Complainant

Respondent

Anonymised Parties

Manufacturing Operative

Moulding and Painting manufacturing company

Representatives

Ekaterina Koneva

Advocacy worker

Dove Inform Bureau

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00006076-015

03/05/2017

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

CA-00006076-016

03/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00006076-001

21/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00006076-002

21/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006076-003

21/07/2016

Complaint seeking adjudication by the Workplace Relations Commission SI No. 494 of 2004 and Clauses 6 of the EC (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of 200

CA-00006076-004

21/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006076-005

21/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006076-006

21/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006076-007

21/07/2016

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-00006076-008

21/07/2016

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

CA-00006076-009

21/07/2016

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

CA-00006076-010

21/07/2016

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

CA-00006076-012

21/07/2016

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

CA-00006076-013

21/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00006076-014

21/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

 CA-00006076-015

03/05/2017

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

CA-00006076-016

03/05/2017

The Complainant was employed by the Respondent as a general operative and commenced working on the 7th or 8th April 2016. Her employment with the Respondent ended on the 17th of June 2016 some 11 weeks later.

The Respondent is a manufacturing company involved in moulding and finishing large and small plastic parts for a range of sectors including the automotive, electronic consumer goods, medical and construction industries.

The Respondent’s staff requirements fluctuate throughout the year and it operates on a structure of permanent staff in key roles such as managers, engineers, quality inspectors, warehouse managers and short term hires of “seasonal” workers for the roles of general operatives, quality inspectors, etc.

There are two sister companies working on the manufacturing site. One was a moulding company and one was a painting company. The Complainant was required to move between both companies at the direction of management.

The Complainant lodged her initial claim with her solicitor on the 21st of July 2016 listing 13 separate complaints.   Between then and the hearing of the complaint on the 3rd February 2017 she changed representative. During the hearing on the 3rd February 2017 she referred to two additional complaints which she lodged subsequently with the WRC on the 3rd May 2017 namely CA/00006076/15 and CA/00006076/016.

During the hearings, there was evidence from the Complainant relating to an unfair dismissal claim. There was no complaint of unfair dismissal before me as on the complaint form, the complainant had selected an inspection of her UD complaint rather than the adjudication service.

In relation to claims lodged:

CA/00006076/001 was settled by the parties and withdrawn at the hearing of the case.

CA/00006076/002 was settled by the parties and withdrawn at the hearing of the case.

CA/00006076/003 was withdrawn at the hearing of the case.

CA/00006076/004 was withdrawn at the hearing of the case.

CA/00006076/005 was withdrawn at the hearing of the case.

CA/00006076/006 was withdrawn at the hearing of the case.

CA/00006076/007 was withdrawn at the hearing of the case.

CA/00006076/008 was withdrawn at the hearing of the case.

CA/00006076/014 was settled by the parties and withdrawn at the hearing of the case.

The Complainant’s employment with the Respondent ended on the 17th of June 2016. She lodged her initial claim with her solicitor on the 21st of July 2016. Between then and the hearing of the complaint she changed representative.

Following the hearings, the following complaints required adjudication:

CA/00006076/009 – This complaint related to failure to provide terms and conditions of employment. The Complainant’s case was that she had not received a contract of employment.

CA/00006706/010 – This complaint is in relation to notification of changes under Section 5 of the Terms of Employment (Information) Act 1994. The Complainant set out that her terms of employment were changed i.e. her employer name was changed and she did not receive any notification in writing of this change pursuant to Section 5 of the Terms of Employment (Information) Act 1994.

CA/00006706/012 – This complaint is an industrial relations complaint in relation to bullying and harassment. The facts that the Complainant wished to rely on are those set out below regarding the equality complaint.

CA/00006706/013 - This complaint was in relation to discrimination on grounds of race, harassment and victimisation. The Complainant set out that she was bullied, discriminated against, harassed and victimised because of her nationality.   She was from Latvia and held a Latvian passport but she considered herself Russian. She set out how her line manager/quality inspector had arranged for her employment to end. She called her “woman” in a derogatory sense and raised her voice at her. The Complainant stood up to the quality inspector and said she had no right to speak to her like that. The Complainant’s evidence was shortly after she did this she was told by her friends in the work place that the line manager would find a way to fire her.

