Complainant

Respondent

Parties

Thomas O'Reilly

Green Cliff Investments Ltd (amended at the hearing)

Representatives

Self-Represented

Martin McCormack, General Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00070164-001

21/03/2025

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

CA-00070164-002

21/03/2025

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

CA-00070164-003

21/03/2025

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

CA-00070164-004

21/03/2025

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

CA-00070164-005

21/03/2025

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

CA-00070164-006

21/03/2025

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

CA-00070164-008

21/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00070164-009

21/03/2025

Mr O’Reilly appeared in person and gave evidence on Affirmation. A written statement was provided and shared with the Respondent.

Mr. Martin McCormack, General Manager, appeared for the Respondent along with Ms Montse Salvador, Assistant Manager. Both witnesses gave evidence on Affirmation. The Respondent also filed a written response to the Complainant.

The name of the Respondent was clarified at the outset of the hearing and amended.

It was the Complainant’s evidence that he had been employed at the Respondent’s Derrynane Hotel from 15 June 2022 until 19 January 2025 as a Night Porter. He earned €14 per hour working 16 hours a week. He stated he was Irish for the purposes of his discrimination complaint. It was his submission that he liked his job and always felt he got on very well with the Respondent.

The Complainant submitted that, at a meeting on 12 January 2025, the manager, Mr. Martin McCormack, informed him that staff reductions were required due to declining occupancy linked to reduced numbers in state-provided Ukrainian accommodation. He stated that this was presented as temporary, with no definite timeframe, and the Complainant was told there was no work available and that he would be contacted when business improved.

He stated that a letter provided to Intreo indicating “no work available” was misleading, as the role continued to be performed.

The Complainant submitted that, despite follow-up contacts, he was repeatedly told that no work was available and believed his employment had been effectively terminated without formal redundancy, which he alleged was an attempt to avoid statutory redundancy obligations. He further submitted that his role had not been made redundant, as night porter duties continued and were reassigned to other staff, including Ukrainian residents, whom he alleged were engaged at a lower cost.

It was his evidence that this amounted to unfair dismissal and discrimination on the grounds of race, in that he was replaced rather than made redundant and that preference was given to Ukrainian workers over him as an Irish employee.

The Complainant submitted that he had never been provided with a written contract or employee handbook, had not received redundancy pay, and had been underpaid for bank holidays.

Upon inquiry, he was asked how much he was paid for public holidays. It was the Complainant’s evidence that he was paid an additional €43 for working public holidays but he believed he should have received “double payment or €100 or time in lieu”.

He gave evidence that he had an unblemished record and good working relationships, and that he had proactively supported Ukrainian residents during his employment. It was his evidence that in  2024, he used his annual leave to volunteer in humanitarian efforts, driving aid from Ireland to Ukraine and advocating for Ukrainians in Ireland.

He stated that his attempts to secure clarity regarding his position were met with vague responses, leaving him effectively in limbo until he sought alternative employment, which he subsequently secured.

The Complainant gave evidence that he obtained alternative employment from in or around 14 March 2025 with an hourly rate of €15 per hour.

It was Mr McCormack evidence on behalf of the Respondent that the Complainant had been engaged on a series of short-term, approximately three-month contracts, which could be terminated on short notice, and that the Complainant had been aware of the temporary nature of the role from the outset. He submitted that the hotel had been operating under a government contract providing temporary accommodation and that staffing needs were uncertain due to the evolving circumstances of the war in Ukraine.

Mr McCormack submitted that there had been a significant reduction in occupancy, with numbers falling to approximately a quarter of previous levels due to a lack of relocations, which necessitated a streamlining of staff. They stated that the decision to place the Complainant on layoff arose from reduced demand and the need to consolidate staffing rather than any intention to terminate his employment unfairly.

It was Mr McCormack’s evidence that other workers, including Ukrainian residents, had already been performing night porter duties and carrying out additional roles within the hotel, and that the Complainant had only been working limited days in comparison. They submitted that the allocation of work was based on operational requirements and flexibility rather than nationality.

Mr McCormack strongly denied the allegation of racial discrimination, describing it as serious and unfounded, and stated that the Complainant had never been treated differently on that basis. They maintained that the Complainant had been advised that the layoff was temporary and that they intended to return him to work should occupancy increase, although this did not materialise due to the absence of new placements.

Mr McCormack acknowledged that the Complainant had not been provided with a written contract or employee handbook, citing the temporary and uncertain nature of the arrangement. They also accepted that no minimum notice had been given prior to the layoff and characterised this as a failing on their part.

In relation to pay, Mr McCormack submitted that payroll had been outsourced and that they had not been made aware of any alleged underpayment of public holiday entitlements until the WRC complaint was received. They stated that the matter had since been referred to their payroll provider, who advised that the payments were compliant, but undertook to rectify any discrepancies if identified.

Finally, Mr McCormack submitted that they were willing to resolve the matter and ensure that any outstanding entitlements due to the Complainant would be addressed.

