Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00011829-002

11/06/2017

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

CA-00011829-003

11/06/2017

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

CA-00011829-004

11/06/2017

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

CA-00011829-005

11/06/2017

The Complainant commenced employment with the Respondent, on 2 August 2004, as a receptionist/administrator. The Complainant, at the time of the hearing, had been on sick leave since 30 August 2016.

The Respondent applies testing and support analysis to the food, environmental, medical devices and pharmaceutical industries.

The Complainant submitted five complaints under the following legislation:

1.       Industrial Relations Act, 1969 (CA-00011829-001)

2.       Organisation of Working Time Act, 1997 (CA-00011829-002)

3.       Terms of Employment (Information) Act, 1994 (CA-00011829-003)

4.       Organisation of Working Time Act, 1997 (CA-00011829-004)

5.       Employment Equality Act, 1998 (CA-00011829-005)

CA-00011829-001:

The Complainant stated that she repeatedly received ill treatment from staff members and management which was linked with her return to work after having her children. It was stated that there was a failure on behalf of the Respondent to have a policy in place to deal with bullying. According to the Complainant, there is an issue in relation to the Incorporating Procedures to deal with bullying and harassment.

It was further submitted that the Respondent’s procedures in respect of grievance, discipline and complaints should have been set out directly in the terms and conditions of her employment contract, in a handbook which may be part of these terms and conditions. However, the Complainant stated that this did not occur and there was no policy or procedure that was followed or in place to prevent her alleged ill-treatment.

It was submitted on behalf of the Complainant that extensive sick leave was caused by workplace stress. It was further stated that there was a breach of her rights as her health and well-being were undermined due to victimisation which is intensified recently with extensive sickly been taken.

According to the Complainant, the Respondent was aware of the stress level and required her to attend at a medical examination when she was further degraded and humiliated. The Complainant stated that it was unclear if the Respondent intended the doctor carrying out the medical assessment to speak and act in such a way towards her during her medical assessment.

CA-00011829-002:

It was submitted on behalf of the Complainant that the Respondent failed to pay the required annual leave days and holiday pay during 2016.

CA-00011829-003:

The Complainant claims that she did not have a written contract of employment.

CA-00011829-004:

The Complainant alleges that a system was operated whereby her lunch breaks were shortened. It was also claimed that she regularly did not get her rest periods during the full working day.

CA-00011829-005:

The Complainant’s equality claim relates to her attendance for a medical examination by a doctor nominated by the Respondent.

According to the Complainant she attended the company doctor in order to have a medical assessment carried out to assess her physical ability to work. The Complainant stated that the doctor in question was inappropriate in his treatment of her. In support of this, the Complainant contends that the doctor wanted to speak with her husband and wanted him to attend the appointment.

It is further submitted that the doctor also made reference to the Complainant’s children and indicated that they, rather than her employment issues, may be the source of her difficulties. The Complainant also stated that the doctor asked if she wanted to go to work or did she want money from her employer. It is further contended, that the doctor informed the Complainant that the company probably wanted her to resign. However, the Complainant stated that she wanted to keep working as she has been there for a long time.

CA-00011829-001:

Prior to the Hearing, the Respondent objected to the Complainant’s complaint under the Industrial Relations Act, being heard by an Adjudication Officer.

CA-00011829-002:

The Respondent stated that there was no basis to this claim. The Respondent stated that the Complainant had been absent from work since 30 August 2016 and therefore there is no annual leave entitlement owing in circumstances where the Complainant remains in the employment of the Respondent.

The Respondent’s legal representative pointed to Section 23 of the Organisation of Working Time Act, 1967 (as amended by the Workplace Relations Act 2015). The Respondent’s legal representative stated that, the aforementioned section clarifies that where an employee is in a period of certified sick leave that they only have an entitlement to benefit from the annual leave accrued during any such period when they either return to work or their employment is terminated. It was pointed out that, as the Complainant remains on sick leave, there is no basis for the claim being made.

CA-00011829-003:

The Respondent claims that there is no basis for this claim as the Complainant had been furnished with a contract of employment.

According to the Respondent, the Complainant was furnished with a contract of employment on two separate occasions. It is further contended that the contract in question, which was exhibited in evidence at the Hearing, complies with the provisions of Section 3 of the Terms of Employment (Information) Act, 1994. In addition, the Respondent stated that they have a comprehensive Company Handbook in place.

