Complainant

Respondent

Parties

Hajar  Aqqa

Beauty and Beef Limited [amended on consent on first day of hearing]

Representatives

Mr Frank Drumm BL instructed by     Mr Anthony Collier Solicitor  Collier Law

The Respondent did not attend and was not represented at hearing.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00062370-001 WITHDRAWN 

25/03/2024

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

CA-00062370-003

25/03/2024

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

CA-00062370-004

25/03/2024

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

CA-00062370-006

25/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00062370-007

25/03/2024

This matter came before the Workplace Relations Commission dated 25/03/2024.   The Complainant alleges contravention by the Respondent of provisions of the above listed statutes in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place initially 12/09/2024.  The aforesaid hearing was attended by the Complainant and her representatives together with the Respondent and their representatives. 

The case was set down for a second day of hearing on 21/02/2025 attended by both parties and their representatives. Prior to the commencement of hearing it was advised by the Complainant representative that matters had been settled between the parties and, accordingly, the hearing did not resume on the day. 

It was agreed that the file would be withdrawn on 04/04/2025. 

The Complainant representative emailed the WRC on 28/03/2025 seeking to reinstate the within complaints and seeking the matter to be set down and listed for hearing with said hearing taking place on 01/04/2026. 

The Complainant and her representatives attended at hearing on 01/04/2026.  The Respondent did not attend and was not represented at hearing. 

The Complainant was employed as a counter assistant in a takeaway restaurant at all material times.  The Complainant commenced employment with the Respondent on 20/01/2024 such employment terminating by way of dismissal on 23/03/2024.  The Complainant worked 50 hours per week for which she received gross pay weekly €320. 00 for the duration of her employment namely 8 weeks and 6 days.   

CA-00062370-003 complaint pursuant to section 77 of the Employment Equality Act, 1998. 

It is the Complainant’s case that she was discriminated against on the grounds of gender; family status; religion; age; race; conditions of employment; harassing; and discriminating against her in other.

Overview of written submission

The Complainant was told she was not allowed to wear her hijab.  The Complainant was told that if she wore her hijab she would be terminated.  The Complainant was told she was fat and stupid and asked if she was pregnant.  The Complainant, who is from Morocco, was told that the Respondent did not like people from Morocco.  The Complainant felt harassed over religion race and gender. 

Summary of direct evidence of Complainant on oath

The Complainant submits the Respondent made sarcastic remarks all the time.  She tried to wear the hijab many times and she was told to stop.  The Complainant was told she was fat and stupid and the Respondent said Morocco is a shi*thole when a customer in the shop asked her where she was from.    

With regard to age discrimination the Complainant submits they were picking on her because she was young.  The Complainant submits they were harassing her many times because they called her stupid.  The Complainant submits they said she was stupid, fat, crazy and eating a lot and they tried to say there was something mentally wrong with her. 

The Complainant submits they were body-shaming her, mimicking her and making fun of her.  On the family status ground the Complainant submits they asked her questions about her marriage and her husband and their ages.   

The Complainant submits she was harassed by the Respondent because he wasn’t friendly to her and he walked away from her when she was talking to him and he called her crazy. 

The Complainant submits she was discriminated against in her conditions of employment when she was made to work until 3am after being hired to work from 5pm until 11 or 12. 

CA-00062370-004 complaint pursuant to section 27 of the Organisation of Working Time Act, 1997

The Complainant submits she was not notified in advance of her starting and finishing times.    

Overview of WRC complaint form

I work on Sundays and I get 10 euros per hour. I told my employer I should get more money because it is a Sunday.  He did not give me a answer at all in relation to that subject.  I worked Saint Patricks Day/night 2024 in which was a Sunday and public holiday.  I got 10 euros per hour for working Saint Patricks day/night form 5pm too 5am.  Currently my employer fired me and will not pay me for Saint Patricks day/night and refuses to pay me for Tuesday after Saint Patricks Day. My employer will not communicate with me in any way shape or form.  He is completely ignoring me and it is unjust and illegal I believe. I do not get proper breaks that I should get.  My employers brother who works hand in hand beside his brother in the restraunt/takeaway I worked in told me on a Sunday I was meant to work that he is not coming in that Sunday and don’t come in on that Sunday.

