ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00055231

Parties:

	Complainant	Respondent
Parties	Noelle Cusack	Milbrae Nursing Home

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Peter D Gilfedder

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00042506-001	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00042506-002	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00042506-003	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00042506-004	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00042506-005	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00042506-006	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00042506-007	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000	CA-00042506-008	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001	CA-00042506-009	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006	CA-00042506-010	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2024	CA-00042506-011	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00042506-012	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984.	CA-00042506-013	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00042506-014	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001	CA-00042506-015	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998	CA-00042506-016	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00042506-017	12/02/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012	CA-00042506-018	12/02/2021

Date of Adjudication Hearing: 02/04/2025

Workplace Relations Commission Adjudication Officer: Patricia Owens

Procedure:

On the 12 February 2021 the Complainant referred 18 complaints to the Workplace Relations Commission as listed above

In accordance with Section 41 of the Workplace Relations Act, 2015 and following referral of the matters to me by the Director General, the complaint was scheduled for hearing on 2 April 2025, in order to provide the parties with an opportunity to be heard by me and to present to me any evidence they deemed relevant.

The Complainant did not furnish any further submissions, supporting documentation or specific details in relation to her complaints and there was no appearance by or on behalf of the complainant at the hearing.

Mr. Peter Gilfedder, IBEC was present to represent the Respondent, together with management representatives on behalf of the Respondent, who were available to give evidence if required to do so.

The Respondent also provided a submission in relation to preliminary matters and initial observations in relation to the complaints lodged. The Respondent reserved the right to make further submission should specifics of the complaints be made available by the Complainant.

This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020, which designate the Workplace Relations Commission as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Background:

The Complainant was hired as a Care Assistant with the Respondent on 24 March 2020. On 12 February 2021 she lodged the above 18 complaints against her former employer (the Respondent). Details of her complaints are set out below.

The Respondent is a nursing home. The Respondent contended that the Complainant only remained in employment for one day, having left when she learned that some residents were suffering from Covid 19. The Respondent contended that the Complainant advised that she was caring for a sick child at home and left the premises, never to return.

The Respondent raised a number of preliminary matters which it contended should be determined separately from other issues arising in the case as these issues were a “question of pure law”. Notwithstanding the preliminary issues raised the Respondent denied the allegations.

Summary of Complainant’s Case:

In her complaint form, the Complainant outlined the following:

CA-00042506-001

The Complainant alleged that she did not receive a statement in writing of her terms of employment, seeking adjudication under Section 7 of Terms of Employment (Information) Act, 1994.

CA-00042506-002

The Complainant alleged that she was not notified of a change to her terms of employment, seeking adjudication under Section 7 of Terms of Employment (Information) Act, 1994.

CA-00042506-003

The Complainant alleged that she had to leave her job due to the conduct of her employer or others at work and she has at least 12 months service, seeking adjudication under Section 8 of the Unfair Dismissal Act 1977.

CA-00042506-004

The Complainant alleged that she had to leave her job due to the conduct of her employer or others at work due to Trade Union membership, pregnancy, exercising her right to adoptive leave, exercising her right to force majeure leave, exercising her right under the National Minimum Wage Act, exercising her right under the Carer’s Leave Act or exercising or proposing to exercise rights under the Protected Disclosures Act and she does not have at least 12 months service under the Unfair Dismissals Act, seeking adjudication under Section 8 of the Unfair Dismissal Act 1977.

CA-00042506-005

The Complainant alleged that she has been discriminated against by her employer, prospective employer, employment agency, vocational training or other bodies under the Employment Equality Acts, seeking adjudication under Section 77 of the Employment Equality Act 1998.

CA-00042506-006

The Complainant alleged that she did not receive equal pay, seeking adjudication under Section 77 of the Employment Equality Act 1998. CA-00042506-007 – allegation that she was discriminated against by a person, organisation/company who provides goods, services or facilities, seeking adjudication under Section 21 of the Equal Status Act 2000.

CA-00042506-008

The Complainant alleged that she penalised by her employer for invoking entitlements under the National Minimum Wage Act 2000, seeking adjudication under Section 24 of the National Minimum Wage Act 2000.

CA-00042506-009

The Complainant alleged that she penalised for having exercised or proposed to exercise her entitlement to carer’s leave, seeking adjudication under Section 19 of the Carer’s Leave Act 2001.

