FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : MERCHANTS ARCH RESTAURANTS COMPANY LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LTD) - AND - FELIX GUERRERO (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision no: ADJ-00003641.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 5 April 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Felix Guerrero against the quantum awarded by the adjudication officer in the following complaints he made to the Workplace Relations Commission against his employer Merchant’s Arch Restaurant Company Limited,:
1. A complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act, 1994 reference number CA-00005113-001 lodged on 01/06/20162. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-002 lodged on 01/06/2016
3. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997, reference number CA-00005113-003 lodged on 01/06/2016
4. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-004 lodged on 01/06/2016
5. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-005 lodged on 01/06/2016
6. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-006 lodged on 01/06/2016
7. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-007 lodged on 01/06/2016
8. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-008 lodged on 01/06/2016
9. A Complaint seeking adjudication under section 77 of the Employment Equality Act, 1998 reference number CA-00005113-009 lodged on 01/06/2016
10. A Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991 reference number CA-00005113-010 lodged on 01/06/2016
11. A Complaint seeking adjudication under section 13 of the Industrial Relations Act, 1969 reference number CA-00005113-011 lodged on 01/06/2016
12. A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00009016-001 lodged on 10/01/2017
The appeals came on for hearing before the Labour Court on 5 April 2018.
The complainant was employed by the respondent licensed premises and restaurant and his principal duty involved holding an advertising sign in the public street inviting passers by into the respondents establishment. He commenced employment with the Respondent on 27 March 2014. Arising out of the manner in which his employment was managed he made complaints under various enactments to the Workplace Relations Commission. The outcome of the decision of the Adjudication Officer in respect of those complaints are now before this Court. The complaints under appeal to this Court are set out below.
Complaint under section 7 of the Terms of Employment (Information) Act, 1994 reference number CA-00005113-001
Section 7 of the Act in relevant part states
- 7.—(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3 , 4 , 5 or 6 in relation to him or her and, if he or she does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties.
Section 3 of the Act states
3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—
(a) the full names of the employer and the employee,
(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),
(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,
(d) the title of the job or nature of the work for which the employee is employed,
(e) the date of commencement of the employee's contract of employment,
(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,
(g) the rate or method of calculation of the employee's remuneration,
(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,
(i) any terms or conditions relating to hours of work (including overtime),
(j) any terms or conditions relating to paid leave (other than paid sick leave),
(k) any terms or conditions relating to—
(i) incapacity for work due to sickness or injury and paid sick leave, and
(ii) pensions and pension schemes,
(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,
(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.
(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.
(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.
(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.
(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.
(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.
(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.
(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.
S.I. No. 49 of 1998 TERMS OF EMPLOYMENT (ADDITIONAL INFORMATION) ORDER, 1998 in relevant part states
2. In this Order "the Act" means the Organisation of Working Time Act, 1997 (No. 20 of 1997).
3. (1) In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.
The Complaint
The Complainant states that he did not receive a contract of employment within two months of the date on which he commenced working for the Respondent.
A contract of employment was produced by the Respondent that it maintains was supplied to the Complainant. The Complainant disputes this. However he further states that the contract of which the Respondent relies does not comply with section 3 of the Act.
He submits that it
1. Does not contain the name of the employer contrary to section 3 of the Act2. Fails to identify the statutory leave year contrary to section 3 of the Act
3. Fails to make reference to a pensions scheme or retirement savings scheme
4. Fails to comply with sections 11,12 and 13 of Statutory Instrument No 49 of 1998.
5. Fails to specify his hours of work contrary to section 3 of the Act
The Response
The Respondent admits the breaches of the Act but argues that they are technical in nature and had no adverse impact on the Complainant.
Findings of the Court
The Respondent in this case acknowledges that it infringed section 3 of the Act in the manner claimed by the Complainant.
Accordingly, the Court finds that the Complaint is well founded.
Remedy
Section states 7(2) of the Act states
- (2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or
(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,
(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,
(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977 ,and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after a contravention to which the complaint relates, as references to the person who, by virtue of the change, becomes entitled to such ownership.
