Complainant

Respondent

Parties

Sylvia  Finnegan Sheey

Farrelly’s Supermarket Ltd. T/A Daybreak Abbey Crescent

Representatives

Rory Treanor, B.L. instructed by   Crushell & Co Solicitors

Dominic Wilkinson, B.L. instructed by  ARAG Legal Protection

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-00058846-001

15/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00058846-002

15/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00058846-003

15/09/2023

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

CA-00058846-004

15/09/2023

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

CA-00058846-005

15/09/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent undertook to give their evidence under affirmation.

 On the first hearing day it transpired that additional claims had been submitted to the WRC and the parties suggested that it may be prejudicial to continue with a single complaint.  In the circumstances the case was adjourned to enable both parties to make submission on all matters.  At the reconvened hearing the complainant was taken through her evidence and cross examined.  The hearing was adjourned to hear evidence-in-chief and cross examination from the two witnesses for the respondent.  On reconvening, the witnesses for the respondent failed to turn up.  The legal representatives for both parties were invited to provide closing submissions and the case closed in the absence of any evidence from the respondent.

The respondent failed to provide the timesheets requested by the adjudicator at the second day of hearing.

CA-00058846-001 Terms of Employment

The complainant submitted that she didn't receive a contract or updated contract in accordance with the specific legal and regulatory requirements.

CA-00058846-002 Minimum Notice

The complainant submitted that she did not receive notice payment from her employer

CA-00058846-003 Protected Disclosure

The complainant submitted that having raised issues of concern with her employer surrounding sexual harassment within the workplace, she was penalised

CA-00058846-004 Employment Equality

The complainant submitted that she suffered harassment.

CA-00058846-005 Unfair Dismissal

The complainant submitted that she was dismissed having raised a protected disclosure

The complainant gave evidence regarding the comments made by the manager and of making a complaint about her manager making derogatory comments about members of various groups of persons regarding race, membership of the travelling Community and a comment of a sexualised nature.  She stated that she made it in writing and that it was not dealt with.  She noted that the owner couldn’t understand why the complainant’s hours were being changed but noted that he stated that the new manager was “now the boss”.

The complainant stated that she never had sight of an employee handbook.  She stated that she received two letters on 14 February 2023 stating that her hours were being cut and that she had to change her shift pattern.

Under cross examination she stated that she was unable to undertake the different hours.  In response toa query she confirmed that she never sought an updated contract of employment.  She confirmed that it was her signature on the contract.  She confirmed that she retained no managerial responsibility. In terms of the reduction in hours she confirmed that it was not down to an effort to reduce costs.

CA-00058846-001 Terms of Employment

The respondent submitted that the complainant was given a contract of employment and submitted a copy of the contract.

CA-00058846-002 Minimum Notice

The respondent submitted that as the complainant resigned, she was not entitled to a minimum notice period.

CA-00058846-003 Protected Disclosure

The respondent submitted that the complainant has not provided any detail, nor does she specify what she alleges was the nature of the purported penalisation, which is denied. Furthermore, the complainant does not set out any dates or details in relation to the complaint generally, which is denied.

CA-00058846-004 Employment Equality

The respondent submitted that the burden of proof rests on the complainant and she has not established that she was harassed.

CA-00058846-005 Unfair Dismissal

The respondent denied that the complainant was constructively dismissed.

The witnesses for the respondent did not attend at the hearing convened to take their evidence.

CA-00058846-001 Terms of Employment

The complainant confirmed that she was provided with and signed a contract of employment.  On that basis I am satisfied that the complaint is not well founded. 

CA-00058846-002 Minimum Notice

The complainant confirmed that she resigned from her positions.  Accordingly, the employer is not required to afford her minimum notice in the circumstances.  I find that the complaint is not well founded.

CA-00058846-003 Protected Disclosure

Section 5(1)(2) & (3) of the Protected Disclosures Act states as follows:

(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

Having regard to the foregoing, I am not satisfied that the complainant made a protected disclosure as outlined in the Act or has identified a breach as further outlined in the Act.

"breach" means an act or omission—

(a) that is unlawful and to which one or more of the following subparagraphs applies:

(i) the act or omission falls within the scope of the Union acts set out in the Annex that concern the following areas:

(I) public procurement;

(II) financial services, products and markets, and prevention of money laundering and terrorist financing;

(III) product safety and compliance;

(IV) transport safety;

(V) protection of the environment;

(VI) radiation protection and nuclear safety;

(VII) food and feed safety and animal health and welfare;

(VIII) public health;

(IX) consumer protection;

(X) protection of privacy and personal data, and security of network and information systems;

(ii) the act or omission affects the financial interests of the Union as referred to in Article 325 of the Treaty on the Functioning of the European Union and as further specified in relevant Union measures; or

(iii) the act or omission relates to the internal market, as referred to in Article 26(2) of the Treaty on the Functioning of the European Union, including breaches of Union competition and State aid rules, as well as breaches relating to the internal market in relation to acts which breach the rules of corporate tax or to arrangements the purpose of which is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law;

or

(b) that defeats the object or purpose of the rules in the Union acts and areas referred to in paragraph (a);

Accordingly, I find that the complaint does not concern a protected disclosure and accordingly it is not well founded.

CA-00058846-004 Employment Equality

The respondent’s representative submitted in closing arguments that the equality case was not pursued.  The complainant’s representative, although replying to the respondent’s representative, did not contest this point.  On a technical point, the complainant’s representative confirmed in closing submissions that the reduction in hours was an act of penalisation, not one of victimisation thereby bringing this action under a different Act.

Section 85A of the Act states as follows:

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Accordingly, I find that the complainant has not established facts from which it may be inferred that she was discriminated against or victimised contrary to the Employment Equality Act.

CA-00058846-005 Unfair Dismissal

The matter of unfair dismissal has already been dealt with under a different complaint number ADJ 45055, and as such cannot be the subject of an additional decision under the principal of ‘res judicata’.

CA-00058846-001 Terms of Employment

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that the complaint is not well-founded.

CA-00058846-002 Minimum Notice

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that the complaint is not well-founded.

CA-00058846-003 Protected Disclosure

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that the complaint is not well-founded.

CA-00058846-004 Employment Equality

Having regard to all the written and oral evidence provided in relation to the complaint, my decision is that the complainant was not discriminated against, nor victimised in accordance with the Act.

CA-00058846-005 Unfair Dismissal

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that this matter has already been decided upon under Decision Number ADJ-00045055

Terms of Employment- not well founded- Minimum Notice – no entitlement established - Protected Disclosure – not established - Employment Equality – not pursued - Unfair Dismissal – already decided upon.