CA-00042506-010

The Complainant alleged that she penalised for having performed the functions of an employee representative, seeking adjudication under Schedule 3 of the Employees (Provision of Information and Consultation) Act 2006.

CA-00042506-011

The Complainant alleged that she penalised for making a complaint under the Employment Permits Acts 2003 or 2006, seeking adjudication under Schedule 2 of the Employment Permits Acts 2024.

CA-00042506-012

The Complainant alleged that she victimised for taking an action set out in Section 74 of the Employment Equality Acts, seeking adjudication under Section 77 of the Employment Equality Act 1998. 3

CA-00042506-013

The Complainant alleged that the Minister for Social Protection failed to make the full payment due to her under the Insolvency Payments Scheme, seeking adjudication under Section 9 of the Protection of Employees (Employers’ Insolvency) Act 1984.

CA-00042506-014

The Complainant alleged that her employer failed to provide employees’ representatives information about fixed term work, seeking adjudication under Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003.

CA-00042506-015

The Complainant alleged that she was not granted carer’s leave, seeking adjudication under Section 19 of the Carer’s Leave Act 1998.

CA-00042506-016

The Complainant alleged that she was refused force majeure leave, seeking adjudication under Section 18 of the Parental Leave Act 1998.

CA-00042506-017

The Complainant alleged that she received a statement of her core terms which deliberately contain false or misleading information, seeking adjudication under Section 7 of Terms of Employment (Information) Act, 1994.

CA-00042506-018

The Complainant alleged that she was treated less favourably by the employer to whom she was hired out as an agency worker in relation to access to facilities and amenities, seeking adjudication under Section 25 of the Protection of Employees (Temporary Agency Work) Act 2012.

There was no appearance by or on behalf of the Complainant at the hearing nor did she provide any documentation to outline the particulars of her complaints.

Summary of Respondent’s Case:

Preliminary Issues

The Respondent raised the following preliminary issues:

1. Addressing Preliminary Arguments

2. Frivolous and Vexatious Claims

3. Time Limits

4. Requisite length of service required to make claim under Unfair Dismissals Act

5. prima facie case of discrimination and burden of proof

6. lack of detail and evidence to support claims

1. Addressing Preliminary Arguments

The Respondent drew attention to the case of Bus Eireann v SIPTU PTD8/2004, where the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense and where the point was ‘a question of pure law where no evidence was needed and where no further information was required”.

The Respondent noted that this was also explored in Employee v Employer UD969/2009, where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

The Respondent respectfully requested that the Adjudication Officer reach a determination on the preliminary arguments addressed in their submission before determining whether the substantive arguments could be heard.

2. Frivolous and Vexatious Claims

The Respondent submitted that these claims were misconceived, made in bad faith, frivolous and vexatious. It submitted that the sheer number of complaints provide no supporting narrative and evidence and places an enormous burden on the employer to respond to the claims in an appropriate and fair manner.

The Respondent cited Section 42(1) of the Workplace Relations Act 2015 which provides that an Adjudication Officer “may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.”

The Respondent noted that the question before the Adjudication Officer is to determine if the claims brought by the Complainant are frivolous or vexatious and referred to Justice Barron where it was noted in Farley v Ireland [1997] IESC 60 that the terms are interchangeable: “So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious”.

The Respondent also cited the case of Kelly v The Information Commissioner (2014) IEHC 479 where Justice O’Malley noted that: “As a matter of Irish law, the term ‘frivolous or vexatious’ does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail. Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

The Respondent drew attention to the 3rd edition of Delany and McGrath’s “Civil Procedure in the Superior Courts” (paragraph 16-05), Superior Courts have clarified as to when claims in courts should be misconceived: “It is well-established that the jurisdiction conferred by Order 19, rule 28 is exercisable by reference to the pleadings only. In McCabe v Harding 11 O'Higgins CJ stressed that, in order for rule 28 to apply, “vexation or frivolity must appear from the pleadings alone”, a point that was reiterated by Costello J in Barry v Buckley, who stated that “the court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face”. This basic principle was reaffirmed by Costello J in D.K. v King, where he stated that rule 28 only applies where it can be shown that the text of the plaintiff’s summons or statement of claim discloses no reasonable cause of action or that the action is frivolous or vexatious. So, for the purposes of considering whether to accede to an application based on rule 28, the court should consider the pleadings only, ignoring any affidavit evidence filed, and further must proceed on the basis that any statements of fact contained in the pleading sought to be struck out are true and can be proved by the party. Clarke J made it clear in Salthill Properties Ltd v Royal Bank of Scotland plc that “the court must accept the facts as asserted in the plaintiff’s claim, for if the facts so asserted are such that they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim.” As Baker J stated in Wilkinson v Ardbrook Homes Ltd, the approach of the court should be “to ask whether the plaintiff could possibly succeed on the case as pleaded and in the light of the facts asserted, and only if it is satisfied that a plaintiff could not possibly establish those facts, or could not possibly succeed on the pleadings, should the proceedings be struck out.”

