Case Number: ADJ-00024235. Workplace Relations Commission

• Docket Number: ADJ-00024235
• Hearing Date: 03 January 2020
• Date: 08 April 2020
• Court: Workplace Relations Commission

Procedure:

These complaints were submitted to the WRC on September 18th 2019. In accordance with Section 41 of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Acts 1977 – 2015 and Section 79 of the Employment Equality Acts 1998 - 2015, they were assigned to me by the Director General. I conducted a hearing on January 3rd 2020, at which I inquired into the complaints and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.

The complainant was represented by Mr John Curran BL, instructed by Ms Patricia Drumgoole, Solicitor. The respondent was represented by the company’s Managing Director (MD) and he was accompanied by another director who is the manager of the shop where the complainant worked.

Background:

In February 2005, the complainant commenced employment as a sales assistant in one of the respondent’s grocery shops in a suburb in north Dublin. At the hearing, the MD said that they have four shops and they employ 75 people. When he started in 2005, the complainant was a holder of a spouse’s work permit. His wife had an employment permit to work in Ireland as a nurse. The complainant said that in 2010, when he was in the process of renewing his work permit, he was informed by an official at the Department of Justice that, to comply with the Employment Regulation Order issued by the Grocery Joint Labour Committee in force at the time, his wages must be 30 cents per hour higher than the hourly rate he was being paid. The complainant said that his employer was reluctant to increase his wages. When he went to his local Garda station to update his Garda National Immigration papers, he was informed that his work permit had expired. A member of the Gardaí then visited the shop where the complainant worked. The wages issue was resolved but the complainant’s case is that, from then on, his hours were reduced, to the point where he decided to look for another job. In February 2017, the complainant started working as a shop assistant in a petrol station. The respondent’s evidence is that, from then on, he informed them that he was only available to work on Sundays. A document was submitted in evidence which sets out the complainant’s hours of work from 2006 until 2018 and this shows that in 2017 and up until week 45 in 2018, the complainant worked around six or seven hours each week. I understand that he was rostered only on Sundays and that he was paid time a half for these hours. He worked regularly on Sundays until the second week of November 2018, after which the shop manager said that he was left off the roster in error. The manager said that he had no contact from the complainant from then on until he received a letter from his solicitor in April 2019. When he got the letter, the manager said that he phoned the complainant on May 4th, 8th and 9th but he got no reply. He then called to the petrol station where he knew the complainant worked and he tried to have a conversation with him. He said that the complainant refused to talk to him. The manager said he asked the complainant to come to the shop for a meeting and the complainant said that he was advised not to speak to him. The complainant said that he couldn’t have a discussion with the manager because he was on his own in the shop apart from a security guard. He made no response when I asked him why he didn’t call to the shop or make any effort to speak to the manager. At the hearing, the MD produced a copy of a letter dated August 28th 2019 which he said was sent to the complainant. Referring to the correspondence from the complainant’s solicitor, he said, “…it would appear that a misunderstanding arose regarding your availability for work insofar as we understood that you had obtained full time employment elsewhere and, thus, were unavailable for work with us. “If this is in fact not the case, I would be obliged if you would contact me at your earliest convenience so that suitable rostering arrangements can be made.” The complainant said that he didn’t get this letter and the respondent produced no evidence of when it was written or posted.

Summary of Complainant’s Case:

CA-00030998-001: Complaint Under the Unfair Dismissals Act 1977 The complainant’s case is that by removing him from the roster in November 2018, the respondent has dismissed him and that his dismissal is discriminatory and related to the fact that he is from the Philippines. CA-00030998-002: Complaint Under the Employment Equality Act 1998 Under this heading, Mr Curran submitted that the complainant claims that his treatment by the respondent was discriminatory because he did not receive a contract of employment, his hours were erratic and the employer did not respond to his request for employment records. CA-00030998-003: Complaint Under the Terms of Employment (Information) Act 1994 This is a complaint regarding the failure of the respondent to give the complainant a statement of his terms and conditions of employment. CA-00030998-004: Complaint Under the Organisation of Working Time Act 1997 This complaint was submitted under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. However, at the hearing, Mr Curran said that it should have been submitted under the Organisation of Working Time Act 1997. In accordance with section 39 of the Organisation of Working Time Act, I have decided to amend the complaint form to show that this complaint is submitted under the Organisation of Working Time Act. The respondent did not object to this course of...