Complainant

Respondent

Parties

Agita  Savicka

GWM Renewables Ltd

Representatives

Mr. Dominic Carthy

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00069863-001

10/03/2025

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

CA-00069863-002

10/03/2025

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

CA-00069927-001

11/03/2025

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

CA-00069927-002

11/03/2025

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

CA-00069927-003

11/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00069927-004

11/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00069927-005

11/03/2025

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

CA-00069927-007

11/03/2025

The Complaint’s employment commenced on 1st August 2015. Following a transfer under the TUPE regulations, the Complainant’s employment with the Respondent commenced in October 2020.

On 10th and 11th March 2025, the Complainant referred the present complaints to the Commission. Herein, she alleged that the Respondent had refused to pay her statutory redundancy, had discriminated against her on the grounds of race and disability, had failed to issue a compliant statement of terms of employment, had failed to discharge certain statutory payments and had victimized her for seeking to enforce her rights. By response, the Respondent submitted that the Complainant had been issued with a valid counter-offer in accordance with the Acts, they denied any form of discrimination or victimisation and submitted that the Complainant received all statutory entitlements.

A hearing in relation to this matter was convened for, and finallised on, 8th September 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, while a managing director of the Respondent gave evidence in defence. All evidence was given under oath or examination and was opened to cross examination by the opposing side.

The Complainant stated that she was employed in the Respondent franchise business from August 2015. At all relevant times her role was described as “seamstress”.  The Complainant stated that she is a Latvian national, and that while she is in possession of conversational English, she is not fluent in the language.

In October 2020, the Respondent acquired the premises along with all assets. At this point they informed the Complainant that her responsibilities would transfer to their organisation under the relevant regulations. The Complainant was duly issued with an updated contract in this regard.  The Complainant’s employment remained uneventful until 23rd December 2023. At that time, the Respondent introduced a temporary short time work arrangement which reduced her hours from 38 to 24 per week, citing difficult trading conditions. The Complainant understood this to be temporary and stated that she did not consent to a permanent alteration of her full-time contract.

On 13th December 2024, the Respondent announced that the premise would close and the franchise under which it operated would be relinquished. The Complainant was placed on layoff with immediate effect, without any prior consultation, and was told to seek support from the Department of Social Protection. Between 13th December 2024 and 10th January 2025, the Complainant repeatedly sought clarity regarding her employment status, without any material response from the Respondent. On 13th January 2025, the Complainant formally requested confirmation of her status, noting she had been on lay-off for over a month. Later that day, the Respondent stated that no work would be available for a period of at least two months. In this regard, the Complainant submitted that this response triggered her right to initiate a redundancy claim.

On 15th January 2025, the Complainant served Form RP9 on the Respondent in order to claim a statutory redundancy payment. She submitted that under Section 13 of the Redundancy Payments Act, an employer has a period of seven days to issue a counter notice, offering at least 13 weeks of work to commence within four weeks. On 21st January 2025, the Respondent resiled from its earlier position, stating that her role was unchanged and that work would resume in three to four weeks. This offer of alternative work was dependent on the Complainant engaging in training deemed mandatory by the Respondent. No specific details of the nature of this work or the duration of the same were provided. The Complainant felt obligated to engage with the training despite believing her original role had been extinguished. In this regard, she maintained at all times that her redundancy claim crystallised seven days following service of the RP9 form.

Thereafter, the Complainant alleged that the Respondent engaged in hostile and intimidating conduct to undermine her redundancy rights. On 27th January 2025, the Respondent unilaterally altered her position to include new duties to be completed in a different workplace. They further insisted that the Complainant engage in mandatory training located 130 km from her place of residence. The invite to this training stated that English fluency was necessary. Given that the Complainant did not possess the same, she believed that the training course as provided was inappropriate. On 29th January 2025, the Complainant raised these concerns about the training with the Respondent. She further noted that the Respondent failed to provide a written statement of terms as regards the proposed amendment to her terms. In this regard, the Complainant submitted that that any alternative role must be both suitable for the employee and reasonable. She submitted that the proposed role required various industrial stitching that she had not previously completed and that they role in question did not have a public facing element.

