ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054735
Parties:
| Complainant | Respondent |
Parties | Raissa Padilha Gama | Be Independent Home Care Limited |
Representatives |
| Peter Dunlea, Peninsula Business Services |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00066656-001 | 12/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00066656-002 | 12/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00066656-004 | 12/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066656-005 | 12/10/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00066656-006 | 12/10/2024 |
Dates of Adjudication Hearing: 02/12/2024, 29/04/2025and 07/10/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Five complaints have been brought against the Employer/Respondent.
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 who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that she was constructively dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation. The burden of proof shifts to the Complainant in a situation of constructive dismissal. The Complainant must demonstrate that she was forced to terminate her contract of employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate her employment, or it was reasonable for the Employee to terminate her employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive dismissal in the statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the contract test where an employee will argue an entitlement to terminate the contract of employment because of a fundamental breach of the employment contract on the part of the Employer. The breach must be a significant breach going to the root of the employment contract.
Secondly, the Employee may allege that she satisfies the 1977 Act’s “reasonableness”test. That is, that the conduct of the Employer was such that it was reasonable for him to resign. Which is to say that the Employer has conducted it’s affairs so unreasonably that the Employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both Employer and Employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the Employer that is being complained of, must be unreasonable and without proper cause, and its effect on the Employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the Employee cannot be expected to put up with it.
In this particular instance, I note that the Complainant herein has referred a complaint of having been unfairly dismissed from her place of employment (by reason of constructive dismissal) by way of Workplace Relations Complaint Form (dated the 12th of October 2024) and this issued within six months of the alleged constructive dismissal.
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would always have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
Lastly, 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 an onus on a Complainant to adopt measures to mitigate the loss.
Relevant to these proceedings is the requirement set out in the Unfair Dismissals Act 1977 which provides for the “one‑year continuous service” requirement by way of exclusion.
Specifically at Section 2(1)(a) it states:
“This Act shall not apply … to an employee … who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him …”
That is a key provision, and it imposes a 12‑month service requirement.
In addition to the foregoing, a complaint has been made in accordance with Section 79 of the Employment Equality Acts, 1998 (as amended). The complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose. It is for me to hear the oral evidence of the parties and their witnesses and have to take into account any evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).
In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.
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 (as set out in her Workplace Relations Complaint Form dated the 12th of October 2024) 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 Race (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 6 (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) …...(the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(h) That they are of a different race, colour, nationality or ethnic or national origins (..the ground of race”),
In the event that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred and/or the victimisation experienced. It is also open to me to direct that a certain course of action be taken by an appropriate party which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
It is acknowledged that in the context of employment equality issues, a Complainant may well have little or no direct evidence of discrimination.EU law recognised this and has adopted a burden of proof in all Equality Directives which recognises the difficulty of giving evidence of direct discrimination. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –
“….when persons who considered themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”
This has been transposed into Irish law by section 85A of the Employment Equality Acts:
“in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him/her, it is for the respondent to prove the contrary.”
This amounts to the Prima Facie obligation on the Complainant. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exception to that evidential rule.
Lastly and 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, 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 I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
The Complainant has also brought two complaints under the Organisation of Working Time Act, 1997 (an Act contained in Schedule 5 above). Under this Act the Complainant says that she was not notified of her starting and finishing times in advance.
Pursuant to the OWT Act, Employees should receive at least 24 hours advance notice of their starting and finishing times. This requirement only applies where the normal or regular starting and finishing times are not specified in the employee's contract of employment, in an employment regulation order, in a registered employment agreement or in a collective agreement. (Section 17(1) of the Organisation of Working Time Act, 1997).
Also, the Complainant says that she was treated adversely for refusing work where she was given less than 24 hours’ notice of the work. Pursuant to Section 17 Organisation of Working Time Act 1997.
It is noted that If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days
Separately, the Complainant has brought a complaint under the Payment of Wages Act, 1991. This amounts to 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. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Background:
This hearing was conducted over the course of three days and in person at 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.
