ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00020653
Parties:
| Complainant | Respondent |
Anonymised Parties | administrator | Accommodations and Food |
Representatives | Sarah Halpin Halpin & Co. Solicitors | Scott Jevons Ibec |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00027259-002 | 25/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027259-003 | 25/03/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00028167-004 | 03/05/2019 |
Date of Adjudication Hearing: 03/12/2019
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Procedure:
In accordance with Section 41 of the Workplace Relations Act, Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
CA-00028167-004
Section 77 of the Employment Equality Act, 1998
Preliminary Issue
The Complainant’s employment concluded on 31 December 2018. The Complainant submitted a claim for Unfair Dismissal on 25 March 2019 and later under the Unfair Dismissals Acts and Employment Equality Acts (including discriminatory dismissal) on 3 May 2019.
The Respondent refers to the Workplace Relations Act 2015 which amends Section 101 of the Employment Equality Acts as follows with respect to dual claims made under both the Unfair
Dismissals and Employment Equality legislation;
4A) (a) Where an employee refers -
A complaint under section 77, and
A claim for redress under the Act of 1977, to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the said complaint shall be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.
SI126/2016 specifies the "relevant date" as 42 days after notification to the Complainant that Section 101 (4A) applies.
The respondent submitted that the WRC wrote to the complainant on the 17th May 2019 that both the Unfair Dismissal and the Discriminatory dismissal could not be pursued, allowing 41 days from the date of the correspondence to opt between the complainants, expressly stating that if no decision was communicated, the Employment Equality Act (discriminatory dismissal claim) would be closed
The respondent also referred to correspondence to the WRC from the complainant representative dated the 29th November 2019 where it states that they will not be proceeding with the following CA-0027259-001, CA-00028167-001, CA-00028167-002 and CA-00028167-003. These complaints are now withdrawn
On the 1st July the WRC wrote to the complainant confirming that since there was no response, the Employment Equality (dismissal) claim was now closed
The complainant stated the complaint was resubmitted on the 3rd of May 2019 and complaint was acknowledged by WRC on the same date. They are proceeding based on the resubmitted complaint form.
Correspondence ensued between the WRC and the complainant's solicitor in respect of the following parallel complaints: -
Unfair Dismissal - Complaint seeking adjudication by the WRC under S. 8 of the Unfair Dismissals Act, 1977.
Discrimination/Equality/Equal Status- Complaint seeking adjudication under s. 77 of the Employment Equality Act, 1998.
The WRC formed the view that as the complainant had not elected which complaint to proceed with within 41 days of lodging the claim that the Discriminatory Dismissal was automatically withdrawn. A legal submission was lodged on the 8th of August 2019 challenging the WRC's view.
The complainant further submits here as follows: -
The WRC states that by letter dated the 17/05/2019 that the WRC wrote to the Complainants representative seeking an election pursuant to Section 101 (4) of the Employment Equality Act, 1998. The employee representative did not receive this letter. Pursuant to S.I. No. 126/2016 - Employment Equality Act, 1998 (Withdrawal of Certain Claims) (RELEVANT Date) Regulations 2016, the employee must elect whether to proceed with a claim under the Employment Equality Act, 1998 or the Unfair Dismissals Act, 1977 within 42 days from the date of notification of the employee concerned. "Notification" is described in the SI as "a notification in writing from the WRC informing the employee that subsection (4a) of section 101 of the Act of 1998 applied in respect of the said case or claim."
Such notification was not received and therefore the Complainant is entitled to proceed with the case under the Employment Equality Act, 1998.
Findings
I find that the Complainant submitted a claim for Unfair Dismissal on 25 March 2019 and later under the Unfair Dismissals Acts and Employment Equality Acts (including discriminatory dismissal) on 3 May 2019.
I find 17 May 2019 - the WRC wrote to the Complainant notifying her that twin claims for Unfair Dismissal and Discriminatory Dismissal could not be pursued, allowing 41 days from the date of the correspondence to opt between the claims, expressly stating that if no decision was communicated, the Employment Equality Act (discriminatory dismissal claim) would be closed.
Decision
01 July 2019 - The WRC wrote to the Complainant confirming that since there was no response, the Employment Equality (discriminatory dismissal) claim was now closed.
CA-00028167-004
Section 77 of the Employment Equality Act, 1998
Background
The complainant commenced employment with the respondent on the 1st September 2009. She was employed as an Office Administrator on a part time basis and she was paid €325.67 gross per week
The complainant stated she had been submitting medical certificates to the respondent on a continuous basis. The complainant alleges that she had a disability and that she was not offered reasonable accommodation.
The complainant submitted ((ii) she was unlawfully discriminated against by the respondent failing to provide her with reasonable accommodation for a disability.
The respondent submitted that at no stage were they advised or made aware that the complainant had a disability. They further submitted that the medical certificates stated that the complainant was suffering from back pain.
Findings
It is submitted whether the complainant was discriminatorily dismissed on grounds in terms of Section 6(2) (g) of the Acts, contrary to Section 8(6) (section 6(1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection 2 one person is treated less favourably than another is, has been or would be treated.
Section 6(1) of the Employment Equality Acts, 1998 -2015 provides as follows; - (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any grounds specified in subsection (2) in this Act referred to as the ’discriminatory ground’
I find that the respondent submitted that they were not aware that the complainant had a disability and she was seeking reasonable accommodation. I find that the medical certificates submitted on her behalf stated that the complainant suffered from back pain.
Section 85(a) of the Acts sets out the burden of proof that applies to claims of discrimination. It requires the complainant to establish the burden, in the first instance, facts upon which she can rely on asserting that she suffered discrimination treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Prima facie evidence has been described as “evidence which in the absence of any credible contradictory evidence by the respondent would lead any reasonable person to conclude that discrimination has probably occurred”.
Where in any proceeding’s 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.
I find that the complainant has failed to meet the burden of proof required in her complaint.
Decision
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.
I declare this complaint is not well founded and fails.
CA -00027259-002
Payment of Wages 1991
The complainant is claiming that she did not receive written notice of her termination and therefore is entitled to paid 4 weeks’ notice based on her years of service.
Findings
I find that the complainant was out on sick leave, I find that she should have received notice that her employment was being terminated however to receive payment for notice the time must be at work.
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.
I find the complaint is not well founded and falls
CA-00027259-003
Organisation of Working Time Act 1997
The complainant seeking payment for her Annual leave entitlement while on sick leave.
The respondent submitted that the complainant did not provided medical certificates for the last few months of her absence, however, the complainant stated that the respondent advised her at a meeting in April there was no requirement to continue to submit certificates.
Findings
I find that there is no dispute between the parties that a meeting took place between the complainant and the respondent. The complainant stated that the respondent advised her there was no requirement to continue to submit certificates. The respondent denied that allegation.
I find that the respondent failed to provide any record of date, time or minutes of that specific meeting.
I also find that the respondent contacted the complainant on the 11th November 2018 where he requested her resignation.
I find that the amendment to the legislation was made by way of section 86(1) of the Workplace Relations Act 2015. It has the following effects
A Statutory annual leave entitlement accrues during a period of certificated sick leave
B An annual leave carryover period of 15 months after a leave year will apply to those employees who could not due to illness, take annual leave during the relevant leave year or during the normal carryover period of 6 months.
C On termination of employment, payment in lieu of untaken accrued annual leave will apply to leave which was untaken because of illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the leave year during which the statutory leave entitlement accrued.
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.
I find the complaint is well founded and I award the complainant €1,628.35
Date 9th April 2020
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Key Words:
Reasonable accommodation |