Complainant

Respondent

Parties

Rossio Wara  Fulgeura Tenorio

Links Creche Southside Ltd T/A Links Childcare

Representatives

Gareth O'Reilly

Tiernan Lowey BL instructed by Martyna Rekosiewicz of ARAG Legal Protection

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00069153-001

09/02/2025

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

CA-00069153-002

09/02/2025

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

CA-00069153-003

09/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00069153-005

09/02/2025

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

CA-00069153-006

09/02/2025

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

CA-00069153-007

09/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00069153-008

09/02/2025

The Complainant commenced employment with the Respondent on the 19th March 2024 as a “Relief Educarer”. She worked part time until her summer break from college when she was offered full-time hours for the summer. This period of full-time employment ceased on 27th September 2024, and the Complainant expected to resume her regular part-time hours. However, those hours were not forthcoming and over the next few months the Complainant made multiple attempts to secure hours. She submitted a complaint form to the Commission on 9th February 2025 on the basis that the Respondent had ceased providing her with hours of work and alleging that she had been discriminated against.

The Complainant gave evidence under oath on her own behalf and was cross-examined by the Respondent’s representative.

The Complainant brought these complaints to the WRC largely because the Respondent failed to provide her with hours of work. She said that she wanted to work and depended on this income. She made multiple efforts to engage with the Respondent in order to be provided with regular hours but the Respondent failed to do so and this has had an enormous impact on her. She gave evidence in respect of each of the complaints raised.

The Complainant referred to a positive placement experience with the Respondent in 2023, after which she was invited to apply for a position. She then accepted an offer and commenced employment on 19th March 2024. Prior to starting her employment, she engaged with a HR representative in order to amend her contract from citing multiple branches of the Respondent as her primary work location to reflect one branch as her primary work location. She initially worked part time hours, two days per week, until she was offered a full‑time temporary contract between June and September 2024. She stated that up until 4th October 2024, her working arrangements were consistent with the expectations established at the start of her employment.

Complainant’s evidence, written and oral submissions

CA-00069153-001 – Organisation of Working Time Act, 1997

The Complainant said that the Respondent failed to provide reasonable notice of work schedules and that less than 24 (work) hours notice was regularly provided. Compensation was not paid for last-minute cancellations as required by the Organisation of Working Time Act 1997. The Complainant said that the schedule for the following week was provided on a Friday, and that was less than 24 hours from work on Monday. She said that 24 hours is interpreted as 24 working hours and therefore her employer did not provide enough notice of her schedule for Mondays.

Submission

It was submitted that this was a breach of section 17 of the Organisation of Working Time Act, 1997 because 24 hours working notice, in a practical sense, was not offered.

CA-00069153-002 - Payment of Wages Act, 1991

The Complainant said that when the roster was posted on Friday 4th October, she was scheduled to work on Monday 7th and Tuesday 8th October. At 5pm on Friday 4th October, she was told that she in fact would not be needed to work the following week and when she asked why the explanation she received was that they were overstaffed.

The Complainant said that the Respondent failed to compensate her for this last-minute cancellation and that she was not notified in sufficient time so that she could find alternative work. She says that she should have been paid €240 for this late cancellation of hours, which is what she would have received if she had worked the two days as planned.

Submission

The Complainant’s representative, in his closing submission at the hearing, said that this complaint and CA-00069153-003 had been brought under the Payment of Wages Act, 1991, but they perhaps should have been made under the Organisation of Working Time Act, 1997 and it should be considered under this act instead.

CA-00069153-003 - Payment of Wages Act, 1991

The Complainant also said that despite being asked if she was available for work during the week of 16th December, the Respondent then failed to roster her for that week. She only found this out at 14:00 on the Friday prior to when the weeks work was due to commence. She said that this resulted in €600 in unpaid wages which she should have received on 20th December 2024.

Submission

As above, the Complainant’s representative, in his closing submission at the hearing, said that this complaint and CA-00069153-002 had been brought under the Payment of Wages Act, 1991, but they perhaps should have been made under the Organisation of Working Time Act, 1997 and it should be considered under this act instead.

CA-00069153-005 - Organisation of Working Time Act, 1997

This is a complaint under section 27 of the Organisation of Working Time Act, 1997. The Complainant’s submission describes it as relating to: Hours of Work (My employer treated me adversely for refusing work where I was given less than 24 hours’ notice of the work).