In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statements 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 12th of October 2024. In general terms, I will therefore be looking at issues, contraventions and legislative breaches that have arisen in the six-month period directly preceding this date – that is to say from the 13th of April 2024 to the 12th of October 2024 .
In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. A separate Interpreter presented on each of the three hearing days. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the complaints being made by the Complainant in her preferred language. The interpreter did not guide or assist the person for whom the interpreter was sought. The Interpreter simply interpreted what was being said by the Complainant. I perceived there to be no difficulty in communication between the Interpreter and he Complainant. The interpreter was invited to swear an oath/make an affirmation to well and truly interpret.
It should be noted that between the second and third date of hearing the Complainant invited me, as Adjudicator, to recuse myself. By way of response, I wrote to the complainant on the 13th of May 2025 in the following terms:
I confirm that I am not willing to recuse myself from completing these matters as I am not satisfied that you as the Complainant have raised any issue which might be regarded as a legitimate concern. As the Complainant you have on each day of hearing been provided with excellent translation service at a cost to the WRC. I have not been aware that as the Complainant you were experiencing any difficulty with the procedures, and I have found instead that you have been able to make a clear case on your own behalf. As the Complainant, you seem concerned that a legal opinion on file has not been given sufficient weight in circumstances where there has been no final submission, and we are still dealing with oral evidence. As the Complainant you can open this matter to me over the course of the next hearing day to be allocated to this matter. I am not satisfied that the cost and time already invested in this matter should be wasted by allowing this matter start afresh.
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Summary of Complainant’s Case:
The Complainant was not represented and made her own case. The Complainant’s complaints herein were run alongside two other sets of complaint so that I was dealing with three separate files of complaints – ADJ 52921, ADJ 54735 and 55765. All the complaints arose out of the same employment history. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. No objection was raised to any of the materials relied upon by the Complainant in making her case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative. The Complainant provided the WRC with supporting documentation and comprehensive submissions over the course of the hearing dates set aside to deal with these matters. The first submission is a handwritten note dated the 16th of July 2024. A legal opinion was provided in and around this time as well. Along with these documents the Complainant sent emails, what’s app messages, rosters, schedules and medical reports etc. A more formal rebuttal submission was received from the Complainant on the 28th of April 2025 in response to the then most recent submission made by the Respondent. On the 10th of May 2025 the Complainant submitted a final submission stating: Accordingly, I have now reformatted the materials to meet WRC guidelines, including a structured index, cover page, and clear section references. The attached documents replace the prior version in full and are submitted for your consideration in advance of the adjudication hearing. Unfortunately, any new complaints raised in this final submission (and flagged by the Complainant) are out of time in circumstances where the employment relationship ended in June of 2024 following a long period of absence (starting in March of 2024) from the workplace by reason of illness. In her workplace relations complaint form, the Complainant confirms her start date to have been the 30th of September 2023 and her end date to have been the 16th of June 2024. This amounts to 8.5 months of service – falling short of the 12-month service period required under the Unfair Dismissals legislation which I have averred to above. The Complainant alleges that she was unfairly dismissed by way of constructive dismissal and that she was discriminated against on the basis of her nationality and the fact that she held a non-EU work permit. The Complainant has made separate complaints across the three ADJ Files under the Organisation of Working Time Act and the Payment of Wages Act and the Terms of employment Information Act. 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. |
Summary of Respondent’s Case:
