ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00053997
Parties:
| Complainant | Respondent |
Parties | Colleen Lonergan | Infosys BPM Limited |
Representatives |
| Muireann McEnery Infosys |
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-00065500-001 | 16/08/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00065500-002 | 16/08/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00065500-004 | 16/08/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00065500-005 | 16/08/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00065500-006 | 16/08/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00065500-007 | 16/08/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00065500-008 | 16/08/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00065500-009 | 16/08/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00065500-010 | 16/08/2024 |
Date of Adjudication Hearing: 18/02/2025 and 29/05/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
The issues raised by the Complainant herein are contained in a workplace relations complaint form dated the 16th of August 2024. The initial complaints required some clarification which were further detailed in September of 2024.
Several complaints have been brought, and I set out the legal basis for each of these complaints as follows:-
The Unfair Dismissals Act 1977 –
The Complainant says she was Unfairly Dismissed (002)
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission. The Adjudication Officer will, where appropriate, hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(1) of the Unfair Dismissals Act 1977 :
“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”
Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal. Gross Misconduct might be considered a substantial reason.
Section 6(6) of the Unfair Dismissals Act 1977 reads :
“Without prejudice to the generality of Subsection (1) of this section the dismissal of an employee shall be deemed for the purposes of the Act, not to be an Unfair Dismissal, if it results wholly or mainly from one or more of the following :
(a) The Capability, Competence or Qualifications of the employee for performing work of the kind for which he was employed by the employer to do;
(b) The conduct of the employee,
(c) the redundancy of the employee, and
(d)….”
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
It is noted that the workplace relations complaint form issued within six months of the dismissal, and the Complainant has more than one year of service. I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed, and the dismissal is found to be unfair, the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is a positive onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Terms and Conditions of Employment Act 1994
The Complainant herein has referred a matter for adjudication as provided for 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 Act specifically 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.
The Complainant says that she did not get a written notification of a change to her terms of employment (009).
The Industrial Relations Act 1969
The Complainant disputes the imposition of a sanction of dismissal (003).
The Complainant herein has agreed that the issue of her dismissal is more appropriately dealt with under the Unfair Dismissals legislation and has directed that the dispute raised under the Industrial Relations Act is withdraw,
The Employment Equality Act 1998
The Complainant says that she has been discriminated against by her employer on the grounds of her disability and age.
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint is referred to the Director General of the Workplace Relations Commission who has in turn referred the matter to the Adjudication services for a full hearing where appropriate oral evidence of the parties and their witnesses is taken into account along with any other evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and which has been opened up in the course of the hearing).
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her disability (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where: -
Sub Section (1) For the purpose of this Act…discrimination shall be taken to occur where -
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (referred to as the “discriminatory grounds”) …
Sub Section (2) As between any 2 persons, the discriminatory grounds ...are…
(g) That one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”) …
Section 85(A) of the Employment Equality Acts of 1998 to 2004 sets out the burden of proof which applies to claims of discrimination. In the first instance, the Complainant herself must establish facts which show that she suffered discriminatory treatment. It is only when these facts have been established that the onus shifts to the Respondent to rebut any inference of discrimination that has been raised. The inference must be such that the Complainant has established a Prima Facie case that she has been treated less favourably than another person is, has been or would have been treated in a comparable situation on one of the recognised grounds of discrimination which in this instance is the “disability ground”.
Prima Facie evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.
The Minimum Notice & Terms of Employment Act 1973
The Complainant has additionally referred a matter for adjudication as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant. In particular, the complaint 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.
Where the Adjudicator finds that the section was contravened by the Employer in relation to the Employee who presented the complaint, the Adjudication officer can direct that the employer concerned pay to the Employee compensation for any loss sustained by the Employee by reason of the contravention.
Where the employee has been in continuous service for a period of more than thirteen weeks and less than two years he or she will be entitled to one week of pay.