While the Complainant noted that her contract contained a flexibility clause, she maintained that moving from full time to part time variable hours with distant travel did not constitute suitable alternative employment. She stated by closing the premises and altering her duties and hours, the Respondent effectively confirmed that her original role no longer existed. On 3rd February 2025, the Respondent scheduled the inappropriate training for 10th and 11th February 2025. On 6th February 2025, the Complainant informed the Respondent she was medically unfit to engage in the training. The Complainant provided certification until 28th February 2025.

On 3rd March 2025 the Respondent noted that her certificate had expired and warned that any further absence would be treated as unjustified. The Complainant replied that she had a follow up appointment on 6th March 2025 and provided a certificate certifying her until 5th March 2025. Despite receipt of the same, the Respondent issued a written warning on 6th March 2025 for purported non-attendance and breach of contract.

The Complainant submits the Respondent breached numerous statutory obligations by their unreasonable and oppressive behaviour. She argues she was made redundant by operation of the Redundancy Payments Acts in circumstances whereby the Respondent failed to provide a valid offer of 13 weeks of continuous work within the statutory timeframe. She claims the Respondent deliberately misled her to frustrate her redundancy claim and failed to pay annual leave accrued during layoff. Furthermore, the Complainant submitted that the Respondent’s insistence on mandatory training that did not provide translation constituted discrimination on the grounds of race in accordance with the Employment Equality Act. She further contended that the issuing a disciplinary sanction whilst she was on certified sick leave constituted discrimination on the grounds of disability.  Finally, the Complainant submitted that the Respondent failed to issue an updated contract of employment following her move to part-time hours. The Complainant further submitted that the Respondent failed to discharge her correct annual leave entitlement and failed to pay statutory sick pay.

By way of submission, the Respondent stated that upon their acquisition of a franchise in October 2020, the Complainant’s employment was transferred to their organisation in accordance with the Transfer of Undertakings Regulations. Following the cessation of the franchise agreement on 20th December 2024, a degree of operational restructuring became necessary. The Respondent submitted that from January 2024, following her own request, the Complainant transitioned to part time hours, working three days per week. This arrangement was mutually accepted and reflected in her work schedule prior to the dispute.

It was further submitted that layoff procedures are a common and established practice within the Respondent organisation, particularly during the quieter months of January and February. In 2024 / 2025, and in as a consequence of the re-organisation followings the finalisation of the franchise agreement, the Respondent availed of this seasonal slowdown to relocate operations to new premises located 150 metres away from the previous site. This move allowed the Respondent to expedite the installation of upgraded equipment and implement more efficient business changes. The Respondent stated that the layoff was a routine business measure and was not indicative of redundancy of the Complainant or the proposed termination of her employment.

On this basis, the Complainant was placed on temporary layoff on 13th December 2024. She was informed that she would be invited to return to work immediately once the equipment setup in the new premises was complete. She was also informed that the Respondent would be changing their trading name, and was reassured that all other terms and conditions would otherwise remain the same. On 20th December 2024, the Respondent provided further reassurance that operations were ongoing. On 28th December 2024 and 30th January 2025, the Complainant was informed that her position remained unchanged. Notwithstanding the same, the Complainant issued notice of her intention to claim redundancy on 15th January 2025. Counter-notice was issued by the Respondent on 21st January 2025. In this regard, the Respondent submitted that the Complainant’s role continued to be available and that the proposed commencement date was reasonably anticipated in the short term.

The Respondent submitted that the relocation did not constitute a material change to the Complainant’s terms of employment, as the new premises and was located only 150 metres from the initial premises. The Respondent further noted that the Complainant had worked in other locations including Athlone and Dublin during her previous employment and that she had raised no objections to travel on these occasions.

Following the completion of the franchise relationship, the Respondent revised all company documentation to ensure the same was compliant with the relevant legislation. In this regard, it was observed that the Complainant had not completed essential health and safety training. As a liability accrued to the Respondent on foot of the same, the Complainant was enrolled in a training course to meet these requirements.  The Complainant initially confirmed her availability to attend said training on 11th February 2025. However, shortly thereafter, the Complainant stated that she was unable to attend said training on medical grounds.

