has contended that the complainant made insufficient efforts to mitigate her loss. I note from the complainant’s evidence that she secured suitable alternative employment on 3rd June 2019 and that there were no suitable jobs advertised in the region during that interval. I do not accept the proposition by the respondent that the availability of positions in Dublin required the complainant to apply for one of these. The individual circumstances of a complainant are relevant in determining what options are viable in order to mitigate loss and the existence of work in Dublin, which would have required the complainant and her family relocating, would not be a viable proposition.
In determining the appropriate compensation. I have included a sum of €9100 for loss of redundancy rights. I have also included the sum of €4,200 for loss of earnings.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
I find that the complainant was unfairly dismissed and I order the respondent to pay the complainant the sum of €13,300 in compensation.
Female awarded €30,000 in gender and family status discrimination claims
ADJ-00022879
Background:
The issues in contention concern the alleged Discriminatory Dismissal under the Employment Equality Act, 1998 of a Pharmacist by a Pharmacy Chain. A number of related complaints are also included.
1: Summary of Complainant’s Case:
1:1 Equality Case - CA 00029492-001
The Complainant, a lady with child care commitments, commenced employment with the Respondent in November 2018. It was her understanding that she would be undertaking a Part Time “Job Sharing” role. By agreement with the Respondent, to help out in an unexpected difficulty, she worked an initial full time period until the 14th January 2019 when she took up her Part Time position at a North City Branch of the Chain. Shortly afterwards the Complainant was asked by one of the Co-Owners (Mrs B) of the Respondent business to change her hours to full time on Tuesday and Friday. The Co-Owner was her “Job Share” partner. The Complainant could not facilitate this but offered to work full time on Tuesdays if her weekend commitments were reduced. The Respondent undertook to look at this suggestion but came back in early April with an offer of a Transfer to the Dublin Airport Branch of the chain - from 04:00 to 12:30 hrs. From a child care point of view these hours were impossible and the suggestion was declined. Later in the month of April, the 25th, the principal Co-Owner, Mr. A, met with the Complainant. He informed her that the Part Time role had not worked out as he had hoped, and it was necessary to hire a full time Pharmacist – co incidentally a male. Her employment was ended by the Respondent on the 25th April with the last day of service being the 31st May 2019.
The Complainant maintained that no realistic effort was made to facilitate her Part Time Hours position and for example no effort was made to find another job share partner. Accordingly, the Complainant felt that she had been grossly discriminated against by virtue of her Gender and Family status.
1:2 Minimum Notice & Terms of Employment Act, 1973 CA-00029492-002
This complaint was withdrawn
1:3 Terms of Employment (Information) Act, 1994 CA – 00029492-003
The Complainant did not receive a Contract of Employment or Statement of Terms and Conditions within two months of commencing employment. When a Contract was furnished, in mid-April 2019, it contained a Notice Clause completely at variance with the norms of the business.
1:4 Payment of Wages Act, 1991 CA: - 00000029492-004
The Industry norm is an eight week notice period – the Respondent offered only a One Week period.
On discussion at the Hearing this complaint was also withdrawn.
1:5 General
In relation to the above Complaint’s extensive case law was referenced and comprehensive Oral evidence given.
2: Summary of Respondent’s Case:
2:1 Equality Case - CA 00029492-001
The nature of the retail business is dynamic daily. Job Sharing involving daily Handovers between employees does not work out. It is not in the best interests of customer care or the efficient and crucially safe running of a busy organisation.
The Respondent, probably by his own admission, had not fully realised this when he offered the position to the Complainant.
The arrangement entered into with the Complainant had simply not proved possible to operate and it was necessary to back track and employ a full-time employee. The Gender of the Full timer was irrelevant. The business had an almost 80% female workforce and gender or family discrimination simply did not happen.
As a business they had sought to have discussions with the Complainant regarding how best her needs could be accommodated, work in other Branches were suggested and varying patterns of hours suggested.
There was no intent to Discriminate, in any way. A daily Part Time position, once experienced in early 2019, simply did not fit the business needs of a busy business. It was accepted that they had tried to make it work but it was logistically and medically/clinically impossible and unsafe.
2:2 Terms of Employment (Information) Act, 1994 CA – 00029492-003
It was accepted that there had been a breach of the Act in this case, but it was purely technical, and no detriment had flowed to the Complainant. Case law supporting this point was referenced.
3: Findings and Conclusions:
3:1 The Employment Equality Act, 1998 complaint – CA - 00029492-001
The Law in Employment Equality cases - Employment Equality Act,1998
Sections 2 & 6 Discrimination - Section 85 (A) the Burden of Proof, Legal Precedents
In an employment Equality case such as here it is necessary to firstly establish certain Legal issues these being
1. In the Complainant cover by the Discrimination provisions of Section 2 and 6 of the Act. in other words, is she eligible to bring a claim?
2. Was she discriminated against?
3. Was the treatment of the Complainant less favourable than that which would apply to anther individual not covered by the Discriminatory ground?
4. Depending on these answers the Provisions of Section 85 (a) The Burden of Proof then apply. In plain English the onus is on the Employer to prove that no discrimination occurred.
There is significant case law in support of the above points - The starting point would be the decision of the Labour Court in Southern Health Board v Mitchell, AEE/99/E a decision which remains the leading decision on the shifting of the burden of proof. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:
“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.”
Notwithstanding legal precedent all cases rests on their own particular facts and evidence and I will, using the points above, now consider the case.
3:2 Was the Complainant covered by the Discrimination provisions of the Act?
In her complaint form she pointed to Gender and Family Status grounds.
Clearly, she was a female and her Family status position as being a mother with children was never contested. Her claim was that she had been engaged to do Part Time work and this was allegedly discriminatorily removed from her.