The Complainant has asserted that she did not receive the appropriate payment in lieu of notice at the end of her employment (005)
The Organisation of Working Time Act 1997 (2 complaints)
The Complainant stated that she was not getting compensation for working on a Sunday (006) which amounts to a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 14 of the act which provides for compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated including the payment of an allowance, an increased rate of pay or paid time in lieu.
In addition to this, the Complainant is asserting contravention of Section 19 of the Organisation of Working Time Act which sets out those circumstances which give rise to annual leave entitlements. So that in the Act an Employee becomes entitled to annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 or more;
1/3 of a working week in each month that the Employee has worked more than 177 hours;
8% of the hours worked up to 4 working weeks
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Complainant says that she did not get her holiday/annual leave entitlements (010)
The Payment of Wages Act 1991 (3 complaints)
The Complainant has brought a further three complaints of contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented, the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015.
In particular, the Complainant herein has referred the following complaints:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a complaint of an unlawful deduction having been made from the Employee’s wage and/or the Employer has not paid wages that are properly payable to the employee.
Under this Act the complainant has asserted that she was not paid overtime and nor was she paid a bonus scheme which fell due after the termination of her employment.
The Complainant additionally sought a notice payment under this Act which is identical to the claim brought under the Minimum Notice & Terms of Employment Act 1973.
Background:
This matter was heard over the course of two days by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.
In response to 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), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there was to be a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation would be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. 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 16th of August 2024 (though subsequently particularised). In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date. The relevant cognisable period is the 17th of February 2024 to the 16th of August 2024. It is noted that the Complainant’s employment terminated on the 10th of July 2024.
At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Summary of Complainant’s Case:
The Complainant represented herself. The Complainant’s husband assisted in the presentation of the case. No objection was made to the spousal assistance being provided. I recognise that the Complainant needed the additional support. She gave her evidence on Affirmation and provided me with documentation in furtherance of her case. As the Complainant was unrepresented, I assisted as far as I could with putting some structure on the claims being made. I explained to the Complainant that, other than the claim for Unfair Dismissal, the burden of proof rested with the Complainant to make her case in respect of each of the other complaints brought. I specifically outlined the need to make a prima facie case in respect of the allegations of discrimination. On the first day of hearing, we concentrated on the claim for unfair dismissal. The Complainant is making the case that she was unfairly dismissed when her interaction with a client was determined to be Gross Misconduct warranting her immediate dismissal. The Complainant challenges the efficacy of this decision-making process in circumstances where the Complainant was allowed to remain in her role for a week after the event and before the Dismissal. Between the first and the second day of hearing, I urged the Complainant to set out a comprehensive submission identifying instances she said amounted to discriminatory events in the workplace. I advised that these should include an instance or instances in the cognisable period. On the 11th of March 2025 the complainant submitted the following submission: Discrimination based on health issues I maintain that the company used my health issues against me after making the mistake of over sharing my health issues in 1 to 1 s with my managers On 2 different occasions Approximately 27th sept 2023.. and April 30th 2024 , I was told to take time off (2 weeks each time) I received no pay for this time even though I produced certs from gp... I was told to go to dsp and the certs were not accepted as I did not have enough credits being out of work for 28 years to take care of my 3 children. 30th of April 2023 I had to have an angiogram done in Waterford and had a bad reaction as what I thought was a heart attack but my Dr says I already had a heart attack . On 27th of Sept, I was out due to a breakdown crying at work over home issues and bad calls from customers . I was continually harassed about taking too long coming back from toilet and brakes even though I was struggling with my various health issues It's my belief that when I made the mistake on the call ...the company took full opportunity to terminate my employment because of my ongoing health issues Therefore discriminating against me. The Complainant is additionally looking for a payment in lieu of her accrued holiday and a payment in lieu of her Statutory Notice. The Complainant is further asserting that she is owed overtime and Sunday premium. The Complainant is further making the claim that she is owed circa €1,400.00 in respect of two Bonus payments which fell due in September 2024 and January 2025. Both of these dates postdate the termination of the employment. It should be noted that a claim under the Industrial Relations Acts asserting an unfair dismissal was withdrawn as the Complainant had sufficient service with the employer to allow her to maintain this claim under the Unfair Dismissals Acts 1977 – 2015 legislation. 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.