The Respondent entity was represented by Peninsula HR Services. The Respondent provided me with two written submissions a preliminary submission dated the 29th of November 2024 and a second submission dated the 25th of April 2025. I have heard from one witness for the Respondent. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. This included comprehensive work patterns engaged in by the Complainant whilst in the Respondent’s employment. All evidence was heard following an Affirmation. The Respondent witness was questioned by the Complainant. The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute. In particular the Respondent has asserted that the Complainant had only worked for 8.5 months prior to the termination of the Contract of Employment. Any prior employment was patchy and there was no employment immediately preceding September 30th 2023 when the relevant employment relationship commenced. 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 three separate hearing dates. The Complainant had initially commenced an employment with the Respondent company as far back as 2021. At that time the Complainant had combined working with the Respondent with her college studies and worked on a student visa which allows for maximum number of hours per week. The Complainant was very happy and built up a good rapport with certain clients that she was attending regularly. The Respondent was pleased with the Complainant and had invited her to apply to return following the expiration of her student visa. There was a break between her employment as a student and her employment on a full-time basis. I am satisfied that the break was such that I can only consider this employment to have started on the 30th of September 2023. Ultimately it seems that the transition from working as a student on the basis of as and when she was required was entirely different from working in a full-time capacity which did not suit the Complainant. As I understand it, there was also a change in the people who would normally prepare the schedules from around May of 2023 before the Complainant re-joined the workplace. The Complainant, unfamiliar with the new staff, ultimately felt that her rostering had becoming somewhat unworkable as she was being expected to get between clients without adequate provision for travel time. By September of 2023 the Complainant and the Respondent had jointly acquired a full work permit for the Complainant. This was a non-European work permit allowing the Complainant to work in Ireland. The Complainant could only work as a carer with the Respondent. The Complainant had signed a Contract of Employment on the 28th of July 2023 with a commencement date of the 30th of September 2023. The Complainant was engaged as a full-time care assistant. The understanding was that the Complainant would now be available to do a 39-hour week or 78 hours over two weeks. There is, I accept, a big emphasis on flexibility in the Contract of Employment. This includes flexibility as to place and as to hours and as to any spontaneous changes in the rota. The Complainant confirms in an email to her employer dated the 11th of October 2023 that she understood that she would have to be willing to work long days of up to twelve hours at a time. The Complainant gave evidence that it had been made clear to her that she would be expected to go to wherever the Respondent directed her to go. The Complainant also gave evidence that the scheduling was often unworkable from her point of view. There was a lot of changing of the schedule at short notice and there was a lot of preparing unworkable schedules where clients could be up to 10km apart. The Complainant gave evidence that from September 2023 she was immediately unhappy with how she was being rostered for work on the full-time work permit. The Complainant says that her line Manager FC basically held the view that the Complainant needed to abide by whatever schedules she was given as there was an expectation that she would do the 39 hours a week. The Complainant took much of the discussions she had with FC as veiled threats as the Complainant was bound to this Employer in terms of her work visa. The Complainant says that FC often said to her that she, the Complainant needed to recompense the Employer for obtaining the work permit. The Complainant was particularly aggrieved with the way she says she was being supervised by FC and another lady B and a third lady K. The various oral allegations made against all three of these ladies in the course of the hearing before me, remain unproven and unsubstantiated. The Complainant certainly never raised these issues while still in the workplace. The ad hominem attack was seemingly reserved for the hearing. It has to be noted that the Complainant never formally addressed any difficulties she might have had with these ladies with their superior on the Management chain - JVW – a woman with whom the Complainant was often in touch. Any complaint she had made in the course of her employment was in respect of her scheduling and rostering complaints. This is hard to reconcile as the Complainant was communicating with the relevant Manage in respect of the issue of the difficulty around scheduling. She never raised any Grievance against these women The Complainant was living in Donnybrook but her catchment area for visiting vulnerable and elderly clients was out in Blackrock and Dun Laoire. The Complainant gave evidence that in October of 2023 she was being given unworkable schedules that involved working from 8am to 9pm. The Complainant says that the times estimated for the movement between jobs was woefully inadequate. In particular, the Complainant seemed aggrieved that she was being asked to attend a client in Ballyboden, which was very far from her regular jobs. The Complainant says she generally relied on walking between jobs though had previously had a bike. My belief is that a lot of the rosters had been prepared with the bike in mind. I understand a lot of the carers use bikes. The Complainant did raise these issues with the scheduling team, including FC. She says that she had told them that she had been working for six weeks non-stop when she raised her issues. The Complainant confirmed that she was getting paid for her work but that the long hours left her with no free time. Her concern was the lack of free days being provided to her. I have read the correspondence between the scheduling team and the Complainant starting on or about the 11th of October 2023 and