The Respondent stated that while they previously arranged onsite training, the same was no longer viable due to reduced staffing levels. As a consequence of the same, the Respondent was obliged to organise training with an external provider. The Respondent submitted that all employees including the Complainant had a statutory obligation to comply with safety directives and participate in prescribed training. They submitted that failure to do so constituted a breach of company policy. They stated that the training requirement in question was reasonable and offered on a fully funded basis.

On 6th February 2025, the Complainant stated she was unable to attend this mandatory training due to apparent health issues. A medical certificate was submitted covering the period 6th to 28th February 2025. Thereafter, no certification was provided for the period 1st to 5th March 2025, with this absence been treated as unjustified. A formal email was issued on 3rd March 2025, requesting the Complainant’s attendance at rescheduled training on 12th March 2025. When no response was received, the Complainant was issued a written warning on 6th March 2025 for unauthorised absence. Although she later provided a new medical certificate it did not cover the period of unauthorised absence or explain her failure to respond to the previous correspondence.

In response to the Complainant’s prolonged medical absence since 6th February 2025, the Respondent initiated a medical capability process to assess her fitness for work and explore potential reasonable accommodation. The Complainant refused to engage in these procedures. The Respondent maintained that the Complainant’s role was not redundant and still existed on the date of the hearing. They further submitted that the relocation of the premises did not constitute a material change to the Complainant’s terms and conditions. In this regard, the Respondent submitted that the nature of the work undertaken by the Complainant remained the same, although it would no longer involve a public facing aspect and that more industrial work would be undertaken. The Respondent submitted that the Complainant acted unreasonably in refusing to attend mandatory training without cause. They denied that she would face language difficulties as she had no apparent issues conversing in English with the Respondent or customers previously. They further denied any deficiency in the contract of employment and stated all statutory payments were issued to the Complainant in due course.

CA-00069863-001 Complaint under the Redundancy Payments Acts

The first claim pursued by the Complaint regarded her allegation that the Respondent refused to discharge a statutory redundancy payment. In this regard, the Complainant submitted that she issued notice of redundancy whilst on statutory lay-off. While counter-notice was received in respect of the same, the Complainant alleged that the same was delivered outside of the timeframe permitted outlined in the Act, and that the same did not meet the requirements of the relevant section. Without prejudice to the foregoing, the Complainant submitted that the Complainant’s role was redundant with the closure of the premises, and that the offer of work in the new premises did not constitute a reasonable offer of alternative employment. By response, the Respondent submitted that they informed the Complainant of their intention to move premises, that a valid counter-notice was issued to the Complainant’s notice and that the offer of employment in the new premises did not create a valid redundancy situation.

In this regard, Section 11 of the Act provides that lay-off occurs whereby,

“…an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation….”

Regarding the present case, neither party raised issue with the legality of the Complainant’s lay-off and the application of this provision is uncontroversial.

Thereafter, Section 12(1) provides that,

“An employee shall not be entitled to redundancy payment by reason of having been laid off…unless (a) he has been laid off…for four or more consecutive weeks…and (b) after the expiry of the relevant period of lay-off…mentioned in paragraph (a)…gives to his employer notice…writing of his intention to claim redundancy payment in respect of lay-off or short-time.”

Section 13 goes on to provide as follows,

(1)    “Subject to subsection (2), an employee shall not be entitled to a redundancy payment in pursuance of a notice of intention to claim if, on the date of service of that notice, it was reasonably to be expected that the employee (if he continued to be employed by the same employer) would, not later than four weeks after that date, enter upon a period of employment of not less than thirteen weeks during which he would not be laid off or kept on short-time for any week.

(2)    Subsection (1) shall not apply unless, within seven days after the service of the notice of intention to claim, the employer gives to the employee notice (in this Part referred to as a counter-notice) in writing that he will contest any liability to pay to him a redundancy payment in pursuance of the notice of intention to claim.”

Regarding the present case, the Complainant has alleged that the Respondent did not issue a valid counter-notice within the seven-day period prescribed by Section 13(2). In this regard, the Complainant submitted that notice in accordance with Section 12 was initially issued on 13th January 2024. In this correspondence, the Complainant simply enquired as to when she would be entitled to return to work. No reference is made to any intention of claim statutory redundancy, and consequently this correspondence cannot act as notification under Section 12.