Reviewing the evidence presented I think it fair to say that she satisfies these Discrimination requirements.
3:3 Was she Discriminated against?
Her employment was terminated on the grounds that her Part Time role could not be accommodated by the Respondent. Whether or not this was a Discriminatory act must be discussed below in conjunction with the Burden of Proof question.
3:4 The Burden of Proof.
The Employment Equality Act Section 85(A) requires that the Respondent Employer effectively establish that the alleged Discrimination did not occur. Reviewing the evidence, I came to the view that the Burden of Proof rested with the Respondent employer.
In this case the employment was ended by the Employer. The Respondent employer maintained that this was for “Objective Reasons” due to the nature of the business. Split or Shared Shifts did not work for a local style business. The example was given of a patient presenting at 10:00 in the morning with a complicated prescription. Details would be taken by the Pharmacist and further contact would be required later in the day. If there was a changeover in Pharmacist during the day serious complications could arise from a Patient Safety point of view. It was a risk a very busy Pharmacy could not take and accordingly after an experiment with Part Time hours the view was that they had to revert to full time hours per shift.
They had no issue with the Complainant doing a pattern of full days spread over a week or a fortnight. They were completely flexible on this question but the Complainant had been difficult. She had effectively insisted on her part time working pattern as initially set out.
The Respondent defence was one of Objective Justification, i.e. there was a real an objective reason, for ending the Part Time hours arrangement.
3:5 The Objective Justification Argument and Part Time working.
This is not as straight forward as it might appear in this case
This is demonstrated by Bank of Ireland Group v Morgan [EDA 096] where the Labour Court held that it:
“… would be manifestly unreasonable to hold that an employer must provide a woman with a facility to job-share in every case in which such a facility is requested and such a result could not have been intended. It is self-evident that such facilities can only be made available within the exigencies of the business.”
In this case is there a sustainable argument that Full time shifts are an “Exigency” of the Respondent’s Retail Pharmacy business.?
Local issues came to the fore as well here – the other Lady who was sharing the work – the Co-Owner, Mrs. B, it was alleged, apparently soon found the arrangement cumbersome as she was not used to having fixed, albeit pat time hours of attendance.
During the Hearing the issue of Part Time or Shared Pharmacist shifts in other large Retail Pharmacy chains was discussed. A prominent UK Chain, operating in many Dublin locations, was mentioned.
It was speculated that with their well know opening hours it would be impossible to have the same pharmacist there all day. Hand overs between Pharmacists would have to happen. The Respondent maintained that their Pharmacies were on the main streets of suburban Dublin. They were much more family /patient focused, offering local care to long standing patients, that the multinational chains based in big Retail Centres.
3:6 Adjudicator conclusions
In the normal run of Equality cases this case should lead to a direct finding of Discrimination against a lady in a Part Time Hours situation.
The question here is complicated by the Objective grounds defence.
On balance, having reviewed the evidence, and after careful reflection I had to come to the view that the Respondent failed to adequately ground his defence.
Part Time Hours had been offered and were then clearly withdrawn by the ending of the employment. There appeared to have been no real evidence of any significant efforts to see how the Daily Part Time Pharmacist position could possibly have been made to work other than by a pattern of flexible but full-time days. The Oral evidence pointed to the Respondent being well intentioned but unable to find a solution.
The Objective defence of the need for Full Shift daily attendance in a Pharmacy simply was not demonstrated sufficiently or in any realistic sustainable fashion.
Accordingly, there is no doubt but that the Complainant was discriminated against, on the gender grounds, the family status grounds, on the conditions of employment grounds and by a Discriminatory Dismissal, under the terms of the Employment Equality Act,1988.
Appropriate Redress will be consideed in Section 4 of this Adjudication below.
3:7 Terms of Employment (Information) Act, 1994 CA – 00029492-003
It was accepted that a Technical breach of this Act had occurred – the statement of Terms and Condition of Employment was not provided within Two Months of the commencement of Employment.
4: Decision:
4:1 Complaints under the Minimum Notice & Terms of Employment Act, 1973 CA 00029492-002 and Payment of Wages Act, 1991 CA - 00029492-004 were withdrawn during proceedings.
4:2 The Employment Equality Act, 1998 complaint – CA - 00029492-001
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.
Legal precedent regarding awards in Discrimination cases of this nature often reference the Fox v Lee case DEE6/2003 quoted below.
… not only the financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings.”
Put simply it is possible to award Compensation for both a Discriminatory dismissal and also the acts of Discrimination themselves. However, a review of the relevant case facts is also appropriate.
In this case the Complainant left a full-time position to accept the Respondent’s job offer of a Part Time position. It is reasonable to argue that the Complainant would not have carried out this job change if she had known that it was going to end in approximately six months. Accordingly, an award of €25,000 is made in Compensation for the Discriminatory Dismissal -this being approximately 26 weeks’ pay with an additional award of €5,000 as Compensation for the effects and distress of the Discriminatory acts in relation to her Family Status. Neither award is for any loss of Renumeration pre or post the Dismissal. A Total compensation award of €30,000 is therefore made in favour of the Complainant.
4:3 Terms of Employment (Information) Act, 1994 CA – 00029492-003
A purely technical breach of the Act occurred here – no material loss was suffered by the Complainant as a result. An Award of € 100 is made in favour of the Complainant as Compensation for Breach of this Statutory Right.
4:4 Taxation
The treatment of this award from a Taxation point of view must be subject to advice from the Revenue Commissioners.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
www.adarehrm.ie
- Advice on all Employment Law, Industrial Relations and HR queries or issues
- Review, Development and Implementation of Contracts of Employment and Employee Policies and Procedures
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment, Conducting Disciplinary Meetings
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
www.adarehrm.ie
