Complainant

Respondent

Anonymised Parties

A Kitchen Manager

A Café

Representatives

Self

Gerry Mitchell, Independent IR Consultant

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035333-002

19/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035333-003

19/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035333-004

19/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035333-005

19/03/2020

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

CA-00035333-006

19/03/2020

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

CA-00035333-007

19/03/2020

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

CA-00035333-009

19/03/2020

The Complainant commenced her employment with the Respondent on 1st October 2018. The date of termination of employment was in dispute.

The Complainant referred several complaints against the Respondent to the Director General of the WRC on 9th October 2019, 19th March 2020 and 14th July 2020.

The within claims were heard in conjunction with complainants referred on 9th October 2019, bearing reference number ADJ-00024904, and complaints referred on 14th July 2020 bearing reference number ADJ-00031230.

The first adjudication hearing was held on 21st October 2021. The Complainant attended with her mother, Ms. R. On behalf of the Respondent, Ms. N and Mr. S were in attendance. They were represented by Mr. Gerry Mitchell, HR Adviser. 

The second adjudication hearing was scheduled on 29th March 2022. The Complainant and Mr. S were in attendance. Mr. S applied for an adjournment. Having considered the reasons put forward, the Adjudication Officer granted the adjournment.

The third hearing took place on 7th July 2022. The Complainant, Ms. N, Mr. S, and Mr. Mitchell were in attendance.

The Respondent ceased trading in March 2020 after the Government pandemic guidelines forced closure of indoor eating. In February 2021, the Respondent initiated the process of voluntary strike-off. However, the process did not conclude as the Complainant objected to the voluntary strike-off procedure.

The Complainant submits that she did not receive her public holidays entitlements.

The Complainant asserted that she has not received public holiday pay for the extent of her maternity leave and for days she worked on public holidays. The Complainant was not paid for public holidays throughout her employment. The Respondent partially backdated public holidays in August 2019. The Complainant recorded the hours worked, weeks and calculated as per her working hour records. The Complainant exhibited an excel document with the alleged discrepancies outlined.

The Complainant submits that she worked on St. Patrick’s public holiday 2019 and was not paid as per the statute. The Complainant worked on June public holiday 2019 and was not paid as per the statute. The Complainant asserted that she should have been double paid for these days.

The Complainant was not paid for: Easter Bank Holiday 2020 May Bank Holiday 2020 June Bank Holiday 2020

The Complainant argues that the total owed to her for public holidays €506.88 under the Payment of Wages Act 1991.

The Complainant asserted that she had copies of timesheets and payslips on the basis of which she calculated the underpayment. However, none of them were available at the hearing.

The Respondent submits that the Complainant received all her entitlements.

The Respondent exhibited an email from its accountant stating that the named accountancy firm did not act for the Respondent when the business commenced. Upon takeover in mid-2019, the accountant discovered that public holiday entitlements were not paid in 2018 and 2019 to date. The accountant did public holidays calculations based on 13 weeks average prior to public holidays and processed all unpaid public holidays in week 32 of 2019. All future public holidays were paid as they arose.

The Respondent furnished its accountant’s statement saying that 4 public holidays that fell in 2018 and 4 public holidays that fell in 2019 were paid to the Complainant in week 32 of 2019.

The Respondent exhibited payslips showing the payment of arrears in week 32 of 2019.

The Respondent submitted that it acted in good faith and engaged a professional accountant to look after the payment. It said that there has been no evidence furnished by the Complainant to clarify how did she come up with her figures.

The Complainant referred her complaints to the Director General of the WRC on 19th March 2020. Therefore, the cognisable period is from 20th September 2019 to 19th March 2020. The period from 20th September to 9th October 2019 was addressed in the adjudication decision in the complaint bearing reference number ADJ-00024904.

There were five public holidays in the cognisable period, namely last Monday in October (28th October 2019), Christmas Day (25th December 2019), St. Stephen’s Day (26th December 2019), New Year’s Day (1st January 2020) and St. Patrick’s Day (17th March 2020).

Section 21 of the Organisation of Working Time Act, 1997 provides that: (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely

I declare this complaint to be not well founded.

The Complainant submits that she did not receive her rest breaks.

The Complainant claims that she worked in excess of 9 hours a day and most of the time she received no breaks, sometimes she received 30 min break over the weekends.

In her submission, the Complainant asserted that she received three rest breaks while working for the Respondent, none of which were documented and all of which were interrupted for her to return to service to prepare meals. On several occasions, the Complainant asked other members of staff to step into her role to cover her breaks. At the time, the other floor members of staff refused, as they did not how to prepare the meals. It was relayed to the Complainant that they did not feel comfortable without training or knowledge to step in to cover her shift. Therefore, the Complainant did not receive any uninterrupted breaks throughout her employment with the Respondent. The Complainant asked on several occasions how she was meant to take her breaks and at no point did either Director set up a system to ensure she took her breaks.

The Complainant relied on an email of 29th August 2019 from Ms. N stating that the Complainant was managing the kitchen and it was up to her to use her organisational skills to create time to take her breaks.

The Complainant emailed the Respondent:

“As I stated in the discussion np breaks have usually been available Monday-Friday. On reflection I can recall 3 specific occasions that Daire was on and I could take a break on those 3 occasions; but this is not the usual practice. As there isn’t usually cover, I’m uncertain how can I take my breaks? Can you please let me know how this will be sorted?”

The Respondent replied:

“We have spoken about this a number of times and we understood that we had long since resolved this. You are managing the Kitchen and it is up to you to use your organisational skills to create time in which to take your statutory breaks. You must take your breaks and we are fully supportive of whatever you have to do to carve that time out for yourself and always have been. If it an unusually busy day, you can ask one of the managers to step in as we discussed on several occasions or another member of staff can do so. We are not there all the time and it’s for that reason we gave you full control to take your breaks whenever you need to do so. All other kitchen staff have been able to take their statutory breaks & you might also note that we provide you all with paid breaks which is more than is provided for by statute. Since you told us you are pregnant, we have also confirmed that we are totally happy for you to take as many additional unpaid breaks as you need during any shift, to change your shift patterns to shorten shifts so you are spending less time on your feet or indeed to change your shift duties is you feel your required tasks are too much, to get help from other staff members in tasks whenever needed. we have warned you against climbing any steps to reach things downs off shelves & to get others to do this for you, we have advised you on the proper use of the trolleys we have for transporting goods between the prep kitchen and the [named] café and to avoid lifting any heavy objects. We have made all these suggestions to you with your best interest in mind and indeed we are happy for you to make any additional requests from us that you feel you need or may during the reminder of your pregnancy. However, we are and remain concerned by your refusal to entertain any of the suggestions we have made to you to make your work a little easier when pregnant. for the avoidance of any doubt on the matter, these suggestions remain open to you to take up at any time for the duration of your pregnancy and indeed anything else that you may need to support you in your work, you should raise it immediately.”

In her direct evidence, the Complainant said that she started her maternity leave on 16th December 2019. She said that no records of hours of work and breaks were kept prior to her maternity leave. She also argued that there was no staff available to facilitate her breaks.

The Complainant asserted that the Café opened from 10am to 4pm Monday – Thursday, from 10am to 4pm and from 6pm to 9.30pm on Fridays and Saturdays. She could have worked from 8am to 6pm, on some seven occasions she worked in the evenings. She was the only chef rostered to work Monday to Friday, two chefs were rostered on Saturdays. She said that it was not possible to take a break before the opening or after the closing time.

The Complainant cited the following in support of her claim:

Hotel Employee v Accommodation & Food Service Provider ADJ-00016289, Monkland Oyster Hotel Ltd v Michelle Smith, Deirdre Morgan v Sandra Cooneys Home Care Ltd DWT1914, The Tribune Printing & Publishing Group v Geographical Print and Media Union [2004] ELR 222, Michael Browne v Iarnord Eirean [2014] HC17, Von Colson & Kamann V Land Nordrhein [1984]ECR 1891, Nurendale Trading as Panda Waste v Suvac DWT19/2014, Eupreida Trading v Martin O’Connor DWT3146, Network Rail Infrastructure Ltd V Crawford, Tesco Ireland Ltd v Kazilas DWT15139, A retail betting assistant v A retail bookmaker ADJ-00017543, Grange v Abellio London Ltd, A Crew Member v A Fishing Boat Owner/Operator ADJ-00012854, A Receptionist v A Hostel ADJ-00023445, Hyper Trust Limited V Gordins DWT1467.

The Respondent submits as follows.

By way of background, the Respondent Café was set up by Ms. N and her husband, Mr S.

The Café ceased trading in March 2020 following the closure of indoor eating as per the Government pandemic guidelines. Management were advised by their accountant and solicitor that they would face dire financial conditions should they continue to trade and would not be in a position to pay staff or creditors any outstanding monies. Accountants were employed to wrap up the business, make payments to the Revenue, arrange final pay to all staff including any outstanding annual leave, and to prepare final accounts in order to proceed to the CRO for voluntary strike-off.

In February 2021 relevant procedures were put in place to finalise the closure of the business with the CRO. However, a letter was received from the CRO stating that this was not possible following a complaint from the Complainant that the Respondent was involved in an open litigation with her.

The Respondent has not traded or employed any of its staff since shutting its doors in March 2020. The business premises was cleared and from June 2020 a new business started trading there.

The Respondent notes that between September and December 2019, a WRC inspection of the business was conducted. Under the Inspector’s guidance, the Respondent implemented the timesheets where staff filled in not only the hours of work but also signed the form to indicate that they had taken the correct breaks. This procedure remained in place until closing. As part of the process, the Inspector met with staff members, including the Complainant, the owners of the business and the accountant, and analysed the employment records. In effect, the Respondent was deemed to have a clean bill of health and was issued a letter of close of inspection on 16th December 2019. 

The Respondent further argued that the Complainant, as the Kitchen Manager was required to factor her breaks in, by not doing so she was not discharging her responsibilities.

The Complainant was employed as a chef in October 2018 and in 2019 she was promoted to Kitchen Manager. The Complainant commenced her maternity leave in December 2019. Therefore, the period in which the WRC inspection took place coincides with the period in which many of the issues raised by the Complainant relate to. Despite the numerous complaints submitted by the Complainant, no adverse findings were made by the Inspector.

The Respondent submits that the Complainant, as Kitchen Manager, was instructed to avail of her break entitlements, as were all other members of staff. Management were supportive of this and did not in any way attempt to prevent the Complainant from taking her breaks. Furthermore, the WRC inspection, which was conducted during the period referred to made suggestions in relation to staff recording that they had received their breaks, which continued to be the practice until closure.

The Responded submitted at the hearing that the Café had five tables in total which accommodated a maximum of 20 people. The Café was a small place with an open kitchen and one could see from the kitchen when people were arriving. The Café was located in rural Ireland and given the location, the size and the footfall there were very quiet times when the Complainant could have taken her breaks. The Respondent also argued that there were times when the patrons were not having cooked meals and no chef was required to serve. The Respondent denied that the Complainant has ever worked 8am-9.30pm as alleged.