Thereafter, on 15th January 2025, the Complainant emailed form RP9, with part B completed. This document clearly constitutes notification under Section 12, and it is apparent that the timeframe for response runs from this date.

On 21st January 2025, the Respondent replied by email. This correspondence stated that the Complainant’s employment was “secure”. The correspondence further outlines that the Respondent intended to offer the Complainant work within “3 to 4 weeks”. In addition to the same, the Respondent stated that they were willing to offer the Complainant an “alternative work opportunity” that would require “some future training”. By submission, and in evidence, the Respondent submitted that this document constituted counter-notice within the meaning of Section 13 and served to disentitle the Complainant’s right to statutory redundancy.

The Complainant, via her representative, raised a number of issues with this contention. Firstly, they submitted that Section 13(1) dictates that any employment offered by counter notice must be reasonably expected to commence no later than four weeks from the date of service of counter-notice.  In this regard, they referred to correspondence issued by the Respondent on 13th January 2025, stating that the proposed lay-off was to be extended for “at least two months”. In this regard, the Complainant submitted that the offer of work within four weeks was not reasonably expected but was offered in an effort to prevent the Complainant from claiming redundancy. By response, the Respondent submitted that the reference to “two months” in the correspondence of 13th January related to the entirety of the lay-off period, which they anticipated to run from the start of the period 15th December 2024 to approximately two months later, or within four weeks of the date of the later correspondence.

Having reviewed the correspondence in question, it is apparent that the Complainant raised a simple enquiry as to when she would return to work on 13th January 2025. As stated above, this enquiry made no reference to any proposed intention to claim redundancy and read simply as an employee informally seeking information as to when she might return to employment.

Thereafter, the relevant section of the Respondent’s response states that,

“As you are currently on temporary layoff starting December 13, 2024, I wanted to touch base with you regarding your time off. As discussed, the plan remains for this to extend for at least two months.”

The natural reading of this statement is that the proposed lay-off was to extend for two months from the date of the correspondence. If the Respondent had intended to provide work for the Complainant within four weeks of that date, it could reasonably be assumed that they would simply state as much, particularly as this would provide comfort for the Complainant regarding her return to work. The correspondence also states that the lay-off in question was to “extend” for two months, implying that this was to be a period of lay-off on in addition to that already completed. Finally, it is noted that this correspondence states that the extension would be for “at least two months”, implying that the lay-off in question could well be longer in duration.

Eight days later, in response to the form RP9 issued by the Complainant, the Respondent provided a different response regarding the Complainant’s proposed return to work. At this juncture, the date of return was said to be in 3 to 4 weeks, less than half the time outlined in the previous correspondence. Having considered the evidence of the parties, it is not apparent that any material changes in circumstances occurred within this time-frame that might expedite the Complainant’s return to work in this manner. In consideration of the same, I find that the Respondent did not reasonably anticipate that the Complainant would return to work within the timeframe outlined in the correspondence of 21st January 2025, and that the statement issued on 13th January reflected the correct interpretation of the Respondent’s intentions. In these circumstances, I find that contrary to the correspondence of 21st January 2024, the Respondent did not reasonably believe that they would be in a position to provide the Complainant with work within the timeframe outlined in the provision. While I note that the Respondent alluded to “alternative work” that might be available immediately, the correspondence of 13th January stated that work would be provided once the Respondent had secured a new place for business.

As a consequence of the foregoing, I find that the Complainant issued valid notice of an intention to claim redundancy in accordance with Section 12 on 15th January. While the Respondent did issue counter-notice within seven days, I find that the same does not comply with the requirements of Section 13, specifically in that the offer of work was not reasonably expected to commence within four weeks of the date of service. In these circumstances, I find that the Complainant is entitled to a payment of statutory redundancy, and her appeal is successful.

CA-00069863-002 Complaint under the Organisation of Working Time Act

By submission, the Complainant alleged that she did not receive payment for outstanding annual leave on the termination of her employment. By submission, the Complainant alleged that the amount of outstanding annual leave came to 56 hours and had a monetary value of €784. By subsequent submission, the Complainant alleged that this figure comprised of annual leave untaken in the course of her employment, annual leave accrued whilst on lay-off and public holidays unpaid during that period. In responding to this allegation, the Respondent firstly submitted that the Complainant’s employment was not terminated at all. Thereafter they submitted that the Complainant received all statutory payments due and owing and that no additional payments were due on the purported termination of her employment.