The Complainant says that during her midterm break from college (weeks of the 22nd and 25th October 2024) she told the Respondent that she was available for full time work in both of those weeks. She had been offered work privately but would have preferred to work the full time hours with her employer. However, the Respondent did not offer hours for the full two weeks and instead offered two days per week. The Complainant declined these hours in order to avail of the full time private offer of work for the two weeks. She said that following this, the offers of days and hours reduced dramatically to the point where no hours were offered for several weeks despite her advising of her availability.

Submission

The Complainant’s representative said that this relates to hours of work and that the Complainant has been treated adversely. He said that under section 6(c) Organisation of Working Time Act, 1997 the Complainant had been treated adversely and that penalisation had occurred which is prohibited by sections 5 and section 6(a) of the Organisation of Working Time Act, 1997 (as amended by the Employment (Miscellaneous Provisions) Act. 2018). He said that the detriment was a change in working hours which is prohibited by the act.

It was submitted that section 18 of the act applies to someone making themselves available for work and outlines short term work and relief to cover routine absences, but the Complainant’s contract was not for that intention. Section 18(4) says that if an employee is not required for at least 25% of the contract, then they should be paid a percentage of hours, or 15 hours.

CA-00069153-006 - Employment Equality Act, 1998

The Complainant said that she was discriminated against on the basis of her nationality (Bolivian) and the fact that she is a Stamp 2 Visa holder. She asserts that the Respondent’s failure to provide sufficient hours jeopardised her visa compliance and financial stability, while EU citizens received regular hours.

The Complainant outlined that, as a Stamp 2 visa holder, she is required to financially support herself through her employment and to complete a minimum number of hours of placement and paid work each academic year. She said that the Respondent was fully aware of these requirements from the outset of the employment relationship.

When there was a dramatic and unexplained reduction in her hours from October 2024 onwards, she said that while she was consistently told that the centre was “overstaffed,” other employees—including those who commenced employment after her—were routinely scheduled for hours. In her written submissions, she highlighted repeated attempts over several weeks to secure work through emails and WhatsApp messages to the HR representative, Regional Manager and the Centre Manager but said that these efforts resulted mainly in her being redirected from one manager to another, without any meaningful resolution. During this same period, the Respondent continued to hire new staff, whose names appeared on weekly rosters, while she herself remained unscheduled for long periods.

She said that this pattern disproportionately affected her because, unlike EU staff members, her visa restricted the number of hours she could lawfully work and required her to demonstrate ongoing financial self‑sufficiency. She claimed that colleagues who were EU nationals did not have visa‑imposed constraints and were offered regular weekly hours, while she—despite equal or greater seniority—was not. It is the Complainant’s case that this amounted to indirect discrimination on the race/nationality ground within the meaning of the Employment Equality Acts 1998–2015. She argued that the Respondent operated a scheduling system which, although appearing neutral, disproportionately disadvantaged employees of her nationality and visa status.

The Complainant said that she felt unfairly treated and discriminated against. She said that some of her classmates, who worked in another centre of the Respondent, were on the same contract as her and receiving regular hours so she could not understand why she was not. She said that the Respondent was hiring staff with more availability, full time staff, who had no other obligations like she did.

Submission

The Complainant’s representative said that section 8 of the Employment Equality Act, 1998 prohibits discrimination in accessing employment and that an employer shall not have rules or instructions which would discriminate. He said that section 28 goes on to state that comparators are those who differ as to race and that applies to the Complainant. Further, the Complainant has been the subject of indirect discrimination, and it cannot be justified as being reasonable. Scheduling colleagues who can work more hours because of their visa status is indirect discrimination based on nationality.

CA-00069153-007 - Employment Equality Act, 1998

The Complainant described the Respondent’s handling of her height‑related ergonomic concerns. She said that she was getting pains in her back because of the height of the furniture, such as the cots and nappy changing station. On 23rd April 2024 she raised these difficulties with the Respondent, explaining that her physical stature of 147 cm made it challenging to carry out her duties safely. She requested a solution such as the provision of a small step, an accommodation which she said had been provided in previous workplaces, or a move to the pre-school room where these duties were not required. According to the Complainant, the Respondent refused this request and instead instructed her to cease performing any nappy‑changing duties. She gave evidence that she felt humiliated and that this also led to tension among her colleagues as they had to assume additional duties.

