CORRECTION ORDER
ISSUED PURSUANT TO SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision ADJ-00058540 issued on 16/09/2025 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00058540
Parties:
| Complainant | Respondent |
Parties | Sebastian Canete Vera | Xavier Management Holdings Limited T/A The Landmark |
Representatives | Self-Represented | Self-Represented |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00070973-001 | 20/04/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00070973-002 | 20/04/2025 |
Date of Adjudication Hearing: 04/09/2025
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The hearing was conducted in person in Lansdowne House.
While the parties are named in the Decision, I will refer to Mr Sebastian Canete Vera as “the Complainant” and to Xavier Management Holdings Limited T/A The Landmark as “the Respondent”.
The Complainant attended the hearing and he presented as a litigant in person. The Complainant was accompanied by his partner. Ms Sarah Jane O’Rourke Head of HR together with Mr Michael Lawlor Director of Operations were in attendance on behalf of the Respondent. The WRC provided the services of an interpreter at the request of the Complainant to assist with the hearing in facilitating the hearing of his complaints.
I explained the procedural changes arising from the judgment of the Supreme Court in Zalewski v. An Adjudication Officer, Ireland and the Attorney General [2021] IESC 24 in April 2021. No application was made that the hearing be heard other than in public. The parties agreed to proceed in the knowledge that a decision issuing from the WRC would disclose identities.
There was no requirement to administer an oath or affirmation in circumstances where, for the most part, the hearing comprised attempts to ascertain the specific nature of the Complainant’s complaints together with providing clarification to him in relation to the legislation he had impleaded and explaining in detail to him the cognisable period of the within complaint. Furthermore, there was no contest on the facts having regard to the crux of the Complainant’s complaint namely that he was assigned no hours for one specific week.
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 under statute. I can confirm I have fulfilled my obligation to make all relevant inquiries into this complaint.
No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.
Background:
This matter came before the Workplace Relations Commission dated 20/04/2025. The Complainant alleges contravention by the Respondent of provisions of the above listed statutes in relation to his employment with the Respondent. The aforesaid complaint was referred to me for investigation. A hearing for that purpose was scheduled to take place on 04/09/2025.
The Complainant at all material times was employed as a bartender. The Complainant commenced employment with the Respondent on 16/08/2024. Such employment terminated by way of resignation on 30/07/2025.
The Complainant alleges he has suffered a disproportionate and ongoing reduction in his weekly hours. The Complainant submits that for the current week (at time of filing this complaint) he was not scheduled to work at all and it is claimed this is a change to his contract. The Complainant concedes that the Respondent has made payments “covering most of the hours previously owed” and submits that this represents a delayed fulfillment of minimum contractual obligations “and not compensation for the harm already caused.”
The Respondent submits that a meeting took place with the Complainant and all matters of which he complained had been dealt with and that the Complainant stated he would be withdrawing his complaint.
Both parties filed written factual submissions and supporting documentation in advance of hearing. The Complainant sought to have statements from colleagues opened to the hearing. This request was denied and it was explained to the Complainant, at length and in great detail, that if such statements were to be admitted there would be a requirement for the authors of same to attend at hearing for the purposes of cross-examination in accordance with the rules of evidence. |
Summary of Complainant’s Case:
CA-00070973-001 The Complainant submits he has been working as a bartender for approximately eight months and since a change in management he has been subject to a disproportionate and ongoing reduction in his weekly working hours. The Complainant submits despite being the eldest bartender on staff his assigned hours were gradually cut below the 20-hours guaranteed in his employment contract. The Complainant submits other staff members including fellow part-time employees continued to receive a higher and more stable number of hours with no clear explanation as to why he was the one the most affected. The Complainant submits he raised this issue through the appropriate channels and no formal justification was ever provided. The Complainant submits there is a lack of communication and an absence of formal records that supports the claim that he has been unfairly disadvantaged in his employment conditions. CA-00070973-002 The Complainant submits that since the recent change in management he has experienced a significant change in his working hours and that at no point was he provided with written notice of changes to his terms.