The Respondent submitted that the Complainant had not provided any detail, evidence, or narrative to support each of her claims. The Respondent further submitted that it is entitled to the principles of natural justice and that should these claims proceed without supporting evidence or specification, it would consider its rights to be infringed. The Respondent noted that as per Farley, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, something of which the Respondent cannot countenance. In all the circumstances the Respondent requested that the Adjudication Officer dismiss these claims.

3. Time Limits

The Respondent noted from the Complainant’s form, that she worked on the 24th of March 2020 and that having been informed that there was COVID in the nursing home and that she was caring for her sick child and the Complainant “informed them and did not return to work there”. The Respondent accepted that this occurred. The Respondent noted that the Complainant submitted her complaint form to the WRC on the 12th of February 2021. The Respondent submitted that on that basis, the cognisable period of the claims before the WRC is from the 11th of August 2020 to the 12th of February 2021.

The Respondent cited Section 41 of the Workplace Relations Act 2015 which provides that: (6) Subject to subsection (8), “an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates……. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” The Respondent submitted that the claims were submitted outside of the cognisable period and it relied on the view held by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) Limited v Tom Carroll (2003) DWT0338 to support its argument, “

The Respondent noted that the Court’s explanation in Cementation Skanska, drew heavily from the High Court case of O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, where Costello J held that the test is an objective one and pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. Costello J stated: “The phrase 'good reason' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The Respondent further noted that reasons proffered to the Employment Appeals Tribunal (EAT), WRC and Labour Court over the years for time extension limits varied from case to case. The Respondent cited the case of Byrne v Quigley UD762/94 where the Complainant argued for an extension of the time limit in order to pursue his claim on the basis that he was not aware of his rights and was relying on his ignorance of the law. The EAT found that ignorance of the law was not an excuse to “afford a justifiable excuse for the delay. The Respondent also cited the case of Lidl Ireland GMBH and Andrea Moreira EDA1921 where the Court refused to grant a time extension for the Complainant, noting that while she was on sick leave, she was instructing her solicitors during this time who issued a number of letters to the Respondent. Additionally, the Respondent noted the case of A Respondent and An Appellant (EDA188) where the Court noted that the Appellant’s mental health did not prevent her from making her complaint within the sixmonth period, noting that she had the benefit of both legal advice and the services of her Trade Union.

The Respondent noted the decision in Tyco Healthcare {Ire} Ltd v A Worker (EET025), where the Labour Court noted that the reason for delay in submitting the claim was due to the failure of the Complainant's legal advisors to file her proceedings on time. The Court's view was that this did not constitute acceptable circumstances for an extension to the initial six-month timeframe and denied a time extension. Similar circumstances were observed in Employee and Employer (UD1255/2005) where the EAT refused to grant an extension and noted that the Complainant had issued instructions within the six-month cognisable period to file her claim, which unfortunately, was not done so in time.

The Respondent also noted the decision in Beasley v National Grid [2008] EWCA Civ 742 (UK Court of Appeal) where the Claimant was 88 seconds out of time in submitting his appeal to the Court. Tuckey LJ reasoned that time bars “…exist for the very good policy reason, that parties should know where they stand within a limited time of any dispute arising.” 

Based on the date of employment, the date of submission of the complaint, the cognisable period for the submission of the complaint and the case law outlined the Respondent requested that the Adjudication Officer find that they do not have jurisdiction to hear the case. The Respondent further requested that the claim be dismissed and that the Adjudication Officer consider this argument prior to hearing the substantive case.