The Complainant stated that she had never asked to be removed from these duties, only to receive a minor accommodation that would allow her to continue performing them safely. She submitted that the Respondent’s refusal to provide such an accommodation, and its decision to reassign her duties instead, caused her significant distress.

Submission

It was argued at the hearing that the Respondent’s actions amounted to a failure to provide reasonable accommodation under section 16 of the Employment Equality Act 1998, and constituted discriminatory treatment regarding conditions of employment in breach of section 8. Specifically, section 8(1) which says an employer “shall not discriminate” and section 8(4) which states that an employer shall not have rules or instructions which would result in discrimination.

The Complainant’s representative submitted that she did not suggest that she had a disability, but rather that she was discriminated against because the Respondent thought that she had a disability and discriminated against her on that basis.

CA-00069153-008 - Safety, Health & Welfare at Work Act, 2005

The Complainant said in evidence that, as she was not offered hours, she thought that this was because of her 20 hours limitation and the tasks that she couldn’t carry out. She felt that this was the reason she wasn’t offered hours.

In her written submission, she outlined that after raising health and safety concerns about difficulties performing nappy‑changing tasks due to her height, she requested a simple accommodation, a small step. She submitted that instead of assessing the risk or providing an accommodation, she was removed from these duties entirely and instructed to inform colleagues herself which resulted in tensions with co‑workers.

Submission

In written submissions, the Complainant identified sections 8 and 19 of the Safety, Health & Welfare at Work Act, 2005. It was submitted at the hearing that under these sections, there is a duty on an employer to ensure the safety of employees. Section 19 in particular places a duty on an employer to identify hazards, assess risks and take appropriate measures. The Respondent failed to provide a reasonable workplace accommodation or ergonomic assessment for the Complainant. Instead, she was told that they couldn’t accommodate her and she should stop the task which is a breach of section 19.

Conclusion

The Complainant says that the above breaches have caused significant financial hardship, emotional distress, and risk to her immigration status. She is seeking compensation as redress.

The Respondent submits that the complaints are misconceived by the Complainant and that, in a legal sense, the complaints are frivolous and vexatious because the Complainant has not met her burden of proof in any of her complaints. The Respondent did not offer evidence on its own behalf but cross examined the Complainant on each of her complaints.

Cross examination of the Complainant

CA-00069153-001 – Organisation of Working Time Act, 1997

The Respondent referred to the Complainant’s contract of employment, which she had submitted, and drew her attention to the fact that it states “Relief Educarer” as the job description. The Complainant accepted that the contract says this but stated that she wasn’t informed what a relief care worker was, she was just told to tell her manager her availability and she said that she didn’t understand the contract. She did not understand that this meant some days she would not get any hours.

The Complainant was asked about the Respondent’s offer to provide hours in other branches and she said that she was unable to go to other branches because they were too far away and public transport was not a reliable option.

The Respondent asked the Complainant if she accepted that, in her contract, her hours of work were “if and when” and that there were no specified hours. The Complainant accepted this. It was further put to her that a contract of this nature means she could accept or decline hours and there was no obligation on the Respondent to engage or re-engage her. The Complainant replied that she did not understand that and was trusting the person she had been engaging with in HR. It was put to her that there was no set hours in her contract and she replied that she did not understand that at the time.

The Complainant was asked if she accepted that there are 24 hours between Friday, when she received the roster, and Monday or Tuesday. She said that she did not accept this because it was not 24 work hours and it was too late for her to find other work.

CA-00069153-002 and CA-00069153-003 - Payment of Wages Act, 1991

The Respondent again asked the Complainant about her contract not guaranteeing any number of hours and she replied that she didn’t know this at the time but is learning it now.

A clause in the Complainant’s contract which states that “You will receive payment at your basic rate of pay for all hours worked” was highlighted and the Complainant was asked if she accepted that payment was for all hours actually worked. She replied that she could see that but was calculating her loss by her rate of pay. The definition of “wages” in the Payment of Wages Act, 1991 was put to the Complainant, that being ”in relation to an employee, means any sums payable to the employee by the employer in connection with his employment” and she was asked if she accepted this means that wages are not payable based on a provisional roster that was subsequently amended. Mr. Lowey said that there was no deduction from her wages, because what she is claiming for is not wages as it doesn’t meet the definition in the Act. He said that the Complainant’s contract provides that she will be paid for the hours that she worked and there could not be any deduction from her wages because she had not worked these hours. The Complainant replied that it is very unfair, she said that she was trusting her employer to provide her with hours as they had been doing for the first four months. She said that she was a good employee and she felt hurt by this very unfair treatment.

