ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047114
Parties:
| Complainant | Respondent |
Parties | Fiona Bird | GB Agencies Galway Limited trading as YaYa |
| Complainant | Respondent |
Anonymised Parties |
|
|
Representatives |
| Robin Hyde Solr., Alastair Purdy & Co. Solicitors |
Complaints:
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-00057930-001 | 27/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00057930-002 | 27/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00057930-003 | 27/07/2023 |
|
|
|
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00057930-005 | 27/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00057930-006 | 27/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00057930-007 | 27/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00057930-008 | 27/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00057930-009 | 27/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00057930-010 | 27/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00057930-011 | 27/07/2023 |
Date of Adjudication Hearing: 07/04/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, and made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that it is my obligation as the appointed Adjudicator to make all relevant inquiries into the complaint (or complaints) made. I can additionally and where appropriate hear the oral evidence of the parties and their witnesses and take account of the evidence tendered during the hearing as well as any written submissions disclosed in advance of the hearing.
I can confirm that the Complainant herein has brought ten separate complaints under four separate acts contained in Schedule 5 aforesaid. before the Workplace Relations Commission.
The Complainant herein has submitted a complaint under Section 27 of the Safety Health and Welfare at Work Act 2005 (referenced in aforementioned schedule 5) which protects employees from being penalised for having acted in compliance with the Safety Health and Welfare at Work Act 2005 (SHW Act) or for having performed any duty under the SHW Act, or for having made a complaint (or other representation) under the SHW Act (to a safety rep, an employer or to the Health and Safety Authority) or who has otherwise engaged in an exercise which might be deemed a protected act for the purposes of compliance with the Safety Health and Welfare at Work Act 2005. An Employer shall not penalise or threaten penalisation in such circumstances.
“Penalisation” in the context of s. 27 of the Safety Health and Welfare at Work Act 2005 would include (but is not limited to) suspension, lay-off, demotion, transfer of duty, imposition of discipline or penalty and coercion or intimidation. It is noted that Section 27(4) of the Safety Health and Welfare at Work Act provides that penalisation may include Dismissal.
The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given its ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665)
Section 28 of the Safety, Health and Welfare at Work Act 2005 confirms that a decision of an adjudication officer under section 41 of the Workplace Relations Act in relation to a complaint of a contravention of Section 27 of the SHW Act shall do one or more of the following –
- Declare the complaint was well founded.
- Require the Employer to take a specific course of Action.
- Require the Employer to pay to the Employee compensation of such an amount that the Adjudicator considers just and equitable in the circumstances.
The initial burden of proof herein is on the complainant to establish the existence a protected act and a detriment. If and only if the complainant establishes a protected act and a detriment does the burden shift to the respondent to put forward evidence that the detriment suffered was not due to the protected act being the operative cause. Paul O’Neill -v- Toni & Guy Blackrock [2010] 21 E.L.R. 1 established that the burden of proof is on a complainant to establish that on the balance of probabilities
(a) she/he committed a protected act, and
(b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed.
The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.
The Toni and Guy case establishes the “but for” test in penalisation cases where it states :-
“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the Safety Health and Welfare at Work Act 2005. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggestion that where there is more than one causal factor in the chain of events leading to the detriment complained of, then the commission of the protected act must be the operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”
In addition to the foregoing the Complainant has brought three separate complaints under the under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment.
The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties. In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
In addition to the foregoing, The Employment (Miscellaneous provisions) Act of 2018 (s.7) amended Section 3 of the Terms of Employment Act 1994 so as to oblige an Employer to provide a new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide the core details after one month of continuous service can lead to an award of four weeks remuneration. The 2018 Act came into effect on the 4th of March 2019.
The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars of the statement as provided by the Employer. The obligation does not extend to a change occurring in provision of statutes and instruments made under statute.
In addition to the foregoing, the Complainant herein has made three complaints of as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973. The complaint herein is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973.
Section 4 imposes an obligation on the employer who seeks to terminate the contract of employment a minimum period of notice. The period of notice is to be calculated in accordance with the length of continuous service. This starts at thirteen weeks and goes up to fifteen years. Even where payment has been accepted in lieu of Notice the date of termination shall be deemed to be the date on which the notice would have expired.
Lastly the Complainant brought three separate complaints of contravention of the Protection of Employees (Fixed Term) Work Act 2003that is, a Complaint that the Employer has contravened a condition of employment for a fixed-term employee as set out in the Act and in particular at Section 6 of the Act which states, in general terms, that a fixed term employee shall not, in respect of his or her conditions of employment be treated in a less favourable manner than a comparable permanent employee.
It should be noted that the Act at Section 6(2) recognises that the Employer may be able to justify less favourable treatment on objective grounds and Section 7 of the Act further details that such treatment must be appropriate and necessary for the purpose of achieving a legitimate objective.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.
I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.