4. Requisite length of service to make claim under Unfair Dismissals Act (CA-00042506-003)

The Respondent submitted that notwithstanding the preliminary argument regarding time limits, the Respondent it noted that the Complainant was making a claim without having the requisite length of service needed to enact her rights under the Unfair Dismissals Act. The Respondent cited Section 2(1)(a) of the Act which provides that: “This Act shall not apply in relation to any of the following persons: an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act,”

The Respondent referred to BDO and Ms Eimear Stynes (UDD1947) where the preliminary matter of length of service required under the Act was raised. The Court provided its view on the matter as follows: “The Court draws its jurisdiction from the Act. The Act makes clear that, in order to enjoy the protection of the Act, the Appellant must meet the service requirement set out in the Act unless a provision of that Act exempts her from that requirement. The Appellant has not contended that any provision of the Act removes from her the statutory requirement to have acquired 12 months service in order that the protection of the Act would apply to her….. The Appellant, having less that 12 months service at the date of termination of her employment, lacks the locus standi to pursue the within appeal”.

The Respondent noted that the Complainant’s length of service was a single day, 24th of March 2020 and that as per the Section 2(1)(a), the Complainant did not have the requisite length of service required to pursue her claim under the Unfair Dismissal Act. In the circumstances, the Respondent submitted that the Adjudication Officer could not hear this claim due to this jurisdictional point.

5. Prima facie case of discrimination/burden of proof (CA-00042506-005 & CA-00042506-006)

The Respondent cited Section 85 (a) of the Employment Equality Acts 1998 to 2015 which requires the Complainant to present facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Respondent noted that the Labour Court has stated that its jurisprudence in this matter (along with that of the WRC) stems from the Court’s analysis in Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201, wherein the Court stated: “The first requirement is that the [Complainant] must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a [Complainant] must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the [Respondent] to prove that there is no infringement of the principle of equal treatment”.

The Respondent also noted the case of Margetts v Graham Anthony & Company Limited, EDA038, where the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established, was further outlined by the Labour Court where it stated: “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”.

The Respondent submitted that direct discrimination consists of two elements:

· less favourable treatment of the Appellant

· the existence of one of the nine grounds of discrimination for such treatment.

The Respondent further submitted that both elements must be satisfied for a claim of discrimination on any of the nine grounds to succeed. The Respondent submitted that the Complainant had provided no evidence of less favourable treatment.

The Respondent noted that the Complainant had not identified a relevant direct comparator within the Respondent’s organisation (in a similar role) who was or has been treated more favourably than her and noted that this was a clear requirement as per Section 6 of the Act to substantiate any claim of discrimination. The Respondent further noted that the Complainant had provided no evidence of discrimination nor had she selected a ground for discrimination. The Respondent submitted that it is only when the Complainant has discharged this burden to the satisfaction of the Adjudication Officer, that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submitted that it was it’s position that the Complainant had failed to establish a prima facie case of discrimination and as such, the burden should not shift to the Respondent in this instance.

The Respondent noted that in Melbury Developments v Arturs Valpetters, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that an Appellant: “… 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”. The Respondent further noted that the Court added: … 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.”

On the basis set out above the Respondent requested that the claims for discrimination be dismissed.

6. Lack of detail and evidence to support claims

The Respondent noted that the narrative provided by the Complainant in her WRC complaint form, did not provide any detail or evidence of what she was alleging for her 18 claims.

The Respondent referred to ISS Limited v Zhivko Mitsov (DWT1159) where the case centred on the evidential burden of the Complainant to adduce evidence to support his claims. In that case the Labour Court stated that, as a matter of basic fairness, the Complainant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet. The Labour Court stated that this had been pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 where the evidence adduced is sufficient to “suggest a reasonable possibility”.

The Respondent further noted that in Nolan Transport v Jakonis Antanas DWT 1117 and in Erac Ireland Limited and Eddie Murphy DWT1583 the Labour Court made clear that the complainant had a duty to particularise the claim he is making. As stated by the Labour Court in Nolan Transport: “The normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded…………. Thus, a form of rebuttable presumption of non-compliance arises in such cases. But the burden of proof must be applied in a way that conforms to the 14 requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut”.

The Respondent submitted that it was its position that the Complainant had failed to satisfy the evidential burden to any degree, that would provide any degree of clarity on the Respondent is expected to rebut. The Respondent submitted that in these circumstances the Adjudication Officer must dismiss these claims as taken without merit.