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Summary of Respondent’s Case:
CA-00070973-001/2 Overview of written submission The Respondent submits a complaint was received by email from the Complainant on 20/04/2025 in relation to reduced hours which was responded by return on 21/04/2025. It is submitted a meeting was arranged and the Respondent submits the Complainant was assured that he would receive his contractual hours of 20 hours per week and that any monies owed to him would be paid to him. It is submitted the Complainant stated he had made a complaint to the WRC and that he assured the Respondent that he would be cancelling the complaint as the matter had been dealt with. The Respondent submits the Complainant emailed on 28/04/2025 setting out his understanding of the agreement that had been reached on the matters discussed and agreed during their meeting and stating when all points would be effectively fulfilled, he would “proceed with the closure of the case submitted to the Workplace Relations Commission (WRC).” It is submitted the Complainant emailed the Respondent stating he “had looked for a way to cancel his complaint” but “he wasn’t allowed to do so online” and advising that “so far everything is going to plan, so there’s nothing to worry about.” It is submitted the Complainant emailed on 16/05/2025 querying a discrepancy on his bank holiday payment. The Complainant also raised a Revenue query with the Respondent. The Respondent submits at hearing it addressed the matters raised by the Complainant immediately when they were raised and they paid him for the week in question albeit he had not worked it. The Respondent submits it continued to provide him with shifts throughout despite frequent unavailability on his part and a history of lateness which added up to being late for his shift on 27 occasions in a three-month period resulting in a PIP to address this. The Respondent submits that what the Complainant is seeking through the WRC is a pay out and that he is looking for money and that is what this is all about. |
Findings and Conclusions:
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.
Having carefully considered at length the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded. The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions. There is no dispute on the fact the Complainant did not receive any hours in one particular week.
I note there was a significant level of engagement with the Complainant during the course of his employment as the Respondent sought to address various matters raised by the Complainant.
CA-00070973-001 I note this complaint was referred to the WRC on 20/04/2025. I note this is a complaint pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001. I note the Complainant submits as follows “I am a part-time employee and have, in respect of my conditions of employment, been treated less favourably than a comparable full-time employee”. The Relevant Law Section 7 of the Protection of Employees (Part-Time Work) Act, 2001 defines a part-time employee: “7.—(1) In this Part— “part-time employee” means an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her” Section 9 if the Protection of Employees (Part-Time Work) Act 2001 provides: (1) Subject to subsections (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee. [emphasis added] (2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated. (3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee. (4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee. For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part- time employee concerned or of the same sex as him or her. The Relevant Facts The Complainant submits he has been treated less favourably than a comparable full-time employee. However, the Complainant has not provided a comparator in respect of this complaint. The Complainant in his submissions has presented no evidence which would demonstrate he was the subject of adverse treatment because of his part-time employee status. The Complainant has failed to provide any comparable full-time employee to whom he could compare himself. There were numerous attempts made to explain this requirement to the Complainant at hearing and it was apparent that there was little or no understanding on his part of the requirement to provide a valid full-time comparator in circumstances where this particular statute is impleaded by a complainant. I note the Complainant continued to file submissions with the WRC on a variety of matters that occurred post the filing his complaint 20/04/2025. The Complainant emailed the WRC on 02/07/2025 and 30/07/2025 respectively. These emails were titled “updates”. The aforesaid emails set out numerous issues the Complainant alleges he was experiencing in his employment with the Respondent. I have reviewed and carefully considered the matters set out in the aforesaid submissions of 02/07/2025 and 30/07/2025 for the purposes of ascertaining if there had been any reference to these matters in the narrative of his original complaint form. I have carefully reviewed the WRC complaint form in order to ascertain whether or not there is any reference to the matters he now seeks to raise in the aforesaid emails the content of which I have cross-referenced with that which is set out in the WRC complaint form. I can find nothing specifically detailed in the narrative of the WRC complaint form filed on 20/04/2025 that correlates to the email content dated 02/07/2025 and 30/07/2025 respectively and to the matters raised therein. I am satisfied the Complainant is seeking to introduce complaints that have not been raised in his original complaint form filed on 20/04/2025. Notwithstanding, for the sake of completeness and