The Complainant’s evidence was that this manager treated a lot of people badly and that many of her co-workers were upset and crying in the work place because of her. The Complainant’s evidence was that she was crying at home, couldn’t sleep. She went to her doctor on the 27th of May 2016 for medical treatment and was prescribed a mild sleeping tablet to help her sleep. She was certified unfit to work, however the medical cert she submitted to the Respondent made no reference to workplace related stress and only stated that the patient was suffering from foot pain and would be unable to work between the period 27th of May 2016 and 3rd of June 2016.  

At the hearing on the 22nd March 2018, the Complainant submitted a letter from her doctor dated the 24th of January 2017 stating that she was stressed at work and not sleeping. This was the first time that such medical evidence was presented to the Respondent.

The Complainant gave evidence that on another occasion she was told to “shut her mouth” in Russian by her line manager.

The Complainant felt she was being harassed at every occasion.   She wasn’t given a uniform like her co-workers. She was being criticised for not wearing a cap in circumstances where many other co-workers were not wearing a cap.

On another occasion a co-worker kicked a box of product that she was working on. The co-worker said she didn’t have enough space to work in. The Complainant ended up having to move to a different area to continue with her work.

The Complainant gave evidence regarding when a co-worker said that her work was “bad”. The Complainant felt she was constantly being accused of something. She gave evidence on when she was involved in the labelling and packing of the product. At that time, she was told she wasn’t putting on the labels correctly.   When she was packing the product, she was told she wasn’t packing fast enough.

She gave evidence of another incident, when she was having her break and sitting in the smoking area. There was no room for another co-worker who came to sit and have a smoke. The co-worker said to her “you’re not smoking, you should sit somewhere else”.   The Complainant felt that this was bullying.

The Complainant was not happy about the way her employment ended. After her week of sick leave in June of 2016 she was advised by her manager that she was being reduced to part- time hours. At this stage the Complainant had become very concerned as to her treatment by her line managers and co-workers and started taping conversations she was having with them. She sought to introduce these as evidence. The recording took place without the consent of the other parties to the conversations.

I allowed the Respondent an opportunity to listen to the recordings and following same, they confirmed that they had no difficulty with their introduction into evidence, though they did have an issue with the fact that the manager was recorded in a clandestine manner. I listened to one of the recordings and noted that the recording was in Russian and of hazy quality. The translator at the hearing translated what she could hear for me. Having listened to the translation, there was nothing untoward in what was said to the Complainant. The conversation was where the manager told her she was being transferred to part time.   He said that she was a good worker and the complainant appeared happy with what was being proposed. The manager when advising her that she was a good worker said to her that there were other people being let go.

Some days later, the Complainant attended with the administration office/ HR to collect a letter for Social Welfare advising that she was now working part time. Instead, she was advised that in fact her employment was being terminated.

CA/00006076/015 - brought under the Protected Disclosures Act 2014 and CA/00006076/016 - brought under the Safety Health and Welfare Act 2005.

CA/00006076/009 and CA/00006076/010 - The Respondent’s case was that there was a contract of employment on file and this was provided to me at the hearings. The document required a signature of the Manager and Complainant.   There was not a signed copy on file and the Respondent accepted that it could not prove that the Complainant was furnished or received the statement of terms and conditions of employment.  

CA/00006706/012 - The Respondent vehemently denied that there was any element of bullying and harassment in the workplace. It had a bullying and harassment policy that was pinned on the staff notice board.  

CA/00006706/013 – The Respondent vehemently denied all complaints of discrimination on grounds of race, harassment and victimisation. Its case was that it had no notification whatsoever that the Complainant was being bullied or harassed in the workplace.

CA/00006076/015 – The Respondent disputed there was a protected disclosure and argued that this complaint was brought outside the required time limits under the Protected Disclosures Act 2014

CA/00006076/016 - The Respondent disputed there was any breach and argued that this complaint was brought outside the required time limits under the Safety Health and Welfare Act 2005.