CA-00069153-005 - Organisation of Working Time Act, 1997

The Complainant was asked if she accepted that she was not required to accept the two days per week that were offered to her in the weeks of 22nd and 25th October 2024. She said that she didn’t understand that at the time, but accepted that she rejected the offer of work because she needed full time hours for financial reasons during that time. She said she didn’t understand about the contract.

Mr. Lowey asked the Complainant if she read the contract before she signed it and she replied that she trusted her employer.

The Respondent highlighted section 26 of the Organisation of Working Time Act, 1997 which deals with penalisation where it states that:

(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

The Respondent said that for any penalisation to have occurred, there must first have been a protected act and the Respondent rejects that there was any protected act in this case. The contract permits the employer to offer or not offer hours and the employee is free to accept or reject hours. The ingredients of this complaint have not been made out and the Complainant therefore cannot succeed.

CA-00069153-006 - Employment Equality Act, 1998

The Complainant was asked if she was aware of any law in Ireland that compels employers to offer hours for Stamp 2 visa holders. The Complainant replied that she would have liked clarity about her hours so that she could get work elsewhere. She said that her employer had an obligation to her to act in good faith and be clear with her.

The Respondent asked about the Complainant’s classmates and whether they were also Stamp 2 visa holders, from outside the EU. The Complainant said that they were and they were offered hours as there was some availability in different locations. It was put to the Complainant that she could have worked more hours if she had agreed to work in other locations, she replied that there were only three locations where she could work because they were easier to access.

CA-00069153-007 - Employment Equality Act, 1998

The Respondent noted that the complaint form stated that the most recent date of discrimination was 30th April 2024 and asked the Complainant if that was correct. She replied that it was constant because of the different classes that she was moved to but accepted that this was when a call was made about accommodations. It was put to her that a complaint must be made to the WRC within 6 months and the Complainant replied that she had told her employer about it. It was put to her that to be within the relevant time period, any discrimination must have taken place between 10th August 2024 and 9th February 2025 and there was no application at the hearing for an extension of time for reasonable cause. The Complainant did not respond to this question.

The Complainant was asked if she had any medical evidence that height could be considered a disability. The Complainant replied that her employer never asked her for any medical evidence, she just told them what was happening and that she needed support with that task.

It was put to the Complainant that she was accommodated with her request because she no longer had to perform this task and that there was a health & safety risk to providing a step which people could fall from or trip over. The Complainant said that she was hoping for a solution to this so that she could complete the task and that a step had been provided for her in other work places.

CA-00069153-008 - Safety, Health & Welfare at Work Act, 2005

The Complainant was not cross examined on this complaint.

Respondent submissions

CA-00069153-001 – Organisation of Working Time Act, 1997

The Respondent says that the contract of employment is the starting point for these complaints and that contract states that the Respondent is not required or obliged to provide hours. It is an “if and when” contract. Section 17 of the Organisation of Working Time Act, 1997 provides that where the contract doesn’t specify the hours then the obligation to notify an employee is “at least 24 hours before the first day”. It does not say at least 24 “working hours”. There is no ambiguity in the legislation which would seek to imply a distinction between 24 hours and 24 working hours. It would do violence to the intention of the Oireachtas to apply an interpretation that was not intended. The Complainant’s evidence was that she received the roster on a Friday for work on a Monday or Tuesday and there has therefore been no breach of the legislation.

CA-00069153-002 and CA-00069153-003 - Payment of Wages Act, 1991

The Respondent submitted that the Complainant had not withdrawn the payment of wages complaints, and therefore a submission was appropriate. The Respondent says that the claim does not meet the definition of “wages”, which is something payable to an employee under their contract. The Complainant’s “if and when” contract does not oblige the Respondent to provide any hours to the Complainant and it does not oblige her to take any hours that are offered. She is entitled to be paid for the hours that she works, but not for hours that she has not worked. If the roster changed and the Complainant did not work any hours that week, then there are no wages that are properly payable to her and therefore there can have been no deduction within the meaning of the Payment of Wages Act, 1991.