The Complainant referred her complaint to the Director General of the WRC on 19th March 2019. Therefore, the cognisable period is from 20th September 2019 to 19th March 2020. The Complainant was on maternity leave from 16th December 2019.

In relation to statutory breaks, Section 12 of the Organisation of Working Time Act 1997 provides: 

12. Rests and intervals at work

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Section 25(1) of the Act requires an employer to retain records showing compliance with the Act. In relation to the applicable burden/onus of proof for claims under the Act, Section 25(4) provides: 

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Although each case will turn on its own facts and the level of autonomy afforded to an employee, ultimately the employer is responsible for ensuring compliance with the Organisation of Working Time Act 1997. 

The Labour Court has set-out a well-established test for interpreting the applicable burden of proof as provided for under Section 25(4) of the Act in relation to complaints brought under the Act, set out in Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311 as follows: 

• (1) The effect of s.25(4) of the Acts is to shift the burden of proof to the respondent in cases where records in the statutory form were not maintained.
• (2) The evidential burden on a claimant requires the claimant to adduce such evidence as is available to support a stateable case of non-compliance with the relevant provision of the Act with sufficient particularity to allow the respondent to know, in broad terms, the nature of the complaint.
• (3) That when the claimant has met his or her evidential burden, the respondent is required to put the records required by s.25(1) of the Act to demonstrate compliance with the relevant provision. Where such records are produced, the claimant bears the evidential and legal burden of proving that his or rights under the Acts were contravened in the manner alleged.
• (4) That where forms in the prescribed form as required by s.25(1) of the Act are not produced by the respondent and the claimant has satisfied the evidential burden, the respondent carries the legal burden of providing on credible evidence and on the balance of probabilities that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge this burden, the claimant will succeed in their complaint/s under the Act.
• (5) That there is a positive obligation on employers under the Working Time Directive to ensure that the prescribed periods of rest are actually taken by employees. Commission v United Kingdom [2006] I.R.L.R. 888 applied.
• (6) That the minimum daily rest periods prescribed by s.11 of the Act were regularly disregarded and s.11 of the Act was contravened in relation to the claimant.
• (7) Obiter dictum: That the State would be in default of its obligations under the Directive if the Organisation of Working Time Act was interpreted in the manner contended for by respondent, i.e. that it is for the employee to ensure that the obligation regarding breaks and break periods are observed.

The parties were completely opposed on this claim. The Respondent contended that the Complainant had flexibility in taking breaks and, as a manager, she managed her own breaks. The Complainant gave evidence that she did not avail of breaks as she was unable to do so. The Complainant did not adduce any evidence as to the specific occasions on which she allegedly did not take breaks. Rather, she argued that she had never taken any breaks save for three occasions she recalled, albeit no specifics were given.

I am satisfied that the smooth operation of the Café depended upon the Complainant taking breaks only when possible. This was particularly the case on the days when the Complainant was the only chef rostered to work. There was no system in place for ensuring breaks and/or compensatory breaks would be taken. I appreciate that, given the factors put forward by the Respondent such as the location, the size of the Café, the footfall, the type of orders at particular times, etc. perhaps there was scope for the Complainant to arrange her breaks at the quieter times. I also note that it was the Complainant who managed the kitchen and for a number of months she was responsible for scheduling of the roster. However, the responsibility to implement the provisions of the Act lies with the Respondent.

In the absence of any records confirming compliance with the Act, the Respondent carries the legal burden of proving on credible evidence and on the balance of probabilities that it was not contravened in the manner alleged. In circumstances where the Respondent has not discharged the burden of proof on it to demonstrate its compliance with section 12 of the Act with regard to the complaint in the period in questionI find, on the balance of probabilities, that the Act has been contravened as alleged.

I declare this complaint to be well founded. Having carefully considered the circumstances of this claim, I direct the Respondent to pay the Complainant €500 in compensation for the breach of the Act.

The Complainant submits that she received no annual leave payment until the termination of her employment (payslip dated 20th March 2020 show payment of 8% of hours worked totalling €739.90 and maternity annual leave totalling €745.92). She contends therefore that she is owed payment for annual leave of €329.28.

The Complainant cited the following in support of her claim: Royal Liver Assurance v Macken and others IR427 High Court, Chtabbou v Circus Gerbola Ltd., Meades Bar Ltd (Victoria Café) v Layala Smalli DWT1727, Schultz-Hoff v Deutsche Rentenversicherung Bund (C-350/06), Bund and Stringer and ors v Her Majesty’s Revenue and Customs C-350/06 and C5 20/06, Kepak Convenience Foods Ltd. v Grainne O’Hara (DWT 1820), Hotel Employee V Accommodation & Food Service Provider ADJ-00016289, A Kitchen Porter V A Restaurant Owner ADJ-00027260.

The Respondent submits that the Complainant received all her entitlements.

The Respondent exhibited an email from its accountant clarifying that the payroll software (Thesaurus Payroll) automatically calculates the Complainant’s entitlement against the hours worked at 8% of hours worked. The accountant states that the only confusion on holiday pay occurred as a result of her repaying holiday pay back to the business bank account after getting paid in 2019. This then in turn got paid after original P45 issued in March 2020 and then additional payslip was issued in April 2020 to pay this again. All holiday per calculations were paid in full.

Holidays accrued during maternity leave were paid at €745.92 (53.28 hours) based on 20 days holidays, up to the closure while the Complainant was on maternity leave. The Complainant was paid for four months holidays.

At the adjudication hearing, it was submitted on behalf of the Respondent that it was recognised that professional help was required in the payroll area and an accountant was hired. The Respondent is satisfied, based on professional advice of the accountant that all entitlement were paid to the Complainant.

The Respondent provided the accountant’s calculations as follows:

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 19th March 2020 and therefore the cognisable period that may be investigated is from 20th September 2019 to 19th March 2020. I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2019 to 19th March 2020.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)     4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)     one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)      8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer's disposal, and

(b) carrying on or performing the activities or duties of his or her work.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

The Complainant asserts that she was not paid her annual leave entitlements. The Complainant presented an excel spreadsheet with her calculations of the annual leave accrued, paid and outstanding for the period from 16th October 2018 to 22nd December 2020. The Complainant did not offer any supporting records with respect to the figures presented. The Complainant further asserted that she accrued her annual leave entitlement during her 26 weeks of maternity leave from 16th December 2019 to 15th June 2020 i.e., 780 hours at 8% totalling 62.4 hours.

The Respondent asserted that its accountant clarified that the Complainant’s annual leave was calculated at 8% of hours worked. The Respondent presented its accountant’s calculations of annual leave accrued and paid to the Complainant.

I note that the calculations include entitlements and payment outside the cognisable period. However, as no details were submitted by either party with reference to the specific cognisable periods as per the complaints referred by the Complainant, I will review them for clarity.

The Complainant asserted that in the period from 16th October 2018 to 22nd December 2020 she worked 1538.76 hours. On the basis of the hours worked she asserted that she would have been entitled to 123.10 hours in respect of annual leave (at 8%). She claimed that she was paid for 91.1 hours. I note that the records provided show that the Complainant received the following payment in respect of annual leave:

38.25 hours on 23rd August 2019 (the Complainant refunded it to the Respondent’s bank account) 32 hours on 4th April 2019 52.85 hours paid on 20th March 2020 38.25 hours repayment of refunded annual leave pay paid on 3rd April 2020.

From the figures presented, it appears that the Complainant was paid her full entitlement of 123.10 hours in respect of annual leave accrued. For the avoidance of doubt, the matter of annual leave accrued while on sick leave was addressed in ADJ-00024904.

I note that a payment of €745.92 was made to the Complainant on 20th March 2020 as “maternity leave hols”. I accept the Respondent’s accountant’s clarification that this was based on the pro rata calculations of 20 days per year. (6.67 days of annual leave for 4 months). As the Complainant was paid for her entitlement accrued on the basis of hours worked up until the start of maternity leave on 16th December 2019, it appears that the “maternity leave hols” payment covered any annual leave entitlement accrued up to mid-April 2020. 

I declare this complaint to be not well founded.

The Complainant submits that she did not receive Sunday premium throughout her employment. In August 2019, the Respondent made a small payment which it stated was the “Sunday premium”, no notification or explanation was given how was it calculated. The Complainant submits that she was scheduled to work on a Sunday in October 2019 which she did not receive any amended payment for.

The Complainant submits that there was never an agreement made on the remuneration for working on a Sunday between the parties. The Respondent furnished the Complainant with a contract in July and August 2019 that stated that the Complainant would be paid €0.50 for each hour worked on a Sunday. The Complainant argued that she was entitled to a payment of time and one third for Sundays.

The Complainant cited Trinity Leisure Holdings Limited v Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654 in support of her claim.

The Respondent submits that an additional pay of €0.50 per hour for work on a Sunday was introduced in week 32 of 2019. Any backpay was calculated and paid in week 36 of 2019. The Respondent exhibited copies of relevant payslips.

The Respondent asserted that a Sunday premium payment must be reasonable and matters such as the size, location, profitability of the business needs to be taken into account.

Section 14. Sunday work: supplemental provisions of the Act stipulates as follows;-

(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 instant complaint was referred to the Workplace Relations Commission on 19th March 2020. Therefore, the cognisable period for the instant complaint in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 is the six-month period prior to the referral of the claim i.e. from 20th September 2019 to 19th March 2020. The Complainant did not identify the number of Sundays worked in the cognisable period. However, it appears that the Complainant was on annual leave from 17th to 25th September 2019, she was on sick leave from 26th September to 3rd October 2019. The Complainant was suspended with pay from 16th October 2020.

In Park House Hotel Ltd v Wlodarczyk DWT 24/2016, the Labour Court said that what was intended by this section was that an employee who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive if they were not so obliged.

In Viking Security Ltd v Valent DWT 89/2014, the Labour Court held that it could only be satisfied that an employee had obtained his or her entitlements under this section “where the element of compensation for the obligation to work on Sunday is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion”.

I note the Complainant’s reliance on Trinity Leisure Holdings Ltd trading as Trinity City Hotel v Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654. In this case, the Hight Court determined that as the employees’ contracts expressly stated that the hourly rate of pay “includes your Sunday Premium”, those contracts made it clear that the requirement to work on Sundays was included in their rate of pay i.e. “taken into account in the rate pf pay of the employee”. In executing the contracts, the employees accepted that to be the case. Binchy J. held that, if an employee wanted to assert that his or her rate of pay did not do so, then he or she “must advance some credible evidence to rebut the express provision of the employment contract”.

The facts of the within case can be clearly distinguished from those that applied in Trinity Leisure Holdings Ltd case. The Complainant’s contract states unambiguously that “Sunday pay is €14.50 gross per hour”.