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

Section 6(1) of the Unfair Dismissals Act 1977 provides that a dismissal is presumed to be unfair unless the employer can show substantial grounds justifying it. Under Section 6(6), the burden rests on the Respondent to demonstrate that the dismissal resulted wholly or mainly from one of the grounds set out in Section 6(4), including redundancy.

In JVC Europe Limited -v- Jerome Panisi [2011] IEHC 279 the High Court held that,

“It is made abundantly clear by legislation that redundancy, while dismissal, is not unfair. A dismissal cannot be disguised as a redundancy; that is not lawful” and,

“It may be prudent, and a mark of genuine redundancy, that alternatives to letting an employee go should be fairly examined” and,

“Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision.”

The Respondent accepted that the termination of the Complainant’s employment arose due to a reduction in occupancy levels, leading to a need to reduce staffing.

It is accepted that the Respondent experienced a downturn in business. However, the complaint presented requires that consideration is given as to whether this amounted to a genuine redundancy situation and, if so, whether it was implemented in a fair manner.

Having regard for the undisputed evidence presented the role of Night Porter continued to exist. The duties previously carried out by the Complainant were redistributed to other employees. There was no evidence presented that the requirement for the role had ceased or diminished within the meaning of redundancy legislation.

For these reasons, I am satisfied that the Respondent has established that the dismissal resulted wholly or mainly from redundancy.

However, despite the acceptance that a redundancy situation existed, the Respondent has failed to demonstrate that fair procedures were applied. In particular the Respondent failed to establish that a consultation took place with the Complainant, there was no objective selection criteria were identified or applied, no documentary evidence supporting the decision-making process was proffered nor was there consideration given to alternative employment within the Respondent hotel.

The absence of fair procedures renders a dismissal unfair.

In addition, the Respondent initially placed the Complainant on layoff without specifying any duration and provided him with a letter for his local Intreo office.

Having regard to all of the above, I find the Respondent has failed to discharge the burden of proof under Section 6(6) and the Complainant’s dismissal is unfair within the meaning of Act.

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

Section 6 of the Employment Equality Acts 1998-2015 (as amended) provides the definition of discrimination:

“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,

(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.”

Section 6 (2) provides:

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

(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 85A of the Act sets out the burden of proof:

“(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 Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“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 or 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.”

Section 85A of the Employment Equality Act provides for a two-stage test. The Complainant must first establish facts from which discrimination may be presumed. If established, the burden shifts to the Respondent.

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court held that mere assertions are insufficient and that a factual basis must be established.

The Complainant identified two comparators of Ukrainian nationality who performed like work within the meaning of Section 7. It was not disputed that these employees carried out porter duties and were retained, while the Complainant was placed on layoff.

The evidence further established that; the Complainant was the only identified Irish employee in that role; there was no objective selection criteria for redundancy applied and there was no documentation supporting the decision-making process was produced.

For these reasons, I am satisfied that these facts are sufficient to establish a prima facie case of discrimination.

The Respondent submitted that the decision was based on operational needs, namely that the comparators worked full-time and performed additional duties. However, no documentary evidence (such as rosters or contracts) was produced to substantiate this assertion.

While it is accepted that a reduction in staffing was required, the absence of objective evidence supporting the selection of the Complainant compared to his colleagues, coupled with the retention of non-Irish comparators performing the same duties, supports the conclusion that the Respondent has failed to rebut the inference of discrimination.

Accordingly, I find that the Complainant was treated less favourably on the grounds of race.

For this reason, I find the Complainant was discriminated against on the grounds of race.

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

Section 7(2) of the Act provides that a redundancy situation arises where the dismissal is attributable wholly or mainly to the fact that the employer’s requirement for employees to carry out work of a particular kind has ceased or diminished.

The Respondent accepts that the Complainant was placed on layoff in January 2025 due to a reduction in occupancy levels. A letter issued to the Complainant confirmed that there was “no work available at this time”.

It is accepted that there was a reduction in business. However, this does not of itself establish a redundancy situation.

In assessing whether redundancy arose, it is necessary to consider whether the requirement for the Complainant’s role ceased or diminished permanently. It is noted that the role of Night Porter continued to exist, the duties carried out by the Complainant were redistributed to other employees and the Respondent continued to operate with staff performing those functions.

On that basis, I am not satisfied that the Complainant’s role ceased or diminished within the meaning of Section 7.

It is further noted that the Complainant was placed on layoff rather than dismissed with redundancy. While Section 12 of the Act provides that an employee who is laid off for a period of 4 consecutive weeks, or 6 weeks within a 13-week period may claim redundancy. This entitlement arises only where the employee serves the prescribed notice (Form RP9), and the employer does not issue a valid counter-notice.

There was no evidence was presented that the Complainant invoked this statutory entitlement.

Consequently, I find the Complainant has not established the existence of a redundancy situation, within the meaning of the Redundancy Payment Acts.

For these reasons, the appeal is disallowed.

For the avoidance of doubt while the Respondent relied on redundancy as the reason for dismissal does not automatically entitle the Complainant to a redundancy payment.