resting with some sort of agreed compromise between FC and the Complainant dated the 19th of October 2023 to which the Complainant was in agreement – per the email from her dated October 19th at 13:48. It is clear that the October 2023 email communication between the parties had been tense with management describing the Complainant’s communications as angry. I can also see that management were trying to prioritise the issues raised by the Complainant. I understand the Complainant had a face-to-face meeting with FC on or about the 12th of October. The Complainant says that FC had explained to the Complainant that the Respondent was doing nothing illegal as the employment Contract demanded flexibility. FC also seems to have made it clear that the Complainant could not make demands concerning which clients she would and would not attend to. It seems to me that FC made it abundantly clear that it was for the Employer to designate the workload in as practical way as possible. In her evidence the Complainant did confirm that things did improve in the workplace for a while after the agreement they reached on October 19th of 2023. Unfortunately, matters came to a head once more four months later in and around the end of February 2024. The Complainant had had a meeting with FC on the 7th of February and there were disagreements between line the Manager and herself as to the levels of availability being asked of her. The Complainant again expressed dissatisfaction (raised in emails) with what she perceived to be the changes to her availability without consultation and/or permission. I am satisfied that the Quality Safety and compliance Manager (JVW) overseeing the scheduling process was aware of the issues raised by the Complainant and directed her team to look at the Complainant’s schedule stating: To please keep her travel distance between calls no more than 2.4km with 15 minutes between calls The Complainant did confirm in evidence that JVW did seem to understand the Complainant’s issues and had had good will towards her. It was made clear to the Complainant in an email from JVW on February 29th 2024 that whilst the team were working out a schedule for the Complainant to ensure consistency and reasonable travel times, this would involve changing the schedules of other carers and there was an overarching need to ensure that all calls to all clients are covered as part of any ongoing bedding in process. In this regard, evidence was also given by the Respondent witness JVW (the Quality Safety and compliance Manager) that clients were not blacklisted in any way and the Respondent aimed to ensure that any issues would be worked through rather than allow a carer toflatly refuse to attend a particular client. JVW flatly denied that some sort of favouritism operated for carers from Ireland or Europe as against Brazil. The Complainant continued to be dissatisfied, and I note from an email sent by JVW to her scheduling team (on the 1st of March 2024) that there is an element of exasperation expressed by JVW as the Complainant had called in sick again: I honestly do not know anymore with her. She is off sick again so I am going to let Carmen address her absences as well. We cannot be doing schedules to fit her needs. It has to fit the business needs. I think this last point became the sticking point between the parties as the Complainant, to my mind, wanted a bespoke arrangement to suit her availability and demands whilst the Respondent simply needed to ensure that all the work got done. I was satisfied that in the course of evidence heard on the 29th of April 2025 that the Complainant’s assertions as to the number of hours she was expected to work was somewhat dismantled by a careful examination of the comprehensive scheduling data provided by the Respondent. In the end it became clear that the Complainant was not regularly working excessive hours. The calculations, in fact, came in at considerably less than the complainant had been asserting. I note (from the medical certificates provided) that soon after the Februar/ March interaction, the Complainant went out sick for long tranches of time from the 29th of February 2024 to the middle of June 2024 with the last two months to three months being a solid absence. The Complainant gave evidence that her last day of work prior to going out sick was the 8th of March 2024. This date is significant because the Complainant was not in the workplace from the 8th of March 2024 through the date of her resignation (June 2024) and up to the date that the workplace relations complaint form issued in October of 2024. It is, to my mind, significantly more difficult for the Complainant to demonstrate that there have been wilful contraventions of employment legislation when there has been no active employment relationship for the six months immediately preceding the 12th of October 2024. The evidence demonstrates that the Complainant was unfit to work from March 2024 to June 2024 and was no longer an Employee from June 2024 to October 2024. As noted, the Complainant tendered her resignation on the 16th of June 2024 and in her evidence the Complainant stated that this was a stress related resignation brought about by the attitude and actions of the Employer. This was a constructive dismissal and as noted above, there is some obligation on Employees to demonstrate a willingness to resolve issues before resigning. The complainant I note did agree that she never raised any formal grievance in the workplace though was aware of that Grievance Policy from the company handbook and there is specific reference thereto in the Contract of Employment which was opened to me. In her communication