I note that the Labour Court in the determination DWT192 Urbanity Ltd T/A Urbanity Coffee v Zuzana Milcochova held that;-

“The Complainant was regularly required to work on Sundays. This was agreed by the Parties at the outset of the Complainant’s employment and is provided for in her written contract of employment. The Court accepts the Respondent’s submission that the Complainant’s hourly rate of pay at all times exceeded the prevailing national minimum wage rate and that fact – having regard to the express provisions of the Complainant’s written contract quoted above – has to be taken to mean that the Complainant’s hourly rate of pay included an element of compensation for the requirement that she work on Sundays.”

I find that the Complainant’s hourly rate of pay exceeded the prevailing national minimum wage rate and her written contract, as quoted above provided for work on Sunday and a higher hourly rate of pay for work performed on a Sunday. Therefore, the Complainant’s hourly rate of pay of €14.50 included an element of compensation for the requirement that she work on Sundays.

I declare this complaint to be not well founded.

The Complainant submits that she did not receive a statement in writing of her terms of employment.

The Complainant submits that no contract was issued until 30th July 2019 and changes were made to that contract without agreement.

The Complainant exhibited copies of contracts issued in July and August of 2019. She contended that the second contract had changes to minimum notice required, this was during the time the Respondent’s Directors were trying to terminate the Complainant’s employment whilst pregnant. Payslips corroborate that the Complainant had a reduction in her hours after informing the Directors of her pregnancy.

The Complainant cited the following in support of her claim:

ADJ-0023445 A Receptionist v a Hostel, Meghan Hayes Kelly v Beechfield Private Homecare DWT1919, Bar Manager v a Public House ADJ-0026363.

The Respondent submits as follows.

The Complainant was provided with a comprehensive Contract of Employment dated 30th July 2019. A revised version of this contract was issued on 18th August 2019, following communication from the Complainant which identified the Complainant’s commencement date as 1st October 2018, instead of 8th October 2018, as set out in the original contract.

All other details remained the same with the exception of the length of the notice period required from the Complainant in the event that she wished to terminate her employment. This was reduced from 2 weeks to 1 week in the revised contract. (Copies of both contracts were exhibited at the adjudication hearing).

The Respondent notes that similar contracts were issued to all staff at the time. With the exception of the Complainant, all staff accepted and signed their contracts, and returned copies to management.

Section 3 of the Act stipulates as follows.

Written statement of terms of employment

(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) […]

(b) […]

(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) […]

[(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]

[(g) […]],

(ga) that the employee may, under section 23 of the National Minimum Wage Act 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section,]

(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.

The within complaint was referred to the Director General of the WRC on 19th March 2020. Therefore, the cognisable period for the instant complaint in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 is the six-month period prior to the referral of the claim i.e. from 20th September 2019 to 19th March 2020.  

There was no dispute that a contract of employment was issued to the Complainant on 30th July 2019. There was also no dispute that the Complainant did not agree with some of the provisions of the Contract, and an amended version was issued to her on 18th August 2019. I have received copies of both documents. While the Complainant did not sign the document, I note that it was signed and dated by the Respondent.

I declare this complaint to be not well founded.

The Complainant submits that she was not notified in writing of a change to her terms of employment.

The Complainant submits that the Complainant’s start date was recorded inaccurately in the contract dated 30th July 3029.  She also submits that the contract also stated that she was on probation which was untrue as she had been promoted in March 2019. The second version of the contract, dated 18th August 2019, had the start date and job title amended. Annual leave payment and minimum notice required was changed from two weeks to one. Probation was still outlined even though she was not on probation as she was promoted in March 2019.

There were also changes, in the second contract, to the hours of work. The payslip dated 16th October 2018 shows that she worked 34.625 hours per week, 14th April 2019 – 34 hours a week, 28th April 2019 – 40.625 hours per week and 26th May 2019 – 42.875 hours per week. These payslips corroborate with the fact that the Complainant’s hours of work were reduced.

The Complainant said that the alleged change was introduced around 12th August 2019 when she returned from her sick leave and then again on 24th September 2019. The Complainant referred to an email sent by Ms. N to the staff outlining proposed closures on Mondays and Tuesdays and reduced hours.

The Complainant cited the following in support of her claim:

ADJ-0023445 A Receptionist v a Hostel, Meghan Hayes Kelly v Beechfield Private Homecare DWT1919, Bar Manager v a Public House ADJ-0026363

The Respondent submits as follows.

The Complainant was provided with a comprehensive Contract of Employment dated 30th July 2019. A revised version of this contract was issued on 18th August 2019, following communication from the Complainant which identified the Complainant’s commencement date as 1st October 2018, instead of 8th October 2018, as set out in the original contract.

All other details remained the same with the exception of the length of the notice period required from the Complainant in the event that she wished to terminate her employment. This was reduced from 2 weeks to 1 week in the revised contract. (Copies of both contracts were exhibited at the adjudication hearing).

The Respondent notes that similar contracts were issued to all staff at the time. With the exception of the Complainant, all staff accepted and signed their contracts, and returned copies to management.

The Respondent submitted that the email the Complainant referred to was sent to all employees and the changes were proposed in response to the downturn in the business due to the winter months in rural Ireland.

Section 5 Notification of changes of the Act stipulates as follows.

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute other than a registered employment agreement or employment regulation order or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

The within complaint was referred to the Workplace Relations Commission on 19th March 2020. Therefore, the cognisable period for the instant complaint in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 is the six-month period prior to the referral of the claim i.e. from 20th September 2019 to 19th March 2020.

The Complainant asserted that the alleged change was introduced on 24th September 2019 that her hours of work were reduced to 30 hours per week despite the fact that her payslips from October 2018, April 2019 and May 2019 show that she would have worked more than 30 hours per week.

Section 5 of the Act deals with changes in the particulars of the terms of employment and provides that such changes must be notified to the employee in writing within one month after the changes take effect. There was no dispute that the Complainant was furnished with a contract outlining her weekly hours of work as 30 in July and August 2019. Whether the Complainant did or did not agree and approve the details contained in the contract she was furnished with is a separate matter. There was no dispute that any change resulting from said contract was notified to her in writing on 30th July and subsequently on 18th August 2019.

I declare this complaint to be not well founded.

The Complainant claims that the Respondent discriminated against her in conditions of employment on the grounds of her gender. She also claims that the Respondent treated her unlawfully in victimising and harassing her. She submits that the most recent date of discrimination is 24th October 2019.

The Complainant made a detailed submission in relation to the three claims she had referred to the WRC under the Employment Equality Acts.

·        23rd September 2019 – the Complainant was informed that the Respondent had hired a mediator to address issues. The Complainant received a handbook that mentioned a different name as her employer. The Complainant wrote to Ms. N and asked again for the Respondent’s employee handbook.

·        24th September 2019 - the Complainant received the Respondent’s Employee Handbook.

The Complainant was made aware of a complaint that was made regarding an issue from November 2018 that was addressed and dealt with in November of 2018. The Complainant received an email in regard to reducing her hours.

·        8th October 2019 – the Complainant responded stating that a contract was issued to her with a reduction of hours in early August of 2019 and as it was the end of the summer, she had assumed that the reduction took into consideration the approaching winter hours. The previous autumn/winter the Complainant worked more than 30 hours.

·        26th September 2019 – the Complainant raised a grievance in regard to Mr S bullying her. The Complainant was requested to provide a medical certificate stating she could attend mediation the next day. She was told by her GP that providing such certificate needed more than 24 hours’ notice and in future if her employer could request them when making the arrangement not the day before or day of. The Respondent then later tried to terminate the Complainant’s employment with documents they acquired from the Social Welfare Department.

·        27th September 2019 - The Complainant received a text from a Mediator confirming his involvement.  The Complainant provided the GP letter on 30th September when it was available to her.

·        1st October 2019 – the Complainant met with the Mediator.

·        3rd October 2019 – the Complainant was cleared to return to work by her GP.

·        4th October 2019 – Ms. N emailed the Complainant saying that due to the Mediator’s suggestion the Complainant was not return to work until the mediation is completed and that they would pay her salary for that weekend. The following week the Complainant was not scheduled on the roster.

·        8th October 2019 – the Complainant was informed that she was banned from the [named] Kitchen where Respondent Café did prep, she was given a complaint in regard to something from November 2018.

·        14th October 2019 – the Complainant emailed fitness to attend the meeting from her GP as requested again by Ms. N.

·        16th October 2019 – the Complainant was made aware that the meeting with Ms. N, Mr S and herself with the Mediator was not going ahead and that the Mediator would no longer be involved with mediation. The Complainant was to collect her casual papers that morning during the meeting that were due that day. The Complainant saw Ms. N in the Café and went in to ask for the documents. She was told to go to [named] Kitchen by the manager. Ms. N stated she did not have the documents on her and that the Complainant had to leave. The Complainant suggested that she would  go to the Social Welfare Office to get new ones and Ms. N said she would not sign a new sheet. Ms. N stated that the Complainant could not be there and that she needed to leave now. The Complainant asked once more as the documents needed to be in that day and were the Complainant’s property. Ms. N refused again and said the Complainant needed to leave. The Complainant followed up with an email documenting the conversation. Ms. N followed with an email stating she never refused. Ms. N still held the Complainant’s papers and would not return them.

·        16th October 2019 – the Complainant was made aware by Ms. N that there was a Department of Social Protection investigation into her claim with the social welfare. To date the Complainant has not received any requests to pay back monies nor has she been told she was in receipt of any overpayment from the Department of Social Welfare. After receiving the letter from Ms. N the Complainant personally made an inquiry as she was astonished to hear of an investigation to her claim as she had been honest in all her interactions with the Department.

The Complainant was suspended pending investigation for gross misconduct regarding Ms. N’s signature on Social Welfare documents that the Respondent acquired from the Social Welfare office.

·        17th October 2019 – the Complainant requested the Respondent to sign her maternity papers.

·        18th October 2019 – the Complainant was made aware that another investigator would be looking into her grievance made against Mr S. As the first investigator was terminated amidst the investigation the Complainant was wary that the Directors may terminate this investigator as well. The Complainant requested that the WRC investigate the grievance and as per the handbook she received on 24th September 2019 that stated both parties must agree to the third-party investigator the Complainant did not think the investigation would continue.  Ms. N stated in an email that as the Complainant was 7 months pregnant, she has instructed the investigator investigating the gross misconduct to leave the actual investigation until she returned to work from her maternity leave. The Complainant was given a payslip that was deducted 1 hour saying that the hour would have been a 30-minute lunch break on either day and as such it was deducted from her pay as she would not have been working. The Complainant had asked on numerous occasions how she was to take her breaks without anyone to cover her position this deduction was unnecessary as she did not receive breaks. The Complainant was rostered only for the hours the Café was open, when she actually was in 2 hours prior and for 1 hour after to clean up.