CA-00069153-005 - Organisation of Working Time Act, 1997

The Respondent does not accept that any adverse treatment occurred under the Organisation of Working Time Act, 1997, or at all. In regard to this specific claim, there is no evidence that entitles the Complainant to make a penalisation complaint because the first ingredient is that an employee must have taken an action set out in section 26(1)(a) – (d). The Complainant must have: (a) invoked any right conferred on her by the Act; (b) have in good faith opposed by lawful means an act that is unlawful under the Act; (c) gave evidence in any proceedings under the Act, or (d) gave notice of her intention to do any of the things referred to in (a)-(c). Penalisation can only be deemed to have occurred following one, or any, of these acts and there is no evidence that the Complainant meets that criteria. This complaint has been misconstrued and is without merit. In addition to which, the Respondent says that there has been no adverse treatment at all.

CA-00069153-006 and CA-00069153-007 - Employment Equality Act, 1998

The Complainant in this case is employed as a relief worker, with no guarantee of any set amount of hours. The Respondent employs a number of relief workers and they are of a number of different nationalities, some are EU citizens and some are Stamp 2 visa holders. There is no obligation in law for an employer to provide a minimum number of hours to an employee in order for them to comply with their visa status. It is a significant overreach to suggest that this is an employer obligation under the legislation. There is also no obligation on the Respondent to provide hours under the contract that exists between the parties.

It was accepted by the Complainant that she would only work at limited locations, in fact she limited herself to three of the Respondent’s branches. It is accepted that other relief workers at other branches got more hours. This complaint does not come close to discrimination on race or any other grounds and the Complainant has made mere assertions of discrimination. She has not made out a prima facia case and there are no comparators identified in the complaint. There is further no evidence to show that others got preferential treatment. It is noted that the Respondent continues to offer hours to the Complainant but she has declined to take them.

Regarding the second complaint under the Employment Equality Act 1998, the Complainant has failed on the face to demonstrate the existence of a disability. It follows that there cannot be a claim for discrimination on grounds of disability. When it was put to her whether or not she had a disability, none were identified as relevant. It is conceded that she didn't suggest she had a disability, but the obligation is on her to provide evidence of the existence of a disability. The obligation on an employer to provide reasonable accommodation only arises where a disability exists and there was no evidence of pain or discomfort due to a disability in this case. Therefore, there is no obligation on the Respondent to provide reasonable accommodation in accordance with the Employment Equality Act, 1998. Even though that is the case, the Respondent still did provide accommodation in that the Complainant no longer had to do the tasks that caused her pain. The Respondent acted sensibly in refusing a step which could be considered a hazard and the Complainant did not object to this solution at the time. If there was a difficulty with how this accommodation was explained to staff, then the proper remedy for the Complainant in that case was to raise a grievance, which she did not do. The employee handbook had been provided to her and no grievance was invoked at any stage before the hearing. The Complainant continues to be an employee and can still invoke the grievance procedure if she wishes. This is a complaint that is bound to fail and is frivolous and vexatious in the legal sense.

CA-00069153-008 - Safety, Health & Welfare at Work Act, 2005

The Complainant made a suggestion that a step would assist her with her tasks at the nappy changing station. This invoked her right not to be penalised for making that suggestion. However, the Respondent formed the view that the introduction of a step would have been a health and safety risk and an employer is not obliged to breach its obligations in that regard.

Section 27 of the Safety, Health & Welfare at Work Act, 2005 provides for protection against penalisation. However, the right to take a claim that penalisation has occurred only arises if an employee has taken an action set out in section 27(3); namely that (a) an employee was acting in compliance with a statutory provision; (b) performing any duty or exercising any right under the relevant statutory provisions; (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under the Act, or (f) there is a risk of serious or imminent danger and the Complainant left while the danger persisted, or took appropriate steps to protect herself or others from danger.

The Complainant made no report to the Respondent about safety issues and there is no evidence of a complaint made or grievance invoked regarding the Complainant's stature. In fact, this issue was immediately addressed and, if there was a risk, it was removed by the Complainant no longer doing that task. The Complainant did not object to that solution and it is unfair to now bring this complaint when it had not previously been raised internally. There is no evidence to show penalisation for raising a health and safety issue, if indeed there was one.

