An O’Brien’s-branded sandwich shop dismissed a disabled worker during the pandemic because she couldn’t work enough hours to allow it claim a government employment subsidy, the Workplace Relations Commission has found.
The company has now been ordered to pay the woman more than €3,600 for discrimination and further breaches of employment law.
Emma O’Connor took complaints against Kerry Sandwiches Ltd, trading as O’Brien’s Irish Sandwich Bar, under the Employment Equality Act, the Minimum Notice and Terms of Employment Act, and the National Minimum Wage Act.
The complaints, which were denied by the company, were all upheld in a decision published on Wednesday.
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Ms O’Connor, who had worked for the company since 2015 as a catering assistant, acquired a physical disability after being injured in a road accident in 2017.
She told a hearing in April this year that she was able to claim disability allowance, but chose to return to work a 12-hour week for €10 per hour from September 2017 onward – meaning her gross pay was €120 per week.
The Temporary Wage Subsidy Scheme provided to employers during the early months of the pandemic provided a subsidy to the employer of 85% of the weekly average take-home pay for any worker earning under €412.
But the Employment Wage Subsidy Scheme brought in to replace it in September 2020 provided no subsidy for a worker earning under €151.50 gross per week.
Ms O’Connor said the operations manager met her to discuss the subsidy on August 29th, 2020 and was told the company owners “wanted to dismiss anyone in respect of whom they would not benefit from the new EWSS”.
She said she phoned a politician on August 31st to ask whether any exceptions to the income limits were being considered for employers who hired people on disability allowance.
The politician advised her “no such exceptions were being made” and when she met the company’s operations manger again on September 2nd she advised her of the position.
The operations manager told her that since no exceptions were being made and she was unable to work longer hours her job was being immediately terminated.
The firm argued its management spoke to all of its staff in September 2020 about their working hours, which had been affected by both the pandemic and the shortened tourist season.
The company said Ms O’Connor was given the option to cut her hours further or increase them to three days a week on a job share with another worker.
Ms O’Connor was “happy to go on the Pandemic Unemployment Payment because it made financial sense”, it submitted.
The operations manager said she discussed an increase in hours with Ms O’Connor, but disputed the rest of her account of their conversation, the WRC heard.
The company’s position was that Ms O’Connor had not been dismissed – but had been told she would be brought back in when trade recovered.
In his decision, adjudicating officer Breiffni O’Neill wrote that he preferred the evidence of the complainant.
He found Ms O’Connor had been dismissed and that she had established a prima facie case of discrimination on the grounds of disability which the company had “failed to rebut”.
Mr O’Neill found she was discriminatorily dismissed from her employment because her disability prevented her from working the longer hours suggested and because she was not afforded the opportunity to either continue working her normal hours or work fewer hours, as her employer would then have been unable to avail of the wage subsidy scheme.
However, as Ms O’Connor said she was prepared to go back to work with the company given the opportunity, this suggested she was “not very negatively affected” and had suffered no financial loss either.
He ordered the company to pay Ms O’Connor 26 weeks’ pay – €3,200 – for the discrimination.
Mr O’Neill made a compensation order for a further €480 against the company for four weeks’ pay for the failure to provide minimum notice.
He also ordered the company to pay €18.80 for the 188 hours she worked while receiving ten cent under the minimum wage, bringing the total compensation package to €3,698.80.