on the 5th of June the Complainant confirmed that she will not be returning by reason of the failure of the company to honour promises made and the terms and conditions of the employment. The Employer did invite the Complainant to re-consider but ultimately accepted the resignation on the 16th of June 2024. In addition to asserting Constructive dismissal, the Complainant believes that she was being treated differently to colleagues who were not operating under a work permit. In particular she says that these (presumably Irish and EU citizens) employees were allowed to pick and choose clients and venues. She suggested that there was some sort of blacklisting programme available to some Employees but not to others (including herself). This last allegation was, as I have said, completely denied by the Respondent. The Complainant states that this amounted to racial discrimination though I was not made aware of the comparators against whom the Complainant sought to distinguish herself against. The Complainant also advanced the case that attempts by the Employer to contact the Complainant in her home while she was out on sick leave were discriminatory amounting to harassment. However, the Complainant has not been able to show that the Employer does not do this to other non-Brazilian carers. I also accept the evidence put forward by the Respondent witness who stated that the Respondent as the employer of a non-national in possession of a work permit, must ensure that the Complainant is earning the required minimum remuneration of €27,000.00pa. I understand that the Complainant’s absence from the workplace was making this target difficult to realise. The Complainant issued the workplace relations complaint form herein on the 12th of October 2024. In the course of the hearing, it was explained to the Complainant that the WRC Adjudication process will (in general terms) only be looking for breaches of employment rights which have occurred during the six-month period immediately predating the date on the complaint form. Therefore, for the purpose of this hearing I am bound by Statute to consider the six-month period immediately preceding the 12th of October 2024. My starting date is the 13th of April 2024. By law the Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates. It was further noted that there is the possibility for a further extension of time pursuant to Section 41 (8) which specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. No such reasonable cause was presented. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00066656-001 – The Complainant says she was constructively dismissed by reason of the conduct of her Employer. In consequence of that said conduct the Complainant tendered her resignation on or about the 16th of June 2024. This was asserted by her to be a constructive dismissal. Unfortunately, the Complainant had only commenced her employment with the Respondent on the 30th of September 2023 and does not therefore satisfy the statutory requirement of having had twelve months continuous service prior to the resignation. This issue goesd to jurisdiction. The Complainant cannot therefore avail of the reliefs available under the unfair dismissal’s legislation. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00066656-002 – The Complainant was not in the workplace for the six-month period immediately preceding this complaint being lodged with the WRC. It has therefore been difficult for me to identify a prima facie instance of a discriminatory act or acts having been perpetrated on the Complainant during this time span when the complainant was either out sick or had resigned. The Complainant has suggested that telephone contacts made while she was out sick were discriminatory. Whilst I can accept that such calls might be considered bad practise (in the employment context) I do not recognise them as being in any way discriminatory. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00066656-004 – The Complainant was not getting paid wages for the six-month period immediately preceding the issuing of the workplace relations complaint form. There can be no contravention of the Act. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00066656-005 – The Complainant was not in the workplace for the six-month period immediately preceding the date on which the complaint herein was issued, and there can therefore be no contravention of the OWT Act Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00066656-006 - The Complainant was not in the workplace for the six-month period immediately preceding the date on which the complaint herein was issued, and there can therefore be no contravention of the OWT Act
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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.
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 8 of the Unfair Dismissals Act, 1977 CA-00066656-001 – The Complainant does not have sufficient service, and I consequently do not have jurisdiction to hear this claim under this Act. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00066656-002 – the Complainant has not established a prima facie case and has failed to demonstrate that she has been discriminated against on the grounds of her race. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00066656-004 – 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-00066656-005 - 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-00066656-006 - the complaint herein is not well founded and fails.
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Dated: 27-11-2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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