The complaint form in this case was submitted on 9th February 2025. That means that the cognisable period is 10th August 2024 to 9th February 2025. This is the 6 month period preceding the lodging of this complaint form.

CA-00069153-001 – and CA-00069153-005 - Organisation of Working Time Act, 1997

The Complainant states that she did not receive reasonable notice of work because she did not receive 24 working hours notice and that she was treated adversely for refusing work where she was given less than 24 hours notice of that work.

In respect of the first complaint under this Act, section 17 is relevant. It states that:

17.—(1) 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, that week, and the employee’s employer shall, other than where the employee is a person holding office under, or in the service of, the State as a member of the Defence Forces, ensure the work takes place within predetermined reference hours and days.

As a matter of statutory interpretation, it is well established that statutory text must be given its ordinary, literal meaning in the first instance and if this meaning is plain then effect must be given to it as such.

The wording in the above section is that notice of “at least 24 hours” must be given. The ordinary meaning of this is 24 consecutive hours, rather than 24 working hours. I see nothing in the interpretation of this section that implies a meaning of 24 working hours. I am satisfied that the plain, ordinary meaning of the section is interpreted as 24 consecutive hours.

That being the case, it is not in dispute that the Complainant received notification on a Friday of workings hours on a Monday and Tuesday. I am satisfied that she received 24 hours notice and consequently, complaint number CA-00069153-001 is not well founded.

Regarding the second complaint under this act, that the Complainant was treated adversely for refusing work where she was given less than 24 hours notice, I note that section 17(1A) states:

(1A) When the requirements of subsection (1) are not met by the employee’s employer, an employee, other than a person holding office under, or in the service of, the State as a member of the Defence Forces, shall have the right to refuse to work during the reference hours and days predetermined by the employer in accordance with that subsection without adverse consequences.

This section is not applicable to the Complainant as she was provided with 24 hours notice, it was therefore not necessary for her to invoke the right to refuse described above as the employer had met the requirements of section 17(1). I therefore find that complaint number CA-00069153-005 is not well founded.

The Complainant further alleges that she was treated adversely for refusing the hours that were offered to her in the weeks of 22nd and 25th October 2024. Section 26 of the Organisation of Working Time Act, 1997 addresses penalisation. It states:

26. —(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with subsection (1) it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts.

(5) In this section "penalisation" means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

The Complainant argues that there was a change in her working hours following the refusal of work in October 2024. A change in working hours can be considered penalisation as described above, however the section is clear that an employer shall not penalise an employee for doing one of the acts set out in section 26(1)(a)-(d) and the question for me therefore is if the Complainant took any of those actions in advance of the reduction in her hours.

There is no evidence that, in October 2024, the Complainant raised a grievance of any kind with the Respondent, including any of the acts described in section 26(1)(a)-(d). I see no evidence that she invoked a right conferred by the Act; opposed an act that was unlawful under the Act; gave or intended to give any evidence in proceedings under the Act at that time, or gave notice of her intention to do any of the foregoing. In the circumstances, based on the evidence provided, I am not satisfied that the Complainant has shown that she had, or intended, to do any of the foregoing. The Respondent therefore could not have penalised her for something that she had not done.

For that reason, I find that the Complainant has not made out a complaint of penalisation under the Organisation of Working Time Act, 1997.

The Complainant also made submissions in relation to section 18 of the Organisation of Working Time Act, 1997 and this is addressed in the decision for case number ADJ-00057281 which was heard together with the within complaints.

CA-00069153-002 and CA-00069153-003 - Payment of Wages Act, 1991

The Complainant has made two complaints under the Payment of Wages Act, 1991. Firstly, she says that she should have received €240 for the late cancellation of hours on Monday 7th and Tuesday 8th October 2024. Secondly, she says that she was entitled to receive €600 for the week of 16th December 2024 when she says that she made herself available for work but was not rostered.

The Complainant’s representative stated at the time of closing submissions during the hearing that these complaints should perhaps have been more appropriately brought under the Organisation of Working Time Act, 1997. However, the Complainant did not raise these complaints under that legislation prior to the hearing date of 2nd July 2025.

