Complainant

Respondent

Parties

Sinead  Allen

Brennan’s Licensed Hauliers Limited and/or Brennan’s Licensed Hauliers Kilflynn Limited.

Representatives

Elaine Houlihan BL instructed by Miriam McGillycuddy Solicitors

Brian Sugrue BL instructed by J Cashell Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062454-001

27/03/2024

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

CA-00062454-003

27/03/2024

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

CA-00062454-004

27/03/2024

The Complainant, a hauler, referred her complaints of unfair dismissal, discrimination on the grounds of gender, and terms of employment. She gave her evidence on affirmation.

Mr. Robert Brennan, Director, gave evidence on affirmation.

The name of the Respondent is as per the pay slips, with the Respondent stating the name of the Respondent was Brennan’s Licensed Hauliers Kilflynn Limited. For the avoidance of doubt, both names have been included.

It was agreed between the parties that the Complainant earned a net daily rate of €120.

CA-00062454-001 – Unfair Dismissal

The Complainant stated she began employment on 20 March 2022, and her last day of work was 20 December 2023. She said she received no further contact from the Respondent after that date.

Her final payslip showed €797 gross, which she claimed was annual leave pay rather than wages. From late November 2023, her hours began to reduce without notice, while another employee continued working.

She denied any “falling out” with Mr. Patterson of McSweeney Brothers, stating Mr. Brennan only mentioned the alleged incident said to have occurred months earlier in December 2023.

The Complainant said she contacted the Respondent “a couple of times” and was told “work had not picked up.” She called Mr. Brennan over Paddy’s weekend and felt at that point her “job was gone.” She claimed there were no policies or procedures in place and acknowledged she never stated in writing that she believed she had been dismissed under cross examination.

It was put to her that last in, first out applied. In response she denied knowledge of this system adding she she was unaware of any agreement between the Respondent and Mr. Brosnan.

It was put to her that the Respondent denied involvement in the Patterson matter and Mr. Brennan denied the conversation. The Complainant said she contacted McSweeney Brothers, who knew nothing of a dispute, and called Mr. Patterson, who did not answer, in an attempt to understand the allegation.

It was also put to her that she had an amicable conversation with Mr. Brennan over Christmas/New Year and no issues were raised. The Complainant denied this.

CA-00062454-003 – Terms of Information

It was the Complainant’s evidence that she did not receive a contract of employment or a statement of her terms and conditions of employment.

CA-00062454-004 – Employment Equality

It was the Complainant’s evidence that she was the only female haulier working with the Respondent. She stated that her hours were unilaterally reduced, while a male employee, Jonathan Brosnan, who “came and went,” working for a few months at a time but not on a full-time, permanent basis like her, continued to work for the Respondent despite her own reduction in hours in November and December 2023, something that did not occur previously.

The Complainant also identified two further comparators: Enda Hogan, who worked in or around Christmas 2023 – January 2024, and Matthew Lawlor, who worked “the odd day” while the Complainant was “left at home.”

It was her evidence that she saw the trucks on the road working, despite being told there was a downturn in business.

When asked in cross-examination whether the work was seasonal, the Complainant denied this, referring to trucks being on the road in both December 2023 and January 2024. It was further put to her that she had no idea as to what hours the drivers were actually doing.

She denied that she had requested time off from Mr Brennan and he was facilitating this.

In relation to the letters from the Respondent dated 18 December 2023 and 9 January 2024, it was put to her that she had requested those letters and was referred to as a part-time employee, which she did not correct. The Complainant stated that she expected to receive a call from the Respondent when things picked up. She accepted that she did not correct the letter, but it was her evidence that she was not a part-time employee.

Legal submissions were presented by the Complainant, with reliance placed on O’Kelly v WYG Engineering (Ireland) Ltd (in liquidation) DEC–E2013–054 and the Northern Ireland Court of Appeal decision in Wallace v South Eastern Education Library Board NI 38 [1980] IRLR 193.