in fulfilment of my duties under statute, I have considered the introduction of a new claim and in so doing I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 where at paragraph 6.2 McGovern J held as follows: “I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.” [emphasis added] I note at paragraph 6.3 McGovern J held that this can only be done so long as “the respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.” I also note the dicta of MacMenamin J in the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40: ‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’ In Clare County Council v Director of Equality Tribunal [2011] IEHC 303, Hedigan J noted that “allowances must be made for the fact that lay persons and representatives do not articulate complaints in the same way as professionally qualified advocates.” Notwithstanding, I am cognisant of Mc Kechnie J in Louth VEC and Equality Tribunal v Brannigan [2016] IESC 40 stating that the Tribunal cannot ‘freelance its inquiry’: “It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Kileen v Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.” Applying the reasoning set out above, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. However, in this case, the issues that are the subject of the Complainant’s email updates post the filing of his complaint are not set out at all in the narrative of his complaint form. I am satisfied there is no reference in the narrative of the WRC complaint form to these issues now raised by the Complainant in his emails to the WRC post-filing his complaint. In essence, I am satisfied that what the Complainant is attempting is to have matters adjudicated upon in circumstances where complaints thereto have not been filed with the WRC and such matters are not properly before me for determination. To this end, it was explained to the Complainant in great length and in great detail that I am precluded from determining or adjudicating upon matters that are raised post-filing of a complaint. In this I am guided by the Labour Court where it has been held as follows: “any incidents which occurred after the complaint had been presented could not have been comprehended by the claim and therefore cannot be relied upon for the purpose of obtaining redress.” HSE v. Patricia Cullen Killoran[EDA1830]. In accordance with section 41 of the Workplace Relations Act, my jurisdiction in relation to this complaint does not, therefore, extend beyond the date on which the complaint referral form was received by the WRC namely 20/04/2025. It was explained to the Complainant that I could consider only the complaints properly before me as set out in his WRC complaint form and that there was a requirement that he engage with me specifically in regard to those complaints. The Complainant did not identify a full-time employee compared to whom he was treated less favourably. There was no comparator identified by the Complainant that would enable him to ground this complaint. Nothing has been advanced by the Complainant that would support a claim under this act and on that basis I have to conclude this complaint is not well-founded. CA-00070973-002 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 Notification in writing of a change in terms of employment.
The Relevant Law
Section 3(1) of the 1994 Act (as amended) (“the 1994 Act”) provides: “An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say . . . (i) any terms or conditions relating to hours of work (including overtime) . . . (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave . . . . ”
Section 5 (1) of the 1994 Act provides: “Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—
(a) the day on which the change takes effect . . . ” (emphasis added).
I note the Complainant submits he was not notified in writing of a change to his terms and conditions of employment in circumstances where he was not rostered to work for one week. I note it has been conceded by the Respondent that the Complainant did not receive any hours in one particular week.
I note the Respondent submits the Complainant was paid for that week and was provided with reassurances that there would not be a reoccurrence.
Notwithstanding, I am obliged to consider this complaint through the lens of the impleaded legislation and to apply the law to the facts as presented.
I note that the Complainant’s contract of employment states at clause 4.1 as follows:
“Except and to such extent as may be otherwise mutually agreed or specified in Schedule 1 your normal working hours will be up to 48 hours per week, when averaged over 4 month period, Monday to Sunday. The Company reserves the right to determine the hours / days you work or alternatively, to change these working hours. You will receive as much notice as is reasonably possible prior to any change.”
I note Schedule 1 provides as follows: “Normal working hours 20 hours and over. The company reasonably expects to provide you with minimum 4 hours daily and minimum 20 hours weekly.”
It is not in dispute the Complainant was not provided with his contractual 20 hours and it is not in dispute there was no notification to him in writing of this change to his terms and conditions relating to hours of work.
Accordingly, I find this complaint to be well-founded.
In the circumstances I decide it is just and equitable having regard to all the circumstances to order the Respondent to pay the Complainant compensation in the amount of €260 (representing one week’s remuneration) for contravention of a statutory right.
For the avoidance of doubt, this award is for the infringement of a statutory right and is not subject to deductions for PAYE, PRSI or USC. |
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.