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Summary of Respondent’s Case:
The Respondent had full representation at this hearing. The Respondent provided me with two written submissions dated February 2025 and March 2025. I have additionally heard from a number of witnesses for the Respondent. These included the Senior Ops Manager (TL) the Junior Ops Manager (LF) and the Team Leader (CC). The Accounting and payroll evidence was provided by a Mr. KC. All evidence was heard following an Affirmation. The Respondent acknowledged that the burden of Proof rested with it to establish that it was reasonable and appropriate to dismiss the Complainant. The Respondent accepted some aspects of the complaints made concerning monies owing and have sought to rectify these payments between the two hearing dates. In response to the submission provided on the issue of Discriminatory treatment, the Respondent provided the following response: I refer to the below email from Ms Lonergan. My understanding is that this email has been sent in response to a request from the Adjudicating Officer on the occasion of the hearing of this matter on 18th February. Ms Lonergan had indicated that she was making a claim under the Employment Equality Legislation for discrimination on the grounds of Disability, Age and Race but had provided no details in relation to same. The information below appears to relate solely to the Disability ground. Discrimination on the grounds of disability means being treated less favourably that someone who does not have a disability or does not have the same disability. It is the Respondent’s position that what the Claimant has outlined below does not constitute less favourable treatment on the disability ground. “April 30th 2024 , I was told to take time off (2 weeks each time) I recieved no pay for this time even though I produced certs from gp... I was told to go to dsp and the certs were not accepted as I did not have enough credits being out of work for 28 years to take care of my 3 children.” This is a social welfare matter and appears to relate to PRSI contributions. This has nothing to do with the Respondent. “30th of April 2023 I had to have an angiogram done in Waterford and had a bad reaction as what I thought was a heart attack but my Dr says I already had a heart attack . On 27th of Sept, I was out due to a breakdown crying at work over home issues and bad calls from customers . I was continually harassed about taking too long coming back from toilet and brakes even though I was struggling with my various health issues It's my belief that when I made the mistake on the call ...the company took full opportunity to terminate my employment because of my ongoing health issues” · Who was continually harassing the Claimant in relation to toilet breaks? · What are the dates and times of this alleged harassment? · How is the need for lengthy toilet breaks related to her alleged disability? · On what basis is the Claimant alleging that her dismissal was due to her alleged disability when all the evidence outlines that it was in fact in relation to the profane language used on the phone call? · Who is the named comparator? There is no substance whatsoever to these allegations and the information provided does not discharge the burden of proof on the Claimant to adduce facts from which an inference of discrimination can be drawn. These are frivolous and vexatious claims unsubstantiated by any coherent evidence such as would allow the Respondent to properly defend the matter. The Respondent therefore rejects that there has been any Discrimination and has urged me to make a finding that the Complainant has failed to establish a prima facie case. In particular the Respondent rejects the suggestion that it allowed a covert assessment of the Complainant’s health and/or disability be included in a Disciplinary process as has been suggested: ...the company took full opportunity to terminate my employment because of my ongoing health issues. 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:
I have carefully considered the evidence adduced over the course of two days. The Complainant had returned to the workplace after 27 years of working in the family home. There is no doubt that the Complainant had ongoing health issues, but these issues did not prevent the Complainant from arriving at work and tending to her duties. The Complainant worked in a call centre. The Complainant says that she liked her job. The call centre seemingly works on behalf of third-party clients and deals with Customer issues around billing and upgrades etc. I do accept that this can be quite a stressful environment and that there is training to deal with escalating situations. I accept that Confrontation is a workplace reality and that people are trained to diffuse rather than accelerate. Both sides agreed that this was the case. The Respondent witnesses confirmed that the Complainant was a good worker and LF confirmed she had never dealt with any complaints concerning the Complainant. There was no disciplinary record. The Team Leader did give evidence that she would occasionally have to chivvy the Complainant along when she was returning from toilet and cigarette breaks. I did not form the impression that this was more or less than she had to do with other persons in the team. The Complainant made the case that this was discriminatory treatment as her tardiness often related to heath issues. I note there were never any disciplinary issues around time keeping and must assume that the Team Leader was simply doing her job. The Complainant did find the environment sufficiently stressful that she availed of the services offered by the Employment Assistance Programme, and the supports therein provided - included counselling. If anything, I think it is fair to say that the workplace was alert to the needs of its Employees. Things came to a head when the Complainant was dealing with a particularly difficult phone call on the 26th of June 2024. A Customer wanted to delete an account not in her name. There does not seem to be in any doubt that the Complainant used the word “B***ch” while on the call with a customer and the initial version of events seemed to assert that the Complainant used the words “What a Fu**ing B***ch”. The customer heard the insult and was offended. The Complainant gave evidence that she thought the call was on hold. To her credit the Complainant owned her mistake immediately. She discussed it with her Team Leader CK who oversees somewhere between 15 and 20 people on the floor. CK escalated the incident up to the Junior Operations Manager LG who conducted an Investigation into the event. I understand CK talked to the original Customer in an effort to ameliorate the situation The Complainant was not put on paid leave pending the outcome of the Investigation and was instead allowed to remain on in the workplace. The Respondent reasoned that the Complainant was unlikely to make such a colossal mistake again. However, the Complainant appears to have interpreted her retention in the workplace as an indicator that the matter, whilst serious, was not serious enough to warrant her expulsion from the workplace and was therefore shocked when she was subsequently dismissed. I was not in a position to hear the tape recording of the phone call as it was deleted six months after the event. However, I understand that the tape was played in the course of the investigation and disciplinary process and that there was, at that time, no dispute that the language which was used was unacceptable. LG gave evidence that the phrase used was “what aFu**ing B***ch”. The Complainant said that the phrase was intended to describe the situation rather than the customer at the other end of the phone. Even if I did accept that this was the situation, the problem is that the customer heard it and took it to be a direct reference to her. The Complainant said that the frustration arose out of the fact that the Complainant had been on the phone for an hour and forty-five minutes with no help. I cannot know if this is correct or not, and there is no evidence that the Complainant was seeking assistance with the phone call before she seemingly verbally abused the customer. The Disciplinary process was conducted over the 2nd and 3rd of July 2024. The Respondent has asserted that no other factor was in play (in the making of it’s final decision) other than the fact that the use of abusive and foul language could not be allowed. It rejects the proposition that the Employer decided to use the opportunity to get rid of this Employee because she had health and/or disability issues. The Respondent gave evidence that the Complainant was not the first Employee let go in circumstances where profanity had been used. There was in effect a zero tolerance around the issue as the Respondent is at all times beholden to its own standards and the standards expected by the third-party clients. It is regrettable that the Complainant was marched out of the building in the manner described and I accept that that was humiliating for the Complainant who had only just summoned up the courage to return to the workplace after 27 years. I accept that the whole incident has had a profound effect on the Complainant’s self-confidence. The Senior Operation Manager heard the Appeal, and he confirmed the initial decision on the 4th of October 2024. The Appeal was against the sanction only. It seems therefore that at that point in time the Complainant accepted the findings as to the language used. Ultimately the decision affirming the dismissal was based on the concern that the lack of self-control seemingly demonstrated by the Complainant could possibly put client contracts at risk. The client Contract in question, he said, was a valuable one which involves the employment of many telephonists. I note that the Complainant gave evidence concerning her ability to receive and send emails and there was a question mark over whether or not the Complainant had access to the handbook though these were not issues raised in the course of the Disciplinary/Appeals process. On balance I am finding that the Respondent was entitled to terminate the Complainant’s employment for the reasons stated. I accept that the Respondent seemingly raised a hope that dismissal would not be the final outcome when the Respondent stay on in the workplace for the days between the incident and the termination of the Employment. This does not, however, impact the appropriateness of the final outcome. Regarding the issue of Unfair Dismissal, I approve the Respondent position as set out in the submission received: The Respondent’s position is that the Claimant’s behaviour in calling a customer a “f***ing bitch” on a recorded call was completely unacceptable in the workplace, constitutes gross misconduct and warranted dismissal. Such behaviour places the Respondent’s contract with the Client at risk. The Respondent refers to Allied Irish Banks plc v Purcell [2012] 23 EL 189 in which Linnane J. stated as follows: “The correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer would have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view” [quoting Lord Denning MR in the UK Court of Appeal case of British Leyland UK Ltd v Swift] It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken” The Court also took into consideration in this case the fact that the employee was in a customer facing role which is similar to the facts herein. It is the Respondent’s