Complainant

Respondent

Parties

Cecilia Daniels

Boston Scientific

Representatives

John Brennan Ibec West

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014810-001

04/10/2017

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

CA-00014810-002

04/10/2017

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

CA-00014810-003

04/10/2017

The Complainant commenced employment with the Respondent, a medical devices company, on 3 June 1997, where she is employed as a Product Builder in the assembly of medical devices.

At the time of submitting her complaint, the Complainant worked in the Respondent’s PCT Production Unit on day shift.

The Complainant made three complaints under the following headings:

CA-00014810-001 - Terms of Employment (Information) Act, 1994

The Complainant is alleging breach of her contract of employment by the Respondent. In support of her claim in this regard, the Complainant alleges that the Respondent did not adhere to various policies, procedures, protocols and rules as laid down by the Company.

The Complainant contends that she was not notified of any changes made to Section 10 of her contract.

CA-00014810-002-   Industrial Relations Act, 1969

In her claim under the Industrial Relations Act, the Complainant states that she submitted a complaint to her employer, the Respondent, in writing, on 19 January 2017. This complaint was in relation to issues that had occurred in the Complainant’s place of work (on nightshift) between September and October 2016.

The Complainant submitted that her complaint was not dealt with in accordance with Company Procedures or S.I 146/2000 and, in addition, that she was not afforded natural justice or fair procedure.

CA-00014810-003 – Employment Equality Act, 1998

The Complainant made a number of specific claims in support of her complaint under the Employment Equality Act.

The Complainant submitted that the issue first came about when she did not receive proper training. The Complainant states that she is convinced her trainer withheld information from her because she was a woman. The Complainant submitted that she is a female Caucasian, while her trainer was an African male.

The Complainant also alleged that she was isolated in the workplace, having been located in a work area with six males. The Complainant further submitted that her colleagues did not interact or converse with her at all. According to the Complainant’s submission, the only reason she could see for this treatment was because she was a 50-year-old woman.

The Complainant also alleges that she was victimised in the workplace. She submitted that she was treated less favourably than other people because she had raised issues about training, Safety and Health issues, as well as having complained about the behaviour of other colleagues.

According to the Complainant’s submission, her complaints were not dealt with in accordance with Company procedures and policies. Consequently, the Complainant contends that she was treated less favourably.

Finally, as part of her Equality complaint, the Complainant submits that she was bullied by the Company, as a whole, by collectively failing to investigate her complaints. The Complainant further submitted that the Respondent’s failure in this regard undermined her dignity at work.

Background:

With regard to the background to the current dispute, the Respondent submitted that the Complainant formally raised her concerns regarding her trainer and her Supervisor at a return to work meeting in January 2017. It was submitted that, at this meeting, the Complainant submitted a number of complaints against both of these parties.

The Respondent submitted that the Complainant’s complaints were then investigated. However, as she was unhappy with the response received, she escalated her grievance through the remaining stages of the Respondent’s Employee Problem Resolution Procedure (EPRP). According to the Respondent’s evidence, the EPRP process consists of five individual stages.

According to Respondent’s evidence, they identified, at stage 2 of the EPRP process, that the Complainant’s grievances related to the following allegations:

a.       Her trainer has failed to provide her with adequate training;

b.       Her trainer spoke to her in an aggressive manner;

c.       The Complainant had a sense of isolation in her role;

d.       Her Supervisor failed to address her concerns in this regard.

The Respondent submitted that, having investigated the Complainant’s complaint, no evidence of wrongdoing could be found against either her Trainer or Supervisor. The Respondent further submitted that the Complainant was unhappy with this outcome and appealed her grievances through stages three, four and five of the EPRP process.

The Respondent then provided detailed response to the individual elements of the Complainant’s complaints, as follows:

CA-00014810-001 - Terms of Employment (Information) Act, 1994

The Respondent’s submitted that it is in full compliance with the Terms of Employment (Information) Act.   The Respondent further submitted that they are fully compliant with all provisions of Section 7 of the Act. The Respondent also stated that the Complainant’s complaint does not fall within any of the relevant sections of the Act. According to the Respondent, the Complainant has disclosed no breach of the Act and the onus is on her to do so. The Respondent further contends that as it is not clear what the Complainant is alleging, their position is that her claim is misconceived and should be struck out.