CA/00006076/009 and CA/00006076/010- The Complainant made many references during the hearings of the fact that she didn’t have a contract of employment or a grievance policy/procedure, bullying and harassment policy/procedure setting out the process on which she was to complain.

It is important that all employees receive within the statutory period of two months following the commencement of their employment, a copy of the terms and conditions of their employment and other required policies and procedures.

Section 3 of the Terms of Employment (Information) Act 1994 sets out the required particulars that need to be in the contract/statement in writing.

I have considered the evidence presented to me at the hearing and accept that there was an element of confusion by the Complainant in the first four payslips referred to the moulding company and the remainder of the payslips were the painting company.

Both the Complainant and Respondent agreed that there was no loss of pay or service in moving between the two companies.

I accept that the two complaints above are well founded.  

CA/00006706/012: Industrial relations and CA/00006706/013:   Equality / discrimination.

These complaints deal with the same set of facts.

Section 85 (A) of the Employment Equality Act sets out the legal requirement of the burden of proof. Section 85 (A) paragraph 1 states that 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.

The law provides that the burden shifts where the Complainant proves facts from which it may be presumed that there has been discrimination.

In Melbury Developments Ltd v Valpeters EDA 17/2009 (reported at [2010] E.L.R. 64), the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Section 6 of the Employment Equality Act 1998 as amended sets out that discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds. The Complainant relied on the grounds of race which is defined as that they are of a different race, colour, nationality or ethnic or national origins. The Complainant’s case being that she was Russian and the other members of staff were Latvian.

I was advised that the decision to terminate the Complainant’s employment was solely made by the production manager who gave evidence at the hearing. He was from Eastern Europe and had been working for the Respondent since 2006.   He confirmed that he initially did reduce the Complainant to part time hours due to a downturn in product demand.   When it became clear that the demand for their products was down even more, he decided to terminate the Complainant’s employment. He gave evidence that seven or eight of her co-employees who were also recruited a few months earlier also had their employment terminated. His further evidence was that when the Complainant was recruited, she was told that it was for a temporary period, possibly for only a number of weeks and there was no indication given to her that it was going to be a long-term employment situation.

The Respondent’s evidence was all policies and procedures were up to date and they were pinned to the staff notice board. These policies were translated into four languages.  

The Production manager’s evidence was that he had not received any complaints from the Complainant apart from one incident where she came to him and advised him that the quality inspector/line manager had called her “woman”. He didn’t seem to think it was a major issue and he pointed out to her that she was a woman. His evidence was “they” (being the complainant, the quality manager and himself) laughed it off in the office at the time.

He gave evidence that the Complainant had asked him for a mask due to fumes that were in one of the areas in which she was working.   Their health and safety statement did not require her to wear masks in this area, however he went to the local hardware store and bought her a mask which he provided to her.

The Complainant’s quality inspector/line manager gave evidence. She had been working for the Respondent since 2008. She gave evidence that the Complainant approached her to help her to secure employment in the factory. She had briefly met the Complainant before.

When the Complainant started working as part of her team, she showed her what to do and gave her practical examples of how to carry out her work. She provided her work instructions in Russian. She gave her advice on asking other inspectors for help if she was unsure on what to do. Overall, she felt she had given her good instructions. It then transpired that there were ongoing issues regarding the Complainants work and her failure to carry out instructions correctly.

The line manager gave evidence that she was very surprised that the complaints were being made as when the Complainant started work in the factory, they travelled together to work as the Complainant had no transport to the factory. She said that the Complainant was not a bad worker and said that she was not involved in the Complainant being let go when she was.

She gave further evidence on the occasion where it was brought to her attention that a member of her team had felt sick because the Complainant’s strong perfume. She confirmed that she asked the Complainant not to wear perfume in the workplace and the Complainant seemed to accept it and there was no argument.  

As regards the Complainants evidence re being excluded from purchasing a work uniform, the quality inspector’s evidence was that the Complainant didn’t need safety shoes for the area in which she was working and the company doesn’t provide uniforms for all new employees until they are in employment for at least three to six months. She said she couldn’t remember the day when they were ordering the uniforms, but she said their policy is not to order uniforms for “newbies” until they were well established in their employment.

