ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00016566

Parties:

Complaint(s):

Date of Adjudication Hearing: 11/01/2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery                                                   

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute(s).

In accordance with Section 77 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

 In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complainant withdrew CA-00021534-005 and CA-00021534-006 on the day of the hearing.

Background:

The Complainant stated working in the Respondent on 19 February 2018 on a six-month fixed term contract which was due to end on 17 August 2018. The Complainant’s hours of work where on an ‘if and when required’ basis. The Complainant was diagnosed with OCD.

Summary of Complainant’s Case:

• CA-00021534-001: INDUSTRIAL RELATIONS

The Complainant stated that the trust, mutual respect and appreciation between him and Managers/Senior staff had broken down and the relationship was predominantly based on suspicion and fear on his part, following a series of events.

The Complainant stated that he got induction and a professional approach in one of the locations. The Complainant stated that he got the vibe of hostility when he started working for the Respondent. The Complainant stated that not long after he started, he was given jobs to prepare for a HIQUA inspection. The Complainant stated that he thought he was being asked to clean out the showers when he was actually being asked to shower the female service users.

The Complainant stated that he was asked by a senior member of staff to shower a service user on his own, with no-one else present. The Complainant stated that he asked the senior member of staff to help him as he had never showered a service user before to which the member of staff said no as she had to do medication and it would take three hours. The Complainant stated that he did male jobs in the morning quickly and just because medication was specialised, he should get fair distribution of work. The Complainant stated that the Supervisor stated that this was a sexist comment and waited for him to do the work. The Complainant stated that the service user in question had made false sexual abuse allegations in the past. The Complainant stated that he had been given advice by his team leader not to shower this service user on his own and to ensure that another member of staff was present when carrying out personal care duties. The Complainant stated that a member of senior management had wrote to him at grievance level 2 stating that the advice given to him by the team leader was incorrect and apologised for the same.

The Complainant stated that he went in the following Sunday and his shift was double booked. The Complainant stated that he ended up doing the shift as the other member of staff said they could do it.

The Complainant stated that the only other male member of staff had frequently asked him to monitor his personal care duties. The Complainant stated that the advice given to him did not and still does not feel incorrect to him.

The Complainant stated that there were only two members of staff on that night in question. The Complainant stated that he was inexperienced and had never worked in a residential care setting before. The Complainant stated that he felt on several occasions that the level of staffing at times was inconsistent with what is required to maintain Health and Safety requirements and comply with protocols. The Complainant stated that he informed management of his concerns.

The Complainant stated that the care plan would have outlined the service users’ preferences and stated that this service user preferred to have a female member of staff carry out her shower routine. The Complainant stated that a male member of staff had resigned because of issues with personal care and stated that the member of staff on duty with me on the night in question would have been aware of the service user’s preference. The Complainant stated that he did not trust the situation.

The Complainant stated that he did not complain about this initially because, as he was a relief member of staff. The Complainant stated that he was acutely aware it would be very easy to get rid of him if he did not fit in with my team.

The Complainant stated that a few days later he was having “banter” with another female member of staff and it was this member of staff who initiated the “banter”. The Complainant stated that a joke then occurred in relation to men not getting anything wrong. The Complainant stated that a second member of staff took extreme offence to this and stated he ‘should leave before she punched me in the face’. The Complainant stated that the second female employee tried to cause problems where there wasn’t a problem, by informing his Manager. The Complainant stated that he was arguing with the second member of staff about a double-booked shift which I wasn’t.

The Complainant stated that the following day somebody had to management that there has been confusion in relation to the double booked shift. The Complainant stated that he later found out than an investigation had taken place without his input. The Complainant stated that he contacted the member of management who was investigating the incident to explain what had occurred. The Complainant stated that the manager in question stated that he should not have made a sexist joke and also stated that the female stating that she would punch him in the face was unprofessional. The Complainant stated that he began to get a sense of something not right so he emailed his manager his version of events. The Complainant stated that he realised the culture in the company was for the senior staff to feedback complaints to the Manager, rather than deal with issues face to face. The Complainant stated that he then requested a meeting with his Manager to discuss the events that had occurred between him and the female member of staff and also to inform him of when he was requested to carry out shower duties unaccompanied.