Based on the above, the Respondent submits that it is compliant with the provisions of the Act and, in the circumstances, submitted that the Complainant’s claim in this regard must fail.

CA-00011829-004:

In response to this element of the Complainant’s complaint, the Respondent raised a preliminary issue in relation to timeframes.

In this regard, the Respondent made reference to Section 27 (4) of the Organisation of Working Time Act, 1997, which states as follows: “an Adjudication Officer shall not entertain a complaint under this section if it is presented to the Workplace Relations Commission after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates”.

The Respondent stated that as the Complainant’s claim was received by the WRC on 11 June 2017, then for the purpose of this claim the applicable period is six months prior to the date on which the complaint was received. The Respondent submits that the applicable period for this complaint is six months prior to 11 June 2017, date of receipt of the complaint.

On the basis that the Complainant had been absent from work since 30 August 2016, the Respondent contends that there is no basis for her claim in this regard.

With regard to the substantive element of the Complainant’s complaint, the Respondent submits that it fully complies with the provisions of the 1997 Act and, in particular, with the provisions of Section 12 thereof.

CA-00011829-005:

In response to the Complainant’s complaint that she was discriminated against, on the grounds of family status as a result of victimisation and discrimination with regard to her conditions of employment, the Respondent submitted that, in the absence of any detail supporting the claim they are strangers to these purported claims.

Notwithstanding the above, the Respondent proceeded to raise a preliminary issue in relation to the claim prior to responding to the substantive element of the Complainant’s complaint.

Preliminary Issue:

The Respondent’s legal representatives referred to Section 77 (5) (a) of the Employment Equality Act, 1998, which states as follows: “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of a period of six months from the date of occurrence of the discrimination or victimisation to which the case relates”.

As the complaint was received 11 June 2017 and the employee had not been at work since 30 August 2016, the Respondent’s legal representative submitted that the claim is statute barred.

In addition, the Respondent stated that, in the event that the she wishes to argue that there is reasonable cause pursuant to Section 77 (5)(b), which entails that the normal statutory period should be extended, they would submit that the Complainant must be put on full proof of this.

Substantive Arguments:

Notwithstanding and without prejudice to the preliminary issue raised above, the Respondent stated that there is no basis for the Complainant’s claim of discrimination and/or victimisation. The Respondent’s legal representative referred to the fact that the claim for discrimination relates to a meeting which the Complainant had with a Company appointed doctor on 16 November 2016.

The Respondent stated that the essence of the Complainant’s claim appears to argue that the Respondent should be held vicariously liable for the acts of the aforementioned doctor. In this regard, the Respondent’s legal representative submitted that, in order for such a liability to attach to the Respondent, it will have to be decided that the doctor was an agent of the Respondent and was acting with their authority in committing the alleged discriminatory acts.

The Respondent submitted that, in the first instance, the doctor, as an independent professional, was carrying out a medical examination at his own premises and thus was not performing as an agent of the Respondent for the purposes of the Employment Equality Acts. Furthermore, it was submitted that, in any event, the fact that the purpose of the appointment with the doctor was simply to assess the Complainant’s fitness to work and that the Respondent’s authority did not extend beyond this, the Respondent had no input into how the examination was carried out.

It was submitted by the Respondent that the doctor in question is an experienced, independent medical professional who has a duty of care to all his patients and thus carries out medical examinations in line with his training and as he sees fit. It was submitted that, it is a simple fact that the Respondent could not, nor would they ever attempt, to issue any instructions of the doctor as to how a medical examination should be carried out. It was further submitted that doctors are professionals who were trained to perform medical examinations and it is not possible for non-medical people to interfere with this process.

In addition, it was submitted, on behalf of the Respondent, that they do not accept that the doctor acted in any inappropriate, discriminating manner but, even if it was accepted that he did, the Respondent cannot be held liable for his actions in this regard. It was stated that it was clear from all of the above that the Respondent cannot be held as vicariously liable for the actions of the doctor in circumstances where he was not acting as their agent for the purposes of the Employment Equality Act and, further, where he could not have been acting with their authority when committing the alleged discriminatory acts. It was submitted on behalf of the Respondent that the Complainant was asking for a huge jump to be made and that she was seeking to attach liability to an employer for the actions of an independent, external, professional they had engaged and over whom they were unable to exercise control.

It was further stated by the Respondent that, in essence, if the Complainant was to succeed in her complaint it would have huge applications in that an employer would not be able to have an employee independently medically examined as they would be exposing themselves to a potential liability over which they could have no control.