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

The Complainant did not receive notice nor payment in lieu of notice when he was dismissed. I find that the Complainant was entitled to statutory notice of two weeks and that the Respondent was in breach of the Act.

I find the complaint well founded.

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

Where it was accepted by the Respondent that the Complainant did not receive a written statement of his terms and conditions of employment, I find the complaint is well founded.

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

Section 5 (1) of the Act requires an employer to notify an employee of a change to the terms and conditions of employment: -

“5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

a) the day on which the change takes effect, “

Where it was the Complainant’s evidence that he was not provided of notification in writing of his lay off, I find that he was not provided with a written statement of his terms and conditions of employment however it is accepted he had implied terms. Considering Sections 3, 4 and 6 of the 1994 Act do not provide for a written statement to contain particulars on lay off, I find the complaint is not well founded.

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

There is no entitlement pursuant to Section 21 of the Act to double pay or any fixed premium rate for working public holidays. Therefore, the Complainant’s understanding that he was entitled to “double pay” is incorrect.

However, the matter for determination is whether the €43 payment constituted compliance with the statutory requirement of an “additional day’s pay.” The Complainant worked a total of 16 hours a week over two days. The Respondent did not produce payroll records or calculations to demonstrate how the €43 figure was arrived at. The only submission made was with reference to the additional payment was it was based on 1/5 of his working week. Accordingly, based on a weekly wage of €244 ÷ 5 = €48.80 which leaves a shortfall of €5.80 per day.

I am satisfied that this amount falls below the statutory entitlement.

Further Section 25 of the Act requires an employer to keep records, and failure to produce such records may give rise to an adverse inference.

In the absence of documentary evidence from the Respondent to establish compliance, I find that the Respondent has not discharged its statutory obligation.

When the Complainant was asked which public holidays he was referring to, he replied, “all of them”. Where his complaint was received by the WRC on 21 March 2025, I find he is limited by Section 41 (6) of the Workplace Relations Act 2015:-

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Therefore, there were four public holidays in the period he worked from October 2024 to January 2025.

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

Section 9 of the Act provides that a part-time employee shall not be treated in a less favourable manner than a comparable full-time employee in respect of conditions of employment, unless such treatment is justified on objective grounds.

The Complainant identified full-time porters as comparators and submitted that he was treated less favourably in that he was selected for layoff, while full-time employees remained in employment.

It is accepted that the Complainant was a part-time employee and that the identified comparators were full-time employees performing similar duties.

However, the fact that the Complainant was selected for layoff does not, of itself, establish less favourable treatment within the meaning of the Act. The Complainant must establish that such treatment occurred by reason of his part-time status.

The Respondent gave evidence that the selection was based on operational requirements, including that the full-time employees performed a broader range of duties and provided greater flexibility across the business, whereas the Complainant worked limited hours.

While I have found that the Respondent failed to apply fair procedures in effecting the dismissal, I am not satisfied that the selection of the Complainant was because he was a part-time employee, as opposed to being based on operational considerations.

In these circumstances, I find that the Complainant has not established that he was treated less favourably on the grounds of part-time status.

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

I find the Complainant was unfairly dismissed with compensation being the most appropriate redress where the Complainant has found alternative employment and enjoys an increased rate of pay.

Section 7 of the Unfair Dismissals Acts 1977 defines ‘financial loss’ as including’ any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.’

The Complainant’s unchallenged evidence of his attempts to seek alternative work are accepted. He obtained a new position which he commenced on 14 March 2025 earning €15 per hour.

Accordingly, I award five weeks’ financial loss amounting to €1,120

It should be noted the five-week period does not account for the minimum notice of two weeks were that has been provided for under the minimum notice complaint.

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

I find the Complainant was discriminated against by the Respondent.

Having regard to all the circumstances of this case, I am satisfied that the appropriate redress is an award of compensation for discrimination the ground of race. I therefore order the Respondent to pay the Complainant the sum of €5,000 for the discriminatory treatment endured.

In arriving at this award, consideration has been given the seriousness of the discriminatory treatment and the fact that it resulted in the loss of employment; as well as the principle that any award should be effective, proportionate, and dissuasive.

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

I find the complaint well founded.

I award the Complainant compensation equivalent to two weeks’ wages which equates to €488.

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

For these reasons, the appeal is disallowed.

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

I find the complaint is well founded.

Section 7 (2) (d) is the most appropriate redress where the Complainant is no longer employed with the Respondent:

 “(d) 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.”

I am awarding the Complainant two weeks renumeration in the sum of €488 as being just and equitable having regard to his length of service and the acceptance of the breach by the Respondent.

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

I find the complaint is not well founded.

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

For the reason set out above, I find the complaint is well founded.

Section 27 (3) of the 1997 Act provides:

“(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision 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) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

In the circumstances, I consider compensation to be the most appropriate form of redress. In determining the amount of compensation, regard has been given to the Respondent willingness to amend any errors in the calculation.

For these reasons, I award compensation in the amount of €244, the equivalent of one weeks’ remuneration, as being just and equitable in the circumstances.

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

For the reasons outlined above, I find the complaint is not well founded.