The Complainant stated that he had not received a response to his request for a meeting. The Complainant stated that another issue then arose where he was told to bring another service user to the toilet unattended by the same member of staff, which would mean leaving a vulnerable heightened service user left alone on a wet floor with hot pans on the cooker. The Complainant stated that he expressed his concern to this member of staff and made his point very clearly. The Complainant stated that the manager was very irate due to him discussing the issue in front of a service user, but the Complainant stated that he had asked to talk to her about the issue around the corner. The Complainant stated that he was then complained to his manager and stated that his team leader stopped giving him shifts. The Complainant stated that he was then asked to attend a meeting with his manager.

The Complainant stated that when he arrived to the meeting with his manager, his manager had the code of conduct on her desk and she made it very clear that making sexist comments was tantamount to bullying and stated that it must stop. The Complainant stated that he was dumbfounded but tried his best not to overreact. The Complainant stated that almost all the meeting was dedicated to discussing his shortcomings. The Complainant stated that a note was to be placed in his employee file. The Complainant stated that he asked his manager about the issues he had raised to which his manager responded and said she would have a word at the team meeting. The Complainant stated that he was not invited to the team meeting. The Complainant stated that it seemed like the issues he had raised were underplayed and that his colleagues’ issues were overplayed in order to dilute the substance of his allegations and to warn him off. The Complainant stated that he expressed this sentiment to his Manager. The Complainant stated that he later I asked for a grievance after careful consideration.

The Complainant stated that there was a continued effort to thwart the grievance process. The Complainant stated that the company’s Grievance Procedure guidelines stated 5 days as the desirable time frame to hear a grievance, however months went by before the Complainant’s grievance was heard.

The Complainant stated that he felt there was an effort to keep things local, so his complaints could be buried. The Complainant stated that other staff member’s attitude towards him had calmed down but that he did not trust it. The Complainant stated that by the time his first grievance was heard, his relief contract was nearly up. The Complainant stated that he felt the plan was to play him along with a bit of charm, and then at the end of his contract get rid of him. The Complainant stated persisted with his grievance on that basis.

The Complainant stated that the outcome of his grievance at stage one was as he expected, a whitewash and so he took his grievance to the next level. The Complainant stated that none of the issues he had were upheld. The Complainant stated that he then requested a grievance at stage two which also dragged on for months. The Complainant stated that he wanted to make a formal complaint and to have representation. The Complainant stated that this process continued even after he was an employee of the Respondent. The Complainant stated that the outcome was better in that the Manager concerned apologised on the length of time it took for his grievance to be heard and apologised that the ‘wrong’ information had been relayed to him by his team leader in relation to the accompanied personal care policy. The Complainant stated that his grievance at stage three is yet to be heard.

The Complainant stated that the other employees were good overall but that the team lead didn’t try to have a harmonious working relationship or personality clashes or power group of ladies. The Complainant stated that other employees would go behind his back to the team lead. The Complainant stated that he felt there was a clique of people who weren’t fair in their dealings.

• CA-00021534-002: DISCRIMINATION/EQUALITY/EQUAL STATUS

The Complainant stated that he felt there was a clique of dominant staff that was supported by Management. The Complainant stated that the domination went past the point of seniority due to the length of time served which he stated he could accept.

The Complainant stated that within the dominant clique his face did not fit almost from day one. The Complainant stated that if he was a woman from the same location, he may not have experienced the same set of circumstances.

The Complainant stated that the Respondent had been informed at application stage that he suffered from OCD. The Complainant stated that he has been hospitalised for his condition and stated that he takes up to 200mg of Sertraline a day. The Complainant stated that his prescription is on a variable dosage to account for changes in his condition due to stress etc.

The Complainant stated that his condition can be severe and stated that he suffered from clinical depression as a result of his obsessiveness.

The Complainant stated that the issue with regards to the personal care of the service users made it clear to Management that issues such as being exposed to and charged with sexual abuse allegations is the type of trigger that can precipitate an obsessive episode. The Complainant stated that he made it clear that clarity on this issue would be very helpful as he would follow protocol exactly. The Complainant stated that the advice he got was at the time and still is contradictory.

The Complainant stated that to some extent he would not even consider it a reasonable adjustment, but just an obvious protocol.

