Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00015122-001

19/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00015122-002

19/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015122-003

19/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00015122-004

19/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00015122-005

19/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00015122-006

19/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00015122-007

19/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00015122-008

19/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015122-009

19/10/2017

The complainant is employed by the respondent as a Grade IV Officer on a permanent contract since 2002. The complainant has submitted multiple complaints to the Workplace Relations Commission. Specifically, the complainant contends that he has been discriminated against on the grounds of age, disability and in relations to his conditions of employment. The complainant also contends that he was harassed and victimised by the respondent and that the respondent failed to reasonably accommodate him as a person with a disability.

The complainant has also stated that he did not receive written confirmation of changes that occurred to his contract of employment, that he was penalised for raising health and safety concerns, that the respondent failed to notify him, as a fixed-term employee of opportunities and appropriate training for vacancies that arose and that the respondent engaged in bullying and harassment of the complainant over a long period. The complainant also claims that the respondent breached the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 in respect of his employment.

The complainant contends that he was discriminated against on the grounds of age, disability and relating to his conditions of employment. The complainant also contends that he was harassed and victimised by the respondent and that it failed in its obligations to provided reasonable accommodation for him as a person with a disability.

The complainant stated that due to a deterioration in his health, he experiences difficulties in carrying out his duties as they currently exist. His deteriorating eyesight and spinal problems that impede his mobility have caused ongoing problems within the workplace. The complainant stated that the respondent has failed in its obligations to provide reasonable accommodation for him to carry out his duties and has instead tried to force him to take early retirement.

The respondent stated that the complainant has not established facts from which an inference of discrimination can be drawn and in those circumstances, has failed to establish a prima facie case of discrimination. Notwithstanding its position, the respondent contends that it made every attempt to support the complainant in carrying out his duties. The respondent stated that it has met with the complainant on a number of occasions since 2015 in relation to his deteriorating health and in an attempt to find alternative employment for him within the Hospital. It stated that it engaged with the National Council for the Blind of Ireland and with software providers in an attempt to provide the complainant with the necessary equipment to carry out his duties. The respondent confirmed that the IT system within the hospital was not compatible with the required adjustments and would cost hundreds of thousands of Euro to change which was cost prohibitive. The respondent stated that it was the complainant’s Union official who sought discussions on the option of an early retirement package as the Union was aware of the difficulties being faced by the complainant and the lack of suitable options given the continued deterioration in the complainant’s health.

The complainant stated that he was discriminated against, harassed and victimised by the respondent and that the respondent failed to provide reasonable accommodation to him as a person with a disability. The respondent denied that it had discriminated against the complainant and stated that the complainant had failed to establish a prima facie case of discrimination.

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Disability

Disability is defined in Section 2(1) of the Employment Equality Acts, 1998-2015 as follows:

“disability” means

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Reasonable Accommodation                                                                     

The requirement to provide reasonable accommodation is set out under Section 16(3) of the Employment Equality Act, 1998 as follows:

16(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’ s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

85A (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

The Labour Court, in Southern Health Board v Mitchell [2001] ELR 201 determined that:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The Labour Court has also determined in Melbury Developments v Valpeters [2010] ELR 64 that:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

In the instant case, I find that the complainant has failed to establish facts from which an inference of discrimination can be drawn. Accordingly, I find that the complainant has failed to discharge the burden of proof as required by the legislation.

Having considered the written and verbal submissions of the parties and all of the evidence adduced at the hearing of this complaint, I declare that the complainant has failed to establish a prima facie case of discrimination and accordingly, the complaint is not well founded.

The complainant contends that he was not notified in writing in relation to changes to his terms and conditions of employment.

The respondent refutes the complaint. The respondent stated that any specific changes to the complainant’s terms and conditions of employment were provided in writing to him.

From the written submissions of the respondent, it is clear that the complainant was supplied with a written copy of his initial contract of employment in 2002. The complainant alleges that he was not provided with an updated list of his terms and conditions of employment following changes to his role in the Hospital in 2009.

Section 5(1)(a) of the Terms of Employment (Information) Act, 1994 provides that the employer must notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than

(a)    1 month after the change takes effect

I find that the respondent did not issue the complainant with written confirmation of the changes to his employment following his relocation within the Hospital. However, the complainant was aware in advance of the changes to his role and location as it had formed part of discussions and agreement between the parties at the time. He was given the new job description and was given time to consider the offer. The complainant subsequently accepted the move and changed work location within the Hospital.

In all of the circumstances of this complaint, I find that there was a technical breach of the legislation by the respondent. However, I do not find that the complainant was disadvantaged in any way as a result.

Having considered the submissions of both parties I find that the complaint is well founded. The respondent is directed to provide the complainant with an updated written copy of his terms and conditions of employment within 42 days of the date of this decision. I make no further order.

The worker stated that he was subject to bullying and harassment by the respondent. The worker’s position is that the employer attempted to bully him into accepting an early retirement package. The worker also stated that the employer did not have procedures in place to deal with the dispute.

The employer stated that the complainant did not utilise its internal grievance procedures in relation to this issue. The employer contends that it was the complainant’s Union official who had sought information in relation to the early retirement package and in no way, was there any bullying or harassment of the worker at any time.

In relation to this dispute I find as follows:

The worker did not raise a formal grievance in relation to this issue. The Labour Court in Interpretation No: INT10/14 stated as follows:

“Having carefully considered the submissions of both parties the Court notes that the relevant Registered Agreement contains dispute resolution procedures for dealing with issues of this nature which should have been utilised in this case. The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

In the instant case the employer submitted its grievance and disciplinary procedures at the adjudication hearing. The worker did not submit a formal grievance to the employer in line with its procedures.