In addition, the Respondent submits that they believe they have made every possible, reasonable effort to try to resolve the Complainant’s grievance. In this regard the Respondent pointed to the fact that the Complainant exhausted the Company’s internal grievance process, which included four stages of appeal. The Respondent submitted that, at each stage of the process, the Complainant was interviewed by the investigators (over the entire process of the Complainant’s grievance, there were eight different investigators involved). It was further submitted that the Complainant’s claims were not supported by witness evidence and were, therefore, rejected at each stage of the process.

CA-00014810-002-   Industrial Relations Act, 1969

The Respondent submitted that they would not be responding to the Complainant’s claims under the Industrial Relations Act, as the participation is voluntary and non-binding in any outcome.

CA-00014810-003 – Employment Equality Act, 1998

In their opening response to the Complainant’s claims of discrimination under the Employment Equality Act, the Respondent made the following points:

With regard to the claims of discrimination on the grounds of race, the Respondent submitted that, throughout the grievance procedure, the Complainant neglected to mention any issues involving race. It was further submitted that the Complainant did not, at any point in the process, claim that her then trainer was in any way racist or discriminatory towards her at any time.

With regard to the claims of discrimination on the grounds of age and gender, the Respondent submitted that the Complainant’s claims in relation to isolation from her work group are unfounded. The Respondent pointed to evidence, contained in the Complainant’s own complaint documents, where she verified that there was another female employee, of a similar age profile working with her. The Respondent further submitted that the Complainant had, in fact, replaced a female in this role and that she herself was replaced by female when she moved.

The Respondent also contended that the Complainant worked in a much larger team than the six suggested by her. The Respondent submitted that the work group consisted of a varied mix of female/male employees.

In their submission, the Respondent also suggested that the Complainant’s claim on the gender ground appears to be misconceived. The Respondent further submitted that the Complainant’s objection to working with the team of six men could be construed as reverse discrimination on her behalf.

According to the Respondent’s submission, based on the above, it is contended that the Complainant was not discriminated against or isolated due to her age/gender/race. The Respondent further contended that there was a significant onus on the Complainant to prove that she had been discriminated against, but that she had failed to do so.

Respondent’s substantive response to the Complainant’s claim of discrimination:

The Respondent first made submissions in relation to establishing a prima facie case of discrimination. According to the Respondents submission, it has been a well-established practice of the Equality Tribunal and the Labour Court to require a claimant to present, in the first instance, evidence from which it can be inferred that she was treated less favourably than another person is, has been, or will be treated, on the basis of the discriminatory ground cited.

In support of their submissions in this regard, the Respondent cited the following cases: (1) Southern Health Board v Mitchell [DEE001, (2001) ELR 201], (2) Margetts v Graham Anthony & Company Ltd [EDA 038], (3) Melbury Developments Ltd v Valpeters [EDA 0917] and (4) Dublin Corporation v Gibney [EE5/1986].

With particular reference to the last case cited above (Dublin Corporation v Gibney), the Respondent noted that “prima facie” evidence was defined as “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had occurred”. The Respondent submitted that, in this instance, they had provided significant credible contradictory evidence, which would clearly lead any reasonable person to conclude that no discrimination had taken place.

The Respondent stated that, notwithstanding that the particular circumstances of each case are different, it is only when a claimant has discharged the burden to satisfy an Adjudication Officer that a prima facie case exists, that the burden then shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submitted that the Complainant failed to discharge this burden of proof and, consequently, her claims in this regard should fail.

However, notwithstanding the above and in the event it is deemed that a prima facie case has been established by the Complainant, the Respondent submitted that the claimant had failed to prove that she had been treated any less favourably than any other person is, has or would be treated in a comparator situation on the ground specified in Section 6 (2) (d) of the Acts. According to the Respondent, the Complainant has produced no grounds to imply discrimination. The Respondent further submitted that, the mere fact that the claim falls within one of the discriminatory grounds, as laid down under the Act, is not sufficient, in itself, to establish a claim of discrimination.

The Respondent also submitted that the Complainant provided no evidence via comparators that the treatment she received was less favourable. Consequently, the Respondent submitted that the Complainant has provided no evidence of discrimination, as required for a viable complaint under the Acts. In this regard, the Respondent made specific reference to the Complainant’s statement wherein she indicated she was seeking to rely on a “notional comparator” and was projecting supposed awareness onto that comparator, without any foundation or evidential proof.