As regards the allegation of calling the Complainant “woman” in a derogatory manner, her evidence was that she recalled the day this occurred. She said she needed help in the packaging area and when the Complainant was walking by, she asked her to come and help her. She said she only called her woman once, at that very moment, when she was under pressure due to work and she had forgotten the Complainant’s first name. She said that she called her in the polite Russian formal manner and she disputed that she did it in the informal derogatory manner.

She did accept that the Complainant did make a complaint to the production manager about the way she addressed her and she said that all three of them were in the room when the complaint was made. She didn’t see it as a complaint per se. Her evidence was that “they all just laughed it off”.

The Respondent Administration and HR manager gave evidence that it did have a bullying and harassment policy and this was pinned to the canteen notice board. A photograph of the notice board was provided to me. The Complainant gave evidence that she knew there was notices on the board, but she didn’t have specific knowledge of the bullying and harassment policy.

It is accepted that the Complainant did make a complaint to the production manager about the quality inspector/line manager referring to her in a derogatory manner as “woman”.  It does not appear that the production manager recognised this as a complaint or followed any lines either informally or formally of the Respondents own policies or the Code of Practice on Harassment SI 208 of 2012.

Section 14A (7) of the Employment Equality Act 1998 defines harassment as any form of unwanted conducted related to any of the discriminatory grounds which has the purpose of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The section goes on to give examples of what the unwanted conduct may consist of such as acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Section 14A (2) provides a defence where the Respondent can show it took such steps as is reasonably practicable to prevent harassment in the workplace or to reverse its effects.

The focus in this definition is upon how the conduct was regarded by the recipient rather than upon the motive or intension of the perpetrator.

I have listened to and considered the evidence presented to me in this case. I found all the witnesses were credible, both the Complainant and the Respondent witnesses. However, there was fault on both sides in the manner they conducted themselves.

On the complaint of victimisation which is defined in Section 74 of the Employment Equality Act 1998 as occurring when dismissal or other adverse treatment of any employee by his or her employer occurs as a reaction to:

a)       a complaint of discrimination made by the employee to the employer,

b)      any proceedings by a complainant

c)       an employee having represented or otherwise supported a complaint

d)      the work of an employee having being compared with that of another employee for any of the purposes of the Employment Equality Act or any enactment repealed by the Act

e)      an employee having been a witness in any proceedings under the Employment Equality Act

f)        an employee having opposed by lawful means an act which is unlawful under the Employment Act

g)       an employee having given notice of an intention to take any of the actions mentioned in the proceedings paragraphs.

I accept that the Complainant made a complaint to the Production Manager in relation to her line manager/quality inspector calling her “woman” in a derogatory manner. It was not made clear that she used the word discrimination in the complaint. The Complainant by her own evidence stated that she did not make any further complaints while in employment.

CA/00006076/015 – claim under Section 12 of the Protected Disclosures Act 2014.

The Complainants claim was that she made a protected disclosure to the Respondent within the meaning of the 2014 Act and as a result she suffered a detriment that amounted to penalisation within the meaning of the 2014 Act.

The protected disclosure was in relation to health and safety issues in the workplace. The detriment was the reduction of her work hours and ultimately the termination of her employment.

The Respondent submitted that this claim was outside the statutory time limits set down in the Workplace Relations Act 2015 and a denial that it had received a protected disclosure and a denial that it had penalised the complainant.

The Complainant first raised any complaint of penalisation at the hearing on the 3rd February 2017 and formally lodged her complaint under the Protected Disclosures Act 2014 on the 3rd May 2017.

Having regard to section 41(6) of the Workplace Relations Act, the six-month time limit within which the initiating complaint in respect of the alleged penalisation should have been referred to the Director General of the Workplace Relations Commission expired, at the latest, on 17th December 2016. The Complainant, therefore, lodged her complaint out of time. The Complainant made an application to extend time within which to bring her claim of penalisation.

Section 41(8) of the 2015 Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

·         “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

·          

It clear from the authorities that the test places the onus on the Complainant applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. There needs to be a causal connection between the reason proffered for the delay and her failure to present the complaint in time. I am required to be satisfied, as a matter of probability, that the Complainant would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause.

