EDA1721

This is Ms Martela’s (“the Complainant”) appeal from a decision of an Adjudication Officer (DEC-E/2016/050, dated 16 March 2016). The Notice of Appeal was received by the Court on 26 April 2016. There are two Respondents to this appeal: M.K. Human Resources Limited T/A Temple Recruitment (“the Agency”) is an employment agency that placed the Complainant with a number of its clients, from time to time, including the second Respondent, DHL Supply Chain (Ireland) Limited (“DHL”). The Court heard the case in Dublin over three separate dates: 22 September 2016; 7 December 2016; & 25 April 2017.

The Complaints

The Complainant alleges that she was treated less favourably and dismissed by the Respondents on grounds of disability contrary to the Employment Equality Act 1998 (“the Act”). She also alleges that she was victimised by the Agency for having referred a complaint under the Act to the Equality Tribunal (as it was then known). Prior to going on sick leave on 5 February 2013, the Complainant had been on a long-term placement with DHL since December 2010 (save for a period between November 2011 and April 2012 when she voluntarily chose to work elsewhere). She was certified fit to return to work with effect from 3 June 2013 but was not facilitated with a placement at DHL thereafter. The Respondents cite a reduction in demand for agency workers at the time as the explanation for this. Both Respondents state that the Complainant was not dismissed and remained an agency worker with the Agency until her resignation in January 2016. The Complainant had not identified any specific comparator in support of her complaints either at first instance or in her Notice of Appeal to the Court. When invited by the Court to make written legal submissions on this matter, Counsel for the Complainant submitted that she wished to name as her chosen comparators “that clearly defined and limited group of persons” employed by the Agency and assigned to DHL, but who, unlike the Complainant, did not have a disability within the meaning of the Act.

It is not disputed by either of the Respondents that the Complainant suffered from a serious illness, a consequence of which is that she is deemed to have a disability within the meaning of the Act.

Decision of the Adjudication Officer

The Adjudication Officer decided that the complaints of discrimination and victimisation were not well founded as the Complainant had failed to make out aprima faciecase of discrimination against either of the named Respondents. He also found that the Complainant had not suffered victimisation by the Agency within the meaning of the Act. The Complainant has appealed against the Adjudication Officer’s decision in full.

The Complainant’s Evidence and Submissions

The Complainant told the Court in evidence that she came to Ireland from Poland in March 2007. At that time she commenced employment with an agency called Industrial Temps (Ireland) Limited through which she was assigned to a number of placements including with Ikea and Ryanair. The former business of Industrial Temps (Ireland) Limited was ultimately subsumed by the Agency.

The Complainant explained that she had been assigned by the Agency to DHL for two periods. The initial period commenced in December 2010 and was of approximately one year’s duration; the Complainant chose to work in the retail sector between November 2011 and April 2012. Thereafter, she resumed employment with the Agency and was placed by it for a second time with DHL. The Complainant worked with DHL as a general operative and was assigned to pick food and drink products for a client of DHL. She worked 42 hours per week, on average, on 12 hour shifts over a 14-day cycle.

The Complainant’s second placement with DHL lasted slightly less than one year and came to an end because the she fell ill and was required to take medically certified leave to undergo a procedure in her home country, Poland. She was certified fit to return to work by her treating physician in Poland with effect from 3 June 2013. When she returned to Ireland following successful treatment for her condition she sought to return to her placement with DHL and attended at DHL’s premises where she met with her line manager there, Mr Mark Donnelly, to whom she gave a copy of her fit to return medical certificate. Her evidence is that Mr Donnelly initially confirmed that she could return to work at DHL the following week, 10 June 2013. That same day, the Complainant says she also met with Ms Geraldine Doherty of the Agency who requested her to produce a specific medical certificate to confirm that the medical condition for which she had required treatment was unrelated to her work at DHL. In her evidence, the Complainant emphasised that she believed Ms Doherty expressly told her that she would be able resume her placement at DHL once the additional medical certificate was forthcoming. In fact, as things transpired, the Complainant had no further contact with DHL after her meeting with Mr Donnelly on 3 June 2013.