In support of their contention that the Complainant is obliged to specify suitable comparators, the Respondent referred to the case of Melbury Developments Ltd v Valpeters, in which case it was submitted on behalf of the complainant that, in a scenario where there was difficulty obtaining evidence concerning how others were treated, the respondent should be required to prove that others were treated similarly to the complainant.

The Respondent, in the within case, referred to the Labour Court’s finding that “…such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act” and “. the Court cannot accept that the peculiar knowledge principle can avail the Claimant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with Section 85A of the Act”.

According to the Respondent, the logic of the Court‘s position, as set out above, is applicable to the within case. The Respondent further contends that it appears reasonable to infer the reason as to why evidence, as to the treatment of other employees, has not been furnished in this instance, is due to that evidence not existing. According to the Respondent, the Complainant has failed to demonstrate that she was treated less favourably than a person of a different disability or none and, as such, no discrimination has been demonstrated.

The Respondent submitted that they acted reasonably and fairly, at all times, in accordance with its policies, best practice and appropriate conduct. It further stated that no disciplinary procedures of any kind were conducted against the Complainant.

With regard to the Complainant’s allegations that her grievance was not answered, the Respondent submitted that they made many attempts to meet with the Complainant to resolve the matters, but to no avail. In this regard, the Respondent referred to the case of Fitzsimons v Mount Carmel Hospital [UD855/2007], in which the Tribunal placed the onus on the employee to formalise their complaint. The Respondent contends that, similar to the claimant in the aforementioned case, the Complainant, in the within case, never formalised her complaint/grievance.

Based the above, the Respondent submitted that there were no grounds to justify discriminatory claim and the Complainant’s complaint in this regard should be rejected.

In replying to the Complainant’s allegation that she was victimised, in breach of Section 74 (2) of the Employment Equality Act, the Respondent made specific reference to the definition of victimisation as contained the aforementioned section. The Respondent submitted that, to succeed in such a claim, the Complainant would have to prove she suffered victimisation as a consequence of bringing her grievances. However, the Respondent submits that the Complainant has failed to identify the impugned detriment.

In support of their position in response to the claim of victimisation, the Respondent quoted from the case National Gallery of Ireland v Frances Donnelly [EDA 1312], wherein the Labour Court stated that: “….victimisation occurs where a detriment is imposed on a worker “as a reaction to” a complaint or other protected act. The use of the expression “as a reaction to” notes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision”.

According to the Respondent, the primary allegations made by the Complainant, in this regard, relate to the alleged discrimination on gender, age, race grounds and discriminatory treatment. The Respondent rejected these claims on the grounds that the Complainant failed to demonstrate that she was treated less favourably than another person of another race, different age, opposite gender and has failed to identify any suitable comparators and therefore could have suffered no discrimination as alleged.

In conclusion, the Respondent submitted that the burden of proof rests with the Complaint to show that she was discriminated against on these grounds. The respondent submitted that no evidence, in the form of primary facts, was produced to support these claims. The Respondent further submitted that, as the Complainant had failed to establish a prima facie case of discrimination, her claim in this regard must fail.

Based on the above reasons, the Respondent argued that the claim is clearly “frivolous” or “misconceived” within the meaning of Section 77A (1) of the Acts and should be dismissed in accordance with the provisions of that section.

CA-00014810-001 - Terms of Employment (Information) Act, 1994

In submitting her complaints under this Act, the Complainant, inter alia, claimed that the Respondent was in breach of (1) Section 10 of her contract of employment, (2) various Company Policies and Procedures, including the Duty of Care, (3) the Safety, Health and Welfare at Work Act, including the Company’s Safety Statement, (4) the Factories Act, 1955, and the Conditions of Employment Act, 1936.

Having carefully considered all the evidence adduced in relation to this element of the Complainant’s complaint, I am satisfied that the only element of the alleged breaches, as set out above, that might be covered by the Terms of Employment Act, 1994, are those relating to Section 10 of the Complainant’s Contract of Employment.