·        21st October 2019 – The Complainant submitted an Equal Status Acts, 2000-2015 notification. The Complainant received an email from Ms. N stating she was awaiting response from the Department of Social Welfare in regard to the Complainant’s papers. The Complainant received an email from the investigator into the gross misconduct stating he is available on 25th October 2019 and is acting on Mr S’s behalf. The Complainant responded by email on the 24th October 2019 stating that Ms. N had stated the investigation would not commence until after her maternity leave and as such would not be available on 25th October.

·        23rd October 2019 – the Complainant received her casual unemployment docket, which stated to refer to letter attached to week of 16-22nd of October. The letter was written by the Directors. On numerous occasions the Directors interfered with the Complainant’s relationship with the Department of Social Welfare and wrote letters without her knowledge or consent. The Complainant has since been made aware of several phone calls by them to the Department where they have tried to interfere and made false statements about her.

The Complainant was told her maternity and social welfare papers were available to be collected and that it is not appropriate for her to attend in person to collect them. As the Complainant’s family live in Dublin and as the Directors had tainted her reputation in the town she did not have anyone who could pick up her papers for her. The Complainant’s partner refused to step foot in the Café after the meeting in August and wanted nothing to do with the lies Mr S was spreading. The Complainant also had a medical appointment in regard to her pregnancy on that day and Ms. N requested she hand over medical forms in return for her papers. The Complainant emailed back stating that Ms. N knew that she had an appointment and that it was unrealistic to trade her papers for items Ms. N was demanding. The Complainant received her maternity papers and social welfare papers through her letter box on 24th October.

·        24th October 2019 – Mr S wrote a letter which addresses the maternity benefit claim the Complainant had made, the letter has the Complainant’s personal details on it, Mr S’s contact information and information regarding investigations that were not completed. This states that Mr S ‘’feels uncomfortable submitting forms given what she has done so far with our business, so I would strongly advise you to check with Sinead once you receive her filled in versions and check to see how her numbers add up.’’ The Complainant emailed the second investigator in regard to her grievance stating that she would be seeking the WRC to investigate. The Directors sent in the Complainant’s payroll information to the Maternity Department alongside the above-mentioned letter.

·        30th October 2019 – the Complainant emailed Ms. N regarding a doctored social welfare form that she received from her.

·        11th November 2019 – the Complainant received a report from Ms. N made by the investigator into the grievance she raised against Mr S that was reported on the 24th October the day she had responded to him saying she would be seeking assistance from the WRC in regard to her grievance. If an unbiased investigation occurred, the investigator wouldn’t have been able to base findings on the same day as the request for participation. The Complainant appealed the findings, and no further investigation took place.

·        12th November 2019 – Ms. N said ‘’it is reasonable to expect that you continue to get someone on your behalf to drop off/collect your social welfare forms, as you have been doing. As you rightly point out, it’s only 10 metres from the restaurant to your house, therefore I would suggest that your partner can easily assist you with this. I am at a loss to understand why you would seek to have the Gardai accompany you to [the Café] in the circumstances’’. The Complainant replied that on one occasion she accommodated Ms. N’s request to have someone else pick up her papers as she was on holiday and the Complainant had a friend visiting so it was doable. The Complainant said that as she is continuously refusing to drop off her papers that she would be seeking the guards or another legal representative to come with her to pick them up from the café. The Complainant’s partner called her mother as he was concerned about her wellbeing. The Complainant’s mother drove down and said she would collect her papers from the Respondent the following day. The Complainant made an appointment with the doctor regarding her mental health.

·        13th November 2019 – the Complainant’s mother went into the café to retrieve the documents, some papers were missing and he Complainant asked her mother to go back in. Mr S arrived at the Café and went up to the Complainant’s mother who she has never met and said to tell the Complainant to check her emails. The Complainant’s mother came out to tell her this, while checking Mr S left the Café, walked past them and crossed the road to the other premise, which is also a café. In the email it stated that they would be leaving the Complainant’s documents in this café. The Complainant then walked over, and the owner pointed to the top of the fridge where an envelope was. At no point did Mr S tell her mother he had her papers on him or that he was bringing them across the street. The whole situation was hostile, and Mr S treated the Complainant’s mother and her in such an inhumane manner the Complainant was left in tears.

·        13th November 2019 – the Complainant was referred to a specialist in Mental Health who she saw on the 14th November. The Complainant was prescribed antidepressants and continued therapy. The Complainant has never been on anti-depressants before in her life and the dealings with the Respondent’s Directors directly affected her mental health during her pregnancy.

·        19th November 2019 - Ms. N stated via email that she was denying having sent in a letter to the Maternity Department regarding the Complainant’s maternity benefit claim. She stated that it is not appropriate for the Complainant’s mother to attend the Café in the future.

·        25th November 2019 - Ms. N emailed stating she had already set out her position on the matter.

·        6th December 2019 – the Complainant appealed the Grievance decision and asked for a third-party investigator to investigate the grievance.

·        13th December 2019 – the Complainant received an email from Ms. N regarding her data access request stating that they have requested an extension.

·        29th January 2020 – the Complainant requested a letter stating she was not being paid additional maternity leave from the Respondent.

·        6th February 2020- the Complainant received an email from Ms. N with a letter stating she sent a copy to the Social Welfare Department. The Complainant never asked her to do that, and the letter was not for the social welfare department.

·        13th March 2020 – the Complainant received an email stating that the Respondent would be closing due to the Coronavirus.

·        12th May 2020 – the Complainant emailed her intention to return to work post maternity leave.

·        13th May 2020 - the Respondent publicly announced their closure via Instagram.

·        18th May 202 – the Complainant received an email in regard to the discrepancies in her pay regarding holidays and public holidays. The Complainant believes that she is still owed public holidays and some annual leave.

The Complainant furnished several written submissions, which can be summarized as follows.

The Complainant informed Ms. N of the Respondent that she was pregnant on 26th June 2019. During the following weeks Ms. N seemed to be supportive via messages. In work, however, constant changes were occurring to the restaurant layout, items that were easily accessible were now only attainable via ladder or going to the other premises i.e. pots, dry ingredients. The Complainant thought nothing of it at the time, but the physical elements of work were becoming obviously more strenuous. The Complainant was told to ask for help. As during the first hour of work the Complainant was alone and cooking, there was no option to ask anyone to help.

On 3rd July 2019, Ms. N asked the Complainant not to bake anything not in the Complainant’s colleague’s recipe file. As an obvious move was to baking shifts being pregnant and prior the Complainant would have baked any of her recipes, she found it unsupportive and having a negative impact on her work.

The Complainant submits that she was the Kitchen Manager, but Ms. N changed the menu structure on two different occasions in two weeks. There was no communication with the Complainant and the Complainant asked for support as she would have to address other staff members. The Complainant found it stressful, and it was affecting her work as she could not explain it to the team.

On 7th June 2019, an accident occurred at work where a front of house member came into the washup area, and it resulted in a pot of hot water being splashed over the Complainant as she did not want to injure the staff member. When it was brought to the Respondent’s attention, the Complainant was told that Ms. N would need to discuss possible health and safety risks. This never occurred and no systems were put in place. As the days went on, the Complainant received texts asking if she had changed the roster. The Complainant had not but now it seems these texts were to create situations that made it seem like the Complainant had not done her job properly. The Complainant continued to do her job as efficiently as she could.

On 24th July 2019, Ms. N questioned the Complainant on not scheduling a baking training for a staff member. Prior to this the Head Baker had arranged training with the new baker. The Complainant was never told it had been her responsibility and the following day a new menu was implemented on her service shift without prior training or instruction. The Complainant believes that all these events have been means to terminate her employment. On 30th July 2019, a contract was given to the Complainant saying that she was on probation. The Complainant was never told she was still on probation. As she handed a sick cert that day, she found the timing odd.

Due to the several texts and incidents at work, lack of communication and lack of support from Ms. N in doing her role, i.e. menu changes, new rostering obligations, the Complainant felt extremely distressed and concerned about the emotional impact on her pregnancy, the doctor recommended leave due to stress.

On return to work, the Complainant was accused of bullying with no formal written complaint. It added to her stress as she had no idea what she had done or said that warranted bullying. Ms. N told the Complainant that she had not given a waitress a slice of bread for the customer. The Complainant had no recollection of this event and could not understand how this was bullying.

The Complainant submits that Ms. N’s partner asked the Complainant’s partner if she was making any legal claims.

The Complainant submits that she did not sign her contract as there were several things she did not agree with and she thought they were illegal such as that holidays could not be accrued to the following year running 4th August to 3rd August.

The Complainant returned to work for two weeks. During this time and after her holiday query, the Complainant was asked if she wanted holiday pay whilst on sick leave. The Complainant emailed stating that she did not. The Respondent paid the Complainant her holidays when she was on sick leave. The Complainant brough it to the Respondent’s attention and Ms. N became defensive. The Complainant offered to refund the money paid to her and asked for the payslip to be rectified.

The Complainant submits that Mr S had approached the Department of Social Protection on her behalf without her consent seeking information on the Complainant’s relationship with them. The Complainant said that she had no problem answering any questions but would do so after her payslip was rectified. The Complainant felt that the Respondent was trying another route to terminate her employment.

The Complainant was out sick for three weeks due to work-related stress. During this time Ms. N hired a mediator. The Complainant submits that she raised a grievance in relation to Mr S bullying her and no response had been sent yet. Mediation I regard to the Complainant’s grievances has not been resolved. Mediation was also to deal with complaints raised by three employees against the Complainant. None of these complaints were given to the Complainant until 1st October 2019. The contents of some dates back to May 2019.

The Complainant was rostered to work on 4th and 5th October 2019 but was told she would be paid but was asked not to come in. The following week the Complainant was not rostered to work. She emailed the Respondent to enquire but received no response. The Complainant noticed that it was then changed to annual leave without her consent and the Respondent hired someone else for her hours.

The Complainant believes that all these actions have occurred since and due to her news. At no point prior to her pregnancy news there were any issues. The Complainant finds that Ms. N has taken great lengths to create a negative work environment for her since and has tried to create grounds for termination.

The Complainant submits that at no point prior to her pregnancy news was she informed that she was on probation. She was promoted in February/March 2019 from Cook to Kitchen Manager, at this point she was given a raise and more responsibilities.

The Complainant submits that since her sick leave ended, she was not scheduled for work and was given no reason why. She normally worked 4 plus days of nine or more hours. The contract she was asked to sign states 30 hours, which is a reduction. The Complainant does not believe that this was due to winter hours in rural Ireland as last winter she worked 3 days a week.

The Complainant thinks that she was discriminated against because of her circumstances. This is evident as the Complainant as not given any hours but someone else was hired. Also, on 19th August 2019, Mr S asked the Complainant not to work elsewhere and not use her phone in the workplace. Previously, the Complainant did orders from her phone. No other employee was asked that.

The Complainant believes that the Respondent have tried to find grounds for termination and create a negative work environment for her. The only difference between the Complainant and other employees was that she was pregnant. Previously Ms. N praised the Complainant for her work and dedication to the business.