The Complainant stated that even though his anxiety levels were significantly raised during this period the problem luckily did not lead to an obsessive episode. The Complainant stated that his anxiety levels decreased as time went on as he became more experienced and his relationship with the service users developed. The Complainant stated this decrease in anxiety was rather by accident than design.

The Complainant stated that he found the whole experience created a distrust between himself and management. The Complainant stated that if clear protocols were reinforced by demonstration of personal care then the situation would have been helped.

The Complainant stated that he does not believe relief workers enjoy equal status with their full-time contracted counterparts. The Complainant stated that relief workers are not invited to team meetings and that they cannot enjoy the benefits of relief status by turning down shifts very often offered at short notice without incurring the disfavour of the team leader. The Complainant stated that a relief worker is vulnerable to the whims of senior full-time staff as if their face does not fit for the right or wrong reasons, their contract will not be renewed at the end of six months.

3. CA-00021534-003: PENALISATION

The Complainant stated that he was penalised following a complaint from his colleague, when he questioned the wisdom of allowing a heightened service user to be unattended in a kitchen with hot pans and a wet floor. The Complainant stated that his subsequent Sunday shift was topped until his hearing and so as a result lost 15 hours pay.

The Complainant stated that he was penalised when a senior staff member told him to shut up when he said, ‘Good Morning’. The Complainant stated the senior staff member then went on to complain that he must not speak to a service user about dates. The Complainant stated that he had tried to increase the scope of the service user’s interest in dates by introducing the years 2019, 2020, and 2021 into his thinking. The Complainant stated that there was nothing in the Behavioural Guidelines to suggest that he was not allowed to talk about dates. The Complainant stated that his Manager expressed to him that it was an excellent piece of ‘person centred learning’. The Complainant stated that the senior staff member had complained that he had said ‘Good to see a friendly face’ when another staff member came on duty. The Complainant stated that his manager expressed concern about the staff members manoeuvring but stated that he was never asked back to his main working location.

The Complainant stated that he was penalised nearly immediately after he took out his grievance as within days, he was contacted by another manager stating she did not need him anymore. The Complainant stated that he had received a lot of work from this manager prior to his grievance.

The Complainant stated that he was penalised following the raising of his grievance as his workload was scaled down. The Complainant stated that he had a week off work due to his heart and that the following week he said he was available to work but on reduced hours. The Complainant stated that he was not being given any shifts and so emailed to ask why. The Complainant stated that he then got another email from another person saying the supervisor was on holidays however when he called, she was there.

The Complainant stated that he had a death in the family and suffered from a bout of exhaustion and turned down a couple of shifts during this period. The Complainant stated that as is a relief workers prerogative he had turned down shifts in every pay period for varying reasons but did not incur the same financial loss as he did post grievance. The Complainant stated that there was no way the scale of the downturn in his pay post grievance could be attributed to the four days off he had for a funeral and stated that he would have received holiday pay for this period. The Complainant stated that his heart rate was down to between 40 and 50 bpm and that he asked the Respondent to give him work between hospital appointments, of which he had two. The Complainant stated that they never gave him any work and when he called the Team Leader to find out what was going on, she pretended not to be there by having another Manager contact him stating his Team Leader was sick and to stop contacting her.

The Complainant stated that he was penalised when he resigned and started looking for work as he could not afford to sit at home watching TV all day. The Complainant stated that an employee from the HR department then contacted him stating they wanted me to work my notice period of one month, and not the weeks’ notice he had given them. The Complainant stated that he agreed to this but expressed to HR the pointlessness of this request as he was not getting any work. The Complainant stated that for the remainder of his notice period, he sat at home with no work.

The Complainant stated that he believes he has been penalised against as he applied for Care work with a variety of Care companies post resignation. The Complainant stated that he finally received an interview and it turned out that the Respondent was conducting interviews in the room adjacent on the same day, in the same hotel. The Complainant stated that it was suffice to say he did not get the job and that he has not worked since, nor did he receive any form of benefits.

The Complainant stated that he worked hard in an effort to impress them however he upset the status quo and he feels that he has been treated unfairly as a result.

4. CA-00021534-004:  FIXED TERM AND PART TIME WORK

The Complainant stated that relief workers are not invited to team meetings. The Complainant stated that this prevents part time workers from influencing discussions and actions arising from the discussion, and therefore part time workers do not have a formal platform to address concerns outside of grievance procedure. The Complainant stated that It also conveys the impression that part time workers are not worthy of a voice and are a sub class of worker. The Complainant stated that it would help to reduce the dominance of senior full-time staff and could create a cohesive sub structure that would go some way to provide the checks and balances needed to prevent bullying.