Section 7 (1) of the Act relates to the presenting of complaints by an employee who believes their employer to be in contravention of the Act. The Section states as follows:

7. (1) “An employee may present a complaint to an Adjudication Officer that his or her employer has contravened section 3 , 4 , 5 or 6 in relation to him or her and, if he or she does so, the Adjudication Officer shall give the parties an opportunity to be heard by the Adjudication Officer and to present to the Adjudication Officer any evidence relevant to the complaint, shall give a recommendation in writing in relation to it and shall communicate the recommendation to the parties”.

Having carefully considered the evidence submitted by the Complainant, in this regard, I find that the only section, as set out in the above section of the Act, which might be applicable to the Complainant’s situation are those of Section 5, which relates to the notification of changes to terms and conditions of employment.  

Section 5 states as follows:

5.- (1)”Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4 “.

In order to appropriately consider the Complainant’s complaint in this regard, it was necessary to consider Section 10 of the Contract of Employment which states as follows:

“It is a requirement of your contract of employment with [the Respondent ] that you adhere to the various policies, procedures, protocols and rules as laid down by the Company”.

It is clear from the evidence that the Complainant’s allegation relates to the Respondent’s failure to adhere to their own policies and procedures.   Notwithstanding the validity or otherwise of the Complainant’s allegations in this regard, I am fully satisfied that any failure by the Respondent in this regard cannot be considered as a breach of the Complainant’s contract.

In addition, I am fully satisfied that as no changes have taken place with regard to the Complainant’s Contract of Employment there can be no breach of Section 5 of the relevant Act.

Consequently, having carefully reviewed all the evidence adduced and taking all of the above into consideration, I find that the Complainant’s complaint under Terms of Employment (Information) Act, 1994, is not well funded and is, in fact, misconceived.

CA-00014810-002-   Industrial Relations Act, 1969

The complaints submitted by the Complainant under the Industrial Relations Act are, in my view, at the core of the difficulties that currently exist in the working relationship between the Complainant and her employer, the Respondent.

This view arises out of my having listened carefully to the Complainant’s submissions over the course of two Hearings and having carefully and meticulously considered the large volume of supporting documentation. The view is also influenced by a detailed consideration of the processes implemented and applied by the Respondent in response to the Complainant’s grievances. In this regard, the evidence clearly shows that the Complainant’s grievances were afforded detailed and rigorous investigation through five separate stages of the Respondent’s Employee Problem Resolution Procedure (EPRP).

The Complainant has raised a number issues with certain aspects of the EPRP. Given the nature and extent of the Complainant’s grievances I am of the view that the best approach to adopt in considering same is that which applies to the consideration of a claim under the Unfair Dismissal’s Act. The combined effect of that Act require me to consider whether or not the Respondent's actions and/or behaviour, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator, in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. While the within case clearly does not come within the remit of the UD Act, I believe applying the same criteria to the consideration of the Complainant’s allegations in relation to the Respondent’s handling of her grievances is both appropriate and reasonable

In that context then and, notwithstanding the validity or otherwise of the Complainant’s grievances, I can only conclude that, on the basis of the general application of the process and the amount of time and resources applied by the Respondent to providing a fair process, in order to address the Complainant’s grievances, the Respondent dealt with the matter in a reasonable and balanced fashion. Notwithstanding that there may well be a number of minor and/or technical deficiencies at certain points within the EPRP process, I am fully satisfied that the Respondent, in this case, has dealt with the matter in a manner which would be expected of a good and reasonable employer. In fact, I find that there were times when the Respondent may, in fact, have even gone further than might reasonably expected in the circumstances.

It is very clear from the evidence adduced and, in particular, from listening to the Complainant’s oral evidence that she holds very strong and deep-seated grievances, not just with her employer but with many of her line superiors and colleagues. While I am fully satisfied that the Complainant genuinely believes her position and her grievances to be real and valid, I have to question whether or not the depth and nature of those views might in some way been negatively impacting on her overall perception of her relationship with the Respondent.

Having carefully considered all of the evidence and in the context of the views set out above, I find that the Complainant’s complaints, as submitted under the Industrial Relations Act, are not well founded. Consequently, despite having given lengthy consideration to the circumstances underpinning the Complainant’s complaints in this regard, I find I am not in a position to issue a recommendation directly related to the complaints.