The Workplace Relations Act 2015 prescribes strict statutory time limits for the submission of complaints to the Workplace Relations Commission. Section 41(6) provides that an adjudication officer is precluded from entertaining a complaint where it has been presented more than six months after the alleged contravention occurred. Section 41(8) confers a limited discretionary power to extend this period by up to an additional six months, but only where the complainant makes an application for such an extension and demonstrates reasonable cause for the delay.

Both CA-00069153-002 and CA-00069153-003 are complaints which relate to events outside the 6 month cognisable period and no application was made to extend the time for reasonable cause. The Complainant provided extensive submissions in advance of the hearing but did not raise the argument that these complaints should also be addressed by the Organisation of Working Time Act, 1997.

I find that, as they relate to the Organisation of Working Time Act, 1997, the Complainant is statute barred from proceeding under that legislation. I therefore do not have jurisdiction to deal with them as complaints under the Organisation of Working Time Act, 1997 and will consider them as they were submitted and largely addressed at the hearing, under the Payment of Wages Act, 1991.

Section 5 of that Act provides as follows:

“5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

And

“5(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 5(6) of the Payment of Wages Act, 1991 was considered in Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the Payment of Wages Act, 1991 has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful. MacGrath J. stated at paragraphs 34 and 35 of the judgement:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where 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, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion.

Central to the court’s analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation.”

MacGrath J. went on to consider the case of Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 IR 478 which contemplated the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Referring to that case he stated:

“This decision supports the proposition that the first matter which should be addressed by the Labour Court is to determine what wages are properly payable under the contract.”

In the first instance therefore, I must be satisfied what wages are properly payable to the Complainant under her contract of employment. 

The contract dated 26th March 2024, and provided by the Complainant, describes her role as a “Relief Educarer” and under the category of hours states:

“Work will be offered to you on an "ad hoc" basis as and when there is work to be done. You are free to accept or decline such offers of work. You are not guaranteed continuous work and we are under no obligations to offer you further engagements or re-engagement.”

The wording of this contractual clause is clear in that the Complainant is not guaranteed continuous work. The contract also states that:

“You will receive payment at your basic rate of pay for all hours worked.”

The plain meaning of the above is that the Complainant would receive remuneration for “all hours worked”. As the Complainant did not work the hours of Monday 7th and Tuesday 8th October 2024 or the week of the 16th December 2024, then wages for these periods are not properly payable to her.

As I am not satisfied that the sums claimed for are properly payable to the Complainant, I find that these complaints are not well founded.

CA-00069153-006 and CA-00069153-007- Employment Equality Act, 1998

Sections 6(1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

6.(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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

(a) - (f) [not relevant……]

(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”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 6 therefore provides that discrimination occurs where a person is treated less favourably than another person in a comparable situation because of one of the discriminatory grounds set out in subsection (2). This is the case whether the ground exists at present, existed in the past, may arise in the future, or is attributed to the person concerned.

The discriminatory grounds for the purposes of the Act are set out in section 6(2) above. For present purposes, the relevant grounds include the disability ground and the race ground.

It is accepted by all parties that the Complainant is a Stamp 2 visa holder and a Bolivian national.

Section 85A of the Employment Equality Act 1998 provides as follows:

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

The Labour Court has recently addressed the burden of proof in cases alleging discrimination in Mercer (Ireland) and Gráinne Flannery EDA2571 when it stated:

Section 85A provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed. The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

1)    It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the Complainant fails to do so he or she cannot succeed.

2)    If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3)    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The effect of this is to place the burden of proof, in the first instance, on a complainant to establish facts which on an initial examination lead to a presumption that discrimination has occurred.

My first task therefore is to consider if the Complainant has shown that, based on the primary facts, she was discriminated against by the Respondent within the cognisable period on the grounds of race and disability.

Regarding the complaint that there has been discrimination on the grounds of race, the Complainant said that she was treated less favourably than both EU colleagues and colleagues with the same visa status. She said that she required the hours to sustain herself and maintain her visa status. Her argument was that the Respondent’s failure to provide hours jeopardised her visa. Further, she said that EU colleagues were not constrained by the number of hours that they could work each week and consequently were treated more favourably because they had more availability.