The Complainant seeks compensation in the sum of 4 weeks remuneration for the infringement of his rights and entitlements under the Act. He states that the failure to comply with section 3 can have serious consequences for him and by way of example cites the consequences that the failure to provide him with the Respondent’s legal name could have had for him had he issued proceedings against it in the name set out on the contract of employment and not in its legal name. He further submits that the infringements are a serious matter. He submits that he is entitled to and needs to know the name of his employer in order to bring proceedings under this or any other statute against it. He submits that he is entitled to know the times and duration of his breaks. He submits that he is entitled to know his statutory leave year and to know his hours of work and to be formally advised of those details of his employment in the statement of his terms and conditions of employment. He submits that the
The Respondent submits that that the complainant was not adversely affected by what it describes as technical breaches of the Act.
Findings of the Court
The infringement of the Act is admitted. Accordingly the Court finds that the Complaint is well founded.
The matter before the Court therefore is to decide the appropriate remedy in this case.
In that regard the Complainant submits that the €250 compensation awarded by the Adjudication Officer is not proportionate to the infringement involved. The Respondent submits that it is reasonable and proportionate having regard to all the circumstances of the case.
The Court finds that the Act imposes an obligation on an employer to provide a worker with basic information regarding the terms of their employment. The requirements set out in section 3 of the Act are not complex matters. A simple attention to detail would enable any reasonable person to comply with its terms. A failure to do so therefore requires a clear and understandable explanation as to why a worker has not been provided with such basic information about the terms under which s/he is employed.
No such explanation has been provided in this case. The respondent relies on its assertion that breaches were of a technical nature only and argues that the complainant suffered no adverse consequence arising out of its misfeasance.
The Court finds no merit in that argument. The Court finds that the statute imposes obligations on an employer and confers a corresponding right on a worker to have the basic terms of employment set out in writing in accordance with section 3 of the Act. The Respondent failed to do so in this case.
The Court however finds merit in the Respondent’s submission that it accepted the decision of the Adjudication Officer, has not appealed any part of that decision to this Court and has offered no defence of its actions in the course of this case. The Court finds that the Respondent is in no way responsible for the additional cost of bringing the appeal to this court and has taken this factor into account when coming to its decision on the relevant remedy in this case.
The Act provides for compensation of up to 4 weeks’ remuneration where those obligations are not complied with.
In deciding the appropriate level of compensation in a case the Court is required to have regard to all of the circumstances of circumstances of the case.
In this case the Court finds that the Respondent infringed section 3 of the act in a number of respects. It also sought to minimise its actions by describing them as technical breaches rather than acknowledging its failures and undertaking to correct them with immediate effect.
Instead it did not do so until the matters came before an Adjudication Officer which put the Complainant to considerable expense and inconvenience in a matter for which the Respondent offered no considered explanation for its failures.
On the other hand the Court was told that the Respondent has now amended all of its contracts of employment bringing them into compliance with the Act. However no evidence of such corrected contracts were opened to the Court.
In these circumstances the Court finds that an award of circa 3 weeks’ remuneration is appropriate in this case and orders the Respondent to pay the Complainant the sum of €900 for the infringement of the Complainant’s rights under the Act.
The Court so determines.
A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number lodged on 01/06/2016.
This complaint reference number CA-00005113-002 together with complaint reference numbers CA-00005113-003, 00005113-004 and are related and can be dealt with together.
Complaint reference number CA-00005113-006 alleges that the Respondent infringed section 14(1) of the Act (additional pay in respect of hours worked on Sunday) while complaints reference numbers CA-00005113-002, CA-00005113-003, 00005113-004 maintain that the Sunday premium claimed under section 14 of the Act was not reflected in the calculation of the complainant’s annual leave or public holiday pay.
Section 14(1) of the Act states
- 14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d) by a combination of two or more of the means referred to in the preceding paragraphs.
The Respondent admits the infringement of section 14(1).
The Complainant goes on to submit that as a consequence of the infringement of section 15 of the Act the calculation of his annual leave and public holiday pay was understated as compared to what it would have been had section 14 been complied with.
The Respondent admits this infringement also.
Accordingly the Court finds that the Complaint that the Respondent infringed section 14 of the Act is well founded.
Remedy
Arising out of the infringement the Adjudication Officer awarded the Complainant compensation in the sum of €750. The Complainant asks the Court to increase the level of compensation awarded by the Adjudication Officer.
In doing so the Respondent offered no evidence to the Court as to the appropriate level of Sunday Premium that should apply in this case. Mr Grogan, solicitor for the Complainant, told the Court that he had no information regarding the going rate of Sunday Premium that applies in this sector of the economy. Furthermore he stated that he was not in a position to present any evidence to the Court in that regard. He stated that he “was in the hands of the Court” regarding the level of premium that should apply and the level of compensation that should be ordered for the infringement complained of.