The Complainant believes that she was discriminated against, and that Ms. N and Mr S had no intention of employing her throughout her pregnancy/until her maternity leave for the following reasons:

·        No work risk assessment was done in relation to her pregnancy.

·        She was asked by Mr S not to work in other places or do other projects on return from her sick leave in relation to her pregnancy on 19th August 2019.

·        On return to work on 19th August to 3rd September 2019, Ms. N and Mr S did not speak to the Complainant after the meeting on 19th August. Any messages or directions about changes to the work structure were relayed through other employees.

·        On one occasion Ms. N was working that day and did not speak nor greet the Complainant. After signing out and returning home the Complainant received texts from Ms. N asking if she had collected bread (a new task that had not been a part of her working day tasks). The Complainant notes that Ms. N did not relay this to her whilst at work but waited until she had finished to enquire about something the Complainant had no idea about. Another task with unreasonable time constraints and lack of communication. The Complainant found working there during this time on return from her sick leave completely unsupportive and isolating.

·        The Complainant was requested not to bake any of her recipes anymore and only the recipes of her co-worker. Before the Complainant was able to bake any recipes and no other employee was asked this.

·        Constant changes to the menu without prior instruction or training. Prior the Complainant was able to create menus. Ms. N said that she was streamlining the menu and doing it ahead. Whilst on sick leave the Complainant noted that other employees were allowed to do the menus. 

·        New job duties such as scheduling baking training.

·        The Respondent tried to get the Complainant to sign a contract stating that she was on probation even though she was promoted in March/April 2019.

·        Ms. N sent the Complainant an email stating she was banned from prep kitchen premises by the owner of the space; on receipt of the complaint the Complainant noted that two of the events had been resolved. The newest complaint stated she had been in the shop before hours. This is untrue and the Complainant has evidence of the contrary. The Complainant believes that Ms. N manipulated the owner to have the Complainant not be able to work in that space.

·        Ms. N would send instructions of menu items by text whilst the Complainant was at work; this was after her and Mr S requested that the Complainant not have her phone on her in the workplace. No other employee was asked this, and it made it impossible for the Complainant to know her instructions.

·        No counselling or advice was given as per the employee handbook in relation to the complaints.

·        A verbal warning was given without any complaint noted or improvements to be made.

·        The Complainant was not afforded the opportunity to respond or defend herself, the mediator was essentially fired the day they were to meet for response/resolution.

·        The Complainant’s grievance in regard to bullying by Mr S was never responded to. The Respondent had fired the first mediator the day he was to address all issues. The following week they hired another investigator to start the whole process again.

·        The complaints the Complainant received were all pre-dating her pregnancy news and were never brought to her attention before.

·        The Complainant worked with Ms E since October and suggested her for the job the Respondent Café.  Outside of the Café, Ms E has worked for her for her own business. The Complainant received a complaint that was written by Ms E and which the Complainant believes to have been manipulated by the Directors.

·        Probationary period – the Complainant was never told she was on one and according to their policy probationary evaluations are to occur. These never occurred and the Complainant believes that Ms. N tried to invoke this to terminate her employment.

·        On one occasion the Complainant noted an accident that occurred to her to Ms. N. She said she would address the incident and never did, instead she told the other employee who was involved that the Complainant complained about her. The Complainant submits that she had reported an accident and asked for a system to be put in place to avoid such occurrences in the future, not complained about the individual.

·        Since receipt of the WRC complaint the Complainant has contacted the Respondent on several occasions via email regarding her social welfare documents at this time (9th November 2019). Ms. N has not responded once. She had previously agreed to write a letter for the social welfare stating the hours she is paying the Complainant for until her maternity leave. The letter never arrived and the Complainant can only assume it is victimisation for putting in a complaint the WRC.

·        The parties live in a small town and at no point in passing Ms. N or any of the employees have greeted her. The Complainant is not sure what Ms. N has told them but she assumes it is negative as before she would be friendly with several of the employees. It has not only affected the Complainant’s work but her personal life.

·        Ms. N reduced the Complainant’s working hours shortly after the Complainant told her she was pregnant. Last autumn the Complainant worked more hours and the only difference being now that she was pregnant.

·        This is normal behaviour for Ms. N; when she has a problem or poor communication with an employee, she immediately turns to dismissal routes. Her communication immediately becomes defensive and non-existent to the point of bullying/bitching about other employees to their co-workers. Not only that but she has not once exercised the company’s policies in regard to the disciplinary procedures and/or performance appraisals. The Complainant finds that this has caused her severe emotional distress after informing Ms. N of her news. The only reason she has to be conducting this behaviour is the fact that the Complainant’s was pregnant as prior she constantly was appraising the Complainant positively.

·        The Complainant thinks that Ms. N has also been bullying her. There are several examples of victimisation, isolation/exclusion, repeated requests giving impossible deadlines/tasks, intimidation (social welfare documents, demanding keys), undermining the Complainant’s right to dignity at work (by not ever speaking to her but passing instruction through other employees whilst both on site).

·        She was asked not to use her phone in the workplace (other employees were not requested to do this nor is it in the employee handbook).

·        Shortly after she told Ms. N about her pregnancy she was informed of ‘complaints’ that were pre-dating her news made to her; some of the complaints were from November 2018.

·        None of these complaints were addressed prior to the Complainant’s news on a disciplinary level and the Complainant believes that the Respondent has tried to use them to terminate her employment.

·        The Complainant was accused of having a bad attitude which was never addressed with her prior to her pregnancy news.

·        On 25th July 2019 the Complainant texted Ms. N as she had been crying in work due to her words/actions which were of bullying nature asking for support/constructive criticism and/or positive criticism. She was later on 19th August 2019 accused of bullying a waitress on 25th July 2019 for not giving her a requested piece of bread. The Complainant did not recall this situation and she was under the impression the meeting on 19th August 2019 was a return-to-work meeting not a disciplinary one after her pregnancy related sick leave. The Complainant was not aware the Directors were taking minutes at the time

·        The Complainant never received performance appraisal meetings but did receive texts from Ms. N on 2nd May 2019 stating ‘’your amazing at your job. Your making me pull my socks up!’’ and on 16th June 2019 ‘’BTW I wanted to tell you I am totally happy for you to prep in the kitchen to say thank you for all the extra work your doing to help the business xxxx I am very grateful x’’. There were more informal chats about Ms. N’s appreciation for the Complainant’s work and saying how great she was at her job. At one point Ms. N asked the Complainant to take over the front of house rosters which was not the Complainant’s department, and she did so. At that time Ms. N was still communicating with the front of house manager in regard to the rosters and she thought it inappropriate to continue doing them in fear of undermining the Complainant’s co-workers’ job and morale.

·        Ms. N has used situations that have occurred in the workplace and turned them into negative complaints when there is evidence of the contrary since the Complainant’s news.

·        Prior to the pregnancy news Ms. N had texted the Complainant several times in relation to the Front of House Manager and the difficulties she was having. Post the pregnancy news and the Complainant’s concerns with the Front of House Manager in relation to communication and teamwork Ms. N turned the situation around to make it look like the Complainant was the issue. This was not what had been spoken about prior to her news and the Complainant finds that Ms. N changed her opinion due to the Complainant’s pregnancy and trying to terminate her employment.

·        The Complainant was replaced while on sick leave by a man. This employee is still working for the Respondent.

·        Ms. N re-arranged the cafes equipment so most of it was only reachable via ladder; perhaps to suspend the Complainant via health and safety but an assessment was never done.

·        Ms. N changed the password on the google drive where before the Complainant did the rosters and orders from.

·        Ms. N changed the Complainant’s job role and eliminated those tasks without reason.

·        On 2nd September 2019 a request was made at 14.12 an employee on Ms. N’s behalf to put an order in. The Complainant was working in service and would not be finished until 4.30pm the order cut off time was 5pm. The task was completely unreasonable as Ms. N had blocked the Complainant from the google drive and she could not access the product numbers to place the order. The Complainant had to ask which added to the time constraint that already existed on top of that several new items that were added to the list. The product codes are only available by their book which is a maze to navigate, and the Complainant found it extremely difficult within the time constraint. The Complainant believes it was an attempt to create another possible termination situation. This behaviour from Ms. N was common with unreasonable tasks and targets to meet. The Complainant found it very stressful working with her and on many occasions asked to meet for tea and a chat to resolve all the communication problems that were causing her severe stress. Never did Ms. N and the Complainant meet, it was constantly met with refusal on Ms. N’s part.

·        On 18th October 2019 Ms. N left the kitchen WhatsApp group after she suspended her. The Complainant believes that whilst suspended no negative treatment should occur to an individual. Ms. N also removed the Complainant from the other WhatsApp group and took her off the email list prior to this date.

The Complainant submits that the quality of her work was not in question, yet in their investigator’s findings that she received on 11th November 2019 it clearly states that Mr S and Ms. N had a meeting with the Complainant on 19th August 2019. Mr S stated that they both expressed concern regarding the amount of work the Complainant was undertaking outside of the Respondent Café. They stated their concerns were that the Complainant was visibly tired and not performing her duties at the Respondent Café to the best of her abilities. The Complainant stated during this meeting that she would not be doing any further outside work. The Complainant relied on an email excerpt from August 2019 whereby she asked: “What are the improvements that you require to be made, as I have been working very hard since I started working for you to do my best, be reliable, and be a good manager for your restaurant?”

The response was: “The quality of your work is not what is in question here.”

The Complainant submits that it is evident from the above that the Directors had said the quality of her work was not in question and being pregnant one of the conditions can be tiredness. Prior to 26th June 2019 the Complainant had no performance appraisals regarding her behaviour or her work. She was promoted in March 2019 and held a management position. It was prior to the Complainant informing the Respondent of her pregnancy (whilst she was pregnant) that she was doing outside catering jobs with her own business, yet no remarks were made before. Post the pregnancy news the Respondent clearly remarked that the Complainant has been noticeably tired, asked her not to work elsewhere, not to use her phone in the kitchen area and undergone many acts to try and terminate her employment.

Moreover, the Respondent furnished a contract that said the Complainant was on probation, yet she has not had a probationary appraisal which it states in the handbook received on 24th September 2019 the Respondent does for employees on probation. The contract was not given within two months of starting work there, nor was it ever mentioned the Complainant was on probation until she was given the contract shortly after she had told Ms. N about her news.

The Respondent also has given the Complainant a verbal warning in regard to bullying with no complaint stating that she did not give someone a slice of bread on 19th August 2019. The Respondent furnished complaints from staff members in regard to incidents that were resolved and occurred prior to the Complainant’s news. These complaints were given to the Complainant in late September when the alleged incidents occurred from November 2018 onwards.

Not once did the Respondent give the Complainant improvements to be made in regard to any of these ‘issues’ prior to her pregnancy news nor did it make her aware at the time of the supposed concerns. Nor did it comment on her behaviour, ‘tiredness’ or raise any ‘issues’ when the Complainant was pregnant, and the Respondent did not know.