Having regard to the finding above, I find that the Complainant’s employment terminated on 15th January 2024. In this regard, it is common case that the Act compels an employer to discharge all untaken and accrued annual leave on the termination of employment. In correspondence exchanged in late 2024, the Respondent accepted that the Complainant had accrued an annual leave entitlement of 55.98 hours. This calculation was then included on the Complainant’s payslip for the week ending 3rd January 2025. Given that the Respondent disputed that the Complainant’s employment terminated on 15th January 2025, they did not discharge this payment. Notwithstanding the same, in circumstances whereby I have found that the contract terminated by way of redundancy thereafter, I find that the same is payable on the date of termination.

In addition to the foregoing, while it is the case that annual leave does not accrue on lay-off, public holiday entitlements remain payable. From the payslip opened by the parties, it is apparent that these were discharged and no further payment arises in respect to the same.

Having regard to the accumulation of the foregoing points, I find that the complaint regarding the non-payment of accrued annual leave entitlement on termination of employment is well-founded.

CA-00069927-001 Complaint under the Employment Equality Acts

Regarding the following complaints, the Complainant has alleged that she was discriminated against on the grounds of race, in that the Respondent refused to provide a translator for training they insisted that she undertake. She further alleged that the Respondent discriminated against her on the grounds of disability in issuing a disciplinary sanction whilst she was on statutory sick leave. Finally, the Complainant submitted that the Respondent victimised her for asserting her rights under the Act.

Regarding the initial complaint, and in consideration of my finding above, it is apparent that the contract of employment was terminated by operation of the Redundancy Payments Acts on 15th January 2025. While the Complainant continued to engage with the Respondent thereafter, this was without prejudice to her position that the contract had in fact been terminated and in consideration of the outcome of the complaint listed above.

In this regard, the fact that the Complainant’s employment had terminated on the date of the alleged discrimination does not present a barrier to a complaint of discrimination. In this regard, Section 2 of the Acts, as amended, defines “employee” in a manner that clearly incorporates former employees. The relevant Section provides as follows,  

“…a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment…”

In the matter of Coote v Granada Hospitality ltd [1999] ICR 00, the ECJ held that,

1. “The principle of effective judicial control laid down in Article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.
2. In those circumstances, it is not possible to accept the United Kingdom Government's argument that measures taken by an employer against an employee as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment do not fall within the scope of the Directive if they are taken after the employment relationship has ended.”

Regarding the present case, the Complainant has alleged that while she is in possession of conversational English, she does not possess fluency in the language. She stated that while she could engage in limited conversation with colleagues and customers, she often relied upon a certain colleague to translate on her behalf. She stated that following her dispute with the Respondent regarding her redundancy, they insisted that she attend a training that specifically mandated “a good understanding” of English as part of the entry criteria.

By response, the Respondent disputed the Complainant’s allegations regarding her standard of spoken English. They stated that they frequently communicated with the Complainant, sometimes in relation to quite technical matters, in English without any apparent difficulty on her part. 

In this regard, Section 6 of the Employment Equality Act prohibits discrimination on any discriminatory ground.

Subsection (1)(a) of that Section provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(h) provides that race, colour, nationality or ethnic or national origins are included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps:

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 Adjudication Officer/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”

In the matter of Cork City Council v McCarthy EDA 0821 the Labour Court held as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Regarding the factual matrix of the present complaint, it is well established that non-English speaking employees are entitled to have certain important employment meetings and documentation translated into their native language.

In the matter of Campbell Catering v Rasaq [2004] 15 ELR 310, the Court held that,

“It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture. In the case of disciplinary proceedings, employers have a positive duty to ensure that all workers fully understand what is alleged against them, the gravity of the alleged misconduct and their right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilitates and guidance in making a defense. In such cases, applying the same procedural standards to a non-national workers as would be applied to an Irish national could amount to the application of the same rules to different situations and could in itself amount to discrimination.”

In the present case, the Complainant has submitted that this requirement for translation extends to the provision of training and other more routine workplace events.