Summary of Respondent’s Case:

• CA-00021534-001: INDUSTRIAL RELATIONS

The Respondent stated that on 28 March 2018, that the Complainant sent an email to his manager Residential Services Manager (RSM), following an incident involving a mix up with shifts with another employee. RSM replied on 29 March 2018 to the complainant’s satisfaction.

The Respondent stated that on 01 April 2018, the Complainant sent a further email to RSM in relation to his concerns around providing personal care to service users. The Respondent stated the RSM arranged a regular, scheduled supervision session with the Complainant on 16 April 2018 to address any outstanding issues as well as the previous emails from the Complainant. At this supervision meeting the issues mentioned in all previous emails were discussed, as were concerns raised by other employees regarding the employee’s behaviour. The Responded stated that on 17 April 2018, the Complainant sent a formal grievance to the RSM.

The Respondent stated on 24 April 2018, the RSM sought clarity in relation to the Complainant’s issues which were subject to the formal grievance. The Complainant responded to the RSM on 29 April 2018 and summarised the issues subject to his formal grievance. The Complainant was concerned that there was a note to be placed on his file in relation to alleged misogynistic/ sexist comments he had made to colleagues. The Complainant in his opinion had been on the receiving end of what amounts to (early days) mobbing. The Complainant asserts there was a tendency for cliques to develop in the workplace. The Complainant outlined issues he had in relation to providing personal care to service users, due to concerns of potential sexual abuse allegations against him.

The Respondent stated on 29 May 2018, the RSM met with the Complainant for a probationary review meeting. The RSM discussed the issues the Complainant had raised during this meeting. However, during the probationary review the Complainant became irate and shouted at the RSM causing another staff member to enter the room out of concern, and which resulted in the RSM concluding the meeting prematurely. The probationary review meeting was rescheduled and conducted on 13 June 2018. The Respondent stated the RSM made a number of attempts to schedule the formal grievance meeting with the Complainant which was finally arranged for 4 July 2018 however, this was cancelled by the Complainant due to sickness. The Respondent stated in advance of the grievance meeting, the Complainant sent a further email regarding the issues to be discussed as follows: Staffing levels, Powerful personalities dominating group dynamics, Policies being vague and incoherent

The Respondent stated the formal grievance meeting was rescheduled and went ahead on 6 July 2018. The Complainant’s issues were examined and discussed in detail. During the meeting the RSM advised the Complainant that she was going on a period of annual leave, returning week commencing 23 July 2018 and that he would receive the written outcome upon her return.

The Respondent stated subsequent to the formal grievance meeting, the RSM went on a period of annual leave followed by bereavement leave, returning on 20 August 2018. The Respondent stated on 26 July 2018 that the Complainant emailed the RSM advising that he wished to resign from his position. The HR Business Partner responded to the Complainants resignation email on 2 August 2018 requesting the Complainant to reconsider his decision to terminate his employment as the outcome of his grievance was still due to be issued. Furthermore, The HR Business Partner reminded the Complainant that the RSM had advised that the written outcome would be issued upon her return from leave. The Respondent stated the Complainant was also advised that the expiry date of his contract was 18 August 2018 and that he had a four-week notice period. The Respondent stated the Complainant responded to advise that he would work his contractual four-week notice, if required proposing the 26 August 2018 as a revised termination date.

The HR Business Partner responded to the complainant acknowledging his proposed termination date but advising the Complainant that his fixed term contract came to an end on 18 August 2018.

The Respondent stated the outcome of the formal grievance meeting was issued to the Complainant on 23 August 2018, immediately following the return of the RSM from bereavement leave. The Respondent stated The Complainant appealed the outcome of his grievance by email on 3 September 2018 to the Integrated Service Manager (ISM).

The ISM acknowledged receipt of the appeal on 7 September 2018 asking the Complainant to outline the nature of the appeal. The Complainant responded on 11 September 2018 with a more detailed account of his appeal.

The Respondent stated a formal grievance appeal hearing was held on 10 October 2018. An outcome of the appeal hearing was issued to the complainant on 20 November 2018.

