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-00015235-001

17/10/2017

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

CA-00016524-002

25/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00016556-001

30/12/2017

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

CA-00016556-002

30/12/2017

The Complainant was employed as a Community Employment Scheme Supervisor from June 2006.      

The Complainant makes the following complaints:

CA-00015235-001 – Discriminatory Dismissal (Employment Equality Act 1998)

The Complainant submitted a previous complaint under the Employment Equality Act (Ref Adj-00007356) in February 2017.   While this complaint was in process, the Respondent wrote to the Complainant on 12^th October 2017 stating that his employment ceased on 30^th September 2016.     The letter stated that as he had refused a number of contracts, his employment “lapsed” on 30^th September 2016.  The Complainant rejects this and states that he has been subjected to discrimination and harassment in the employment since 2007 and subsequently when he was diagnosed with a number of conditions including dyslexia, asbergers, ADHD and depression.

CA-00016524-002 – Minimum Notice not given or paid on cessation of employment (Minimum Notice & Terms of Employment Act 1973)

The Complainant states that he was retrospectively dismissed by way of letter from the employer dated 12^th October 2017, with no notice or payment in lieu of notice.

CA-00016556-001 – Penalisation for having performed union duties (Employees (Provision of information & consultation) Act 2006)

The Complainant states that he was prevented from carrying out his duties as a representative.

CA-00016556-002 – Penalisation for having made a protected disclosure (Protected Disclosures Act 2014).

The Complainant states that he made a number of protected disclosures in 2013 and 2015, including the matter of the Scheme building on private property.  These matters had been resolved but the Complainant believes he has been victimised and discriminated against ever since he raised the issues.

It is the Respondent’s position that the employee “self dismissed” in or around 30^th September 2016.    He consistently refused to sign any employment contracts since March 2016.  He was on a rolling one year fixed term contract until December 2015, when all employees had to be given just 3 month contracts due to funding difficulties.  However, the Complainant’s refusal to accept any of the contracts raised since then effectively meant that he self dismissed.    It is contended that all other complaints are invalid (under CA-00016556-001 Provision of information & Consultation Act 2006) or out of time as it relates to events in 2013 and 2015 (CA-00016556-002 Protected Disclosures Act 2014).

CA-00015235-001 – (Employment Equality Act 1998)

The Complainant was employed by the Respondent from June 2006.  He received a diagnosis of dyslexia in October 2007.   It is common case that the Complainant suffers from dyslexia.  I note that there were many difficulties in the employment relationship, particularly in the last year.  The Respondent commenced a disciplinary action against the Complainant but he went on sick leave on 6^th September 2016 and never returned to the employment.  I note that the Respondent wrote to the Complainant on 12^th October 2017, some months after he commenced litigation, to inform him that he had been employed on a fixed term contract which expired on 30^th September 2016 and that he had refused a number of subsequent contracts and therefore his employment lapsed on 30^th September 2016.   The Complainant had been on rolling one year contracts from 2006.  I note that he had difficulties and objections to the contents of contracts issued to him post 2015.  However, I do not accept that these objections amounted to a “self dismissal”.  There is no term in the Act as “self dismissal”.  Either an employee resigns or is dismissed or leaves the employment in a constructive dismissal scenario. Further, I note that the Complainant’s position was filled after he went on sick leave.    I find that the Complainant in this instant case was dismissed while he was on sick leave, by the Respondent.  The question now arises was he dismissed contrary to the provisions of the Employment Equality Act 1998.  

The applicable law

The Complainant’s complaint is considered under Section 77 (1) (b) which provides that a person  who claims to have been dismissed in circumstances amounting to discrimination or victimisation may seek redress and Section 74 (2) which governs causal link.