It may also be noted that the investigator only investigated the Respondent’s witnesses.  In the Report Mr S states that he and Ms. N have never discouraged the Complainant in working outside of the Café. Yet after the Complainant told them about her pregnancy, they clearly stated in a meeting that she should not take on outside work and reduced her hours. The Respondent reduced the Complainant’s hours without agreement shortly after she told them she was pregnant.

The Complainant furnished rosters allegedly showing that whilst she was on sick leave she was replaced by a male and not given hours after.

As of 18th October 2019, the Respondent suspended the Complainant for alleged gross misconduct pending investigation in regard to documents from March 2019 in relation to her social welfare relationship. Also, in August 2019 Mr S was allegedly pestering the Complainant for all of her social welfare documents stating that he needed them for her back dated pay, which the Complainant believes to be untrue as any pay owed would be accrued through her hours worked and not anything to do with her relationship with the social welfare. The Complainant believes that Mr S used this to intimidate her. She brought it up in her bullying grievance and she thinks it’s relevant as they were trying to terminate her employment again pending investigation on a social welfare document that they poached from the social welfare office. The Complainant submits that she has not been in any quarrels with social welfare about her claims and they have not contacted her saying that any of her forms were inaccurate. The Complainant believes that the Respondent was trying to create tensions between her and social welfare and trying to seek means to terminate her employment.

The Complainant believes all these issues and others supplied in evidence and in her claim to be discriminatory grounds.

The Complainant relied on references from many of her past employers and one employee the Respondent who is not on their payroll as a permanent staff member.

She also relied on social media posts and photographs to evidence that the Respondent was treating other employees more favourably.  She asserted that in the Respondent’s post of 31st August 2019 she was the only employee who was not tagged. She exhibited a social media post of 17th March 2019 showing a dessert made by her arguing that it supports her assertion that she was allowed to make her own recipes in the past. She also exhibited Instagram photos of other employees, including an employee in the company of Ms. N’s and Mr S’s child to evidence that they were friends with other employees.

The Complainant exhibited numerous copies of text messages, which she asserted were sent by the Respondent during work hours and to which some of the employees replied during the work hours.

The Complainant also presented copies of WhatsApp group texts and evidence showing that Ms. N and an employee left the group on 9th October 2019. She argued that all employees left the group and a new one was set up.

Legal Argument

The Directors clearly stated the Complainant’s quality of work was not in yet in the investigator’s findings that the Complainant received on 11th November 2019, which she was unaware was taking place it clearly states that they both expressed concern at a meeting regarding the amount of work the Complainant was undertaking outside of the Respondent. They stated that the Complainant was visibly tired and not performing her duties at the Café to the best of her abilities. The Complainant stated during this meeting that she would not be doing any further outside work. One of the conditions of pregnancy is tiredness. During the Complainant’s first trimester when she had not informed the Directors of her pregnancy no remarks were made. ‘’Fatigue is a common discomfort experienced during pregnancy’’ Forough Mortazi and Fateme Borzeye 2019 Sultan Qaboos University Medical Journal. Prior to 26th June 2019 when the Complainant told the Directors she was pregnant she had had no performance appraisals in regard to her behaviour or her work, and in fact was promoted in March 2019 and held a management position. It was prior to her informing the Respondent of her pregnancy (whilst she was pregnant) that she was doing outside catering jobs with her own business yet no remarks we’re made about her general appearance. Mortazi and Borzeye (2019) found ‘’no difference between fatigue scores in the three trimesters of pregnancy’’. The Complainant personally found the first trimester the hardest and most tiring, yet no remarks were made on her general appearance nor was the Complainant told she could not work elsewhere due to their opinion on her appearance and competency.

In relation to the bullying incident, the Complainant submits that an isolated incident according to the Supreme Court, in this case not giving someone a slice of bread, does not merit an accusation of bullying. No thought was given to the effect such an accusation would have on the Complainant’s mental health and no procedures were followed in handling the situation. Which is also a breach of the Health and Safety Act of 2005. In a Named Female v a Named Company (DEC-E 2002/014) it was stated ‘’there was a breach of fair procedures as the claimant was not granted the opportunity to respond to alleged complaints, nor granted written statements’’.

The Directors then tried to terminate the Complainant’s employment via gross misconduct in regard to documents they acquired from the Social Welfare Department. All these acts led to the deterioration of the Complainant’s working environment and denied her the right to dignity at work. No counsel, support or guidance was given to the Complainant in regard to the issues the Directors brought to her attention on 19th August 2019 or after.

The Directors furnished complaints from staff members regarding incidents that had already been resolved and which occurred prior the Complainant announcing she was pregnant; and the prior matters had never been noted as being problematic until given to the Complainant on 1st October 2019. It should also be highlighted that the Complainant had already been promoted prior to 1st October 2019. Additionally, some events in the complaints were represented inaccurately and were false. The Complainant’s situation is consistent with the findings from Troy v Ennis Handling Systems Ltd. Not once did the Directors give the Complainant improvements to be made in regard to any of these ‘issues’ prior to her pregnancy announcement nor did they make her aware at the time of the supposed concerns, nor did they comment on her behaviour, ‘tiredness’ or raise any ‘issues’ when the Complainant was pregnant and they did not know.

The Mayo Clinic found that ‘’some moms- to –be experience an energy boost during the second trimester’’ which the Complainant found to be true for her. The Complainant believes that the Directors’ attitude and treatment of her changed from the time they learned she was pregnant. With evidence from medical journals clearly stating that tiredness is a symptom of pregnancy and their campaign of trying to terminate the Complainant ‘s employment it is clear the Directors had no intention of continuing the Complainant’s employment or repairing the relationship.

In 2002 the Employment Appeals Tribunal defined ‘cosmetic bullying’ as conduct inherent in the faulty dynamics of the employment relationship arising out of the creation of a systematic problem of conflict designed to humiliate the victim. Whether the employer changes the employees’ job duties, restructures offices, changes location, gives formal warnings or proceeds with disciplinary action, the Tribunal will look at all circumstances of the case to see if the employer’s motivation was to inflict harassment, bullying or victimisation of an employee. The Tribunal concluded that the bullying techniques of the employer ‘’result in the low, self-esteem of the employee and, accordingly, will embitter the employees (against each other) and fuel hostility in the workplace” (Browne v Ventelo telecommunications UD597/2001).

In the investigator’s findings that were reported on the day the Complainant was emailed to participate in the grievance investigation (24th of October 2019), the investigator only investigated the Respondent’s witnesses. The Report says that Mr S stated that he and Ms. N have never discouraged the Complainant to work outside of the Café. Yet, after the Complainant told them about her pregnancy, they clearly stated in the meeting on 19th August 2019 that their concern was the Complainant working outside the Café and reduced her hours. All the events mentioned in Mr S’s response are prior to the Complainant’s pregnancy announcement. In the meeting on 19th August 2019 Mr S stated ‘’Having pregnant staff, the worry then is they expect time off’’. Mr S clearly commented on the Complainant’s physical appearance and made it clear that his worry was having pregnant staff.

Mr S without any conveyance of concern for the Complainant rather conveying concern for themselves as employers has also made remarks to public bodies. The letters referred to the issues as the ‘[the Complainant] Problems’. At no point did either Director show unbiased opinions on any of the matters and at every junction the Directors assumed the Complainant was guilty of all of their accusations. The Complainant was never given the opportunity to defend herself or to respond to any of their accusations.

The Respondent suspended the Complainant on grounds for gross misconduct in regard to allegedly forging Ms. N’s signature on a social welfare document, which she in fact had given permission for, as she had in other situations with other employees for the same kind of paperwork. The so-called ‘forged’ signature was on a document from February 2019 and no action was taken until October 2019. Ms. N was asked permission to have her signature signed on her behalf as other members of staff had filed the same forms and she had granted permission of same. At this point it was clear the Directors were trying to terminate the Complainant’s employment on any grounds they could fabricate. The Complainant had in fact did not commit any such fraud; yet the Respondent treated her as if she had. The case law highlights that those possible concerns were not under the authority of the employer but were a matter for the State. The Complainant has not been asked to refund monies to the Department of Social Welfare nor did the Complainant commit any fraud. The Complainant assisted the Department in any of their queries as she reached out to them when she received the letter from the Respondent.  Mr S tried to sever the Complainant’s relationship with the Department of Social Welfare and sent in letters with false information which since has been reported to the Data Protection Commissioner.

The Complainant’s trust in Mr S and Ms. N has been completely shattered. On receiving the letter in regard to her maternity benefit the Complainant emailed Ms. N asking her to provide any information the directors relayed to any other parties. Ms. N denied the sending of any letters which is obviously inaccurate from the letter Mr S sent in regard to the Complainant’s Maternity Benefit shortly after they received the Equal Status notification which quite clearly states he did not feel comfortable submitting her forms due to what she had done to their business. What the Complainant did was question their acts on trying to terminate her employment after she told them about her pregnancy.

The Complainant asked for complaints made against her so that she could respond and not once was the Complainant given the right to defend herself against accusations made, yet Mr S shared information regarding investigations that had not been founded with public bodies.

At no point did the Directors try to resolve any of the issues that they created. When they involved a mediator, they terminated his involvement and suspended the Complainant for gross misconduct regarding a signature on her social welfare papers.

No training was provided, no mediation, no policies or performance appraisals. The Complainant was never given areas to improve on and finds the Directors tried to use previous issues to terminate her employment after her pregnancy announcement.

On 11th November 2019, when the Complainant received the investigator’s findings on the grievance she raised, she was left distraught. The stress was taking a toll on her health and her pregnancy. The Complainant’s mother came down to alleviate some of the stress and offered to pick up her social welfare papers from the Respondent. This resulted in an email essentially barring her from the premises. The Complainant was referred to a mental health clinic on 13th November 2019 and was prescribed antidepressants for the first time in her life.

A landmark study done by Baylor University published in the Journal of Applied Psychology found that pregnancy related discrimination was linked to increased levels of postpartum depressive symptoms in mothers and adverse health outcomes through increased stress negatively impacting the mother and the baby. This study shows the far-reaching implications of workplace discrimination and highlights the importance of addressing it. Hackney, K. J. et.al (2020).

The Complainant believes she was penalised in how the Directors handled her grievance and the Complainant believes their negative treatment was victimisation.

The Complainant relied on ADJ-19756 arguing that the fact of being pregnant was ''sufficient grounds for a prima facie case to be made”.

The Complainant submits that equality on the grounds of gender is now expressly guaranteed by Article 23 of the Charter of Fundamental Rights of the European Union. The Irish political climate has made huge steps to becoming a more progressive Nation. This case must take into consideration the movement the government has made towards equality for all.