CA-00070973-001 For the reasons stated above I decide this complaint is not well-founded. CA-00070973-002For the reasons stated above, I order the Respondent to pay the Complainant compensation in the amount of €260 for contravention of a statutory right. |
Dated: 16/09/2025
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Key Words:
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ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00058540
Parties:
| Complainant | Respondent |
Parties | Sebastian Canete Vera | Xavier Management Holdings Limited T/A The Landmark |
Representatives | Self-Represented | Self-Represented |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00070973-001 | 20/04/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00070973-002 | 20/04/2025 |
Date of Adjudication Hearing: 04/09/2025
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The hearing was conducted in person in Lansdowne House.
While the parties are named in the Decision, I will refer to Mr Sebastian Canete Vera as “the Complainant” and to Xavier Management Holdings Limited T/A The Landmark as “the Respondent”.
The Complainant attended the hearing and he presented as a litigant in person. The Complainant was accompanied by his partner. Ms Sarah Jane O’Rourke Head of HR together with Mr Michael Lawlor Director of Operations were in attendance on behalf of the Respondent. The WRC provided the services of an interpreter at the request of the Complainant to assist with the hearing in facilitating the hearing of his complaints.
I explained the procedural changes arising from the judgment of the Supreme Court in Zalewski v. An Adjudication Officer, Ireland and the Attorney General [2021] IESC 24 in April 2021. No application was made that the hearing be heard other than in public. The parties agreed to proceed in the knowledge that a decision issuing from the WRC would disclose identities.
There was no requirement to administer an oath or affirmation in circumstances where, for the most part, the hearing comprised attempts to ascertain the specific nature of the Complainant’s complaints together with providing clarification to him in relation to the legislation he had impleaded and explaining in detail to him the cognisable period of the within complaint. Furthermore, there was no contest on the facts having regard to the crux of the Complainant’s complaint namely that he was assigned no hours for one specific week.
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 under statute. I can confirm I have fulfilled my obligation to make all relevant inquiries into this complaint.
No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.
Background:
This matter came before the Workplace Relations Commission dated 20/04/2025. The Complainant alleges contravention by the Respondent of provisions of the above listed statutes in relation to his employment with the Respondent. The aforesaid complaint was referred to me for investigation. A hearing for that purpose was scheduled to take place on 04/09/2025.
The Complainant at all material times was employed as a bartender. The Complainant commenced employment with the Respondent on 16/08/2024. Such employment terminated by way of resignation on 30/07/2025.
The Complainant alleges he has suffered a disproportionate and ongoing reduction in his weekly hours. The Complainant submits that for the current week (at time of filing this complaint) he was not scheduled to work at all and it is claimed this is a change to his contract. The Complainant concedes that the Respondent has made payments “covering most of the hours previously owed” and submits that this represents a delayed fulfillment of minimum contractual obligations “and not compensation for the harm already caused.”
The Respondent submits that a meeting took place with the Complainant and all matters of which he complained had been dealt with and that the Complainant stated he would be withdrawing his complaint.
Both parties filed written factual submissions and supporting documentation in advance of hearing. The Complainant sought to have statements from colleagues opened to the hearing. This request was denied and it was explained to the Complainant, at length and in great detail, that if such statements were to be admitted there would be a requirement for the authors of same to attend at hearing for the purposes of cross-examination in accordance with the rules of evidence. |
Summary of Complainant’s Case:
CA-00070973-001 The Complainant submits he has been working as a bartender for approximately eight months and since a change in management he has been subject to a disproportionate and ongoing reduction in his weekly working hours. The Complainant submits despite being the eldest bartender on staff his assigned hours were gradually cut below the 20-hours guaranteed in his employment contract. The Complainant submits other staff members including fellow part-time employees continued to receive a higher and more stable number of hours with no clear explanation as to why he was the one the most affected. The Complainant submits he raised this issue through the appropriate channels and no formal justification was ever provided. The Complainant submits there is a lack of communication and an absence of formal records that supports the claim that he has been unfairly disadvantaged in his employment conditions. CA-00070973-002 The Complainant submits that since the recent change in management he has experienced a significant change in his working hours and that at no point was he provided with written notice of changes to his terms.