The Complainant provided the additional medical certificate (dated 4 June 2013) as requested from her treating physician in Poland and presented it to Ms Doherty. Ms Doherty informed the Complainant that she would be in touch with her once she had consulted with Mr Donnelly of DHL. The only further contact the Complainant had from the Agency at this time took the form of an email dated 6 June 2013 from Ms Doherty which had attached to it a letter dated 7 May 2013 confirming the Complainant’s status as a temporary agency worker employed by the Agency and stating that the Agency had no assignment for her at that time.

The Complainant told the Court that the Agency didn’t offer her any alternative assignment for some months and it wasn’t until such time as she had taken legal advice, instructed her solicitor to write to the Agency and lodged a complaint, dated 17 October 2013, with the Equality Tribunal that she received an offer of a further placement from the Agency. (Her solicitor also lodged a complaint under the Unfair Dismissals Act 1977 with the Employment Appeals Tribunal on the same date, which complaint appears to have been subsequently withdrawn.) The Complainant states that she was offered a placement with Kingston Technologies from April 2014 and remained there until December 2014. The Complainant did inform the Court that her Solicitor had written to the Agency on 28 September 2013 seeking her reinstatement i.e. prior to formally lodging her employment claims with the Workplace Relations Service.

It was put to the Complainant by the Court that it would be part of the Agency’s defence to her complaints under the Act that she had made a number of serious allegations seeking to link her illness to her working conditions – particularly the low temperatures – in the warehouse at DHL and that, in fact, in conversation with Ms Beata Boryslawska on or around 4 February 2013 she had explicitly stated that her working conditions had caused her serious illness. The Complainant told the Court that she had not sought to make such a connection but accepted that she had express some concerns in February 2013 about the low temperatures in the warehouse. However, her concerns were specifically that she could not afford to develop a chest infection or heavy cold in advance of her planned treatment as such an eventuality would have delayed the treatment. The Complainant emphatically denied ever seeking to establish a causal link between her working conditions and her medical diagnosis in early 2013.

Under cross-examination by Mr O’Gorman for DHL, the Complainant stated that she had no grievance with DHL and that she had had a very good working relationship while there with Mr Donnelly, her line manager. She told the Court that she believed the decision not to reassign her to DHL following her return from sick leave was a decision of the Agency. She formed this view based on the email of 6 June 2013 and the attached letter dated 7 May 2013. She confirmed, in response to Mr O’Gorman’s question, that her grievance was with the Agency. She did, however, also say that she believed DHL should have requested the Agency to reassign her to DHL.

The Complainant’s representative submits that the fact that the Complainant was required by the Agency to produce “very unusual and specific medical certificates”, prior to being permitted to resume work following her sick leave in early 2013, is sufficient to establish aprima faciecase of discrimination. He further submits that she was still not permitted to return to her pre-sick leave placement even when she did produce the specific medical certificates required by the Agency in circumstances where other employees of the Agency placed at DHL when the Complainant left on sick leave still continued in their placements there long after the Complainant returned from sick leave and sought to resume her placement there. This fact flies in the face of the defence being advanced on behalf of DHL and the Agency to the effect that there had been a reduction in the need for agency workers to do the work the Complainant had engaged in because DHL had, during the period of the Complainant’s absence, lost a significant retail client.

In summary, the Complainant’s representatives submitted that had the Complainant not suffered a significant illness in early 2013 – which left her with a disability for the purposes of the Act – her assignment to DHL would not have been discontinued and she would not have been let go by DHL or by the Agency. They further submit that she was effectively dismissed in June 2013 by virtue of the Agency’s failure to reassign her to DHL or at all at that time. This they submit was confirmed in correspondence from the Agency dated 28 September 2013 when the Complainant’s Solicitors were advised that the Complainant would have to a make new application to the Agency if she wished to be reinstated in its employment.

Mr O’Hanrahan, the Complainant’s Solicitor, accepted – when it was put to him by the Court on the final day of hearing – that no evidence had been advanced in relation to the victimisation element of his client’s case. He, nevertheless, advised the Court that his client was not withdrawing that part of her claim.