I did not get 24 hours notice of that.  My employer did not have the decency to even text me that information in which I thought was very unfair towards myself.  On Saint Patricks Day/night 2024 I was completely shocked with the lack of communication towards me in regard to how long my shift was meant to be. My employer told me to stay on till 5am.  So I worked from 5pm to 5am. I should of being given 24 hours notice of the Saint Patricks Day/night work shift hours. my employer did not care and completely treated me as if I was nothing.

The Complainant in direct evidence submits the starting time was clear and it was the finishing time that was the issue.  The Respondent told her it would be midnight and every time she expected to finish at 12 but she never did. 

CA-00062370-006 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submits she did not receive a statement in writing on her terms of employment.

Overview of WRC complaint form

I was not given terms and conditions of my employment by my employer. I was never given any documentation regarding my official employment there. My employer said to me from the first day of employment that I was going to be on the till at the counter serving customers takeaway food and bring food to the table for customers because it is a takeaway/restaurant but my employer completely started to change that and he wanted me to work in the kitchen cooking certain small foods like for example milk shakes and creeps and waffles and cleaning plates and cups and cutlery and pots and pans and cleaning the fridge.  And at the same time working on the till and doing just eat orders and UBER orders.my employer uses lots of applications for takeaway delivery options so it is a extremely busy job and my shift is very fast paced. Also my employer wanted me to do cleaning the toilets and cleaning the windows outside. I asked my employer did you change my job description.  And he said we want you to do what we want you to do and in a rude manner would not discuss why I was told something totally different when he officially employed me.  I tried to speak to my employer in a polite and courteous and professional way but I could not understand his dogmatic nature of trying always to dominate every aspect of his employees. as a employee there I was not allowed to speak. I felt it was complete slavery. I did try to tell my employer that he pays me 10 euros an hour and this is not acceptable pay in 2024 modern Ireland where we have labour laws that must be obeyed and employers must comply with legislation. In that job I was fired from is a lot of intimidation and rudeness and bullying.  My employer told me not to tell anyone what I get paid. And do not even tell your husband because my employer stated he would get in trouble with the labour laws in Ireland. I believe all my labour rights were completely violated and abused and I was made to feel like I was a second class citizen in a environment of slavery.

CA-00062370-007 complaint pursuant to section 24 of the National Minimum Wage Act, 2000

The Complainant submits she was penalised by her employer for invoking entitlements under section 24 of the Minimum Wage Act, 2000. 

The Complainant strongly believes she was fired because she spoke up to her employer about getting 10 euros per hour in her employment as a full-time employee.

There was no appearance by or on behalf of the Respondent at the hearing.  

In circumstances where I am satisfied that the Respondent was properly served with notice of the date, time and venue of the adjudication hearing and having waited some time to accommodate a late arrival and where I formally opened and closed the adjudication hearing on 01/04/2026 I will proceed to set out hereunder my findings and conclusions.

CA-00062370-003 complaint pursuant to section 77 of the Employment Equality Act, 1998. 

It is the Complainant’s case that she was discriminated against on the grounds of gender; family status; religion; age; race; conditions of employment; harassing; and discriminating against her in other.

The Relevant Law

Section 6 of the Employment Equality Act, 1998 (“the EEA”) provides as follows: 

“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) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(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”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

The provision for “would be treated” in section 6(1) of the Act appears to allow for the use of hypothetical comparators.  Meenan, Employment Law (Round Hall 2023, 2nd ed), at paragraph 12-33, further provides that where one is considering discriminatory treatment in respect of conditions of employment, then a comparator may be actual or hypothetical.

In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, it was held that in a case of direct discrimination, a hypothetical discrimination should normally be constructed by establishing the factual criterion for the impugned decision and considering whether that criterion would have similarly applied in the case of a person without the protected characteristics.

In Tipperary County Council v McAteer (EDA153) (30th January 2015), it was held that in cases of indirect discrimination, the court should consider whether a restriction of a type bears more heavily on a class of persons of which the complainant is one than it does on another body or class of persons whose circumstances are similar other than in respect to the impact on them of the impugned measure.   

Section 85A of the EEA provides for the allocation of the probative burden between a complainant and a respondent 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.”

In Southern Health Board v. Mitchell [2001] ELR 201the Labour Court held as follows:

“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 Melbury Developments Ltd v Valpeters[2010] ELR 64, the Labour Court provided a helpful explanation on the nature of the burden of proof as follows:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” [emphasis added]

It is well established that unsubstantiated beliefs or assertions that discrimination has occurred are not sufficient to establish a prima facie case.