The Respondent stated that at no point during the Complainants’ employment did he raise a complaint in relation to bullying and harassment. The Respondent stated that there is a well-established procedure for dealing with allegations of bullying and harassment which the Complainant was provided with when he commenced employment in February 2018. The Respondent stated that they also have a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). The Respondent state that the Complainant did not exhaust internal procedures before furnishing his resignation. The Respondent stated that the Complainant raised various complaints under the formal grievance procedure in relation to numerous issues. The Respondent stated the RSM sought clarity in relation to the issues raised on various occasions. A major feature of the complaints was in relation to the Complainant having to provide personal care to female service users as he was concerned that there could be a potential allegation of sexual abuse against him, and his dissatisfaction with the policies in relation to same.

The Respondent stated in the Complainant’s complaint form to the WRC the Complainant states “I decided to progress with the grievance to become generic so as not to implicate specific staff”. The Respondent stated that the Complainant stated to the RSM “I have no interest in naming names etc just want to straighten things out in my mind”. The Respondent stated it is not reasonable nor practicable for the Respondent to investigate any allegation or complaint in the absence of specific detail or an alleged perpetrator. The Respondent stated that none of the Complainant’s complaints ever made under the Respondent’s Dignity in the Workplace Policy and Procedure.

The Respondent stated that they at all times operated within the terms of the contract of employment between the parties. The Respondent stated The Complainant’s formal grievance meeting was held on 6 July 2018. The Respondent stated The Complainant resigned from his position on 26 July 2018. The Respondent stated that they acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct.

The Respondent’s witness who was the Complainants manager stated that the Complainant got the same induction training as all other staff regardless of whether they were full-time or relief.

The witness stated that the Respondent does not shadow personal care but stated that they have a detailed guide on it.

The Witness stated that she felt it was a personality clash and that the Complainant didn’t get along with other staff and that she went through the Dignity & Respect Policy.

• CA-00021534-002: DISCRIMINATION/EQUALITY/EQUAL STATUS

The Respondent refutes this claim in its entirety as the Complainant was treated no less favourably than any other employee.

The Respondent stated that the Respondent stated that he suffers from OCD and depression. The Respondent stated that he outlined this on his application form when applying for the role. In advance of starting the role, the Respondent requested that the Complainant attend a pre-employment medical assessment which deemed him medically fit for the position, with no accommodations necessary. The Respondent stated that at no point during his employment did the Complainant state or raise that he suffered from depression.

The Respondent stated that the Complainant has failed to provide any evidence that he suffers with a disability, as defined within the legislation. The Respondent contends that a distinction must be made between what constitutes a disability from a general illness or condition. The Respondent argues that for an employee to demonstrate that s/he has a disability s/he must have substantive and relevant medical evidence.

The Respondent stated that the Complainant failed to elect a comparator to demonstrate how he believes he has been treated less favourably under the grounds cited. The Respondent states that the Complainant was treated no less favourably in this regard and has failed to demonstrate how any actions taken by the Respondent are related to his disability.

The Respondent states that the Complainant has provided no evidence that his alleged disability resulted in any discriminatory treatment in relation to training or conditions of employment, as alleged.

The Respondent cannot be said to have failed to provide reasonable accommodation as the pre-employment medical assessment deemed him medically fit for the position intended and did not state that any reasonable accommodation would be required. Furthermore, at no point did the Complainant express a need for any reasonable accommodation for the duration of his employment.

3. CA-00021534-003: PENALISATION

The Respondent stated that the Complainant was employed with no guarantee of any specific hours. The Respondent stated that hours are offered on an if and when basis, as referenced in his contract of employment. Contractually, the Complainant had no entitlement to any specific hours. The Respondent stated that notwithstanding the argument above that the Complainant had no contractual entitlement to guaranteed hours, the Complainant first invoked the formal grievance procedure as per his email in April 2018. The Respondent stated they continued to offer hours on an ongoing basis to the Complainant throughout his employment, as reflected in his payslips.

The Respondent stated that the payslips also indicate fluctuations and variances from month to month of hours worked and pay related to same, due to the unforeseen and unpredictable nature of relief work, which is similar across the board for all relief staff due to the nature of the role.

