ADJ-00004180

ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00004180

Parties: 

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 24/02/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant works for the Respondents Company as a supervisor which is a Sub Contractor for a Main Contractor where the complainant was based when the issues occurred.

Summary of Complainant’s Case:

• The Complainant claims that there was an incident with the Accountant of the main contractor regarding breaks that staff were taking.

• Following this the Complainant states that the Respondent company informed her that the main contractor had lost confidence in her as a Supervisor and that she needed to earn the trust of the management again.

• The Complaint states that’s she was never subject to a disciplinary investigation and believes this decision was made based the fact that she is bipolar which she had disclosed to the General manager of the main contractor company.

• The Complainant was told by the Respondent that she would be receiving a demotion including a reduction in pay and hours.

• The Complainant hasn’t been rostered for work since then.

• The Complainant states that her original role as Supervisor was replaced.

• The Complainant feels she cannot go back to work for her employer because of the changes that were made.

• The Complainant stated that she was delayed making the claim as she was awaiting to hear from her employer with regard to hours as this is done on an ad hoc basis.

• The Complainant only became aware of the issues when she went to her employer to ask about her hours.

• The Complainant states that she requested a copy of her contract and that her signature was forged on the contract.

• The Complainant withdrew the unfair dismissal claim at the hearing.

Summary of Respondent’s Case:

• The Respondent states no one knew of the Complainants Bi-Polar condition in the Respondent Company.

• The Respondent Company states that there is no evidence regarding the discussions she had regarding her condition.

• The manager who met the Complainant regarding her demotion has since retired and was not available to give evidence.

Findings and Conclusions:

The case is referred under:

Section 77 of the Employment Equality Act, 1998 provides:

person who claims—

(a) to have been discriminated against by another in contravention of this Act,

Section 6(1) of the Employment Equality Act, 1998 provides:

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”,) one person is treated less favourably than another is, has been or would be treated.  
S. 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, civil status, religion, disability, race or a member of the traveller community. 

Schedule 2 of the Employment Permits Act 2006:
26.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

The matter for the adjudicator is to decide is if there was a breach of the legislation as follows:

• Section 77 of the Employment Equality Act, 1998

• Schedule 2 of the Employment Permits Act 2006 

Employment Equality

Although the case was presented on the 21st of June 2016 which was over 6 months after the alleged discrimination the Adjudicator is willing to extend the 6 month period for making a claim to 12 months in this case because the employee only became aware of the issue at this date due to the seasonal nature of her work and the delay in communication from the company. The Adjudicator considers this reasonable cause for the delay.

The Complainant claims that she was discriminated against on the 13^th of October 2015 because she suffers from Bi Polar disorder.

On this date an argument occurred with the main Contractors accountant and following this the Complainant was told by the Respondent that she would be receiving a demotion including a reduction in pay and hours.

Two months prior to the incident the complainant had informed the main contractor of her disability.

Employment Permits

There was no evidence presented in relation to any breach associated with this legislation.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Employment Permits

There was no evidence presented in relation to any breach associated with this legislation. Therefore this claim fails.

Employment Equality

The Respondent has not supplied any evidence to support why the complainant was not offered further work after the date the incident occurred and up to the date of this hearing. The company presented no reason or evidence contrary to the Complainants evidence to justify the action to reduce her wages and give her a demotion.

The Complainant requested a copy of her contract and stated that she received a falsified copy of her contract signed. She stated that her name was spelt incorrectly in the contract.

Considering that no credible evidence was offered to defend the Discrimination case, the Adjudicator finds that the Respondent was discriminated against because of her disability under the Employment Equality Act.

The Complainant is awarded €7500 compensation which is non-taxable.

Dated:   24 April 2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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