position that Claimant’s behaviour in using profane language in the workplace and while on a call with a customer clearly warranted dismissal. In circumstances where the Claimant was in a customer facing role it was untenable that she could be retained in this role going forward. The dismissal was carried out in accordance with fair procedures and due process and in all the circumstances the dismissal was fair and reasonable, and the Respondent respectfully requests the Adjudicator to so find Turning to the issue of workplace discrimination, I had made it clear to the Complainant that the onus was on her to establish a Prima Facie case. This must involve providing tangible which, in the absence of any contradictory evidence, would lead any reasonable person to conclude that a discrimination had occurred. The established approach to this issue and the test for applying the section 85A burden of proof is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“..the claimant 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 where these 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.” A general sense of grievance does not necessarily amount to workplace discrimination, and I cannot find that the Complainant has made a prima facie case. The remaining issues between the parties concerned monies that might or might not have been outstanding and due to be paid on the date of termination. Mr. KC gave comprehensive evidence regarding the Complainant’s remuneration. The Complainant worked a 40 hour week at a rate of €12.70 per hour. This gave gross weekly earnings of €508 and a net payment of €484. The workplace is governed by a clock in and clock out system and staff are only paid for the hours worked. Issues such as overtime and Sunday pay are all calculated based on the clocking in system. Mr. KC is confident that the Complainant was paid whatever was due to her. The Complainant did not specifically identify a time or date when a payment was missed. An issue did arise concerning an in-house Bonus plan. Mr. KC explained that the Bonus plan which was implemented in 2024 to 2025 was not dependent on work done but was an employment retention scheme. Employees who worked for the year of 2024 would be eligible for three separate payments. The first was payable in April of 2024 (which the complainant received) the second as payable in September 2024 and the last was payable in January 2025. The Complainant was not eligible for the last two payments as she was no longer in the workplace. Mr. KC gave a detailed break down of the accrued annual leave owed to the Complainant and confirmed that this was all paid to the Complainant on her departure from the Company in July of 2024. The leave year ran April to April. At the conclusion of all the evidence I set out my position in relation to each complaint as follows: Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00065500-001 – The Complainant was unable to identify an incident wherein the employer changed a material detail in the Contract of employment without any written notification. No change was identified at all. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00065500-002 The complainant was not unfairly dismissed and the complaint herein fails. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00065500-004 – The complainant has not established that her Employer behaved unlawfully and discriminated against her in the course of her employment such that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her disability Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00065500-005 – The Respondent was agreeable to the payment of one week’s notice and this payment has been made. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00065500-006 - The Complainant has not established that she was not compensated for working on a Sunday in the cognisable period. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00065500-007 – The Complainant was not entitled to receive the Bonus payments which were awarded to retained members of staff after the complainant had already left the workplace. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00065500-008 - The Complainant was not entitled to receive the Bonus payments which were awarded to retained members of staff after the complainant had already left the workplace. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00065500-009 – This is a claim for a notice payment which has already been dealt with CA-00065500-005 above. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00065500-010 – This is a claim for annual leave which has already been fully discharged.
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Decision:
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.
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 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.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00065500-001 – The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00065500-002 – The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00065500-004 – The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00065500-005 – The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00065500-006 – The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00065500-007 – The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00065500-008 – The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00065500-009 – The complaint herein is not well founded and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00065500-010 – The complaint herein is not well founded and fails.
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Dated: 17TH July 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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