The Substantive Complaints

General Background

The Respondent outlined that on the 24th of March 2020, the Complainant was hired as a Care Assistant with the Respondent, that she attended work on that day to complete her induction. The Respondent submitted that the Complainant did not stay for her full shift upon her been notified that there was COVID in the nursing home, that she said she had a vulnerable child and could not subject herself to a COVID environment and then left the premises. The Respondent submitted that it contacted the Complainant to see if she would return to work, however, the Complainant stated that she would not do so.

The Respondent noted that then on the 12th of February 2021, the Complainant submitted her complaints to the WRC

CA-00042506-001 – Terms of Employment (Information) Act, 1994.

The Respondent noted the Complainant’s allegation that she did not receive a statement in writing of her terms of employment. The Respondent rejected this allegation and submitted that the Complainant received a statement of her terms of employment in the form of a contract of employment. The Respondent appended a copy of the contract to the submission.

CA-00042506-002 – Terms of Employment (Information) Act, 1994.

The Respondent noted the Complainant’s allegation that she was not notified of a change to her terms of employment. The Respondent submitted that it was at a loss as to how the Complainant had reached this conclusion and submitted that the Complainant was provided with a contract of employment and her terms of employment remained the same on the day she commenced employment with the Respondent.

CA-00042506-003 – Unfair Dismissals Act, 1977.

The Respondent noted the Complainant’s allegation that she had to leave her job due to the conduct of her employer or others at work and she had at least 12 months service. The Respondent referred the Adjudication Officer to the fourth preliminary argument for this claim.

CA-00042506-004 – Unfair Dismissals Act, 1977.

The Respondent noted that the Complainant had selected on her WRC complaint form that she had to leave her job due to the conduct of her employer or others at work due to Trade Union membership, pregnancy, exercising her right to adoptive leave, exercising her right to force majeure leave, exercising her right under the National Minimum Wage Act, exercising her right under the Carer’s Leave Act or exercising or proposing to exercise rights under the Protected Disclosures Act and she did not have at least 12 months service under the Unfair Dismissals Act.

The Respondent submitted that it was at a loss as to how the Complainant had selected this claim. The Respondent noted from the Complainant’s WRC complaint form that she mentioned that she was looking after her mother and sick child during her employment. The Respondent submitted that it received no request from the Complainant to take either carer’s leave or force majeure leave.

CA-00042506-005 – Employment Equality Act, 1998.

The Respondent noted the Complainant’s allegation that she was discriminated against by the Respondent and had selected the 24th of March 2020 as the most recent date of discrimination. The Respondent submitted that notwithstanding the fifth preliminary argument outlined above, the Complainant had failed to identify a ground of discrimination as the basis of her discrimination claims.

The Respondent noted that the Complainant had selected on her WRC complaint form that the Respondent treated her unlawfully by discriminating against her in conditions of employment. The Respondent cited Section 8 (6) of the Acts which states: ‘an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one— (a) the same terms of employment (other than remuneration and pension rights), (b) the same working conditions, and (c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different’. The Respondent submitted that without prejudice to its fifth preliminary argument, the Complainant received same terms and conditions during her employment and she was not treated less favourably as she alleged. The Respondent noted that she had not provided any detail, evidence, or narrative to support her claim nor had she put forward a comparator nor referred to any discriminatory ground (as noted in Section 8(6)).

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-006 – Employment Equality Act, 1998.

The Respondent noted the Complainant’s allegation that she did not receive equal pay. Without prejudice to the Respondent’s fifth and sixth preliminary arguments, the Respondent noted that the Complainant had not provided any detail, evidence, or narrative to support her claim nor had she put forward a comparator nor referred to any discriminatory ground.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-007 – Equal Status Act, 2000

The Respondent noted that the Complainant had selected on her WRC complaint form that she was discriminated against by a person, organisation/company who provides goods, services, or facilities and submitted that, without prejudice to the Respondent’s position that it did not discriminate against the Complainant, the Respondent w asnot aware that the Complainant had availed of the services or facilities of the Respondent.

The Respondent noted on the Complainant’s WRC complaint form for her Equal Status Act claim, that the most recent date of discrimination was “24th of March 2020”. The Respondent further noted that her WRC complaint form was submitted to the WRC and received on the 12th of February 2021.