CA-00062454-001 – Unfair Dismissal

The Respondent disputed the unfair dismissal. It was submitted that that Complainant ceased working on a voluntary basis in January 2024. Asked as to the purpose of the letter, it was Mr Brennan’s evidence that the Complainant was laid off and allow the Complainant avail of social welfare payments. It was his evidence “there would be a lot of it in the haulage business”. It was his evidence that she did not request any further work or return to work with the Respondent thereafter as it was Mr Brennan’s understanding that she was seeking time off.

Mr Brennan saw the Complainant driving another truck, received a phone call from an unknown “man” on behalf of the Complainant and later received her complaint from the WRC. It was his evidence this was the first time he became aware she was no longer working for him.

CA-00062454-003 – Terms of Information

The Respondent accepted this breach but submitted it did not warrant the full four weeks compensation sought.

CA-00062454-004 - Employment Equality

Mr. Brennan denied this complaint.

It was his evidence that the business is dependent on weather conditions. Between March and September, the Respondent would be engaged by Kerry County Council, with McSweeney Brothers providing work when the weather and land were drier, and Ardfert Quarries closing at Christmas. Mr. Brennan described the period in 2023 as very quiet, due to a “downturn in construction.”

He stated that he had five drivers including himself with the roster was “drawn from seniority,” with Mr. Brennan and Mr. Cyril Smith being the most senior. Reference was made to timesheets for January and December, showing only Mr. Brennan and Mr. Smith being rostered.

It was Mr. Brennan’s evidence that Mr. Brosnan, Mr. Enda Hogan, and Mr. Lawlor worked odd days in January and February 2024. He claimed the Complainant did not want to work intermittent days as it would interfere with her social welfare payments.

He described meeting the Complainant on Christmas Eve in her father’s yard, where they exchanged good wishes.

Mr. Brennan stated that working hours depended on the work available at different times of the year. He submitted that the allocation of work was not influenced by the Complainant’s gender and that a system was applied.

He denied that any conversation regarding Mr. Patterson took place in December 2023, stating it “never happened.” It was his evidence that work with McSweeney Brothers had slowed due to weather conditions and that the Complainant would instead have worked out of Ardfert Quarries.

Legal submissions were presented on behalf of the Respondent.

CA-00062454-001 – Unfair Dismissal

he Respondent denies that the Complainant’s employment was terminated. It was the Complainant’s evidence that she was terminated on 20 December 2023.

Three letters were presented at the hearing by the Respondent:

The first, a letter dated 5 January 2023, refers to her “part-time employment” during 2022, stating she is “no longer employed by us at the present time due to the nature of our work.” It adds that “in the meantime, if circumstances change, we will contact her.” The Complainant provided payslips evidencing that she did, in fact, return to work with the Respondent in February 2023.

The second letter, dated 9 January 2024, again refers to her “part-time employment “this time limited to 2023, and is identical to the letter issued the previous year.

The third letter is addressed to Jonathan Brosnan, dated 16 December 2023. He is the comparator identified in the Complainant’s equality complaint. This letter differs, stating that “his employment ceased for the month of January 2024 due to the nature of our work.”

In considering these letters, several important points arise from the oral evidence presented at the hearing:

At the outset, the Complaint Form was shared on screen and noted a commencement date of 20 March 2022. No objection was raised. Both parties’ legal submissions and the Complainant’s evidence were consistent with this date. Mr. Brennan, when questioned in cross-examination and shown her payslips, did not dispute this commencement date.

Consequently, in the absence of a contract of employment and with all parties in agreement, I find that the Complainant was in continuous employment with the Respondent from 20 March 2022.

Further reference was made to the Complainant being laid off, and the Respondent referred to the “first in, last out” criterion—typically associated with redundancy. However, the Complainant was not paid redundancy. Mr. Brennan was asked about the lay-off and replied that he “didn’t know.” When asked further, he stated that “when it got quiet,” the last in, first out rule applied to offers of work. When asked whether he considered sharing the available work equally between drivers during quieter periods, he said Mr. Brosnan “wouldn’t agree to that,” adding that “with drivers, it was like walking on eggshells.” Mr. Brennan confirmed that Mr. Brosnan returned to work with the Respondent in “the middle of February” 2023.