Mr Dolan for the Respondent submitted that the compensation awarded by the Adjudication Officer was fair and reasonable in all the circumstances of the case. He further submitted that the Court had no evidence before it that the award was inadequate in all the circumstances of the case.
The Court has considered the evidence and submissions made to it in relation to this complaint. The Court finds that that there is no evidence before it to suggest that the compensation ordered by the adjudication officer in this case is inappropriate or inadequate in all the circumstances of the case.
Determination
Accordingly the Court affirms the decision of the adjudication officer.
The complaints in respect of the compensation awarded by the Adjudication Officer in the related cases reference numbers CA-00005113-003, 00005113-004 are dependent on the Sunday premium the Court considers appropriate in respect of the complaint that was made under section 14 of the Act.
As the Court has not altered the award made by the Adjudication Officer in respect of that complaint it finds no grounds to adjust the awards made in these two cases.
Determination
Accordingly the Court affirms the decision of the adjudication officer.
Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997, reference number CA-00005113-002 lodged on 01/06/2016
In complaints reference numbers -005 and CA-00005113-008 the Complainant alleges that the Respondent infringed his rights under section 12 of the Act to the extent that it did not provide him with statutory breaks during his working day. The Respondent admits the infringements. It submits that it did not pressurise the Complainant working without breaks or prevent him from taking them. It states that it operated on the assumption that he did take statutory breaks but admits that it did not monitor the Complainant’s working patterns or take steps to ensure that it was complying with the provisions of section 12.
The Court takes the view that the provision of breaks during the working day is a very serious safety and health matter and that it is imperative that the safety and health of workers is protected in the work environment. It is not sufficient to presume that breaks are being taken. There is a positive obligation on employers to ensure that the culture of compliance is present in the workplace and that activities are monitored to ensure that statutory requirements are met in practice as well as in company documentation.
In this case there was at worse a disregard for the safety and health of the worker concerned and at best a carelessness regarding the impact prolonged working without a break could have on a worker’s safety and health and the safety and health of those with whom he came in contact.
Remedy
The act makes provision for the Court to order the payment of compensation to a maximum of two years remuneration that it considers appropriate in all the circumstances of the case. The Adjudication Officer awarded compensation in the sum of 500. The Complainant considers this amount inadequate in the context of the health implications of prolonged working without a break. The Respondent submits that the award is fair and reasonable in all the circumstances of the case.
The Court considers the infringement of the act to be a very serious matter that can have profound effects on the health of a worker. Infringements of the right to rest during the working day cannot be minimised or dismissed lightly. Accordingly the level of compensation to be awarded must be sufficient to ensure that the complainant is compensated for the extent of the infringement of the Act and the Respondent must be in no doubt that such infringements are serious matters that cannot be ignored. Accordingly the Court in this case finds that the award of €500 is not sufficient to achieve those objectives.
Determination
The Court orders the respondent to pay the complainant compensation in the sum of €3,000
A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00005113-007 lodged on 01/06/2016
In this case the complainant alleges that the Respondent infringed section 13 (2) of the Act.
Section 13(2) states
- (2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.
The Respondent admits the infringement and claims that the Complainant sought to be rostered for as many hours as possible. While it admits the infringement complained of, it submits that the Complainant was requested this arrangement.
The Respondent did not seek to rely on the provisions of sub section (3) (4) or (6) of the Act in this matter.
Findings of the Court
The Court finds that the right to rest period of at least 24 consecutive hours in each period of 7 days is an important safety and health provision. The Court notes that the Oireachtas made provision for variations to this strict arrangement in order to accommodate difficulties that might arise for employers in the reconciliation of this requirement with the practical needs of the business.
In this case the Respondent does not seek to rely on those exceptional arrangements. Instead it admits that it infringed section 12(2) of the Act and seeks to minimise the breach by placing responsibility on the Complainant.
The Court finds no merit in this approach. The Act places the obligation on the Respondent to grant the rest set out in sub-section (2) to an employee. It makes no provision for this obligation to be set aside where an employee invites an employer to act in a manner contrary to the statutory requirements.
Accordingly the Court finds that the Complaint is well founded.