In order to shift the burden of proof to the Respondent, the Complainant must not only establish the primary facts being relied upon but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

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

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” [emphasis added] 

The Equality Officer in Hallinan v Moy Valley Resources [DEC-S2008-25] in interpreting the obligation which a complainant must meet by virtue of section 38A held that to establish a prima facie case, the complainant is obliged to satisfy three elements of a test as follows:

1.          The complainant must establish that he or she is covered by the protected ground;

2.          Establish that the specific treatment has allegedly taken place;

3.          The treatment was less favourable than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.                  

When considering the primary facts adduced by the Complainant, I must take into consideration the Respondent’s contrary evidence when determining whether the burden of proof should shift to the Respondent.  The Labour Court in the case of Dyflin Publications Limited v. Spasic [EDA 0823] held as follows:

“…the Court should consider the primary facts which are relied upon by the complainant in their proper context.  It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant

The Relevant Law [Gender]

The Complainant’s submits the Respondent discriminated against her on the grounds of her gender contrary to Sections 6(2)(a) the Employment Equality Act, 1998

The Complainant’s uncontested evidence is that the Respondent asked her if she was pregnant. I am satisfied that asking a woman if she is pregnant can be considered less favourable treatment because it treats a woman differently based on a condition that is unique to her gender.    

I am satisfied on the basis of the facts as presented that it can be presumed that the Complainant was discriminated against by the Respondent and, as per Section 85A, the burden is shifted to the Respondent to prove otherwise. 

The Respondent has not attended the hearing nor provided any evidence to rebut the presumption. 

The Relevant Law [Race]

The Complainant’s submits the Respondent discriminated against her on the grounds of her race contrary to Sections 6(2)(h) the Employment Equality Act, 1998. 

Section 6(2)(h) of the EEA provides that it shall be unlawful discrimination to treat a person less favourably than another person has been or would be treated because “they are of a different race, colour, nationality or ethnic or national origins”.

Section 8 of the EEA prohibits discrimination against an employee or prospective employee in relation to:

“(a) access to employment;

  (b) conditions of employment”

In order to make a valid prima facie case of discriminatory treatment on the ground of race, pursuant to section 85A of the Employment Equality Acts, the Complainant needs to identify a comparator of a different race who received more favourable treatment than she did.   This is specified in section 6(1) of the Employment Equality Acts, where discrimination is defined as “a person 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)”, which includes the ground of race on which the complaint was brought. 

Thus, the Complainant must be the subject of less favourable treatment in comparison to another person who is of a different race.

The Complainant, who is from Morocco, alleges in her written submission “she was told that the Respondent did not like people from Morocco.”

I note the Complainant in direct evidence submits the Respondent said that Morocco is a shi*t hole and it is her case that this constitutes discrimination on grounds of race.   The Complainant did not adduce any evidence to substantiate the allegations made on grounds of race or prove the primary facts upon which she relies apart from the fact that the Respondent is alleged to have said Morocco is a shi*t hole. 

Moreover, the Complainant did not identify a comparator of a different race who received who received more favourable treatment than she did.  

I find that the Complainant has presented no evidence to ground a case of discrimination on grounds of race apart from her allegation that the Respondent described Morocco as a sh*t hole which in and of itself does not raise a presumption.   It remains unclear whether or not the Respondent said to her that he did not like people from Morocco or if this was relayed to her by another person. 

Notwithstanding, having considered the totality of the evidence including the numerous contraventions of employment law during the brief tenure of the Complainant’s employment I consider the Labour Court determination in the case of A Domestic Worker v an Employer [DEC-E2011-117] to be of particular relevance to the instant case.  A Domestic Worker v an Employer was case in which the evidence adduced was of the employee being treated in complete disregard for Irish employment law by being paid less than the minimum wage, working far in excess of a 48-hour working week, not being paid public holiday entitlements, not being provided with appropriate breaks. 

The Equality Officer concluded that an Irish employee would not have been similarly treated.  I am satisfied the case before me is similar including the additional issues of not being provided with a contract of employment; not receiving a Sunday premium; and not being paid for the first two weeks of employment classified as “training”. 

In the instant case I have also taken into account the alleged threats made to the Complainant in the context of pursuing a complaint before the WRC including an allegation that she was told the Respondent would “destroy her chances at applying for citizenship and Stamp 4” as set out in her written submissions. 

Having considered the totality of the evidence adduced, the only conclusion open to me is that the Complainant has established a prima facie case of discrimination on the grounds of race which has not been rebutted by the Respondent.   