Section 74 (2) of the Act provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an 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…”

 The Complainant submitted a number of complaints to the Workplace Relations Commission under Equality legislation in November 2016, February 2017 and October 2017.  While these complaints were still in train, the Respondent dismissed the Complainant.  There were undoubtedly many difficulties in the employment relationship and I note from evidence submitted that the Respondent found it almost impossible to manage the Complainant’s performance.   The Complainant for his part relies on the disabilities (which were not formally given to the Respondent as medical evidence) as mitigating circumstances.   I note that the disciplinary process which had commenced before the Complainant went on sick leave was not re-activated and I find that the description of the Complainant’s employment as being “lapsed” does not stand up to scrutiny.  As the Respondent did not offer any reasonable cause for the termination of his employment, I find that a causal link exists between the complainant’s submitted complaints and his dismissal.    I uphold the complaint and require the Respondent to pay to the Complainant the sum of €14,000.

CA-00016524-002 – (Minimum Notice & Terms of Employment Act 1973).

As an employee with over 10 years service the Complainant was entitled to 6 weeks notice or pay in lieu.  I uphold his complaint and require the Respondent to pay to the Complainant the sum of €4,635.

CA-00016556-001 – (Employees (Provision of information & consultation) Act 2006)

The purpose of the Act is to provide for the establishment of a general framework setting out minimum requirements for the right to information and consultation for employees in undertakings with at least 50 employees.  The Complainant in this instant case was not a representative for employees in his workplace, which in any event, having less than 50 employees did not constitute a relevant workplace for the purposes of the Act.  This complaint is misconceived and I do not find it well founded.

CA-00016556-002 – (Protected Disclosures Act 2014).

The Complainant states that he made a number of protected disclosures in 2013 and 2015, including the matter of the Scheme building a wall on private property.  These matters had been resolved but the Complainant believes he has been victimised and discriminated against ever since he raised the issues.   The Complainant had many difficulties and disputes with his employer.  However, from the evidence, I find that the issue of protected disclosure was closed in 2015 and while the parties had disputes about performance and content of contracts, I find no evidence to conclude that the Complainant was penalised for having made a protected disclosure.  I do not uphold this complaint

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 77 of the Employment Equality Act, 1998

CA-00015235-001

18/02/2017

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

CA-00016524-002

25/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 3 of the Employees (Provision of Information & Consultation) Act, 2006

CA-00016556-001

30/12/2017

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

CA-00016556-002

30/12/2017

The Complainant was employed as a Community Employment Scheme Supervisor from June 2006.        

The Complainant makes the following complaints:

CA-00015235-001 – Discriminatory Dismissal (Employment Equality Act 1998)

The Complainant submitted a previous complaint under the Employment Equality Act (Ref Adj-00007356) in February 2017.   While this complaint was in process, the Respondent wrote to the Complainant on 12th October 2017 stating that his employment ceased on 30th September 2016.    The letter stated that as he had refused a number of contracts, his employment “lapsed” on 30th September 2016. The Complainant rejects this and states that he has been subjected to discrimination and harassment in the employment since 2007 and subsequently when he was diagnosed with a number of conditions including dyslexia, asbergers, ADHD and depression.

CA-00016524-002 – Minimum Notice not given or paid on cessation of employment (Minimum Notice & Terms of Employment Act 1973)

The Complainant states that he was retrospectively dismissed by way of letter from the employer dated 12th October 2017, with no notice or payment in lieu of notice.

CA-00016556-001 – Penalisation for having performed union duties (Employees (Provision of information & consultation) Act 2006)

The Complainant states that he was prevented from carrying out his duties as a representative.

CA-00016556-002 – Penalisation for having made a protected disclosure (Protected Disclosures Act 2014).

The Complainant states that he made a number of protected disclosures in 2013 and 2015, including the matter of the Scheme building on private property. These matters had been resolved but the Complainant believes he has been victimised and discriminated against ever since he raised the issues.