The Complainant further relies on and addressed in detail the following case law in support of her claim:

Kelly v An Post UD 974/1986, O’ Malley v Aravan School Ltd., Boyle v Marathon Petroleum Ireland 1999, Quigley v Complex Tooling and Moulding Ltd [2009] IR349, Byrne v RHM Food (Ireland) Ltd UD69/1979, Karolina Poslajko v Clelands Supermarkets Ltd.,  ADJ00023445 A receptionist v a hostel, ADJ-00027323 A Food and Beverage Assistant v A Café, Paydayachee v Petit Delice Ltd., Browne v Iarnard Eirean [2014], Dublin Lettings & Management V Warren Richards LCR22330, Margaret Kelly v Bon Secours Health System Ltd [2012] IEHC 21, Teresa Cross (Shanahan) Croc’s Hair & Beauty and Helen Ahern EDA 195, Manager v Other Services ADJ-00019047, A Deputy General Manager V A Hotel ADJ-00017826, Lee v Fox EED0361, HR Manager Aviation recruitment and staff support agency ADJ-00023183), Looney & Co Ltc V Looney UD843/1984, Joyce v The Board of Management of Colaiste Iognal 2015 IHC809 , ADJ 00024334, Sheedy v Therm- o- Disc (Ireland) UD 494/1991, Hollywood v Wellers [1976] A11 ER 300, Operator v Manufacturing Plant ADJ-00022910, Malik and Mahmood v Bank of Creit and Commerce International SA [1997] 2 WLR95; 1997 3 A11ER1 [1997] IRLR462, Park Hotel Kenmare v A Worker [2018] LCR21798, Named Female v A Named company DEC-E 2002/014),  Ruffley v Board of Management of St Anne’s School,  Troy v Ennis Handling Systems Ltd (UD601/1991), Browne v Ventelo Telecommunications UD597/2001, Wasser v Dublin Corporation, Mary Becker v The Board of Management of St Dominic Secondary School Cabra [2005] I.R 501, Operator v Manufacturing Plant ADJ-00022910, ADJ-00030172 Gemma Kiernan J and E Davy trading as Davy Stockbrokers, Citi Bank –v- Ntoko 2004 15 ELR116, ADJ-00019756, Martina Palmer v Kilcormac Development Association Limited ADJ-00027560, Berber v Dunnes Stores Ltd [2006], Smith v Tobin UD430/1991, Keohane V Douglas Nursing Home Ltd. UD 246/1996, Walsh v Love UD784/1994, Jacqui McCarthy v Dublin Corporation [2001] I.R 255.

Evidence of Ms. R, the Complainant’s mother

Ms. R outlined her qualifications and professional experience with a view to conveying her ability to manage bias and remain impartial – even in emotionally charged or sensitive situations. Ms. R said that on 13th November 2019 she went to the Café to pick up paperwork that was to be ready for the Complainant. M. R provided detailed account of her visit. She described her encounter with Mr. S and noted that he came across as frustrated and slightly hostile. Ms. R said that if she wasn’t a mature woman, she would have felt intimidated. Ms. S found his approach odd, rude and bullying. Ms. R said that Mr. S did not give the forms but walked out and left them in the business across the road from the Café for collection. Ms. S was concerned about her daughter’s privacy being breached. The Complainant went into the other business and exited after 20-30 seconds in floods of tears and distressed. The Complainant went to her GP after the incident and the GP referred the Complainant to the Peri-natal Mental Health Services due to her concerns for the Complainant’s emotional wellbeing.

The Respondent submits as follows.

No attempt has ever been made to dismiss the Complainant. The Complainant was spoken to in relation to two formal complaints of bullying in the workplace that had been made against her by a staff member and a member of the public. On investigating these claims under the Respondent’s procedure, the Complainant was given time to respond to allegations. The Complainant denied all knowledge of the incidents initially and then denied that they happened as detailed in the complaints and provided her own explanation of events. Management interviewed the staff member involved and customer who made the complaint and found considerable evidence to support their claims. Management, having sought advice, issued the Complainant with a verbal warning. The Complainant refused to accept the verbal warning at a formal meeting and in the week after that meeting the Respondent received the first complaints that the Complainant had submitted to the WRC, this continued for months, with more and more complaints.

The Respondent employed Concordia Consulting to act as a mediator in an attempt to try to resolve the issues raised with the bullying complaint and the warning. The external mediator initially met with Ms. N, Mr S and the Complainant separately for a first session, then in multiple session when he interviewed all staff. Arising from this exercise, 9 of 12 staff came forward wanting to submit formal complaints about the Complainant’s conduct in the workplace. In addition, the owner of the commercial kitchen which the Respondent rented also came forward with a formal complaint following an incident in her building between the Complainant and her own staff.

The mediation exercise had to be suspended when the Respondent was approached by an Investigator from the Department of Social Protection who had some questions about discrepancies in the Complainant’s social welfare claim – the Respondent was not aware that the Complainant had a claim open and she worked full time hours for the Respondent. Upon meeting with the Inspector, management were shown documentation comprising letters and forms supposedly written and signed by Ms. N, indicating that the Complainant was only working part-time for the Respondent and had no further hours available to her. This documentation included timesheets which the Complainant was submitting for the part-time dole top-up and showed very different hours to what she actually had worked. The Respondent shared its records with the Inspector. However, due to data protection the Respondent has no knowledge as to how the matter proceeded or concluded.

Following this information coming to light, the Respondent consulted with its solicitor and was advised to suspend the mediation and begin an investigation into possible gross misconduct by the Complainant.

As the Complainant was at an advanced stage of pregnancy by this time, another HR consultancy firm was instructed to conduct this investigation. It was decided to just make introduction and the Complainant was informed that the investigation would not proceed until she returned from maternity leave. She was suspended from work on full pay until the point when her maternity leave began.

At that point, the Complainant submitted a grievance to the Respondent alleging that Mr S had engaged in stalking her, in workplace discrimination, in bullying and in undermining her position at work. The Respondent was also made aware that the Complainant had sought to report Mr S to Gardaí for stalking. The Gardaí did not proceed with any investigation.

Arising from these hugely disturbing allegations, the Respondent engaged Mr. Guckian of GHR Consulting to independently investigate the Complainant’s allegations. The Complainant was invited to partake in this investigation but did not co-operate or participate in the process. Mr. Guckian met with the rest of the Respondent’s staff and interviewed them along with Ms. N and Mr S. Mr. Guckian produced a report with his findings which found no evidence whatsoever to support the Complainant’s allegations. The report was sent to the Complainant. She refused to accept its findings and accused management, the company accountant, the company solicitors, and Mr. Guckian of being in cahoots and behaving inappropriately to compile false evidence against her and her complaints.

The Complainant lodged an appeal against the outcome of the report. The Respondent engaged the services of Elaine Ryan of Elaine Ryan HR to conduct this appeal. However, due to the Complainant’s pregnancy, the Respondent and Ms Ryan initiated introductions into the appeal, but felt it would be more appropriate to conduct same once the Complainant finished her maternity leave. However, this never happened, along with the investigation into gross misconduct, as the Respondent ceased to trade before the Complainant’s maternity leave was over.

The Respondent spent considerable six figure sum on dealing with the Complainant’s allegations – legal fees, mediation, and HR consultancy companies to investigate allegations. Monies that may have saved the business. Instead, the Respondent Café is now closed, management have lost their business, their jobs and savings and staff have lost their jobs. Furthermore, whilst the WRC matter remains unresolved, the management are unable to strike off the business with the CRO and undertake the final steps to shutting down. The Respondent did not intend to dismiss the Complainant. It persisted, paid investigators and mediators. The Respondent’s actions show that it had no intention to dismiss the Complainant.

The Respondent asserted that the Complainant was suspended when an enquiry commenced by the DSP about claims that Ms. N did not sign. It was a serious matter that could potentially damage the Respondent’s reputation and relationship with the DSP and with clients.

The Complainant was not dismissed because of her behaviour or performance. The Complainant’s employment, and that of 13 others, was ended because of the closure of the business, brought about by challenging trading conditions and ultimately by the catastrophic impact of the Covid-19 pandemic which shut the business in March 2020.

The Complainant was not the subject of any discriminatory behaviour by the Respondent in relation to gender as set out in her complaint form. Neither has she provided any detail or named any comparator in support of her claim. Issues raised with the Complainant were as a result of complaints by staff, by customers, and by the Department of Social Welfare. The Respondent had no choice but to act on these matters as they did so in a fair and equitable manner, ensuring that appropriate allowances were made at the time of the Complainant’s pregnancy and confinement.

Ms. N and Mr S, themselves parents of two young children, did not discriminate against the Complainant on the basis of her gender or her pregnancy. Serious issues arose involving the Complainant, which required to be dealt with and which in turn led to her suspension. This had nothing to do with her gender or her pregnancy.

The Complainant was not dismissed based on some spurious or non-existent performance issues. The business was forced to close and all staff lost their jobs, including the owners. The Complainant was not discriminated against on the basis of her gender or her pregnancy and was not treated any differently than any other employee.

These claims and allegations are wholly without merit. They represent a spurious attack on the owners of the business by a disgruntled employee and should be dismissed accordingly. 

The Respondent further submits that, as per section 85A(1) of the Acts the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. The Complainant must establish primary facts upon which the claim of discrimination is grounded, In the event that she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

The Labour Court had held consistently that the fact from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and then the burden of proof shifts to the respondent. The inference of discrimination must have a factual / credible basis and cannot be based on mere speculations or assertions which are unsupported by evidence. In that regard, the Respondent relies on Melbury Developments Ltd v Valpeters EDA0917.

The Respondent argues in the strongest possible terms that the Complainant has failed to discharge this burden of proof because she failed to provide objective evidence demonstrating she was treated differently and / or discriminated against.

The Respondent submits that the Complainants claims amount to mere speculation and assertions and that this is not sufficient to infer discrimination. With particular reference to the Dublin Corporation case, it is submitted that prima facie evidence was defined as “evidence which, in the absence of any credible contradictory evidence by the employer, would lead any reasonable person to conclude that discrimination has occurred”. The Respondent has provided significant credible contradictory evidence , which would clearly lead a reasonable person to conclude that no discrimination took place.

Consequently, the Respondent submits that the Complainant has failed to discharge the burden of proof and the claim cannot succeed.

The Respondent relies on Melbury Developments Ltd v Valpeters EDA0917, Southern Health Board v Mitchell DEE001, 2001, ELR201), Dublin Corporation v Gibney EE5/1986, and Margetts v Graham Anthony Company Ltd. EDA038.

Evidence of Ms. N

Ms. N said that there have been a number of complaints of bullying received against the Complainant. She said that there were some issues previously, but they were dealt with verbally. Ms. N said that a very upset staff member made a complaint against the Complainant in relation to the Complainant’s refusal to give a customer a slice of bread. The Customer also sent their complaint. The matter was delayed as the Complainant was away and then the Respondent was away. When they returned the Complainant informed the Respondent of her pregnancy. Ms. N said that the Respondent met with the Complainant to hear her version of events. The Respondent considered the matter and at a second meeting, which the Complainant attended with her partner, the Complainant was issued with a verbal warning. The Complainant did not accept it, she worked one day and furnished a sick cert. 9 out of 12 staff members made complaints about the Complainant. As a result, the Respondent decided to engage an independent mediator to deal with the matter. After two meetings with the mediator, the Complainant raised a grievance against Mr S. As information was received from the Department of Social Protection in relation to the alleged falsification of claim forms, an investigation in the matter was proposed.

