Complainant

Respondent

Anonymised Parties

Community Employment Scheme Supervisor

Community Employment Scheme

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00009793-006

18/02/2017

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

CA-00009793-001

18/02/2017

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

CA-00009793-005

18/02/2017

The Complainant was employed by the Respondent as a Community Employment Scheme Supervisor. His employment commenced on 19th June 2006.

The Complainant made extensive written and oral submissions summarised as follows:

He states that he has been diagnosed with the following conditions: Autism, ADHD, OCD, PTSD, Asbergers, Dyslexia and Depression. He contends that the Respondent has discriminated against him on the grounds of disability in that he has not be given reasonable accommodation in order for him to carry out his duties to the fullest possible extent. He further contends that he has been bullied, harassed and victimised because of his disabilities. He outlined in his written complaint form the details of incidents and experiences he had while in his position as Community Employment Scheme Supervisor, which post he held since 2006.   He contends that his working experience was fairly uneventful up to 2013, aside from raising an issue regarding tax compliance in 2007.   In 2013 and in 2015 he raised concerns regarding proposed work on private property. He also raised a formal grievance over a matter concerning non attendance of a new administrative assistant at a training course and the manner in which this was handled by the Board. The Complainant contends that discriminatory treatment of him escalated after that. He was emailed with a new contract in October 2015 which contained a number of changes. He refused to sign this contract until, on advice from his union, and under duress he signed it in March 2016. He had been assured that there would be no changes to his terms and conditions.   However, he submits that two contractual entitlements were not honoured from thereon in, namely paid leave to attend medical appointments and leave to attend union duties, including attendance at the AGM.

The complainant contends he was directly discriminated against in the following ways; He was required to work over the Christmas shutdown as he had not enough annual leave left to cover while DCON was not and was paid in full.   He requested two days exam leave giving three weeks notice, for which he had to answer to in a disciplinary hearing, while MD gave four days notice requesting a six week leave of absence and faced no sanction. Both the Complainant and PG are on long term sick leave, and while the Complainant is required to submit weekly doctor’s certificates, PG is not. All access to his place of work is barred.   He received a letter dated 20th December 2016 informing him of impending redundancy, while no other employee received the same letter.              The Complainant outlined other complaints of indirect discrimination including application of a new TOIL system without written instructions as to how this was to be implemented, refusal for him to attend a Garda vetting procedures training course in Dublin and refusal for him to update the health and safety statement. He submits that he was penalised for having made proposals to improve the safety statement. Further he contends that the employers decision to allow a financial audit take place at short notice (and making no application for a postponement) had a disproportionate affect on his mental health when he returned from a short holiday and was blamed for the resulting non- compliance.

The Complainant contends that the Respondent did not consider the disabilities of the Complainant in order to provide reasonable accommodation. It is contended that the Respondent failed to consider an educational psychologist’s report and was not prepared to accept relevant medical information. The Complainant was referred to a Clinical Psychologist by the Respondent, and the report has not been produced.  

The Complainant further states that changes were made to his conditions of employment without notification in writing, namely that he was no longer entitled to attend medical appointments in working time, and he was no longer entitled to attend union meetings in working time.

The Complainant further contends that he was penalised under Section 28 of the Safety, Health and Welfare at Work Act for having raised issues about the safety statement.                                                                                              

The Respondent states that the Complainant’s complaints are out of time as the issues raised relate to 2015.   Further, the Respondent has no medical evidence of the Complainant’s alleged conditions. It was accepted that the Complainant suffered from Dyslexia and every effort was made to accommodate him.   A Dictaphone was provided for the Complainant in January 2016 but he did not use it.   In relation to the allegations of direct discrimination, it is submitted that (a) the Respondent did not release the Complainant for union meetings as he was not a union rep, (b) he was not treated differently to any other employee as regards submitting medical certificates. The staff handbook requires that employees submit regular medical certs when on sick leave.   It is submitted that the Complainant has not established a Prima Facie case from which it could be inferred that discrimination had taken place.

The time limits pertaining in this case are governed by Section 41 (6) of the Workplace Relations Act 2015 which provides that a complaint will not be entertained if it is presented more than 6 months after the date to which the complaint relates.  

The complaints under the Employment Equality Act 1998 (CA-00009793-001) and the Terms of Employment (Information) Act 1994 (CA-00009793-005) and the Safety, Health & Welfare at Work Act 2005 (CA-00009793-006) were received on 18th February 2017. The cognisant period therefore for these complaints is from 19th August 2016.

CA-00009793-001 – Employment Equality Act 1998

The Complainant contends that discriminatory treatment of him escalated after he raised issues in 2013 and 2015. He contends he was directly discriminated against in a number of ways as detailed in his submission, summarised above.

The Respondent contends that it knew of the Complainant’s dyslexia and assisted him by providing a Dictaphone which he would not use, and reminding him that he had administrative support.   The Respondent was not on formal medial notice of any other condition aside from dyslexia.

The Complainant refers in his complaint to the latest date of discrimination as being 4th September 2016. At this time, the employment relationship was very fractious and a meeting held with the Complainant ended abruptly. In considering whether the Complainant was discriminated against or harassed because of disability at this point, I note the following:

The meetings between the Complainant were fractious and difficult. However, the evidence shows that the Respondent had difficulties with the performance of the Complainant and went to some lengths to assist the Complainant with for example taking cognisance of the Complainant’s dyslexia and providing him with a Dictaphone and reminding him that he had administrative support.

Section 85 (A) of the Act provides that the burden of proof first lies with the Complainant to establish facts from which it may be inferred that discrimination has occurred.   The Labour Court in Mitchell v Southern Health Board [2001] ELR 201 found that in the first instance the 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 further stated:

“It is only if these 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 was no infringement of the principle of equal treatment”.

I note that the Complainant had many grievances and disputes with his employer, going back a number of years and which ended with him going on sick leave on 6th September 2016 after a particularly fractious meeting in or around 5th September 2016.   I do not find that the Complainant has established a prima facie case and his complaints are not upheld.

CA-00009793-005 – Terms of Employment (Information) Act 1994

The Complainant’s complaint is that he was not given written notification of changes in his terms and conditions of employment. This complaint was received on 18th February 2017.   As the cognisant time period for this complaint is from 19th August 2016 and the dispute the Complainant had with the employer dates from in or around March 2016 when he signed his new contract, this complaint is out of time.

CA-00009793- 006 – Safety, Health & Welfare at Work Act 2005

This complaint was received on 18th February 2017. The cognisant period for this complaint is from 19th August 2016. The complaint is that the Complainant was penalised for having made some proposals to improve the safety statement. This issue arose in June/July 2016 and I deem the complaint to be out of time.