Complainant

Respondent

Parties

Emma  Lynn

JOFISO LTD trading as O'Donnell’s Centra

Representatives

  Self-represented

 J O’Donnell - Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00062614-001

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00062614-002

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062614-003

03/04/2024

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

CA-00062614-004

03/04/2024

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

CA-00062614-005

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00062614-006

03/04/2024

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

CA-00062614-007

03/04/2024

The Complainant attended on her own. She had previously worked for the Respondent originally as a baker and ultimately as deli manager until the employment ended on the 11th of January 2024. The complainant had been off for an extended period of time on sick leave.

The director took over the company in 2018.

The complainant wanted to pursue her discrimination claim and withdrew her unfair dismissal claim as she understood she could not pursue both.

The complainant gave evidence under oath. She confirmed that she suffers from depression and anxiety.

The complainant stated that she was owed €298.66 in holiday pay.

In respect of her notice payment, the complainant referred to her payslip dated the 12th of January 2024 which only showed holiday pay & an email sent by the Director on the 11th of January 2024 which referred to how her holiday pay was calculated.  

The complainant accepted that she had a Statement of Employment when she was a baker, but this was not updated for taking on the Deli Manager role. That occurred in 2017. In 2018 she received a general contract, but this was not specific to her. She had contacted the Director in relation to same.

The complainant stated that there is currently no Deli Manager.

The complainant believed holidays ran January to December, not April to March. This would mean she was entitled to €298.66 on top of what she had already received. The complainant did raise it in an email and received no response to that, that email had not been provided to the WRC.

The respondent did not cross-examine the complainant.

Under questioning from me the complainant gave the following evidence.

The complainant believe she was owed €1,753.60 for her notice. She did not receive any notice payment.

The complainant received an email in August that the summer staff were finishing up and the Respondent needed to know if she was returning. The complainant responded that she was seeing a specialist in September. She did not provide an update to the respondent after she went to see the specialist as she was upset with the diagnosis.

The complainant was in regular contact with the store manager but not the director. She had sent in her sick certs.

The complainant did not believe she had been replaced as previously the respondent had hired people on six-month contracts previously whilst others were off. She did not take much notice of the email in August. The next month she received an updated contract template this was following a WRC inspection.

The complainant stated she did not want to be the deli manager, but the director had said she was the best person for it, that she was one of the best employees in the business.

The complainant stated there had been three supervisor roles when she worked there. There had been six people in the Deli, there was now five. The respondent was constantly cutting hours and there was only one person on the deli on Fridays. She accepted that the budget was thinner, and the position was made redundant.

If the complainant had been aware that her employment was ending, she would have done her best to go back, she was still on a sick cert as she had hurt her neck as well. She was hoping to go back on a phased basis due in February 2024 or a little after. She could not believe it when her employment was ended, she did not have a chance to engage. The email that was sent was very final.

The complainant’s employment with the respondent ceased with revenue on the 6th of January 2024. She was moved off the schedule in December 2024. There had been monthly reviews. There was no social welfare payments. She had not looked for a job, she has loans to pay, she has one child who is 18 and doing an apprenticeship. The respondent had not been aware that she was hoping to do a phased return to work. The complainant had not been aware that the respondent was contemplating letting her go. She was unsure as to how much work she would have been able to do when she went back.

Some of the staff had crossed over into the Deli. Other staff members had been let go from the floor. In January/February 2023 someone else was gone, this was not sick leave related.

Going back now was not an option as the hours were not there, and the complainant was seeking compensation.

The director gave evidence under oath. He accepted the complainant suffered from depression and anxiety.

The director disputed there was any outstanding holiday pay to the complainant. He was unaware if notice had been included in her payments.

When the director took over, there were a number of statements of employment, and he offered a new updated statement which the older staff did not take them up.

The director accepted the complainant had been dismissed but denied there was anything unfair about it as he couldn’t leave the position there in definitely. He accepted that the complainant had a disability but denied that she was discriminated against.

The director stated that he had not hired any deli manager and was not going to until this issue was resolved. It seems to run itself and he was not sure that it is needed.

The director informed the complainant in August that he would have to get someone in the next few weeks. This was sufficient notice. He did not end the employment until January.