Evidence of Mr Donnelly on behalf of DHL

Mr Donnelly told the Court that at the material time his responsibilities included liaising with providers of temporary agency workers to DHL, including the first-named respondent in the within proceedings. He was in regular contact with a number of agencies and requested a varying number of workers from time to time depending on the level of demand from time to time in DHL’s warehouse. He stated that the number of agency workers placed at DHL in the period April 2012 to February 2013 fluctuated. However, he was unable to give information to the Court in relation to the exact number of agency workers engaged by DHL at any given time.

Mr Donnelly confirmed that the Complainant was not replaced at DHL during her absence on sick leave. When asked to comment on the Complainant’s evidence in relation to the conversation she said took place between them on 3 June 2013, Mr Donnelly agreed he had told her there would be a position there for her at DHL when she was ready to return. He did not, however, accept that this was to be regarded as a guarantee of employment as the Complainant was employed at all times by the Agency. He also stated that the Complainant had proven herself to be a good worker. When asked did he contact the Agency after 3 June 2013 to enquire after the Complainant personally, he said that he hadn’t as he would not usually request an agency worker by name except in the very unusual situation where there was a match between an individual agency worker’s skill set and a particular requirement at DHL.

Mr O’Gorman of IBEC submitted that the Complainant was at all material times an employee of the Agency and never an employee of DHL. Therefore, DHL had no power to replace an existing agency worker in order to accommodate the Complainant when she had recovered from her illness. He also submitted that the Complainant had not been treated by DHL in any worse or any better manner than any other agency worker.

Evidence of Beata Boryslawska on behalf of the Agency

Ms Boryslawska gave evidence of her interaction with the Complainant in February 2013. The witness told the Court that the Complainant tendered her resignation to her verbally on 4 February 2013. She said the Complainant told her that she couldn’t continue to work in the DHL warehouse because of the low temperatures there. According to the witness, the Complaint also told her that her medical condition was “related to” her working conditions. When asked if she had terminated the Complainant’s employment in February 2013 the witness stated she hadn’t. She also confirmed that no P45 had issued to the Complainant at that time although it was her clear understanding that the Complainant had verbally resigned her employment. The witness told the Court that that was not unusual as some 70% of employees of the agency do not request a P45 when they leave an assignment.

The witness recalled the Complainant’s request to be placed back with DHL on her return from sick leave in June 2013. As there was no position open in DHL at the time, the witness offered the Complainant a role with a named firm as a general operative. The Complainant declined this offer as she was adamant about returning to DHL.

The witness also told the Court that the Complainant requested a letter for the Department of Social Protection in June 2013.

Evidence of Marlena Carkowskaon behalf of the Agency

This witness’s evidence was that she had known the Complainant professionally since 2007. The witness informed the Court that she had authored the letter that issued to the Complainant in June 2013 at the Complainant’s request. She told the Court that she backdated the letter of her own initiative to 7 May 2013 to support the Complainant’s application to the Department of Social Protection because she was aware that the Complainant had not been in receipt of wages for some time. She confirmed under cross-examination that the backdating of the letter was not a clerical error as had been suggested in correspondence from the Agency to the Complainant’s Solicitor (see below).

The witness also confirmed the evidence given by the other witnesses for the Agency to the effect that there was no vacancy at DHL in June 2013 when the Complainant sought to be reassigned there on her return from sick leave. She identified the position in Kingston Technologies to which the Complainant was eventually assigned in April 2014. The witness issued the Complainant with her P45 in June 2016 when she requested this in writing from the Agency.

Evidence of Ms Doherty on behalf of the Agency and Submissions

Ms Doherty is the Managing Director of the Agency. The witness gave evidence of having hired the Complainant initially through Industrial Temps (Ireland) Limited and subsequently through the Agency. She told the Court that she had a very clear recollection that the Complainant had a pattern of leaving agency assignments and then returning again to seek further assignments.

Ms Doherty directed the Court to a letter dated 28 September 2013 addressed by her to the Complainant’s Solicitors in reply to theirs of 10 September 2013. In that letter, Ms Doherty outlined the Agency’s understanding that the Complainant had resigned her position with DHL on 4 February 2013.

The final paragraph of the letter of 28 September 2013 states:

• “Your letter requested that Temple Recruitment should reinstate Ms Martela. Please inform your client that a new application must be made as Ms Martela has resigned from her assignment due to unfavourable conditions. We found Ms Martela reliable and a good team player during her time with us and if a new application is made we would be happy to resinstate Ms Martela in upcoming assignments.”