In this case the complainant was legally represented from the 20th July 2016. There was no reference in her original complaint form lodged on the 21st July 2016 with the WRC to penalisation. The complainant’s application for an extension of time was based on language issues or difficulties which prevented her solicitor (who was her representative at the time) adding the complaints with her original complaint form. When asked about whether there was a translator present when she spoke with the solicitor, the complainant answered that she had a translator who was translating by phone for her.

I have considered the submissions of both Parties and determine that the Complainant has failed to establish to my satisfaction that the reason she relies upon provides a justifiable excuse for her delay in commencing proceedings under the 2015 Act, particularly in circumstances where the Complainant was sufficiently able to commence 13 other complaints against the Respondent which she did in July 2016.

If I am not correct in this regard, I have considered the substantive issue under this complaint.

It is for the Complainant to set out the primary facts underpinning her complaint and to set out a causal connection between those facts and any alleged protected disclosure. The Appellant has not established those primary facts or made a causal connection between protected disclosure made by her and the placing of her on part time work or the termination of her employment.

CA/00006076/016   - brought under the Safety Health and Welfare Act 2005.

I note that there was considerable overlap between this complaint and the Complainant’s complaints under the Employment Equality Act, the Protected Disclosures Act, and the Industrial Relations Acts, all of which have been the subject of separate claims and adjudicated upon above.

With regard to the time limits for submitting a claim under the Act, section 41(6) of the Workplace Relations Act 2015 provides a six-month time-limit within which a complaint in respect of an alleged penalisation can be made. For the reasons set out in CA/00006076/015 I find that the Complainant’s alleged penalisation complaint is out of time.

Similarly, if I am not correct in this regard, I have considered the substantive issue under this complaint.

For the Complainant to avail of the protections available in Section 27(3) it is essential that the detriment complained of be causally connected to one or more of the matters referred to in that subsection. The Complainant must show that ‘but for’ having made a protected act under the subsection the detriment would not have happened. I must consider whether there was a causal connection between the reduction of hours and ultimately the termination of the Complainant’s employment and the fact that the Complainant made a report regarding relating to safety, health or welfare at work.

I have heard evidence as to the factors which led to the reduction of the Complainants work hours and ultimate termination of her employment.

I was provided with details of the ending of co-workers’ employment who were engaged in similar circumstances as the Complainant.

I find that the Respondent dismissed the Complainant due to lack of work for the Complainant.

The Complainant has failed to establish a causal link between her reporting of a safety incident to the production manager and the termination of her employment. The notification of other health and safety complaints following the termination of the Complainant’s employment cannot fall within the definition of penalisation.

CA/00006076/009 and CA/00006076/010- In accordance with Section 7 (2) (d) I order that the Respondent pay to the Complainant compensation which I consider to be just and equitable in regard to the circumstances of three weeks’ remuneration which amounts to €1,000.00.   This is compensation and not subject to taxation under the Taxes Consolidation Act 1997 as amended.

CA/00006706/012: Industrial relations and CA/00006706/013:   Equality / discrimination:

I make no findings in favour of the Complainant in respect of discrimination on her conditions of employment or dismissal. The Complainant did not reach the burden of proof with regard to same.

I accept that the complaint by the Complainant of being called woman in a derogatory manner falls within the definition in Section 14A (7) therefore I uphold the complaint of harassment. In the overall circumstances of the case and the evidence given by the Respondent, her length of service, the relationship between the Complainant and her line manager, the failure of the production manager to adequately deal with her complaint, I award the Complainant the sum of €3,500.00 in compensation pursuant to Section 82 of the Employment Equality Acts. My recommendation in relation to the Industrial Relations Acts is taken into account in the above order.

Based on the evidence made by the Complainant and Respondent as to the complaint and the events which lead up to the termination of her employment, I do not accept that the Complainant was victimised by the Respondent in the termination of her employment and this complaint fails.

CA/00006076/015 – claim under Section 12 of the Protected Disclosures Act 2014.

This complaint fails for being out of time.

CA/00006076/016   - brought under the Safety Health and Welfare Act 2005.

I find that this complaint fails for being out of time.

Bullying, harassment, victimisation, protected disclosure, penalisation.