It is the Respondent’s position that the employee “self dismissed” in or around 30th September 2016.   He consistently refused to sign any employment contracts since March 2016.   He was on a rolling one year fixed term contract until December 2015, when all employees had to be given just 3 month contracts due to funding difficulties. However, the Complainant’s refusal to accept any of the contracts raised since then effectively meant that he self dismissed.     It is contended that all other complaints are invalid (under CA-00016556-001 Provision of information & Consultation Act 2006) or out of time as it relates to events in 2013 and 2015 (CA-00016556-002 Protected Disclosures Act 2014).

CA-00015235-001 – (Employment Equality Act 1998)

The Complainant was employed by the Respondent from June 2006. He received a diagnosis of dyslexia in October 2007.   It is common case that the Complainant suffers from dyslexia. I note that there were many difficulties in the employment relationship, particularly in the last year. The Respondent commenced a disciplinary action against the Complainant but he went on sick leave on 6th September 2016 and never returned to the employment. I note that the Respondent wrote to the Complainant on 12th October 2017, some months after he commenced litigation, to inform him that he had been employed on a fixed term contract which expired on 30th September 2016 and that he had refused a number of subsequent contracts and therefore his employment lapsed on 30th September 2016.   The Complainant had been on rolling one year contracts from 2006.   I note that he had difficulties and objections to the contents of contracts issued to him post 2015. However, I do not accept that these objections amounted to a “self dismissal”. There is no term in the Act as “self dismissal”. Either an employee resigns or is dismissed or leaves the employment in a constructive dismissal scenario. Further, I note that the Complainant’s position was filled after he went on sick leave.   I find that the Complainant in this instant case was dismissed while he was on sick leave, by the Respondent. The question now arises was he dismissed contrary to the provisions of the Employment Equality Act 1998.

The applicable law

The Complainant’s complaint is considered under Section 77 (1) (b) which provides that a person who claims to have been dismissed in circumstances amounting to discrimination or victimisation may seek redress and Section 74 (2) which governs causal link.

Section 74 (2) of the Act provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an 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…”

The Complainant submitted a number of complaints to the Workplace Relations Commission under Equality legislation in November 2016, February 2017 and October 2017. While these complaints were still in train, the Respondent dismissed the Complainant.   There were undoubtedly many difficulties in the employment relationship and I note from evidence submitted that the Respondent found it almost impossible to manage the Complainant’s performance.   The Complainant for his part relies on the disabilities (which were not formally given to the Respondent as medical evidence) as mitigating circumstances.     I note that the disciplinary process which had commenced before the Complainant went on sick leave was not re-activated and I find that the description of the Complainant’s employment as being “lapsed” does not stand up to scrutiny. As the Respondent did not offer any reasonable cause for the termination of his employment, I find that a causal link exists between the complainant’s submitted complaints and his dismissal.  I uphold the complaint and require the Respondent to pay to the Complainant the sum of €14,000.

CA-00016524-002 – (Minimum Notice & Terms of Employment Act 1973).

As an employee with over 10 years service the Complainant was entitled to 6 weeks notice or pay in lieu. I uphold his complaint and require the Respondent to pay to the Complainant the sum of €4,635.

CA-00016556-001 – (Employees (Provision of information & consultation) Act 2006)

The purpose of the Act is to provide for the establishment of a general framework setting out minimum requirements for the right to information and consultation for employees in undertakings with at least 50 employees. The Complainant in this instant case was not a representative for employees in his workplace, which in any event, having less than 50 employees did not constitute a relevant workplace for the purposes of the Act.   This complaint is misconceived and I do not find it well founded.

CA-00016556-002 – (Protected Disclosures Act 2014).

The Complainant states that he made a number of protected disclosures in 2013 and 2015, including the matter of the Scheme building a wall on private property. These matters had been resolved but the Complainant believes he has been victimised and discriminated against ever since he raised the issues.   The Complainant had many difficulties and disputes with his employer. However, from the evidence, I find that the issue of protected disclosure was closed in 2015 and while the parties had disputes about performance and content of contracts, I find no evidence to conclude that the Complainant was penalised for having made a protected disclosure. I do not uphold this complaint