The Respondent referred to Section 21 (2)(a) the Equal Status Acts, 2000-2015 where it provides that: "Before seeking redress under this section, the complainant- (a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of- (i) the nature of the allegation,  (ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act.” The Respondent also referred to Section 21 (3)(a) the Equal Status Acts, 2000-2015 which provides that: "On application by a complainant the Director may- (i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or (ii) exceptionally, where satisfied that it is just and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and where such a direction is given, this Part shall have effect accordingly."

The Respondent submitted that the claim made under the Equal Status Act was manifestly outside of the timeframe allowed under the Act and that furthermore, the Complainant had not submitted the ES1 notification form to the Respondent nor had the Respondent received such a form for this claim from the WRC.

The Respondent submitted that the Adjudication Officer does not have the jurisdiction to hear this case and relied on the Adjudication Officer’s remarks in Borsca v Bank of Ireland ADJ-00010452 where it was stated “my jurisdiction in this case rests on compliance with section 21(2)”. The Respondent submitted that the Officer in this case also mentioned: “However, there are strict notification requirements, and these have not been satisfied in their entirety in this case. I appreciate that the Complainant referenced the Equal Status Act in her complaint but there is a clear variance in the statutory notification requirement. The purpose of the ES1 form is to allow the Respondent some time to engage with the complainant with a view to seeking to resolve the matter. Provision is made for Information sharing if same is requested by the complainant. The Complainant did not place the Respondent on notice of her intention to refer the case to the WRC if dissatisfied with the response received by the respondent. I appreciate that there was a clear duplication in the initiation of the complaints which culminated in confusion. However, I am required to ensure that all aspects of Section 21 of the Act have been met. On this occasion, I have found a shortfall which in my opinion has not been sufficiently explained or reasoned by the complainant. This omission has prevented my jurisdiction in the case, and I must deny jurisdiction.”

The Respondent requested that this claim be dismissed.

CA-00042506-008 – National Minimum Wage Act, 2000

The Respondent noted the Complainant’s allegation that she was penalised by the Respondent for invoking her entitlements under the Act. The Respondent submitted that it was at a loss as to how the Complainant had reached this conclusion and submitted that without prejudice to the Respondent’s sixth preliminary argument, it noted that she had not provided any detail, evidence, or narrative to support her claim.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-009 – Carer’s Leave Act, 2001

The Respondent noted the Complainant’s allegation that she was penalised by the Respondent for having exercised or proposed to exercise her entitlements to carer’s leave. The Respondent submitted that it was at a loss as to how the Complainant had reached this conclusion.

The Respondent noted from her WRC complaint form, where the Complainant mentioned that she was looking after her mother and sick child during her employment. The Respondent submitted that it received no request from the Complainant to take carer’s leave during her employment and submitted that without prejudice to the Respondent’s sixth preliminary argument, it noted that she had not provided any detail, evidence, or narrative to support her claim.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-010 – Employees (Provision of Information and Consultation) Act, 2006

The Respondent noted the Complainant’s allegation that she was penalised by the Respondent for having performed the functions of an employee representative. The Respondent referred to Section 6 of the Act which provides that: “(1) In this Act, “employees’ representative” means an employee elected or appointed for the purposes of this Act. (2) Subject to subsections (3) and (4), the employer shall arrange for the election or appointment of one or more than one employees’ representative under this section. (3) Without prejudice to section 11 , where it is the practice of the employer to conduct collective bargaining negotiations with a trade union or excepted body, employees who are members of a trade union or excepted body that represents 10 per cent or more of the employees in the undertaking shall be entitled to elect or appoint from amongst their members one or more than one employees’ representative for the purposes of this Act.”

The Respondent submitted that the Complainant was never an employee representative nor did it have any knowledge that she was an employee representative as defined under Section 6(1). The Respondent submitted that the Complainant did not identify herself as an employee representative nor as an elected official of a trade union. The Respondent submitted that, in these circumstances, the Complainant did not have the requisite locus standi to bring her claim.

The Respondent referred to FTP Recruitment Limited T/A Clarity Locums and John Madden (DIC201) to support its argument, where the Court determined that: “The Act contains provisions for the protection of employee representatives from penalisation by an employer for performing their information and consultation duties and functions. In order to be encompassed by the terms of the Act, the Complainant must establish that he was an “employees’ representative” as defined by Section 6 of the Act, which required that he be elected or appointed by employees who are members of a trade union or excepted body. It was confirmed for the Court that the Complainant was neither elected or appointed as an employee representative in accordance with Section 6 of the Act, therefore the Complainant does not have locus standi under the Act”.