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Summary of Respondent’s Case:
CA-00070973-001/2 Overview of written submission The Respondent submits a complaint was received by email from the Complainant on 20/04/2025 in relation to reduced hours which was responded by return on 21/04/2025. It is submitted a meeting was arranged and the Respondent submits the Complainant was assured that he would receive his contractual hours of 20 hours per week and that any monies owed to him would be paid to him. It is submitted the Complainant stated he had made a complaint to the WRC and that he assured the Respondent that he would be cancelling the complaint as the matter had been dealt with. The Respondent submits the Complainant emailed on 28/04/2025 setting out his understanding of the agreement that had been reached on the matters discussed and agreed during their meeting and stating when all points would be effectively fulfilled, he would “proceed with the closure of the case submitted to the Workplace Relations Commission (WRC).” It is submitted the Complainant emailed the Respondent stating he “had looked for a way to cancel his complaint” but “he wasn’t allowed to do so online” and advising that “so far everything is going to plan, so there’s nothing to worry about.” It is submitted the Complainant emailed on 16/05/2025 querying a discrepancy on his bank holiday payment. The Complainant also raised a Revenue query with the Respondent. The Respondent submits at hearing it addressed the matters raised by the Complainant immediately when they were raised and they paid him for the week in question albeit he had not worked it. The Respondent submits it continued to provide him with shifts throughout despite frequent unavailability on his part and a history of lateness which added up to being late for his shift on 27 occasions in a three-month period resulting in a PIP to address this. The Respondent submits that what the Complainant is seeking through the WRC is a pay out and that he is looking for money and that is what this is all about. |
Findings and Conclusions:
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.
Having carefully considered at length the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded. The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions. There is no dispute on the fact the Complainant did not receive any hours in one particular week.
I note there was a significant level of engagement with the Complainant during the course of his employment as the Respondent sought to address various matters raised by the Complainant.
CA-00070973-001 I note this complaint was referred to the WRC on 20/04/2025. I note this is a complaint pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001. I note the Complainant submits as follows “I am a part-time employee and have, in respect of my conditions of employment, been treated less favourably than a comparable full-time employee”. The Relevant Law Section 7 of the Protection of Employees (Part-Time Work) Act, 2001 defines a part-time employee: “7.—(1) In this Part— “part-time employee” means an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her” Section 9 if the Protection of Employees (Part-Time Work) Act 2001 provides: (1) Subject to subsections (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee. [emphasis added] (2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated. (3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee. (4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee. For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part- time employee concerned or of the same sex as him or her. The Relevant Facts The Complainant submits he has been treated less favourably than a comparable full-time employee. However, the Complainant has not provided a comparator in respect of this complaint. The Complainant in his submissions has presented no evidence which would demonstrate he was the subject of adverse treatment because of his part-time employee status. The Complainant has failed to provide any comparable full-time employee to whom he could compare himself. There were numerous attempts made to explain this requirement to the Complainant at hearing and it was apparent that there was little or no understanding on his part of the requirement to provide a valid full-time comparator in circumstances where this particular statute is impleaded by a complainant. I note the Complainant continued to file submissions with the WRC on a variety of matters that occurred post the filing his complaint 20/04/2025. The Complainant emailed the WRC on 02/07/2025 and 30/07/2025 respectively. These emails were titled “updates”. The aforesaid emails set out numerous issues the Complainant alleges he was experiencing in his employment with the Respondent. I have reviewed and carefully considered the matters set out in the aforesaid submissions of 02/07/2025 and 30/07/2025 for the purposes of ascertaining if there had been any reference to these matters in the narrative of his original complaint form. I have carefully reviewed the WRC complaint form in order to ascertain whether or not there is any reference to the matters he now seeks to raise in the aforesaid emails the content of which I have cross-referenced with that which is set out in the WRC complaint form. I can find nothing specifically detailed in the narrative of the WRC complaint form filed on 20/04/2025 that correlates to the email content dated 02/07/2025 and 30/07/2025 respectively and to the matters raised therein. I am satisfied the Complainant is seeking to introduce complaints that have not been raised in his original complaint form filed on 20/04/2025. Notwithstanding, for the sake of completeness and in fulfilment of my duties under statute, I have considered the introduction of a new claim and in so doing I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 where at paragraph 6.2 McGovern J held