As the worker did not utilise the internal grievance procedures and in line with Labour Court Interpretation INT10/14, I find that this referral is not well founded.

The complainant contends that the respondent failed to provide him with an updated copy of his terms and conditions of employment and that due to poor management practices the complainant was not provided with written notification of changes that occurred within the workplace.

The respondent refutes the complaint. The respondent stated that there have been no changes to the complainant’s employment since 2009 and that any specific changes that did occur were notified to him at that time.

The complainant stated that he does not have an updated copy of his terms and conditions of employment and that he was not provided with written notification of changes that occurred to his employment. This complaint is similar to the complaint submitted under reference CA-00015122-002 above.

On this issue, I accept the complainant’s evidence that he is not currently in possession of an updated copy of his terms and conditions of employment.

In line with the decision in complaint application CA-00015122-002 above, the respondent is directed to provide the complainant with an updated written copy of his current terms and conditions of employment within 42 days of the date of this decision. I make no further order.

The complainant stated that he is being discriminated against on the basis of his disability and that the respondent has failed to reasonably accommodate him which has resulted in a limit to the duties that the complainant can perform. The complainant stated that there is a legal and constitutional obligation on the respondent to reasonably accommodate an employee and to carry out an assessment of the workplace and the employee in relation to suitable alternative roles within the organisation. The complainant stated that the respondent’s preference seems to be forcing him to take an early retirement package on the basis of his disability and age.

The respondent refutes the complaint.

The complainant referred this complaint to the Workplace Relations Commission seeking adjudication under Section 86 of the Employment Equality Act, 1998. This section of the Act relates to a person or authority covered by a collective agreement who claims that a provision of the agreement is null and void by virtue of Section 9 of the Act.

In the instant case the complainant did not refer to any specific collective agreement covering his employment.

Having considered the submissions of both parties, I declare that this complaint is misconceived.

The complainant stated that the respondent has failed to keep adequate records in relation to discussions surrounding its obligations to reasonably accommodate the complainant’s disability.

The respondent refutes the complainant’s allegations.

The complainant has been employed by the Hospital as a Grade IV Officer on a permanent contract since 2002. The complainant is not a person performing mobile road transport activities.

On the basis of the submissions of the parties to this complaint and on the basis of the complainant’s contractual duties, I declare that this complaint is misconceived.

The complainant stated that the respondent failed to notify him, as a fixed-term employee of opportunities or appropriate training in respect of vacancies that arose within the organisation.

The respondent stated that the complainant is employed as a permanent employee on a contract of indefinite duration and as he is not a fixed-term employee, he does not have locus standi in bringing a complaint to the WRC under the Protection of Employees (Fixed-Term Work) Act, 2003. The respondent cited the cases of Dublin Institute of Technology v Paul Scott (FTD 4/17) and Dunlaoghaire Rathdown County Council v Joe Burns (FTD173) in support of its position.

The complainant has been employed by the respondent since 2002 as a permanent employee. In those circumstances, the complainant is not a fixed-term employee and accordingly does not have locus standi to bring a complaint under the Act.

Having considered the written and verbal submissions of both parties, I declare that the complaint is not well founded.

The complainant stated that he was penalised by the respondent for raising issues in relation to the appropriate workplace for a person with a visual impairment. The complainant also stated that the respondent failed to take into consideration the need to carry out a health and safety assessment to ensure full compliance with the legislation.

The respondent stated that the jurisdiction of the WRC and Labour Court under the Safety, Health and Welfare at Work Act, 2005 does not apply to this case. In support of its position the respondent cited Labour Court Determination HSD139 (Iarnrod Eireann v Nick P Neary) which stated:

The Court’s jurisdiction under this Act is limited and narrow in its application. It has jurisdiction to hear claims of penalisation referred under Section 27 only. The Court has no jurisdiction to hear allegations of breaches of safety, health and welfare at work under the Act and such allegations cannot in themselves form part of claims of penalisation or unfavourable treatment within the meaning of Section 27 of the Act.

The respondent also cited the Labour Court Determination in Paul O’Neill v Toni and Guy Blackrock Limited (HSD095) which stated:

It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.

The respondent also cited the Labour Court Determination in St Johns NS v Akduman (HSD102) which stated:

It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of”

The respondent stated that the complainant did not raise a specific allegation of penalisation in relation to having raised his concerns and accordingly and in line with the precedent case law on the issue, the respondent stated that the complainant could not have been the subject of penalisation within the meaning of the Act.

In relation to this complaint and having regard to the submissions of both parties and to the fact that the complainant did not provide any evidence of penalisation, I find that the complainant was not penalised by the respondent within the meaning of the Act.

Having considered the submissions of both parties to this complaint, I declare that the complaint is not well founded.

The worker contends that the employer has been disciplining him and engaging in active bullying towards him which leaves him in a situation where he is not given his full contractual hours.

The employer’s position is that the worker was never disciplined and continues to work his contractual hours. The employer also stated that the worker did not raise a formal grievance on the issue in line with internal grievance procedures.

In relation to this dispute I find as follows:

The worker did not raise a formal grievance in relation to this issue. The Labour Court in Interpretation No: INT10/14 stated as follows:

“Having carefully considered the submissions of both parties the Court notes that the relevant Registered Agreement contains dispute resolution procedures for dealing with issues of this nature which should have been utilised in this case. The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

In the instant case the employer submitted its grievance and disciplinary procedures at the adjudication hearing. The worker did not submit a formal grievance to the employer in line with its procedures.

In line with the recommendation in complaint application CA-00015122-003 above, as the worker did not utilise internal grievance procedures and in line with Labour Court Interpretation INT10/14, I find that this referral is not well founded.