Remedy
There is a general lack to compliance on the Respondent’s part with the requirements of the Act. Such a casual approach to so many important safety and health matter cannot be treated lightly by the Court. In this case the Adjudication Officer ordered the Respondent to pay the Complainant compensation in the sum of €500.
In the case the Court finds that the Respondents multiple infringements of the Act must be factored into the compensation ordered in this case.
Accordingly the Court orders the Respondent to pay the Complainant compensation in the sum of €1,000
The decision of the adjudication officer is varied accordingly. The Court so determines.
Complaint seeking adjudication under section 77 of the Employment Equality Act, 1998 reference number CA-00005113-009 lodged on 01/06/2016.
The Complainant claims that the Respondent , within the meaning of section 6 of the Employment Equality Act 1998, discriminated against him on the race ground contrary to section 8 of the Act. The Respondent denies the discriminating against the Complainant.
Background
The Complainant had occasion to visit the Emergency Department of the Mater Misericordiae Hospital to which he was admitted on Wednesday 13 April 2016. He sent an sms message in the following terms to his manager “Felix admitted to Mater this morning after collapsing at home. Friend with him. His manager responded to the message in the following terms “ OK Thanks”.
On Friday 15 April 2016 the Complainant sent a further sms message to his manager in the following terms “Felix here. Still in the Mater. Not allowed go back to work until next Wednesday” to which his manager responded “ Ok. Before u come back I need a letter from a doctor to say u are fit for work.” The Complainant replied “ok”.
ON 19 April 2016 the Complainant received a note from the Hospital in the following terms
“ This is to state that Mr Felix Guerrero [ address follows]
1. Has attended this day: 15/04/20162. Is unfit for work: 17/04/2016
3. Is fit for work: 18/04/2016.
Signed Dr Andrew Ngaditiono
Emergency Medicine SHO
IMC [number included]
Date 19/04/2016.
The Complainant presented presented for work on 20 April 2016. He was not allowed resume work without a medical certificate stating he was fit for work.
Complainant’s position
The Complainant submits that he met with the Respondent’s Mr McCue on 20 April 2016 and presented him with the medical certificate stating that he was fit for work. He told the Court that Mr McCue refused to allow him to return to work until he got a certificate from a proper doctor stating that he was fit for work. The Complainant states that he returned to the hospital and sought a different certificate. He states that the Hospital informed him that it has provided him with a certificate stating that he was fit for work and that it could go no further than that.
Mr McCue told the Court that he met with the Complainant on 20 April 2016. He states that the Complainant presented a note from the hospital that did not amount to a certificate stating that he was fit to return to work. He states that he told the Complainant that he could not resume work until he presented such a certificate. He denied ever receiving the medical certificate dated 19 April referred to above. He further denied ever having told the Complainant to get a note from a proper doctor. He told the Court that had he received that certificate he would have returned the Complainant to work.
In answer to a question from the Court Mr McCue stated that he had not kept a copy of the document the Complainant presented to him at the meeting of 20 April 2016. When invited to explain why he did not keep a copy of this certificate he offered no explanation for this decision.
In answer to another question he stated that he normally filed such notes. He said he managed up to 44 staff who regularly submitted sick certs to cover periods of absence from work. He stated that he filed such certs when he received them. However, he offered no further explanation as to why he did not file the one he was presented with by the Complainant at the meeting of 20 April 2016.
The law
Discrimination under the Act is defined in the following terms.—
6(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
The grounds on which discrimination is not permitted is set out in subsection 6(2) of the Act. It states
Discrimination on the grounds of race has the following meaning
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
Section 8 of the Act prohibits discrimination on any of the grounds set out in section 6 of the Act. It states
- 8.—(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker
Section 85A of the Act states
85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
In the jurisprudence of the Labour Court the test for applying this notion is that developed inSouthern Health Board v Mitchell [2001] E.L.R 201. Here the Court adopted the following analysis of Article 2 of the Burden of Proof Directive: -
- “ 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 those 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.”
The Court has given very careful consideration to the evidence presented to it in this case. The Court finds the Complainant’s evidence to be more reliable that than of the Respondent. The Complainant’s evidence was consistent with the text messages on which both sides relied. They disclose that he notified the Respondent that he had been admitted to hospital. They further disclose that the Respondent instructed the Complainant to obtain a medical certificate stating that he was fit to return to work. He produced such a certificate to the Court that he received from the Mater Hospital on 19 April 2016. The Respondent states that it never saw this certificate. Instead it states that it was presented with a different medical certificate that did not state that the Complainant was fit to return to work. However, contrary to normal practice, it did not retain this note on file and could not tell the Court what it said or who had provided it to the Complainant.