I find, therefore, that this complaint is well founded.

The Relevant Law [Age]

Section 6(2)(f) of the EEA provides that it shall be unlawful discrimination to treat a person less favourably than another person has been or would be treated because that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”.

The Complainant submits at hearing that she believes the Respondent was “picking on her because she is young.” 

In relation to the age ground, I find that the Complainant did not adduce any evidence in respect of comparators to support her claim that she was treated less favourably than a person who is of a different age is or has been or would be. 

I am unable to elevate speculations or assertions to a factual basis from which an inference can be drawn.    

On the facts as presented I determine that they are not of sufficient significance to establish a primafacie case that gives rise to a presumption of discrimination on the ground of age.  I find that the Complainant was not discriminated against on the ground of age as the threshold required to establish a prima facie case has not been met.

I find this complaint of discrimination on grounds of age to be not well-founded. 

The Relevant Law [Family Status]

Section 6(2)(c) of the EEA provides that it shall be unlawful discrimination to treat a person less favourably than another person has been or would be treated because (c) that one has family status and the other does not (in this Act referred to as “the family status ground”).

Pursuant to the relevant section family status includes a pregnant person, a parent, an acting parent of a child, or a carer of a person with a disability who requires continued care.  There was no evidence presented to me in support the claim of discrimination on the ground of family status. 

Accordingly, I find this complaint as presented to be not well-founded. 

The Relevant Law [Religion]

Section 6(2)(e) of the EEA provides that as between any two persons, the discriminatory grounds are:

“(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act, referred to as ‘‘the religion ground’’),

‘‘religious belief’’ includes religious background or outlook;”

It is the Complainant’s case that she was discriminated on the ground of religion when she was not permitted to wear her hijab.   

In my consideration of this element of the complaint I have regard to the case of Tipperary County Council v McAteer (EDA153) (30th January 2015), it was held that in cases of indirect discrimination, the court should consider whether a restriction of a type bears more heavily on a class of persons of which the complainant is one than it does on another body or class of persons whose circumstances are similar other than in respect to the impact on them of the impugned measure.

I note the CJEU case of Samira Achbita v G4S Secure Solutions NV (C-157/15). In this case, the referring court asked the CJEU whether Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking imposing a blanket ban on the visible wearing of any political, philosophical or religious sign in the workplace, constitutes direct discrimination that is prohibited by that directive. 

That complainant was in the respondent’s employment since 2003. There was, at that time an unwritten rule that visible signs of political, philosophical or religious beliefs were not permitted in the workplace. In 2006, the complainant informed her line managers that she intended, in future, to wear an Islamic headscarf during working hours. The respondent informed the complainant that this would not be tolerated as it was contrary to the company’s position of neutrality. Shortly thereafter, the respondent’s workplace regulations were amended to reflect that “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/ or from engaging in any observance of such beliefs”.

The CJEU found that such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim. [emphasis added] 

Section 31(1) of the EEA requires complainants who allege indirect discrimination to show that the discrimination involves a disadvantage as compared with other employees of a different religion or who hold no religious beliefs.   

I am satisfied the Complainant has established a prima facie case on the ground of religion and in circumstances where the Respondent has failed to rebut the presumption by providing an objective or legitimate reason to forbid the wearing of the hijab.  Accordingly,  I find this complaint to be well-founded.

The Relevant Law [Harassment]

Section 14A of the EEA provides that harassment of a worker on any of the discriminatory grounds, at his workplace or otherwise in the course of his employment constitutes discrimination by the employer.  The definition of harassment can include any form of unwanted conduct which is related to any of the discriminatory grounds. To come within the statutory definition, the conduct complained of must, in the words of the statute, have: “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”. 

Section 14A(7) of the EEA provides: -

“(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and [emphasis added] 

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

It is the Complainant’s case that she was harassed by the Respondent when she was called fat, stupid and crazy and when she was told she eats too much.  It is the Complainant’s case that she was harassed by the Respondent when he didn’t listen to what she was saying and when he walked away while she was talking to him. 

It is trite law that the EEA does not apply to a generalised bullying or harassment which has no link to the discriminatory grounds. 

It is noted that fat and stupid are not protected characteristics nor is eating too much a protected characteristic.  I find the Complainant has failed to establish a prima facieof harassment under the EEA.  I am of the view there can be no doubt that an employer calling an employee fat, stupid and crazy and calling her out for eating too much is beyond inappropriate on every level not to mention walking away from her while she was still talking and not listening to her. 