Another independent investigator was engaged to investigate the Complainant’s grievance against Mr S. The Complainant refused to participate in the investigation. She appealed the findings of the investigation, and another independent investigator was engaged to consider the Complainant’s appeal. However, the matter was postponed until the Complainant’s return from maternity leave.

It was confirmed that the Respondent had no relationship with the independent consultants.

Ms. N said that staff were upset and scared. The Café was a small business in a small location.

Ms. N said that after 29th September 2019, the Complainant was not rostered but paid on advice of the independent consultant.

Ms. N said that they acted in good faith and tried to do the right thing. Ms. N said that it was not a cheap exercise. Ms. N took a pay cut and considerable sum of their savings was spent on the process.

Ms. N said that the Complainant was great at her job. She confirmed that she gave the Complainant additional job of rostering. However, there were lots of tensions between the Front House person who did the rostering previously and the Complainant. She tried to settle things bit eventually made an operational decision to take over the rostering herself. She said that it was accumulation of issues such as lots of changes not discussed with her in relation to annual leave and rosters. There were also missing emails. Ms. N said that she and all three members of staff affected, including the Complainant spoke about it for weeks. The business was not functioning properly and she decided to take over some responsibilities.

In relation to the matter of the mobile phone, Ms. N said they worked in an open kitchen and a complaint was received that a chef used a phone while cooking. All staff were instructed not to use their mobile phones. Ms. N said further that an incident occurred when a picture of moulded sausages was put up on the kitchen staff WhatsApp group. She felt that this was not the way to deal with kitchen issues, boundaries were needed, and she decided to stop this practice. She confirmed that no new group was set up. Ms. N further asserted that the Complainant was removed from another WhatsApp group (Shellfish matters) as at the time she was on stress related sick leave. There could be lots of texts exchange each day and she felt that it was unnecessary to text the Complainant while on sick leave.

With respect to the baking, Ms. N said that there was a series of not great experiments and she with the Head Baker put together a book with recipes to use. The book was put together around May 2019, before the Complainant announced her pregnancy. At the time the Head Chef was unable to work with a broken arm and she worked on the book. Ms. N said that the book, prices, etc. were discussed at a baking meeting on 4th June 2019.

In relation to the menus, Ms. N said that up to the summertime menu was very fluid, depending on what fresh produce was in stock. The menu would be ready and the prep done the day before. For the summer a menu was prepared, discussed in advance with all, all staff head input, it was priced and printed. It was never a person’s menu. Ms. N was the Head Chef and had a role.

Ms. N said that she is a mother of two, she opened the business when her baby was 6 months old. There were 4 female chefs and one male, there were four female staff and 1 male in the front of the house. In fact, Ms. N said that 1 staff member commenced her employment with the Respondent when she was visibly pregnant.

The issue for consideration in the within case is whether the Respondent discriminated against the Complainant in conditions of employment on the grounds of her gender and whether the Respondent treated the Complainant unlawfully in victimising and harassing her.

Essentially, the parties relied on the same submission regarding this complaint as in ADJ-00024904.

Section 6 of the Acts stipulates: “Discrimination for the purposes of this Act

(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 of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),…

(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

The entire period of pregnancy and maternity leave constitutes a special protected period as outlined in the European Court of Justice decisions in Webb v EMO Air Cargo (UK) Ltd [1994] ECR 1-3567, Brown v Rentokil Ltd [1998] ECR 1-04185 and Dekker v Stichting Vormingscentrum [1990] ECR 1-3941. It is well established that discrimination based on pregnancy comes within the remit of gender-based discrimination. This is expressly provided for in S.6(2A) of the Employment Equality Act, as quoted above. In Dekker the Court of Justice has made it clear that pregnancy is a uniquely female condition and for that reason any adverse treatment of a woman on grounds of pregnancy is direct discrimination on ground of her gender.

The Court stated at par 61 of the report: - “During that period, Article 10 of Directive 92/85 does not provide for any exception to, or derogation from, the prohibition on dismissing pregnant workers, save in exceptional cases not connected with their condition, provided that the employer gives substantiated grounds for the dismissal in writing”

The Labour Court in Trailer Care Holdings Ltd v Deborah Healy EDA128 referred to the fact that –

“the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides, at Article 2.2(c), that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive”.

In their book “Employment Equality Law”, the authors Bolger, Bruton and Kimber state: “Any unfavourable treatment of an employee on grounds of their pregnancy will be unlawful direct discrimination. That protection extends to any unfavourable treatment that relates in any way to the pregnancy.”

Section 77(5) of the Employment Equality Acts makes provision for the relevant time limits for referral of complaints by a person who intends to seek redress under the Acts in relation to an alleged incident(s) of prohibited conduct. Section 77(5) of the Acts provides as follows:

“(a) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.”

The effect of this provision is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Director General. Therefore, the cognisable period for the purpose of the instant complaint is the six-month period prior to the date on which the claim was received by the Director General, namely 20th September 2019 to 19th March 2020.

Section 85A (1) of the Act states: “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.”  This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA0821 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

In Hallinan v Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established:

1.      The complainant must establish that he or she is covered by the protected ground

2.      Establish that the specific treatment has allegedly taken place

3.      The treatment was less favourable than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.

There must be fact of “sufficient significance” to raise a presumption of discrimination.

It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

As was noted in Margetts v Graham Anthony Ltd, EDA038;

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

There was no dispute that the Complainant informed the Respondent of her pregnancy on 26th June 2019. The Complainant outlined a series of events that took place thereafter. Essentially, the Complainant alleged that every interaction, action or inaction by the Respondent after it had learned of her pregnancy was discriminatory. I have carefully considered the details of the Complainant’s lengthy submissions and associated evidence. It is simply unreasonable to assert that each communication or instruction issued by the Respondent was discriminatory. In my view, it is very difficult to discern any act of less favourable treatment here.

Upon careful examination of the email and text exchanges between the parties, it is apparent that the management of the operation of the business became challenging and the Respondent attempted to implement some changes. The Respondent consistently assured the Complainant that her role remains unchanged. It is clear that some operational changes were implemented, however, there was nothing put before me to suggest that these were in any way aimed at the Complainant specifically or that they were in any way related to her pregnancy. 

It appears that the Respondent spent considerable amount of time and no doubt financial resources to deal with the issues raised by Complainant. In particular, it is clear that the Respondent made effort to have both the complaints against the Complainant and the grievance raised by the Complainant dealt with by external independent consultants. It is implausible to accuse all involved of some sort of collusion.

I find that the Complainant has failed to adduce any significant evidence to support her claims that the alleged treatment was discriminatory on the grounds of her gender but rather has essentially relied upon supposition and assertion, unsupported by evidence.

In coming to this conclusion, I have found the Respondent’s evidence in relation to this matter to be more compelling and I accept its evidence that there were genuine reasons, wholly unrelated to the discriminatory ground claimed, for the treatment afforded to the Complainant in relation to these matters.

Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of gender in relation to this element of his complaint. There is no fact set out in her complaint from which an inference of discrimination may be drawn, or which supports a charge of ‘less favourable treatment’.

Victimisation

The second element of the Complainant’s complaint which I must consider relates to the claim that she was subjected to victimisation contrary to Section 74(2) of the Acts. Section 74(2) of the Acts defines victimisation as follows:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

The Complainant alleges that she was subjected to victimisation by the Respondent after she referred her first complaint to the WRC on 9th October 2019.

In the case of Tom Barrett -v- Department of Defence EDA1017 the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.  Therefore, I must decide in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.

In considering this issue, I note that it was not in dispute that the Complainant referred her complaint to the WRC on 9th October 2019.

In considering whether the Complainant has satisfied parts (ii) and (iii) of the test outlined above, I have taken cognisance of the case of Roy Mackarel –v- Monaghan County Council EDA1213 where the Labour Court held that: “Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).”

In Moriarty v. Dúchas DEC-E2003-013 the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2) of the Employment Equality Acts. The Equality Officer stated

 “It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”

The detriment complained of by the Complainant relates to the allegedly adverse and discriminatory treatment which she claims to have been subjected to by the Respondent in the context of the incidents set out above that took place after 9th October 2019.

I have carefully considered the submission and the evidence put before me. There is no doubt that the relationship between the parties became frail to say the least. However, I find that the events that took place after the 9th October 2019 were a result of accumulation of difficulties that arose in the preceding period such as the investigation into the alleged unauthorised signature on the forms for the Department of Employment Affairs and Social Protection. This matter was raised by the Department and, in my view the Respondent was entitled to carry out an independent, impartial and fair investigation into it.

With respect to the collection of documents from the Café, I find that it is unfortunate that the Respondent believed that it had no choice but to avail of the assistance of a third party. However, I am cognisant that this was in circumstances where the relationship between the parties had broken down and the Complainant resorted to seeking the Gardaí to accompany her to the Café to collect the paperwork.

In relation to the Complainant’s appeal of the grievance she raised against Mr S, it is clear that an independent investigator was appointed to consider her appeal. It is unfortunate that, as the appeal was raised on 6th December 2019 and the Complainant commenced her maternity leave on the 16th December 2019, and subsequently the Respondent closed the business in March 2020, the appeal never took place.

Having regard to the totality of the evidence adduced, I find that the Complainant has failed to establish that she was subjected to any adverse treatment in respect of the above matters as a result of her complaint to the WRC. In the circumstances, I am not satisfied that the Complainant has adduced any evidence from which it could be reasonably concluded that she has been subjected to victimisation within the meaning of the Acts in relation to the alleged adverse treatment claimed. Accordingly, I find that the Complainant has failed to establish facts from which it could be inferred that he was subjected to victimisation within the meaning of Section 74(2) of the Acts in the instant case.  

The final element of the Complainant’s complaint which I must consider relates to the claim that he was subjected to harassment contrary to the Acts. 

“Harassment” is defined by section 14A(7) of the Acts which states: “references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material".

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground.

It appears that the Complainant considers all the events that took place after 26th June 2019 as incidents of harassment. As evidenced by the documents submitted by the Complainant, she appears to be of the view that all of the events that took place from 26th June 2019 onwards should be all considered individually as incidents of discrimination, harassment, bullying and victimisation.

Having regard to the evidence adduced, I am satisfied that the Complainant has not presented any evidence from which I could reasonably conclude that she was subjected to harassment on the ground of her gender contrary to Section 14A of the Acts. Accordingly, I find that the Complainant has failed to establish a prima facie case of harassment within the meaning of Section 14A of the Acts.

I declare this complaint to be not well founded.

Discrimination- victimisation – harassment – breaks – public holidays- Sunday premium – terms of employment