The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 27th of July 2023. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.
|
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant’s complaint form noted Instant and Unfair Dismissal. No Terms or Conditions of Employment. No reason clearly given, when asked on what grounds I was being let go. Two weeks previous to my instant dismissal concerns were raised in relation to having no bathroom or running water for 5 months in our place of work. Due to a health issue, I contacted the Health and Safety Authority and they contacted my employer. Two weeks later on the 15th of May The Employer arrived into my place of work and told me to leave The evidence adduced by the Complainant was challenged as appropriate by the Respondent/by the Respondent witness. The Complainant alleges that her summary dismissal amounted to a retaliation or penalisation for having made a complaint to the Health and Safety Authority concerning the lack of washroom facilities in the workplace. Where it also became necessary, I explained how the adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. The Complainant’s complaint form was issued out of the Workplace Relations Commission on the 27th of July 2023. |
Summary of Respondent’s Case:
The Respondent had full legal representation at this hearing. The Respondent entity was represented by one of the company Directors. The Respondent provided me with a written submission dated April 2025. Further documentation (concerning the Complainant’s performance) was handed in on the day of hearing. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witness was questioned by the Complainant. The Respondent rejects that the Dismissal of the Complainant was for any other reason other than the Complainant’s poor performance in the workplace. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
The Complainant came to the Respondent retail premises with considerable experience having worked for up to ten years in a Pamela Scott shop in Stillorgan before being asked if she would like to come and work for Respondent’s new ladies’ boutique in Dun Laoghaire. GB (one of the Directors) explained that he had gone into partnership with a Dutch lifestyle brand. GB said that the Complainant had been recommended to him by a number of people. The Complainant commenced her employment on the 29th of December 2022. In the end, the employment only lasted five months. The Complainant has brought to eleven complaints to the attention of the WRC and issued her complaint form on the 27th of July 2023 which means, unless otherwise indicated, I am looking at breaches which might have occurred between the 28th of January 2023 and the 20th of May 2023 (this latter date being the last day of employment). The Complainant was engaged on a permanent part time basis working a 20-hour week at a rate of €13.50 per hour. The Complainant says she never received a Contract of Employment. The Complainant says she never received a record of her core terms. The Complainant says that she was initially happy in this new store though recognised that there were the inevitable start-up problems that needed to be ironed out. There were occasional issues with electricity and water supplies. The heating was poor, and she said sometimes they worked in their coats and scarves. However, perhaps the biggest issue was the lack of a staff bathroom on site, which also meant that there was no on-site hand washing facility. The Complainant was told that the premises had not, as yet, been fully fitted out and the instalment of a sanitary space was due to happen. GB gave evidence that he had concentrated on the shop and that the back area was still unfinished when they opened up the shop just before Christmas. GB did also agree that there was no heating for up to three weeks in January of 2024. The employer had made an arrangement with the coffee shop next door so that his staff could use the public bathroom available to the café’s customers as and when required. The Complainant says that this was not always convenient or satisfactory and I accept that this was not a particularly dignified solution to the lack of onsite facilities. It seems to me that the installation of a staff bathroom should have happened as part of the shop re-fit and not seen as an added extra to be dealt with down the line. I accept that this matter was raised within the shop with the Manager P whose job, I would have thought, would involve passing this message along to the owner/Director. The issue was not given any priority. The Complainant says that for personal and/or health reasons she needed access to a bathroom and was not happy to have to go next door and queue for the facility. This went on for about five months. The Complainant concedes that the Directors may not have known how the issue had personally affected her. GB himself says that the issue was never raised with him though I am noting that not one member of the staff who had worked alongside the Complainant was brought to the hearing to give evidence in this regard. The Complainant confirmed that she had eventually raised the issue with the Health and Safety Authority to determine if she was within her rights to be upset about this issue. The Complainant is not sure whether she triggered a complaint intentionally, but it seems that the Health and Safety Authority took it upon themselves to follow up on this issue. A notice was sent to the Company Director GB who was not happy about it. This happened in early May 2023. The Complainant recalled GB coming into the premises and saying to her line Manager -P- that he had never had such a thing happen to him as he showed P the notice. He had said he was not happy with this. Within a few weeks, at the direction of GB, the work had been carried out, and a staff bathroom was installed. GB gave evidence that the work was about to be carried out anyway and that he had not been particularly vexed by the Health and Safety notice. GB states that at that time he had not been aware that it was the Complainant who had raised the issue with the Authority. On the 15th of May 2023 GB and his partner KC arrived into the shop. This was a day that the Complainant was working. GB took the Complainant aside and told her that the employment relationship between them was not working out and that she could get her things and leave. The Complainant was shocked as there was no suggestion that her Manager or the owners or customers were unhappy with her work. The Complainant did leave that day. By way of justifying the dismissal the Directors stated that the Complainant was being let go as she had seemingly not passed her probation period. The Complainant says that there was never any discussion around a probationary period. A week or two later the Complainant asked for a copy of her Contract of Employment, and she was issued with one through the staff portal. The Complainant says she was never advised that there was a probationary period and there is no reference to one in the partially signed and undated Contract that I have been shown and which was sent to the Complainant after the dismissal. On cross-examination the Complainant asserted that, at the time of her dismissal, the workplace roster had had her scheduled to work for up to the June of that year and that there had been no issues raised with her work. The dismissal therefore came as a complete surprise to her. GB gave evidence that at the time that the H&S authority contacted him the works to instal a bathroom were already in the pipeline. He