The facts are that the Complainant commenced work with the Respondent, on this occasion, on the 19th March 2024. She worked part time until the summer break from college when she was offered full time hours for the summer. This period of full time employment ceased on 27th September 2024 and the Complainant expected to resume her regular part time hours. However, those hours were not forthcoming and the Complainant, in written submissions, stated that she began to see new names on the roster that she was not familiar with. She stated that these new employees were EU citizens and had more availability than her visa status allowed her.

Section 6 of the Employment Equality Act, 1998 states that discrimination shall be taken to occur where a person is treated less favourably than another in a comparable situation. The onus is initially on the Complainant to show that she was treated less favourably than someone in a comparable situation. She stated that EU citizens had more availability because they were not restricted by visas to specific work hours. However, the Complainant was available for part time work only, due both to her visa requirements and college commitments. I do not consider a full time worker to be in a comparable situation in this particular case. To meet the burden of proof that is upon the Complainant in this case, she would need to have shown that another person who was also available for part time work only, was treated more favourably than her on one of the discriminatory grounds. The Complainant identified groups of colleagues, but did not identify a specific comparator who was treated more favourably than her in a comparable situation.

I am not satisfied that the Complainant has met her burden of proof to establish facts which lead to a presumption that discrimination has occurred or that raises a presumption of discrimination.

For that reason, I find that this complaint is not well founded.

Regarding the Complainant’s second complaint that she was discriminated against on the grounds of disability, it is important to note the statutory timeframes applicable to such complaints.

The statutory time limits are contained at Section 77(5) of the Employment Equality Act, 1998 which states as follows:

• (a) Subject to paragraph (b), 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.
• (b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

The complaint must therefore have been brought within 6 months from the date of occurrence of the alleged discrimination. The complaint in relation to alleged discrimination on the grounds of disability relates to events that the Complainant described as occurring in April 2024. On her complaint form, she identified the latest date of discrimination as 30th April 2024 which is outside the cognisable period in this case, namely 10th August 2024 to 9th February 2025.

The Complainant has not identified any instances of alleged discrimination on the grounds of disability within the cognisable period, and has not applied under section 77(5)(b) to extend the time for reasonable cause for such a complaint. As the complaint was not made within the 6 month statutory timeframe, I find that the Complainant is statute barred from proceeding with this complaint and for that reason I do not have jurisdiction to consider it.

CA-00069153-008 - Safety, Health & Welfare at Work Act, 2005

The complaint form states that this is a complaint of penalisation, specifically, that the Complainant was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005. The factual circumstances of this complaint were outlined in the Complainant’s written submission and they are substantially the same as those in relation to the Complainant’s complaint that she was discriminated against on the grounds of disability. Namely, they relate to the Complainant raising concerns about the height of equipment in April 2024. It was stated that the Complainant had been denied an accommodation, that of a step, to assist with performing daily tasks and was then treated adversely as a result of this. The adverse treatment identified by the Complainant is the reduction of hours in October 2024.

Section 27 of the Safety, Health and Welfare at Work Act, 2005 states:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

The above section provides protection for employees against penalisation for having exercised a right under the Act. The question for me is whether, the Complainant having exercised a right under the Act, she was penalised for exercising that right.

The Complainant’s case is that she highlighted her difficulty with accessing cots and changing tables due to the height of that furniture in April 2024, and that she was subjected to adverse treatment as a result. The adverse treatment was a reduction in hours in October 2024.

I am not satisfied, based on the evidence that was heard, that the two issues are connected and I am therefore not satisfied that penalisation occurred. The Complainant raised this issue in April 2024 and, rather than a reduction in her hours at that time in response to raising the issue, her hours were in fact significantly increased for the period June to September 2024. I do not find it credible that the reduction in hours which occurred some 6 months after the Complainant raised the issue regarding the furniture could reasonably be considered penalisation for that action.

For that reason, I find that this complaint is not well founded.

Conclusion

It is apparent from the evidence and the submissions of the Complainant that she did not appreciate the nature of the contract that she entered into with the Respondent. Despite the wording in the contract, she did not appreciate that there was no obligation on the Respondent to offer regular hours or that she was free to accept or reject those hours. It is regrettable that the Respondent did not expressly communicate this to her during her many attempts to address the issue and gain clarity on her situation. It is not considered best practice to fail to engage in the manner that the Respondent did. However, for all of the reasons set out above, that does not mean that the Respondent breached legislation in the way alleged by the Complainant.

For the reasons set out above, I find that the within complaints are not well founded.