The Respondent further pointed out that, in the event that the Complainant was of the view that the doctor had acted in a discriminatory manner, then the appropriate course was to initiate a complaint against him under the Equal Starters Act 2000.

Notwithstanding and without prejudice to the above arguments, the Complainant submitted that the fact of the matter is that the Complainant was not discriminated against. With reference to Section 6 (1) of the Employment Equality Acts, the Respondent submitted that the Complainant must establish that they were treated less favourably than another person is, has been or would be treated in a comparable situation on the grounds of her family status. It was submitted by the Respondent that the Complainant had failed to establish the necessary legal nexus between the alleged less favourable treatment and her family status. It was submitted that the Complainant was simply not treated less favourably on the grounds of family status or otherwise.

The Respondent stated that, in order to substantiate her claim, the Complainant had made reference to questions which she was asked during the course of the examination by the company doctor. It was further submitted that, in this regard, it must be borne in mind that the questions were asked in the context of the medical examination to which consent had been given and the information requested was necessary so as to allow the doctor complete the examination.

In support of their argument in this regard, the Respondent presented in evidence correspondence from the company doctor in question. In this correspondence, the doctor confirmed that any questions asked were part of a normal medical assessment. The Respondent submits that this could not amount to discrimination as anyone undergoing a similar examination would have been asked the same or similar questions. It was stated that the nature and content of medical examinations remain private and probing questions are required to be asked. The Respondent further submitted that it is for that reason that medical assessments are treated in the strictest confidence.

Consequently, based on the above, the Respondent submitted that the Complainant had failed to discharge the evidential burden and that she had failed to establish a prima facie case of discrimination and, as a result, her claim must be rejected in its entirety.

In addition, the Respondent submitted that contrary to the requirements of Section 6 of the Acts, the Complainant has failed to identify who the appropriate comparator is and, therefore, her claim must fail.

In support of their submission with regard to Section 85 (a) of the Employment Equality Acts in the matter of burden of proof, the Respondent referenced two cases: Graham Anthony and Co Ltd v Margetts (EDA 038)   and Arturs Val Peters v   Mulberry Development Ltd (EDA 0917).

In this regard, the Respondent submitted that the Complainant had failed to discharge the evidential burden, had failed to establish a prima facie case of discrimination and accordingly her case should be rejected in its entirety. The Respondent submitted that it is only if the initial burden is discharged and an Adjudicator is satisfied that the facts, as established, are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principal of equal treatment passes to the Respondent.

According to the Respondent’s submission, the Complainant did not discharge the initial probative burden required and therefore the case cannot succeed. The Respondent submits that the fact is that the Complainant was required to go to a normal medical examination which did not entail her being treated differently to any other person who might be required to undergo a similar examination.

Having reviewed all of the evidence adduced in this case, I set out below my considerations and findings in relation to each individual elements of the Complainant’s complaints:

CA-00011829-001:

As the Respondent had objected to my hearing of the Complainant’s Industrial Relations complaint I had, therefore, no jurisdiction to consider.

CA-00011829-002:

In this section of her complaint, the Complainant alleges that, in relation to her 2016 annual leave entitlement, she had only taken eight days leave and was, therefore, claiming 13 days being the remainder of her annual entitlement.

The Complainant went on sick leave on 30 August 2016 and, as a result, was not in a position to take the remainder of her leave in that year or in the six month period after the end of the leave year.

Section 20 (1)(c)(iii) of the Organisation of Working Time Act 1997 (as amended) sets out the following provisions with regard to annual leave:

“The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(c) to the leave being granted —

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee —

(I)                 is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II)               has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.”

Based on the above provisions, an annual leave carryover period of 15 months, after the leave year ends, applies to employees who, due to certified illness, are unable to take annual leave during the relevant year or during the normal carryover six months. The Complainant’s requisite period for claiming an entitlement to annual leave for the leave year 2016 extended to 31 March 2018.

The Complainant submitted a claim for outstanding lead pertaining to the year 2016 on 11 June 2017. As the date of claim falls within the requisite period of 15 months I find her claim to be well founded. Consequently I find that the Complainant has an entitlement to 13 days annual leave, for the 2016 leave year, at her normal weekly rate or, as the case may be, at a rate which is proportional to the normal weekly rate.