In the matter of Clare Civil Engineering Limited -v- Igor Ostojic EDA101, the Court considered an allegation of discrimination arising from a failure to translate certain health and safety documentation. Following a consideration of the Judgment in Rasaq (quoted above), the Court held that,

“The situation in relation to health and safety instructions is somewhat different. While health and safety instruction is obviously important, the Court is satisfied that such instruction was generally imparted to all workers for their well-being on site and that the Complainants would have reasonable experience from previous work practice whether in Ireland or elsewhere. No complaints were made to the Respondent at any time about the manner of the instruction or a failure to fully understand its nature or content. Therefore, the Court concludes that no discriminatory case has been made out under this complaint.”

Regarding the present case, it is noted that the invite to the training session expressly mandates that participants must have “a good understanding” of English. While the Respondent maintained that the Complainant was in possession of the same, the Complainant herself stated that she was not. In this respect, the definition of “a good understanding” for these purposes is somewhat unclear. While the Complainant is naturally the best person to assess her level of spoken English, it is apparent that she engaged in a public-facing employment relationship for many years, without experiencing any significant language-based difficulties. It is further apparent that the Complainant received numerous items of contractual documentation, again issued in English, without raising any issue regarding her comprehension of the same. Finally, it is noted that the Complainant engaged in ongoing correspondence with the Respondent regarding her redundancy entitlements. In consideration of the accumulation of the foregoing points, I find that the Complainant’s apparent level of comprehension of English was such that the Respondent acted reasonably in enrolling her in the course in question. In these circumstances, and in consideration of the authorities listed above, I find that the Complainant has not established the primary facts upon which a complaint of discrimination may be inferred. In these circumstances, I find that the Complainant was not discriminated against by the Respondent.

CA-00069927-002 Complaint under the Employment Equality Acts

Regarding this particular complaint, the Complainant has alleged that the imposition of a disciplinary sanction, whilst she was on sick leave, constituted discrimination on the grounds of disability. By response, the Respondent submitted that the Complainant was not on certified sick leave on the date of the imposition of the sanction, and that the process invoked in relation to the same respected the Complainant’s natural and contractual rights.

In order to pursue a complaint of discrimination on the grounds of disability, an applicant must firstly demonstrate that they suffer from a disability in accordance with the Act. In this regard, Section 2 of the Employment Equality Acts defines “disability” in the following terms,

a)      “the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

b)      the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

c)       the malfunction, malformation or disfigurement of a part of a person’s body,

d)      a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

e)       a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”

In the matter of A Government Department v A Worker EDA 094, the Labour Court held that,

“The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.”

Regarding the present complaint, within the cognisable period of the same, the Complainant issued two medical certificates to the Respondent. One of these medical certificates simply states that the Complainant cannot attend work, without any medical reason being set out in relation to the same. The second of these certificates states that the Complainant cannot attend work due to the existence of an unspecified medical illness.

Having regard to the foregoing, I find that the Complainant has not established that she suffers from a disability as defined by Section 2 of the Acts. In these circumstances, and in consideration of the authorities listed above, I find that the Complainant has not established the primary facts upon which a complaint of discrimination may be inferred. In these circumstances, I find that the Complainant was not discriminated against by the Respondent.

CA-00069927-003 Complaint under the Employment Equality Acts

The final complaint raised by the Complainant under the Employment Equality Acts relates to a complaint of victimisation. In this regard, the Complainant alleged that she suffered the alleged adverse treatment outlined in the previous decisions as a consequence of seeking to uphold her statutory entitlements.

In this regard “victimisation” for the purposes of the present Act is defined, in Section 74(2) “as adverse treatment of an employee by his or her employer” in retaliation to a complaint of discriminatory treatment.

In the matter of Holden Plant Rentals -v- Sinead Vereker EDA221, the Labour Court held as follows,

“The definition of victimisation contained in that section contains essentially three ingredients. It requires that:

1.       The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2.       The Complainant was subjected to adverse treatment by the Respondent, and,

3.   The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

In the present case, the while it is apparent that the Complainant sought to enforce her rights under the Redundancy Payments Act and the Organisation of Working Time Act, no evidence was provided of the Complainant seeking to raise a complaint of discriminatory treatment prior to the adverse behaviour complained of.  In these circumstances, I find that the Complainant was not subject to victimisation as defined by the Act.