The Respondent outlined that the Complainant’s formal grievance hearing was held on 6 July 2018 and he furnished his resignation on 26 July 2018. During this three-week period, the Complainant was offered multiple shifts which he declined. On 24 June 2018, the Complainant advised that due to a death in his family he would not be available for work.

On 2 July 2018 the Complainant was on certified sick leave for week. On 2 June 2018, the Complainant was offered multiple shifts by email. These shifts were declined by email by the Complainant on 29 June 2018, where he requested a period of annual leave, from 9 July 2018 to 24 July 2018. The Complainant offered his resignation by email on 26 July 2018.

It should also be noted that the Complainant significantly reduced the work he could be offered as a relief care worker under his contract of employment, by requesting not to work with named individuals as per his email of 16 April 2018.

The Respondent stated that the Complainant who refused hours offered to him on numerous occasions for various reasons. The Respondent stated that the Complainant sent an email to the HR Business Partner on 2 August 2018, which stated “If I am called for a shift, I may not be able to fulfil it over the next two weeks depending on date/time” which the Respondent used as another example of hours offered but refused by the Complainant.

The Respondent stated that they refute that any penalisation occurred.

4. CA-00021534-004:  FIXED TERM AND PART TIME WORK

The Respondent stated that the Complainant in his complaint form alleges that he had been treated less favourably than a comparable permanent employee. The Respondent stated that the Complainant alleges that he did not receive formal induction as distinct to full time contracted staff and that as a relief worker, he was not invited to attend staff meetings as distinct to full time contracted staff.

The Respondent stated that they refute this claim in its entirety. The Respondent stated that the Complainant did in fact attend a formal induction, which is the same induction that all staff receive, regardless of employment status (permanent, fixed-term, relief staff). The Respondent stated that training records, signed by the Complainant show that he was trained in, and understood all relevant procedures.

In relation to relief staff attending team meetings, the Respondent stated that as relief staff do not have one permanent location and can move to different services, it is not practicable to invite all relief staff to all team meetings. The Respondent stated that relief staff are usually rostered to cover a service where a staff meeting is taking place. The Respondent stated that if a relief staff member is placed in a specific service for a number of weeks, they would be invited to attend the team meetings.

Findings and Decision:

• CA-00021534-001: INDUSTRIAL RELATIONS

Section 13 of the Industrial Relations Act, 1969: The Complainant was provided with the Company’s Dignity & Respect Policy at induction. A complaint of Bullying was never raised by the Complainant during the course of his employment. The Complainant raised a Grievance, and this was resolved however the Complainant claims that the Respondent was not proactive in managing his grievance. The Complainant stated that he understood his raising of a grievance was him raising bullying concerns. The Respondent provided the Complainant with the Company’s Dignity & Respect Policy and following internal policies when investigating the Complainants Grievance. The claim is not well founded based on the evidence presented.

• CA-00021534-002 DISCRIMINATION/EQUALITY/EQUAL STATUS

Section 77 of the Employment Equality Act, 1998: The Complainant claims that he was discriminated against due to him having OCD. The Respondent was aware upon the employee commencing employment that he had OCD as it was disclosed on his application form. There was nothing else outlined on the application form or during his employment. There was never anything raised to the Respondent in relation to depression.

The only way OCD impacted the Complainant’s employment was that the Complainant wants things to be made very clear to him otherwise he would spend time worrying about it. The Complainant explained that this was relevant especially for patient personal care. The Complainant did not get an OCD trigger at work. The Complainant stated that the most recent example of discrimination against him by the Respondent was on 19 July 2018.

The Respondent sent the Complainant to the company doctor who advised the company that the Complainant was fit for work and also said that there were no reasonable accommodations required.

The legislation requires the complainant to prove a prima facia case of discrimination. The Respondent states that the Complainant has failed to elect a comparator to demonstrate how he believes he has been treated less favourably under the grounds cited. The Respondent states that the Complainant was treated no less favourably in this regard and has failed to demonstrate how any actions taken by the Respondent are related to his disability.

The Respondent states that the Complainant has provided no evidence that his alleged disability resulted in any discriminatory treatment in relation to training or conditions of employment, as alleged.

The Respondent cannot be said to have failed to provide reasonable accommodation as the pre-employment medical assessment deemed him medically fit for the position intended and did not state that any reasonable accommodation would be required. Furthermore, at no point did the Complainant express a need for any reasonable accommodation for the duration of his employment.