asserted that he had had number of conversations with the Authority personnel, and he was not unduly ruffled by the notice. Significantly, GB asserts he never knew that it was the Complainant who had initially raised the issue with the Authority. In fact, he says he only found out about the Complainant’s role in the issue when she issued her workplace relations complaint form. GB is adamant that the Complainant was let go for performance and not for bringing the Health and Safety Authority into his affairs. The Complainant rejects that her dismissal could be unrelated to the fact that her Employer had been forced to expend monies on the premises by reason of the Complainant’s having raised an issue with the Health and Safety Authority. She is therefore making the case that she has been penalised in the most grievous way for having raised the said issue with the Health and Safety Authority. I note that on the 16th of May 2023 GB wrote an email to his account’s person stating that the Complainant had just been let go as she had not passed her probationary period. I have not seen any other correspondence form the Employer to the Employee confirming the fact of the dismissal, the reasons for the dismissal or in any way acknowledging the right to accrued leave or minimum notice. The Complainant was not written to confirming the termination of her employment. GB gave evidence suggesting that the real reason for the Complainant’s dismissal was due to her poor performance. I was provided (on the day of hearing) with a spread sheet of sorts which seemingly demonstrated that the Complainant’s sales were not as good as her other five colleagues. I am noting that the Complainant was never advised in the course of her employment that there was an issue with her sales and that she was being outstripped by her colleagues. The Complainant simply rejected the evidence as false. GB seemed to be saying that he and P had identified the Complainant as being the weakest link and that as of March 2023 her performance was being scrutinised. I am satisfied that the Complainant had no knowledge that her performance was considered sub-par. She was not communicated with and she was not given extra training and she was not provided with a performance improvement plan or any other structure to help improve her seemingly imperfect performance. GB stated that when he terminated the employment, he did not refer to the Health and Safety Authority but he also did not refer to the issue of underperformance. GB simply relied on a probationary period about which the Complainant had no knowledge. On balance I am persuaded that the Employer herein was well aware that the Complainant had made a complaint to the Health and Safety Authority about her working conditions. I am persuaded that rather than acknowledging that the Complainant had raised a legitimate concern, GB was greatly put out by the Complainant’s actions. I am satisfied that the Complainant’s performance was never an issue until such time as the H&S Authority came into the frame. In light of evidence adduced by the parties I am making the following findings in respect of each of the complaints presented:- Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00057930-001 – This complaint concerns the failure of the employer to provide the complainant with a statement in writing of the terms of the employment. I accept that the Respondent did not provide this within the time limit prescribed by Statute. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00057930-002 – this complaint concerns the failure to notify the Complainant in writing of a change to the Complainant’s terms of employment. The difficulty with this complaint is that the Complainant never knew what the terms of her employment were in the first instance so that she could therefore push back against any change made. However, I do accept that the Employer attempted to retrospectively impose a probationary period on the Complainant when there was no suggestion that she was subject to one at the commencement of her employment. The Complainant was certainly not notified in writing in the course of her employment that she was subject to a six month probationary period. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00057930-003 – this complaint concerns the failure to provide the Complainant with an immediate Statement of her core terms. I am satisfied that the Complainant is correct in this regard. Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA-00057930-005 – The complaint herein concerns the Complainant’s assertion that she has been penalised by her employer for having made a complaint to the Health and Safety Authority. I am absolutely satisfied that the abrupt termination of the Complainant’s employment was an act of penalisation which has had a detrimental effect on the Complainant. I do not accept the Employer’s explanation for the termination which I perceive to be an attempt to shore up a highly problematic dismissal after the event. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00057930-006 – the complaint herein concerns the failure to pay Statutory Minimum Notice in circumstances where the Complainant was not invited to work out her notice. I have seen no evidence of a minimum notice payment having been made. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00057930-007 - this complaint concerns the Complainant rights during the minimum notice period. The Complainant did not make out this case. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00057930-008 – this complaint concerns entitlements to a contractual Minimum notice. This does not apply in these circumstances. Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00057930-009 – This complaint was withdrawn at the hearing. Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00057930-010 – This complaint was withdrawn at the hearing. Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00057930-011 - This complaint was withdrawn at the hearing.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00057930-001 – The complaint herein is well founded and I direct that the Respondent pay compensation to the complainant in the amount of €540.00. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00057930-002 - The complaint herein is well founded and I direct that the Respondent pay compensation to the complainant in the amount of €540.00. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00057930-003 -The complaint herein is well founded and I direct that the Respondent pay compensation to the complainant in the amount of €540.00. Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA-00057930-005 - The complaint herein is well founded and I direct that the Respondent pay compensation to the complainant in the amount of €7,500.00. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00057930-006 - The complaint herein is well founded and I direct that the Respondent pay compensation to the complainant in the amount of €270.00. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00057930-007 - The complaint herein is not well founded Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00057930-008 The complaint herein is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00057930-009 – The Complaint herein was withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00057930-010 - The Complaint herein was withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00057930-011 - The Complaint herein was withdrawn. |
Dated: 25th August 2025.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
|