as follows: “I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.” [emphasis added] I note at paragraph 6.3 McGovern J held that this can only be done so long as “the respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.” I also note the dicta of MacMenamin J in the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40: ‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’ In Clare County Council v Director of Equality Tribunal [2011] IEHC 303, Hedigan J noted that “allowances must be made for the fact that lay persons and representatives do not articulate complaints in the same way as professionally qualified advocates.” Notwithstanding, I am cognisant of Mc Kechnie J in Louth VEC and Equality Tribunal v Brannigan [2016] IESC 40 stating that the Tribunal cannot ‘freelance its inquiry’: “It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Kileen v Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.” Applying the reasoning set out above, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. However, in this case, the issues that are the subject of the Complainant’s email updates post the filing of his complaint are not set out at all in the narrative of his complaint form. I am satisfied there is no reference in the narrative of the WRC complaint form to these issues now raised by the Complainant in his emails to the WRC post-filing his complaint. In essence, I am satisfied that what the Complainant is attempting is to have matters adjudicated upon in circumstances where complaints thereto have not been filed with the WRC and such matters are not properly before me for determination. To this end, it was explained to the Complainant in great length and in great detail that I am precluded from determining or adjudicating upon matters that are raised post-filing of a complaint. In this I am guided by the Labour Court where it has been held as follows: “any incidents which occurred after the complaint had been presented could not have been comprehended by the claim and therefore cannot be relied upon for the purpose of obtaining redress.” HSE v. Patricia Cullen Killoran[EDA1830]. In accordance with section 41 of the Workplace Relations Act, my jurisdiction in relation to this complaint does not, therefore, extend beyond the date on which the complaint referral form was received by the WRC namely 20/04/2025. It was explained to the Complainant that I could consider only the complaints properly before me as set out in his WRC complaint form and that there was a requirement that he engage with me specifically in regard to those complaints. The Complainant did not identify a full-time employee compared to whom he was treated less favourably. There was no comparator identified by the Complainant that would enable him to ground this complaint. Nothing has been advanced by the Complainant that would support a claim under this act and on that basis I have to conclude this complaint is not well-founded. CA-00070973-002 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 Notification in writing of a change in terms of employment.
The Relevant Law
Section 3(1) of the 1994 Act (as amended) (“the 1994 Act”) provides: “An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say . . . (i) any terms or conditions relating to hours of work (including overtime) . . . (k) any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave . . . . ”
Section 5 (1) of the 1994 Act provides: “Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—
(a) the day on which the change takes effect . . . ” (emphasis added).
I note the Complainant submits he was not notified in writing of a change to his terms and conditions of employment in circumstances where he was not rostered to work for one week. I note it has been conceded by the Respondent that the Complainant did not receive any hours in one particular week.
I note the Respondent submits the Complainant was paid for that week and was provided with reassurances that there would not be a reoccurrence.
Notwithstanding, I am obliged to consider this complaint through the lens of the impleaded legislation and to apply the law to the facts as presented.
I note that the Complainant’s contract of employment states at clause 4.1 as follows:
“Except and to such extent as may be otherwise mutually agreed or specified in Schedule 1 your normal working hours will be up to 48 hours per week, when averaged over 4 month period, Monday to Sunday. The Company reserves the right to determine the hours / days you work or alternatively, to change these working hours. You will receive as much notice as is reasonably possible prior to any change.”
I note Schedule 1 provides as follows: “Normal working hours 20 hours and over. The company reasonably expects to provide you with minimum 4 hours daily and minimum 20 hours weekly.”
It is not in dispute the Complainant was not provided with his contractual 20 hours and it is not in dispute there was no notification to him in writing of this change to his terms and conditions relating to hours of work.
Accordingly, I find this complaint to be well-founded.
In the circumstances I decide it is just and equitable having regard to all the circumstances to order the Respondent to pay the Complainant compensation in the amount of €260 (representing one week’s remuneration) for contravention of a statutory right.
For the avoidance of doubt, this award is for the infringement of a statutory right and is not subject to deductions for PAYE, PRSI or USC. |
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.
CA-00070973-001 For the reasons stated above I decide this complaint is not well-founded. CA-00070973-002For the reasons stated above, I order the Respondent to pay the Complainant compensation in the amount of €260 for contravention of a statutory right. |
Dated: 16/09/2025
Workplace Relations Commission Adjudication Officer: Eileen Campbell
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