CA-00014810-003 – Employment Equality Act, 1998

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of Section 85 (a) (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

In support of her complaint, the Complainant, in the within case, is inferring that he was discriminated against by reason of her age, race and gender.

Section 6 (1) and (2) of the Act defines discrimination, as it relates to the three grounds cited by the Complainant in her complaint, as follows:

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(3) Where—

(a) a person has attained the age of 65 years, or

(b) a person has not attained the age of 18 years,

then, subject to section 12 (3), treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground.

As can be seen from the above, the Acts set out clearly that, in order to establish that an act of discrimination has taken place, the Complainant is required to demonstrate that she was treated less favourably as compared to another person in a similar position.

The Complainant’s claim of discrimination primarily relates to incidents which allegedly occurred during her training on a machine as part of her taking up a new role within the company, when she was transferred to night shift work. The Complainant alleges that she received inappropriate treatment from her Supervisor, her Designated Trainer, the work team she had been placed with, the HR Business partner for the area and, at a later date, the Production Manager.

It is clear from the Complainant’s complaint under the Industrial Relations Act (which is dealt with above under a separate heading), that she had many issues arising out of her training and, in particular, incidents which took place on 4/5 October 2016. Having carefully considered all the evidence presented by the Complainant, I am satisfied that her complaint under the Employment Equality Acts relates to issues with the manner in which she was being trained and also the behaviour of her trainer, an African male.

Having carefully considered the significant volume of evidence presented by the Complainant, I find none to suggest that she identified a comparator who was treated more favourably than she in the circumstances. I found this to be the case in relation to each of the three grounds (i.e. race, age and gender).   There was nothing in the evidence to suggest that what transpired between the parties (the Complainant and her Designated Trainer) were influenced by the fact that the Complainant is a 50 year old white female.

I also considered the Complainant’s claim that her placement in a work team consisting of six males, where she was the only female, amounted to an act of discrimination by the Respondent. Notwithstanding the Respondent’s evidence to the effect that the Complainant’s claims that she was the only female who worked, either then, previously or subsequently, in this team, I cannot accept that the gender balance in a work team, where both the work tasks/requirements and conditions attaching thereto are completely homogenous in nature, could constitute reasonable grounds for a claim of discrimination under the Equality legislation. To accept that view could place an insurmountable burden on an employer, particularly in a manufacturing setting, where there is constant pressure on acquiring and retaining appropriate staffing levels and could, therefore, have a serious impact on ongoing business performance.

Having very carefully reviewed all of the evidence adduced in this regard and taking all of the above into consideration, I find that, while the Complainant raised a significant number of issues arising from her training for her new role and, in particular, the incidences on the night of 4/5 October 2016,   there is no evidence to suggest   that any of these were grounded in acts of discrimination.

Consequently, based on the Complainant’s failure to establish a prima facie case of discrimination on the grounds of race, age or gender, I find that her claim in this regard is not well founded and must be rejected.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out below my decisions and recommendations in relation to the individual elements of the Complainant’s complaints:

CA-00014810-001 - Terms of Employment (Information) Act, 1994

I find that the Complainant’s complaint under Terms of Employment (Information) Act, 1994, is not well founded and is, in fact, misconceived.

CA-00014810-002-   Industrial Relations Act, 1969

Based on the evidence presented, I am not in a position to issue a recommendation in relation to the specific complaint raised by the Complainant under this Act.

However, notwithstanding the above position, I respectfully suggest that it might be helpful, given the Complainant’s overall situation and, in particular, the current state of her working relationship with the Respondent, to make a recommendation in that regard.

Consequently, with respect, I would recommend that the Complainant reconsider her situation, in particular, the sequence of events, dating back to October 2016, which are perhaps unreasonably influencing her current attitude towards her employer and, if possible, draw a “line in the sand” with regard to those issues, in a manner which would allow her to recalibrate her working relationship with the Respondent.   Were this to happen, I would   then recommend to the Respondent that they willing play their part in whatever is required to put the working relationship with the Complainant on a more balanced footing.

CA-00014810-003 – Employment Equality Act, 1998

Based on the Complainant’s failure to establish a prima facie case of discrimination on the grounds of race, age or gender, I find that her claim in this regard is not well founded and is, therefore, rejected.

Industrial Relations Act

Terms of Employment (Information) Act

Employment Equality Acts