When asked why she – on behalf of the Agency – had requested the Complainant to procure a medical certificate - in addition to the fitness to work certificate she had already produced – to confirm that there was no connection between the Complainant’s illness and her working conditions at DHL, Ms Doherty replied that the Complainant had made allegations about those working conditions and had sought to establish a link between them and her illness.

Ms Doherty gave the following evidence in relation to the numbers of workers assigned by the Agency to DHL: February 2013 – 12; March 2013 – 11; June 2013 – 9; and September 2013 – 7. She confirmed that the 11 agency workers in DHL in March had all also been assigned there by the Agency in February 2013.

Ms Doherty submitted that the other agency workers assigned by the Agency are not comparators for the Complainant as the Complainant fulfilled a very specific role which involved an element of data input as well as picking orders for clients. The other agency workers only performed picking duties. The Complainant’s role was filled directly by DHL following her departure on sick leave. The witness surmised that the role would most likely have ceased to be available in March 2013 anyway due to the reduction in business experienced by DHL at that time.

Discussion and Decision

It does not appear to the Court that any evidence was put to the Court by the Complainant that can be regarded as substantiating aprima faciecase of discrimination on the part of DHL. The Complainant herself, under cross-examination by the representative for DHL, confirmed that her “grievance” lies against the Agency rather than against DHL. She acknowledged that she had had a good working relationship throughout her assignment at DHL with her line manager, Mr Donnelly. Mr Donnelly had unequivocally indicated his willingness to take the Complainant back when she attended at DHL’s premises with her fitness to return certificate on 3 June 2013.

For these reasons – and having regard to Mr Hanrahan’s acceptance that no evidence to support the claim of victimisation had been put before the Court – the Court finds that the complaint against DHL, in its entirety, is not well founded. The decision of the Adjudication Officer in this regard is, therefore, upheld.

The Court, on the other hand, is unimpressed with much of the evidence advanced on behalf of the Agency in this case. On the basis of what Ms Doherty said in relation to what she knew of the Complainant’s pattern of working from 2007 on, and having regard in general terms to the nature of temporary agency work, the position being advanced by the Agency to the effect that the Complainant resigned her employment with it on 4 February 2013 is simply not credible. In the Court’s opinion, what happened on that date – having regard to the totality of the evidence adduced in this case – is that the Complainant simply notified the Agency that she no longer wished to continue in her assignment at DHL because she had concerns about getting some kind of cold or infection that would delay her planned treatment. She did not terminate her relationship with the Agency on that occasion. It is clear, based on subsequent events, that she intended to resume work as a temporary agency worker following her treatment. She attempted to do so on 3 June2013 by notifying both DHL and the Agency that she had been confirmed fit to return to work by her treating physician. She had been led to believe by Mr Donnelly that that she could return to DHL the following week. The first indication that there may have been a difficulty came when Ms Doherty imposed an extraordinary and unusual obligation on the Complainant: viz. to produce written confirmation from her doctors that there was no connection between her working conditions in DHL and her illness. Nevertheless, the Complainant produced the additional medical certification she was asked for. Asking her for this in circumstances where the Agency was at the same time maintaining that she was no longer in its employment because she had allegedly terminated her relationship with it in February 2013 makes no logical sense whatsoever.

In the Court’s view, the Complainant has made out aprima faciecase of discrimination on the disability ground as against the Agency. The Agency has failed to rebut thatprima faciecase. For these reasons – and having regard to Mr Hanrahan’s acceptance that no evidence to support the claim of victimisation had been put before the Court – the Court finds that the complaint of discrimination against the Agency, but not the claim of victimisation, is well founded. This aspect of the decision of the Adjudication Officer is, therefore, varied.

The Court awards the Complainant €20,000.00 in compensation against the Agency for the effects of the discrimination she experienced following her attempts to resume employment as a temporary agency worker in June 2013 after a period of serious illness of which the Agency was fully aware. This award is not by way of redress for loss of earnings and is therefore not subject to tax.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
12 July 2017______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.