Holidays operate April to March. He was unsure as why the complainant believed it was in the calendar year.

The company had never got the complainant medically examined. The director had not advertised her position as he was always looking for deli staff.

The complainant had a business background she was a very hard worker, natural leader.

The director did not ring the complainant in advance of the email in January 2024. The director assumed her duties. He did not think they needed a manager as it was a dying industry and an electricity killer. Four people in the deli do the work. At the time that they opened it, the complainant took over the food safety now the director does that. He had upskilled other staff to do the orders.

The director accepted that the complainant has been unwell for a long period. It started with long covid, then she suffered depression and anxiety. There were 27 staff, and this was his first store.

The director stated the complainant being off sick was the sole reason why her employment ended. The director had a choice to hire people on a six month contract or end the complainant’s employment. He had hired two people and given them full time contracts. If the complainant had come back he would have had no room as there were not enough hours, he was over his budget already. The deli is closed some days.

The director accepted that compensation would be the most appropriate award.

The company had a bar man who resigned from the floor staff. Some of the college students had left the deli. The director denied ever dismissing any of the deli staff. He stated he had two crossover staff who are now full time deli workers.

The director was not cross examined.

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties. I have carefully considered the oral evidence adduced at hearing. I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

At the commencement of the hearing, the parties agreed on the following matters:

1.       The complainant suffers from depression and anxiety & has a disability;

2.       he Statement of Employment did not reflect the complainant’s position of deli manager, in the respondent company; and

3.       The complainant had been dismissed.

The following matters were in dispute:

1.       Whether the complainant received holiday pay;

2.       Whether she received Notice payment;

3.       Whether the complainant had been discriminated against on grounds of disability; and

4.       Whether there was a redundancy?

CA-0062614-001 – section 5 of the Payment of Wages Act 1991

Section 5(6) of the Payment of Wages Act 1991 provides that, to ground a complaint under the Act, wages must be properly payable:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6(1) provides

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

The Complainant’s evidence was that the year runs from January to December and therefore she was owed holiday pay of €298.66 in holiday pay. The Director disputed this. He stated the year for holidays runs from April to March. I note the email from the Respondent’s payroll. On the balance of probabilities, I find this complaint is not well founded.

CA-0062614-002 – Payment of Wages Act 1991 & CA-00062614-007 - Minimum Notice

I have considered the email dated the 5th of August 2023 from the Director to the Complainant. It’s subject line is “Re: Sick Cert”. It mentions a “need to start looking for someone” due to not enough staff. It does not mention notice, nor termination of employment nor cessation of employment anywhere in it. The Director’s evidence was he sat on the issue then till January. The Complainant’s evidence was that it was a shock when she got the email in January ending her employment. Thus, I find the complaint is well founded.

The Relevant Law

Section 4 of the Act provides:

“Minimum period of notice.

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.”

As the Complainant was employed for over 8 years she was entitled to 4 weeks’ notice pursuant to section 4(2)(c) of the of the Minimum Notice and Termination of Employment Act 1973-2005. The Complainant received none.

Section 12 of the Minimum Notice & Terms of Employment Act 1973-2005 states that:

“(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.”

Thus, on the basis of a weekly gross wage of €438, I direct payment of €1,752 by the Respondent to the Complainant.

CA-00062614-003 - Terms of Employment (Information) Act, 1994

Section 3 of the Terms of Employment (Information) Act, 1994 as amended (‘the Act’) specifies the particulars of the terms of employment which an employer must give in writing to an employee. The information required by subsection 1A, must be given not later than five days after the commencement of employment. The remaining information must be given not later than one month after the date of commencement of employment, subsection 1.

The Complainant stated she had been given a statement of employment for her original role but not as Deli Manage. She also stated the Respondent had provided her with a general contract of employment, but it was not specific to her. She raised this with the Director.

The Director accepted the Complainant had not been provided with a statement of employment that reflected her current position in the Respondent Company.

 Section 7(2)(d) of the Act provides

“in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

The Complainant’s average weekly pay was €438; I direct payment of €1,314 by the Respondent to the Complainant.

CA-00062614-004 – Unfair Dismissal

The Complainant withdrew her unfair dismissal claim at the hearing.

CA-00062614-005 - Discrimination

The Complainant has alleged she was discriminated against by reason of her disability.