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Respondent states that the Complainant has not established facts from which discrimination can be inferred.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“The first requirement is that the complainant 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 complainant 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”.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

• CA-00021534-003: PENALISATION

Section 20(1) of the Industrial Relations (Amendment) Act, 2015: The Complainant stated that he was penalised by the Respondent by not being offered shifts after he raised a grievance. The Complainant was employed on an “if and when” contract therefore there were no weekly guarantee of hours. The Respondent offered the Complainant multiple shifts following his raising of a grievance however the Complainant was unavailable for work which impacted on him getting work.

The Complainant refereed a complaint to the WRC under section 20 (1) of the Industrial Relations Amendment Act, 2005, alleging he had been penalised for invoking rights under the Industrial Relations Amendment Act 2015.

Specifically, the Complainant states in his complaint form “I believe that I was penalised for taking out a grievance as I received no work from the date of my grievance hearing on 6/7/18 to the 26/7/18.

Respondent Arguments:

Section 5 of the Industrial Relations Amendment Act 2015, defines penalisation as any act or omission by an employer or a person acting on behalf of an employer that affects a worker to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

In relation to point c above, the Respondent stated that the Complainant was employed as a Relief Social Care Worker which has no guarantee of any specific hours and hours are offered on an if and when basis, as referenced in his contract of employment. Contractually, the Complainant had no entitlement to any specific hours. The Respondent stated that notwithstanding the argument above that the Complainant had no contractual entitlement to guaranteed hours, the Complainant first invoked the formal grievance procedure as per his email in April 2018. The Respondent stated they continued to offer hours on an ongoing basis to the Complainant throughout his employment, as reflected in his payslips.

The Respondent stated that the payslips also indicate fluctuations and variances from month to month of hours worked and pay related to same, due to the unforeseen and unpredictable nature of relief work, which is similar across the board for all relief staff due to the nature of the role.

The Respondent outlined that the Complainant’s formal grievance hearing was held on 6th July 2018 and he furnished his resignation on 26th July. During this three-week period, the Complainant was offered multiple shifts which he declined. On 24th June, the Complainant advised that due to a death in his family he would not be available for work.

On 2nd July the Complainant was on certified sick leave for week. On 2th June, the Complainant was offered multiple shifts by email. These shifts were declined by email by the Complainant on 29th June, where he requested a period of annual leave, from 9th July to 24th July. The Complainant offered his resignation by email on 26th July.

It should also be noted that the Complainant significantly reduced the work he could be offered as a relief care worker under his contract of employment, by requesting not to work with named individuals as per his email of 16th April 2018.

It is the position of the Respondent that it was in fact the Complainant who refused hours offered on numerous occasions for various reasons. The Respondent stated that the Complainant sent an email to Mr. Norton on 2nd August, which states “If I am called for a shift, I may not be able to fulfil it over the next two weeks depending on date/time. Further examples of hours offered but refused by the Complainant are include.

The Respondent refutes that any penalisation occurred and respectfully requests that this claim should fail due to the detailed arguments outlined above.

• CA-00021534-004: FIXED TERM AND PART TIME WORK

Section 14 of the Protection of Employees (Fixed – Term Work) Act, 2003: The Complainant stated that he did not get a formal induction. The Respondent stated that training records, signed by the Complainant show that he was trained in, and that he understood all relevant procedures. The Respondent confirmed that all new employees receive the same training regardless of the type of contract they have been employed on. The Complainant was employed on a relief contract. The Respondent confirmed that team meetings are for full-time staff and that the relief staff are scheduled to work during these meetings to cover. The Respondent also confirmed that relief staff cover shifts in various locations and so it is not practicable to invite all relief to team meetings.

The Respondent states that the Complainant in his complaint form to the WRC has alleged that in respect of his condition of employment, he had been treated less favourably than a comparable permanent employee. Specifically, the Respondent states that the Complainant alleges that he received no formal induction as distinct to full time contracted staff and that as a relief worker, he was not invited to attend staff meetings as distinct to full time contracted staff. These do not indicate unfair or less favourable treatment therefore this claim fails.

The Complainant withdrew CA-00021534-005 and CA-00021534-006 on the day of the hearing.

Dated:   30-04-2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery