The Equality Tribunal
Employment Equality Acts 1998 to 2011
DEC-E2015-094
Irina Valukevica
v.
Donnelly’s Fruit & Veg Limited
Case reference: EE/2013/562
Date of Issue: 28 September 2015
1. Introduction
1.1 On the 17th October 2013, the complainant referred a complaint to the Director of the Equality Tribunal in relation to discrimination on the grounds of disability. The complainant also raises the issues of victimisation and harassment, in particular in relation to work requirements.
1.2 On the 10th June 2015 and in accordance with the powers under section 75 of the Employment Equality Act, the Director delegated the case to me for investigation, hearing and decision. The parties made written submissions in advance of the hearing and also attended the hearing on the 17th June 2015. The complainant was accompanied at the hearing by her daughter and an interpreter. Brian Doyle, General Manager and Olga Klocinskaja, Supervisor attended for the respondent and the respondent was represented by Conor O’Toole, solicitor.
2. Summary of the complainant’s case
2.1 In submissions made before the hearing, the complainant outlines that in April 2011 she had an operation on her left eye. While she could continue working, she required a period of rehabilitation of two years. She states that she provided relevant medical documentation to her line manager and her roster was tailored to facilitate regular hospital visits. She outlines that difficulties arose from May 2013 when changes were made to her roster that impinged on her recovery and that her requests for equal working time with other staff were refused. After her complaints, she was restored her normal working hours, but the respondent’s general manager did not punish those who had initiated the changes. Accompanying her submissions, the complainant includes medical documentation; work rosters for the weeks of the 13th May 2013, the 20th May 2013 and the 27th May 2013 and correspondence relating to her grievance complaint. In documentation presented at the hearing, the complainant submitted additional medical documentation, work rosters from weeks in 2011, 2012 and 2013 as well as additional correspondence exchanged regarding the complainant’s grievance.
2.2 In evidence, the complainant said that prior to the surgery, she worked using a packing machine. She was required to lift heavy bags and the workplace was poorly lit and dusty. After the surgery, she submitted medical documentation to her then supervisor and reached an agreement with him about the days she worked. This included having Fridays off (to facilitate regular hospital visits) and that she would work on Saturdays and Sundays. In relation to ordinary days of work, the complainant said that she would always work a minimum of 8 hours and start her shift at the commencement of the working day. She would also remain in work to finish product lines. The complainant outlined that matters changed in May 2013 when she received the new roster; she was scheduled to work on the Friday and given late starts on three days. She raised this with the supervisor, who said that there was an issue with the complainant always having Fridays off and that the roster had been devised to meet business needs. The complainant did not recall whether she had an appointment on the Friday in question, i.e. the 17th May 2013. She also outlined that she would not wear contact lenses on Fridays, allowing her eyes to rest. She could not work without wearing her contact lenses. In respect of treatment, she said that by May 2013, she was required to apply eye drops two or three times per day.
2.3 The complainant said that in the roster for the second week in question, she was given the Friday off, but also given the Sunday off. She was allocated later start times. She complained again and this time spoke with the general manager. He restored the old roster and her 8am start times in the next roster. The complainant referred to meetings and correspondence regarding this dispute. She was unhappy that the general manager had asked her for medical documentation that she had previously submitted to her former line manager. She said that there was one occasion that she had to re-schedule an appointment due to a work roster; this had been a Thursday appointment and she was not sure whether it was in the three-week period at issue in this case. The complainant outlined that some colleagues were given preferential treatment and that the supervisor had not taken sufficient account of the stress caused to her by the changed roster. In response to my question, she said that she was not provided with goggles when working the packing line and nor were her colleagues.
2.4 The complainant said that the respondent had discriminated against her in allocating her later start times during this three-week period; this singled her out amongst her colleagues as she would have to join the packing line late into the working day. She became the butt of jokes and her colleagues saw it as punishment. She outlined that this action was discriminatory as it related to her eye condition.
2.5 Commenting on the evidence given by the representatives of the respondent, the complainant said that the respondent had admitted that they had two medical documents regarding her condition. She also said that the hearing was the first time she had heard of their complaints regarding her leaving the packing line. She said that the fact that she was below the threshold for PRSI showed how the changes had affected her. She referred to a named member of staff who kept the same hours during this three-week period. In relation to a question of mine, the complainant said that one machine used to net product created dust and she was not offered protective eyewear for this.
3. Summary of the respondent’s case
3.1 In submissions made in advance of the hearing, the respondent outlines that on the 13th May 2013, it received correspondence from the complainant challenging changes made to her work roster. She was advised to avail of the grievance procedure and there followed meetings regarding the hours the complainant was scheduled to work as well as her start time. The complainant then sought to escalate the matter, claiming harassment. The respondent states that it sought to address these concerns. The respondent denies the complaint of discrimination, stating that the complainant’s work roster was restored after a period of two and a half weeks. The respondent states that this complaint is vexatious and duplicates complaints referred to other employment law fora. Accompanying the submissions, the respondent submits copies of correspondence and minutes of meetings regarding this complaint.
3.2 At the outset of the hearing, the respondent said that the complaint form did not raise the issue of victimisation. They outlined that this case related to a specific three-week time period. They stated that the respondent did not then have in its possession any document relating to the complainant’s medical condition. This request was made in their letter of the 5th June 2013, which the respondent says provides a response to the issues raised by the complainant. The respondent stated that in the three weeks, the complainant had only been scheduled to work on one Friday. In respect of the hours scheduled, the respondent said that the rosters were made to meet business needs and that all employees were not given the same hours. The complainant had not been treated differently to colleagues. In respect of hours of pay, even though the complainant had been scheduled for a later start, she worked later and there was, therefore, no difference in her pay.
3.3 At the hearing, the supervisor said that she commenced employment with the respondent in 2008 and was made full-time and permanent some two years later. Her role was office-based and she had taken over preparing the rosters from the former line manager. She was later promoted to supervisor. In respect of the complainant, she said that issues arose when the complainant would leave the packing line before the work was completed. This led to colleagues having to work more. She said that the respondent engaged a consultant to review efficiency on the production line as a whole. One of the issues she faced was the different needs of morning and afternoon work; the afternoon product required additional labelling and more people. She proposed to start some workers later in order to meet the additional afternoon work. This necessitated people to work later and the later starting times. The complainant had not lost out on hours, as she would work later when scheduled to start later. The supervisor outlined that the complainant had told her that she had given her predecessor medical documents, but she could not locate these documents on the complainant’s personnel file. She said that she generally sought to allow people keep the same days off and she does not recall why the complainant was scheduled to work on Friday, 17th May 2013. Once the complainant raised her concerns about the first week’s timetable, a named colleague and then she spoke with her to accommodate both the business needs of the respondent and the needs of the complainant. It had been agreed to give the complainant Fridays off from then on. The complainant had also raised her wish to have some Thursdays off and to work Sundays; she replied that she sought to accommodate people’s needs and to spread around Sunday shifts, unless someone wanted this day off. The supervisor outlined that she sought to maintain a particular gender balance on Sundays, to ensure efficiency.
3.4 The general manager gave evidence that the first he knew of the complainant’s medical difficulties was on the 30th May 2013. He had checked the personnel file but it contained no information on this matter. In respect of the workplace, he said that the work created dust, but that the premises was cleaned daily. He said that he had sought to meet with the complainant to resolve her issues and had arranged for an employee from an associated company to interpret in the meetings.
3.5 Commenting on the evidence of the complainant, the respondent outlined that the former line manager had kept the medical documents relating to the complainant in his office, where they were later found. The respondent stated that it never received the medical document of the 17th January 2014 (which refers to the complainant’s need to wear eye wear). With regard to the person identified by the complainant in evidence, the respondent said that this person had particular skills. The respondent concluded that the complainant had been restored her original working hours on the 30th May 2013.
4. Findings and reasoning
4.1 In her complaint of the 17th October 2013, the complainant alleges discrimination on grounds of disability as well as harassment and victimisation. The facts of the complainant’s medical condition and that it amounts to a disability under the Employment Equality Act are not in dispute. The respondent denies that it discriminated against the complainant or that she was subject to harassment or victimisation.
4.2 Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The complainant submits that the fact that her work roster was changed to include Friday working is sufficient to raise a prima facie case of discrimination and that it impacted her ability to attend hospital appointments. The respondent is said to have subjected the complainant to harassment by allocating her later start times, causing her to arrive to the packing line when her colleagues had already commenced work. The complainant raises the issues of not being allocated Sunday work and the lack of regard had by the respondent for medical documentation already submitted by the complainant. She asks that the persons responsible for changing her work roster be brought to task.
4.4 At the hearing, I raised the issue of the provision to the complainant of protective eye wear while she worked on the packing line or performed other duties. I raised this issue because of a reference in medical documentation to eye protective wear. The GP letter of the 22nd June 2011 states “[S]he is adviced (sic) to wear protective eye goggles at work if the environment is dusty.” The provision of protective eye wear was not raised by the parties in 2011 or at any later stage. It did not form part of the complainant’s grievance in May and June 2013, and not mentioned in her complaint to the Equality Tribunal. For that reason, I do not make any finding against the respondent on this matter.
4.5 In assessing the facts in this case, two things are striking. The first is the short duration of the impugned work rosters; this case relates to rosters for three weeks. The second is the successful outcome to the complainant’s grievance; she was restored a well-established working pattern. I find as fact that the complainant provided the respondent with medical documentation at the time of the operation in 2011. While this documentation does not specifically request Fridays off, it is clear that it became an established pattern that she would have this day off. From the evidence, it is also clear that the complainant had a very good working relationship with the former line manager; it is fair, I think, to say the supervisor and the complainant did not have the same working relationship. Given that the general manager was unaware of the complainant’s condition, it was not unreasonable of him to ask for relevant medical documentation. One question is whether the allocation of a Friday to the complainant’s work roster was a discriminatory act. I find as fact that the supervisor did not know of the respondent’s medical condition; her evidence regarding the documentation not being on the relevant personnel file was credible. I also note that the prompt willingness of the respondent to agree not to schedule Fridays as a day of work for the complainant. Furthermore, I note that the complainant was not certain about whether she had an outpatient’s appointment on Friday, 17th May 2013, which she might have been unable to attend. Given the willingness of the respondent to accommodate the needs of the complainant, I find that there was no basis for any manager to be taken to task by the respondent. I find that the fact of allocating later start times to the complainant is not a fact of sufficient weight to raise a prima facie case that this was a discriminatory act. I base this finding on the fact that other employees were scheduled later times and the evidence regarding the additional needs in the afternoon. I also note that the respondent restored the complainant’s 8am starts. In respect of Sundays, I note that the complainant was restored Sunday working and I accept that these are shifts for the respondent to distribute to those staff wishing to work on that day. While the complainant has established as fact that her working rosters changed, I find that this fact is not of sufficient weight to raise a prima facie case of discrimination.
5. Decision
5.1 In accordance with section 79 of the Employment Equality Act, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that she was subject to discriminatory treatment, harassment or victimisation on grounds of disability.
__________________________________
Kevin Baneham
Equality Officer
September 2015