Section 12 of the Redundancy Payments Act 1967 (as amended) sets a four-week expiry on a period of lay-off. Aside from the letter dated 9 January 2024, there is no further evidence that the Respondent communicated with the Complainant regarding her status or any update during the lay-off period.

It was submitted that the Respondent was in financial difficulty and that there was a downturn in work during 2023. However, rather than producing full financial statements or end-of-year accounts, the Respondent relied on “sale book VAT summaries for 2022 and 2023.” Mr. Brennan stated that these spreadsheets—for October to December 2022 and again from October to December 2023—were prepared by the Respondent’s accountant, who was notably absent from the hearing. Based on Mr. Brennan’s own evidence and the figures presented, the documentation does not demonstrate that the Respondent had no option but to lay off employees in December 2023 and/or January 2024. In fact, it shows a healthy net sales figure of €71,296.70 for the three-month period.

Mr. Brennan gave evidence that the Respondent had been engaged by Ardfert Quarries for 24 years and McSweeney Brothers for 16 years. When asked whether, given this long-standing relationship, it would be reasonable to expect the Respondent to recognise patterns of work and assign annual leave accordingly to cover quieter periods, Mr. Brennan disagreed. He stated the Respondent was not paid during downtimes and instead chose to place employees on lay-off so they could claim social welfare.

I find the practice described by Mr. Brennan—laying off employees to cover short seasonal gaps in work, sometimes lasting only a few weeks—as questionable. This approach runs contrary to the European Union (Transparent and Predictable Working Conditions) Regulations 2022, which took effect in December 2022, while the Complainant was employed by the Respondent. Given the Respondent’s long-standing contracts with at least two businesses, it is unreasonable to suggest that an employee should be routinely expected to rely on social welfare to sustain the business, without any consideration of alternative duties, structured annual leave over the Christmas period, or time in lieu.

I find there was no evidence presented by the Respondent that the Complainant sought time off nor that she was requested to work “odd days” and refused as she did not want to interfere with her social welfare payments.

In conclusion, on the balance of probabilities, I find that the Complainant was dismissed by the Respondent within the meaning of Section 1 of the Unfair Dismissals Act 1977.

The next question to consider is whether the Respondent unfairly dismissed the Complainant.

The Unfair Dismissal Act 1977 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia,

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

McMahon J. in Khan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does [sic] fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

The principles of natural justice require that the disciplinary investigation, the decision to impose a sanction (in this case, dismissal), and any subsequent appeal be conducted independently and objectively. An employee is entitled to a fair and impartial determination of the issues under investigation, as outlined in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) and established case law.

In this case, no disciplinary procedure was followed, nor were fair procedures applied.

Accepting the Complainant’s evidence, I find that she was unfairly dismissed by the Respondent. However, I do not accept 20 December 2023 as the date of dismissal. The Complainant continued to engage with the Respondent, including a text message dated 9 January 2024 requesting a letter for the Department of Social Welfare. She also gave evidence that she attempted to contact Mr. Brennan over St. Patrick’s weekend 2024, but received no response. This indicates that she did not regard her employment as terminated before that point.

Accordingly, I find that while she may have been on lay-off until that time, her effective date of dismissal was Tuesday, 19 March 2024, the first working day following the public holiday.

Mitigation of Loss

It was the Complainant’s evidence that she secured alternative employment on 14 March 2024.

CA-00062454-003 – Terms of Information

It is accepted the Complainant did not have a contract of employment by the Respondent.

Consequently, I find the complaint is well founded.

CA-00062454-004 - Employment Equality

Section 6 of the Employment Equality Acts 1998-2015 (as amended) provides the definition of discrimination:

“6.— (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 occurwhere—

(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,

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.”

Section 6 (2) provides:

“(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”),”

Section 85A of the Act sets out the burden of proof:

“(1) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

Therefore, the burden of proof is on the Complainant to show that she was treated less favourably on account of her gender.