The Court finds the Complainant’s evidence more compelling than that of the Respondent. The note from the Mater Hospital is dated 19 April 2016. The Respondent instructed the Complainant to secure a medical certificate stating he was fit to return to work before presenting himself for duty. He did as he was instructed and secured the note from the Mater Hospital dated 19 April 2016. He attended a meeting on 20 April with the Respondent for the purpose of presenting the certificate and resuming normal work. It stretches credibility to suggest that having secured the required medical certificate on the 19thApril 2016 he would attend a meeting on the 20thand decide to present another certificate that did not meet the Respondent’s requirements. Moreover, the Respondent stated that it had not kept a copy of the medical certificate it says was presented to it at the meeting on the 20thApril despite the fact that it told the Court that it normally filed such documents in its records.
Overall the Respondent’s version of what happened at the meeting on the 20thApril 2016 lacks credibility and is not consistent with the documents adduced in evidence.
Accordingly the Court prefers the evidence of the Complainant.
Why the Respondent refused to accept the medical certificate offered by the Complainant certifying that he was fit for work with effect form 18 April 2014 is the matter that then arises.
The Complainant states that it was because he was a foreign national and that an Irish person would not have been treated in such a manner.
The Court must decide whether what has been established by the Complainant amount to facts that give rise to an inference of discrimination. The Court must also decide whether those facts are sufficient to raise a presumption of discrimination.
The facts that have been established consist of the following: The Complainant is a foreign national who fell ill and was admitted to hospital. He was advised that before he could return to his employment he required a medical certificate stating that he was fit for work. He secured such a certificate and presented it to the respondent at a meeting on the 20thApril 2016. The Respondent rejected the certificate for no discernible reason and refused the Complainant permission to return to work.
The Court finds that taken together those facts give rise to an inference that discrimination on the grounds of race may be the reason the Respondent acted as it did. It is therefore a matter for the Respondent to rebut that inference and to show that discrimination on the race ground play not part in the decisions it took.
The Respondent offered no evidence in this regard.
Accordingly the Court must finds that the Complaint is well founded.
Remedy
The Court finds that discrimination on the grounds of Race is a very serious infringement of the law that cannot be treated lightly. Treatment at work cannot vary with the nationality of the person involved. Such discriminatory treatment is odious and unacceptable and cannot be tolerated. Where it is found to occur the response of this Court must, in the circumstances of the case, reflect the gravity of the infringement and must reflect it in the remedy decided upon.
In this case the Complainant was discriminated against in relation to his employment simply because of his national origin. That is unacceptable. No mitigating explanation was offered by the Respondent.
In this context and in accordance with section 82 of the Act the Court orders the Respondent to pay the Complainant compensation in the sum of €5,000
Determination
The Complaint is well founded. The decision of the Adjudicator is set aside. The Court orders the respondent to pay the complainant the sum of €5,000
The Court so determines.
Appeal in relation a Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991 reference number CA-00005113-010 lodged on 01/06/2016.
The Complainant states that the Respondent reduced his hours from an average of 48 per week to 15 hours per week after he returned to work following a period of illness in June 2016. He submits that the reduction in his hours amounts to an unlawful deduction within the meaning of section 5(1) of the Act.
The Respondent submits that the Complainant was not guaranteed a minimum number of hours work each week, was assigned work for 15 hours for the week in question and that he had no entitlement to payment in respect of hours during he which he was not at work.
Having considered the information before it the Court finds the Complainant had no guaranteed hours of work each week and accordingly cannot maintain a claim under the Act as no monies were properly payable to him in respect of the disputed hours.
Determination
The complaint is not well founded. The decision of the Adjudication Officer is affirmed.
A Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 reference number CA-00009016-001 lodged on 10/01/2017
When this matter came before the Court the parties agreed that it could be set aside on the basis of the undertakings given by the Respondent to the Complainant that it would adjust payments in respect of the relevant public holidays in line with the Courts decision on the issue of an allowance for working on Sunday.
On that basis the matter was not pursued.
Signed on behalf of the Labour Court
Brendan Hayes
1 May 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.