CA-00069927-004 Complaint under the Sick Leave Act

Regarding this complaint, the Complainant has alleged that the Respondent penalised her for seeking to enforce her rights under the Act.

In this regard, Section 12(1) of the Act provides as follows,

“An employer shall not penalise or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave day;

Section 2(1) of the Act defines “statutory sick leave” as,

“…the entitlement of an employee to be paid statutory sick leave payment by his or her employer in respect of a statutory sick leave day”

A “statutory sick leave day” is defined in Section 5 as,

“…a day on which he or she would ordinarily work but is incapable of doing so due to illness or injury (in this Act referred to as a “statutory sick leave day”), be entitled to statutory sick leave.”

As set out in the initial finding above, the Complainant’s contract of employment terminated by operation of the Redundancy Payments Acts on 15th January 2025. In this respect, it can be seen that the Complainant had no entitlement to be paid statutory sick leave on the date in question, nor is it apparent that she sought payment for statutory sick leave prior to the adverse behaviours alleged.

In these circumstances, I find that the Complainant was not penalised on the grounds stated and her complaint I deemed to be not well-founded.

CA-00069927-005 Complaint under the Industrial Relations (Amendment) Act

This complaint was not pursued by the Complainant and is deemed to be not well-founded.

CA-00069927-007 Complaint under the Terms of Employment (Information) Act

Regarding this complaint, the Complainant has alleged that the Respondent failed to issue an updated contract of employment following an amendment to a core contractual term.

In this regard Section 3(1)(i) provides that statement must refer to, “any terms or conditions relating to hours of work.” 

Section3(1A)(e)(i) of the Act (as amended) further provides that an employer must provide a statement of “the number of hours which the employer reasonably expects the employee to work (i) per normal working day, and (ii) per normal working week.” 

The relevant provision of the Complainant’s contract provides that,

“Your hours of work will vary from 9.00am to 6.00pm from Monday to Sunday”.

Having regard to the foregoing, I find that the Respondent is in breach of this provision, and the complaint is deemed to be well-founded.

CA-00069863-001 Complaint under the Redundancy Payments Acts

Having considered all of the information presented to me and giving appropriate weighting to the direct evidence adduced, I am satisfied that the Complainant has established the existence of a redundancy situation and the appeal succeeds.

I find that the Complainant is entitled to a statutory redundancy payment based on the following information,

Date employment commenced:  1st August 2015

Date Employment ceased:           15th January 2024

In the year prior to termination of the Complainant’s employment on the grounds of redundancy, the Complainant worked for 20 to 25 hours per week, at a rate of €14 per hour. Having examined a selection of the payslips issued to the Complainant in the 52 weeks prior to the date of redundancy, the Complainant gross weekly wage is as below.

Gross Weekly wage:                      €327.00

CA-00069863-002 Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded and the Complainant’s application succeeds. Regarding redress, I award the Complainant the sum of €784 in respect of outstanding annual leave not paid on termination. I further award the Complainant the sum of €500 in compensation. 

CA-00069927-001 Complaint under the Employment Equality Acts

I find that the Complainant was not discriminated against by the Respondent, and the Complainant is deemed to be not well-founded.

CA-00069927-002 Complaint under the Employment Equality Acts

I find that the Complainant was not discriminated against by the Respondent, and the Complainant is deemed to be not well-founded.

CA-00069927-003 Complaint under the Employment Equality Acts

I find that the Complainant was not victimised by the Respondent, and the Complainant is deemed to be not well-founded.

CA-00069927-004 Complaint under the Sick Leave Act

I find that the complaint is not well-founded.

CA-00069927-005 Complaint under the Industrial Relations (Amendment) Act

I find that the complaint is not well-founded.

CA-00069927-007 Complaint under the Terms of Employment (Information) Act

I find that the complaint is well-founded, and the Complainant’s application succeeds. Regarding redress, I award the Complainant the sum of €327 in compensation for the breach of the Act.

Redundancy, Notice, Counter Notice, Reasonably Anticipate, Discrimination, Translation, Disciplinary Sick Leave, Disability