Section 7 of the Act provides that a comparator—real or hypothetical—must be employed to perform like work. In this case, the Complainant identified a male comparator, Jonathan Brosnan. There was no dispute that the Complainant and Mr Brosnan performed like duties.

It is accepted, based on payslips, that the Complainant’s hours were reduced in November and December 2023. When questioned about this, Mr Brennan stated that demand for services had declined and denied any conversation relating to Mr Patterson’s alleged refusal to work with the Complainant. This version of events is not accepted. The Complainant provided a clear and detailed account of the conversation and her efforts to engage with McSweeney Brothers and Mr Patterson, which I accept.

It is also accepted that the Complainant observed her male colleagues working while she remained on lay-off in January and February 2024. It is not credible that, after working with Ardfert Quarries for 24 years and McSweeney Brothers for 16 years, the Respondent could not anticipate seasonal work patterns and plan annual leave or rotational work to maintain continuity of employment. This is especially relevant given Mr Brennan’s remark about “walking on eggshells” with hauliers, made in the context of trying to accommodate Mr Brosnan.

When questioned, Mr Brennan denied that Mr Brosnan had not been continuously employed since 2016 but was unable to confirm how many months he worked in 2022 or 2023, later stating it was “for 9 months.” He claimed they had their “own agreement,” but no evidence of such an arrangement was provided

Having considered the evidence, I find the Complainant has established a prima facie case of direct  discrimination on the grounds of gender. She was treated less favourably than her direct comparator, who, by Mr Brennan’s own admission, had a separate, undisclosed, arrangement regarding his hours. Furthermore, I do not accept that Mr Brosnan was more senior, as there was no evidence that he was in continuous employment with the Respondent. Notably, Mr Brosnan received a lay-off letter in December 2023 for a defined period (January 2024), while the Complainant was not afforded the same clarity.

The Respondent was evasive in his responses and failed to produce supporting documentation. Instead, he relied on selective records and vague references to needing to check timesheets. For these reasons, and those set out above, I find that the Complainant was discriminated against on the grounds of gender in the Respondent’s decision to reduce her working hours in November and December 2023.

CA-00062454-001 – Unfair Dismissal

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In the circumstances where the Complainant did not have suffer any financial loss where she obtained alternative employment on 14 March 2024, section 7 (1) (c ) (ii), I am limited to awarding a maximum of four weeks renumeration in the sum of €3,188.

CA-00062454-003 – Terms of Information

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act

I find the complaint is well founded.

Section 7 (2) (d) is the most appropriate redress where the Complainant is no longer employed with the Respondent:

 “(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

I am awarding the Complainant three weeks' remuneration, totalling €2,392.74, as just, and equitable given the circumstances. The Complainant was unaware of her terms and conditions of employment, leading to a dispute over her working hours and employment status. Had she received a contract of employment, these issues could have been resolved through the document. It is also noted that, while there is no evidence that the Complainant requested a copy of her terms and conditions, she nonetheless accepted a letter dated 9 January 2024 that referred to her as a part-time employee.

CA-00062454-004 - Employment Equality

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find the Complainant was discriminated against on the grounds of gender.

Section 82 (4) of the Act provides for compensation which it is decided as being the most appropriate redress where the Complainant is no longer employed with the Respondent:

The Respondent described the Complainant as a reliable timekeeper who consistently took care of her truck. In the context of a male-dominated profession, the Complainant can be further described as courageous in raising this complaint. The Complainant challenged the Respondent’s conduct, including its fabrication of a story that she was unwelcome at a client’s yard, the subsequent denial of a conversation with Mr. Brennan, and the reduction of her working hours in favour of a male colleague with whom the Respondent had a separate arrangement.

Having regard to all of the circumstances, and to the need for compensation to serve as a deterrent to discrimination, I order the Respondent to pay the Complainant €30,000 in compensation.

Unfair Dismissal –Date of Dismissal- Employment Equality –Gender - Terms of Employment