The issues for consideration by me in the within complaint is as follows:

1.       Whether or not the Complainant was subjected to discriminatory treatment by reason of her disability?

2.       If she was subjected to discriminatory treatment, was this objectively justified by a legitimate aim;

3.       The means of achieving that aim were appropriate and necessary.

The Relevant Law

Section 6 of the EEA provides

“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,”

…

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”)”

The burden of proof

Section 85 A (1) of the EEA states:

“Where in any proceedings facts are established by or on behalf of a claimant 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.”  

This means that the Complainant is required to establish, in the first instance, primary facts upon which the claim of discrimination is grounded and from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.  

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. “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 inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.  

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” [emphasis added]

The Labour Court elaborated on the interpretation of section 85A (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section:

"places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".  

The Relevant Facts

Having carefully considered all of the evidence adduced and based on the facts are set out above, I find that the Complainant has clearly established a prima facie case that an act of discrimination took place in relation to her dismissal.

The Director of the Respondent in his direct evidence accepted the Complainant had a disability. He also stated that the only reason the employment was terminated was due to the Complainant’s sick leave. The Director referred to difficulties with staff levels by leaving the Complainant in her position. The company had never had the Complainant medically assessed, or attempted a phased return to work, or a different position etc.

Conclusion

The sole reason given by the Director for the Complainant’s dismissal was her sick leave. There is no evidence that any options were considered save for dismissing the Complainant. I view the lack of consideration of any alternatives as unreasonable.

I find that the complainant was discriminated against on disability grounds.

Redress

Both parties agreed that compensation is the appropriate form of redress.

Redress - The Law

Section 82 of the Act states as follows:

“(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

…

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

…

(4)The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000, or

(b) in any other case, €13,000.”

Therefore, section 82(1)(c) of the Act requires that I consider the effects of the discrimination. Given the manner of her unreasonable exit from the service, it most likely had a significant effect on her. The complainant described the dismissal as having a big impact on her.

In accordance with Article 25 of the Recast Directive and the Von Colson principles, compensation must be effective, proportionate and dissuasive. 

For the reasons outlined, I find that the respondent should pay compensation of €9,500 to the Complainant.

CA-00062614-006 - Redundancy

The Complainant raised a claim of redundancy. She accepted things were tight in the company and that there is no longer a position of Deli manager. The Director was unclear whether he was going to appoint a new Deli Manager as he was doing some of the duties and had upskilled other employees.

S7(2) of the Redundancy Payments Act 1967 defines redundancy as occurring where

“(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,”

The evidence does not support redundancy under these definitions. It may be helpful to point out that a person may not be made redundant, but the role that person occupies may. The Director referred to not having enough staff and constantly seeking new staff. These positions were never discussed with the complainant. I cannot find that there has been any type of redundancy and for that reason the complaint is not well founded.

CA-0062614-001 – Payment of Wages

I find this complaint is not well founded for the reasons set out above.

CA-00062614-002 Payment of Wages & CA-00062614-007 - Minimum Notice

I find this complaint is well founded and direct payment of €1,752 minimum notice by the Respondent to the Complainant.

CA-00062614-003 - Terms of Employment (Information) Act, 1994

I find this complaint to be well founded.

I order the Respondent to pay to the Complainant compensation of €1,314, the equivalent of three week’s pay which I consider just and equitable having regard to all of the circumstances.

CA-00062614-004 – Unfair Dismissal

The Complainant withdrew her unfair dismissal claim at the hearing.

CA-00062614-005 – Discrimination

For the reasons set out above I find the Complainant was discriminated against on disability grounds and accordingly, I decide the claim of discrimination is well-founded.  In accordance with my powers of redress under section 82 of the Employment Equality Act, 1998 I order the Respondent to pay the Complainant compensation of €9,500.00 for the effect of that discrimination. For the avoidance of doubt, this award is for the infringement of the Complainant’s statutory rights and is not in the form of remuneration. Payment of compensation ordered should be made within 42 days of the date of this decision.

CA-00062514-006 Redundancy

For the reasons set out above I find that this complaint is not well founded

Minimum notice; dismissal; disability discrimination; payment of wages; Terms of Employment; redundancy