The Respondent submitted that the Complainant did not have locus standi and the complaint should fail.

CA-00042506-011 – Employment Permits Acts, 2024

The Respondent noted the Complainant’s allegation that she was penalised for making a complaint under the Act. The Respondent submitted that it was at a loss as to how the Complainant had reached this conclusion. Without prejudice to the Respondent’s sixth preliminary argument, the Respondent noted that she had not provided any detail, evidence, or narrative to support her claim.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-012 – Employment Equality Act, 1998

The Respondent noted the Complainant’s allegation that she was victimised for taking an action set out in Section 74 of the Act. Without prejudice to the Respondent’s fifth and sixth preliminary arguments, the Respondent noted that she had not provided any detail, evidence, or narrative to support her claim nor had she put forward a comparator nor referred to any discriminatory ground. The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-013 – Protection of Employees (Employers’ Insolvency) Act, 1984

The Respondent noted the Complainant’s allegation that the Minister for Social Protection failed to make the full payment due to her under the Insolvency Payments Scheme. The Respondent submitted that it was at a loss as to how the Complainant had reached this conclusion. Without prejudice to the Respondent’s sixth preliminary argument, the Respondent noted that she had not provided any detail, evidence, or narrative to support her claim.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-014 – Protection of Employees (Fixed-Term Work) Act, 2003

The Respondent noted the Complainant’s allegation that the Respondent failed to provide employees’ representatives information about fixed term work. The Respondent submitted that it was at a loss as to how the Complainant had reached this conclusion. Without prejudice to the Respondent’s sixth preliminary argument, the Respondent noted that she had not provided any detail, evidence, or narrative to support her claim.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-015 – Carer’s Leave Act, 2001

The Respondent noted the Complainant’s allegation that she was not granted carer’s leave. The Respondent submitted that it was at a loss as to how the Complainant has reached this conclusion. The Respondent noted from her WRC complaint form, where the Complainant mentioned that she was looking after her mother and sick child during her employment. The Respondent submitted that it received no request from the Complainant to take carer’s leave during her employment.

Without prejudice to the Respondent’s sixth preliminary argument, the Respondent noted that the Complainant had not provided any detail, evidence, or narrative to support her claim.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-016 – Parental Leave Act, 1998

The Respondent noted the Complainant’s allegation that she was not granted force majeure leave. The Respondent submitted that it was at a loss as to how the Complainant has reached this conclusion. The Respondent noted from her WRC complaint form, where the Complainant mentioned that she was looking after her mother and sick child during her employment. The Respondent submitted that it received no request from the Complainant to take force majeure leave during her employment.

Without prejudice to the Respondent’s sixth preliminary argument, the Respondent notes that the Complainant had not provided any detail, evidence, or narrative to support her claim.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-017 – Terms of Employment (Information) Act, 1994

The Respondent noted the Complainant’s allegation that she received a statement of her core terms which deliberately contain false or misleading information. The Respondent submitted that it was at a loss as to how the Complainant has reached this conclusion. Without prejudice to the Respondent’s sixth preliminary argument, the Respondent noted that the Complainant had not provided any detail, evidence, or narrative to support her claim.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

CA-00042506-018 – Protection of Employees (Temporary Agency Work) Act, 2012

The Respondent noted the Complainant’s allegation that she was treated less favourably by the Respondent to whom she was hired out as an agency worker in relation to access to facilities and amenities. The Respondent submitted that it was at a loss as to how the Complainant has reached this conclusion. Without prejudice to the Respondent’s sixth preliminary argument, the Respondent noted that the Complainant had not provided any detail, evidence, or narrative to support her claim.

The Respondent reserved the right to make further oral and written submissions in the event that further information be provided by the Complainant.

In conclusion, the Respondent submitted that it rejected the claims made by the Complainant. It noted that it had made several preliminary arguments which it requested the Adjudication Officer to rule on and it requested that the Adjudication Officer dismiss the claims

Hearing 2 April 2025

The Respondent was present and prepared to outline its’ position at the hearing but in the context that there was no Complainant present to move the complaint this proved unnecessary.

Decision:

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

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

Section 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9 of that Act.

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.

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

CA-00042506-001 – Terms of Employment (Information) Act, 1994.