I can find no words that would adequately describe the alleged foregoing employer behaviour.   

However, for the reasons set out above I find this complaint of harassment as presented under the EEA to be not well-founded. 

I find the Complainant has established a prima facie case of discrimination on grounds of gender; race; religion; and discrimination in her conditions of employment.    

Section 82 of the EEA provides that the maximum amount which may be ordered by way of compensation is two years’ remuneration.  The EEAs are an implementation of European law  derived from the following EU Directives: 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); and 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin. 

Applying Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR1891 compensation should be ‘effective, proportionate and dissuasive.’

I award the Complainant compensation in the amount of €13,000.00.

For the avoidance of doubt, this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions. 

CA-00062370-004 complaint pursuant to section 27 of the Organisation of Working Time Act, 1997

The Complainant submits she was not notified in advance of her starting and finishing times.   In direct evidence the Complainant submits the starting time was clear but the difficulty was with the finishing times.  The Complainant submits she was told she would be finishing at midnight and this was what she expected but that she would be there much longer.  With particular reference to Saint Patrick’s Day she was not notified in advance of her shift commencing that she would be obligated to work for 12 hours as set out in her written submission. 

The Relevant Law

Provision of information in relation to working time.

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. [emphasis added] 

On the basis of the uncontested evidence of the Complainant I find this complaint to be well-founded.  I require the Respondent to pay to the Complainant compensation in the sum of €200 which I consider just and equitable in all the circumstances. 

For the avoidance of doubt, this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions.

CA-00062370-006 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994

I note the Complainant submits she never received any documentation regarding her employment. 

The Relevant Law

The Terms of Employment (Information) Act, 1994, as amended sets out the basic terms of employment which an employer must provide to an employee in written format.  Section 3 (1A) obligates an employer to provide an employee with certain essential information, or core terms, in writing within five days of commencing employment. 

Section 3 (1) provides that an employer must provide an employee with a written statement of terms of employment within one month of commencement of employment. 

Section 7 of the Act provides as follows: 

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G] shall do one or more of the following namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

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

Based on the uncontested evidence of the Complainant I find this complaint to be well-founded. 

In the circumstances I decide it is just and equitable having regard to all the circumstances to order the Respondent to pay to the Complainant compensation in the amount of €2,540.00 (equivalent to 4 weeks’ pay) for contravention of a statutory right.  

For the avoidance of doubt, this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions.

CA-00062370-007 complaint pursuant to section 24 of the National Minimum Wage Act, 2000

The Complainant claims to have been penalised by the Respondent and has referred to the same matters that she raised in her complaint alleging unfair dismissal in conjoined hearing ADJ-00053299.   As the Complainant has succeeded in that complaint under the Unfair Dismissals Act, 1977, I find that she cannot also succeed in the within complaint based on the same set of facts.  

The Labour Court outlined in PDD218 Hyde And Seek Glasnevin V Jade Byrne-Hoey, citing Culkin v. Sligo County Council (2017) IECA 104, that “…..while ‘Culkin’ permits cases with the same facts to proceed in different fora, where they concern different losses, a claimant cannot recover more than once in respect of the same loss.”

Accordingly, the complaint of penalisation is not well founded.  While it is accepted a discretion exists to make an award under two headings on the same facts, that would only follow if the two claims were in substance different.  In the instant case they are not different because the claims both relate to dismissal and would amount to double compensation if awarded. 

CA-00062370-003 complaint pursuant to section 77 of the Employment Equality Act, 1998 

For the reasons set out above I decide this complaint in part is well-founded.  I award the Complainant compensation in the amount of €13,000.00. 

CA-00062370-004 complaint pursuant to section 27 of the Organisation of Working Time Act, 1997

For the reasons set out above I decide this complaint is well-founded.  I require the Respondent to pay to the Complainant compensation in the sum of €200 for contravention of a statutory right which I consider just and equitable in all the circumstances. 

CA-00062370-006 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994

For the reasons set out above I decide this complaint is well-founded.  I order the Respondent to pay to the Complainant compensation in the amount of €2,540.00 (equivalent to 4 weeks’ pay) for contravention of a statutory right. 

CA-00062370-007 complaint pursuant to section 24 of the National Minimum Wage Act, 2000

For the reasons set out above I decide this complaint as presented is not well-founded.