CA-00011829-003:

The Complainant’s complaint is based on her contention that she did not have a written contract of employment and, as a result, that the Respondent was in breach of the Terms of Employment (Information) Act 1994.

In response to this element of the Complainant’s complaint, the Respondent produced in evidence, a copy of a contract of employment dated 30 July 2009, which it is contended was provided to the Complainant on two occasions. However, the Respondent stated that the Complainant never signed and/or returned either contracts.

In her oral evidence at the Hearing, it was submitted on behalf of the Complainant that while she recalls seeing the contract she was reluctant to sign it. It was further submitted on behalf of the Complainant that, at the time, she considered that the contract did not accurately reflect her job. However, it was also stated on behalf of the Complainant that she did not raise any issues, in this regard, at that time and just continued on working.

Consequently, in a context where the Complainant was provided with a contract of employment but failed to sign it or raise any concerns she had in relation to it with her employer, I can only conclude that the within complaint under the Terms of Employment (Information) Act, 1994, is not well founded. On that basis, I find that the Complainant’s complaint in this regard fails.

CA-00011829-004:

From the evidence adduced at the Hearing, it appears that the Complainant’s complaint in this regard relates to issues she had with the Respondent’s system regarding her breaks and lunch break. The Complainant’s evidence in this regard was somewhat unclear and, as a result, it was difficult to determine the extent of the issue.

While submitting that the Respondent complies fully with the provisions of the 1997 Act, their representative raised a preliminary point in relation to timeframes. Consequently, it was necessary to consider this matter in advance of any consideration of the substantive claim.

Section 41(6) of the Workplace Relations Act, 2015, state as follows:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

Subsection (8) , as referred to above, states as follows:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The Complainant’s complaint under this heading was received by the WRC on 11 June 2017. As the Complainant had been on sick leave from work since 30 August 2016, I am satisfied that any potential breach of the legislation would have had to occur prior to that date.

Therefore, any complaint arising from those alleged breaches should have been submitted not later than 29 February 2016, in order to comply with Section 41 (6) of the Act, as set out above.   Consequently, I find that I have no jurisdiction to hear this claim.

In arriving at that decision, I’ve taken into consideration the provisions of Section 41 (8) which allow for a further extension in the event that I’m satisfied the failure to present the complaint was due to reasonable cause.

The Complainant submitted her entire claim by 11 June 2017, while she was still on sick leave. Therefore, I see no reason why this complaint under the 1997 Act could not have been submitted in a more timely manner.

Consequently, having carefully considered the evidence presented by the Complainant in this regard, I do not believe that reasonable cause was demonstrated to the effect that I could apply the provisions of Subsection 8.

CA-00011829-005:

Preliminary Point:

Section 77 (5) of the Employment Equality Act, 1998, which sets out specific time limits in relation to the submission of a complaint under the Act, states as follows:

“Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates”.

In the within case, the Complainant’s claim relates to a medical appointment with a doctor, nominated by the Respondent to conduct a work-related health assessment. This assessment took place on 16 November 2016. The Complainant’s complaint was received by the WRC on 11 June 2017.     Therefore, the Complainant’s complaint has been referred after the end of the period of six months from the date of the occurrence of the alleged discrimination.

Consequently, taking all of the above into consideration I find that I have no jurisdiction to hear the case and, as a result, the Complainant’s claim fails.

Having carefully considered all of the evidence adduced by and/or on behalf of the Complainant and the Respondent and based on the considerations/findings as detailed above, I set out my decision in relation to each specific element of the Complainant’s complaints as follows:

CA-00011829-001:

As the Respondent raised an objection to my hearing of the Complainant’s complaint under the Industrial Relations Act, 1969, I find that I have no jurisdiction to hear this claim. Therefore, I am not in a position to issue a recommendation in this regard.

CA-00011829-002:

I find that the Complainant has an entitlement to 13 days annual leave, in relation to the leave year 2016.

CA-00011829-003:

I find that the Complainant’s complaint under this Act was not well-founded and, as a result, her complaint in this regard is not upheld.

CA-00011829-004:

In relation to the Complainant’s complaint under this Act, I find that the complaint was submitted out of time and, as a consequence, I have no jurisdiction to hear the complaint.

CA-00011829-005:

In relation to the Complainants complaint under this Act, I find that the complaint is submitted out of time and, as a consequence, I have no jurisdiction to hear the complaint.

Industrial Relations Act

Employment Equality Acts

Organisation of Working Time Act

Terms of Employment (Information) Act