Complainant

Respondent

Anonymised Parties

An Employee

A Public Service Provider

Representatives

No representative

No representative

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00025353-001

28/01/2019

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

CA-00025353-002

28/01/2019

The complainant was employed by the respondent as a casual post person on the 13th of November 2018 and his employment was terminated on the 19th of December 2018. He worked an average of 49 1/2 hours per week and was paid €821.16 per week. He is claiming under the Industrial Relations Act that he was unfairly dismissed and that he was discriminated against on the age ground contrary to the Employment Equality Act.

The complainant said that on Monday the 17th of December 2018, he was clearing full boxes of sorted parcels from the conveyor belt and replacing them with empty boxes and then placing the full boxes in their correct storage place for placement onto the delivery trucks. He was dealing with two conveyor belts and he noticed that the level of full boxes was building up to a stage where he was unable to manage on his own. He said he went to the manager who was at the end of the conveyor belt talking with other managers and he requested some help in clearing the conveyor belts. The manager asked him which conveyor belt he was doing, and he told him that he was responsible for both. The manager told him they were two other employees on the conveyor belts. He said that he tried to find them, but he was told by the manager that is was not his job to watch what other employees were doing. He said that most of the employees in the parcel area went for their break including the employees who were supposed to be on the conveyor belt. He said he cleared all the parcels from the conveyor belts and he then asked his manager if he could go on his break and he was allowed. It was agreed that he would return from his break at 12:20 a.m. He said that on his return he noticed that one conveyor belt was not in use and there were full boxes on it and the other conveyor belt was stopped. He said he quickly got back to work to clear the full boxes and continued working until the end of his shift. He said at that stage his feet were hurting because the shoes supplied by the company caused blisters to his feet.

Despite the pain in his feet he went to work the following night at 5:30 p.m. and was working on the conveyor belt again. He said there was increasing pain in his feet due to the distance he was walking, and he was unable to take any more painkillers at that stage. He was due a break at 11:15 p.m. and he went to the manager to request a change in tasks after his break because of the pain in his feet was caused by walking since he came to work at 5:30 p.m. The manager requesting more information about the pain in his feet and the complainant explained it was caused by blisters from wearing the company supplied boots. He said that the attitude towards him changed and he was informed by the manager that he would have to keep doing the job that he was doing, otherwise he could go home on an unpaid day's leave.

The complainant said that he told the manager that he wished to activate the company's grievance procedures. He said he made an oral grievance which was provided for in the procedures. HIs supervisor was called in to deal with the grievance. The complainant said that he explained to him his request to his manager that he be taken off the tasks which involve walking because his feet were hurting him. The manager was then called to the meeting and he explained his side of the story. He disagreed with the complainant’s version of the events and said that the complainant was demanding a change in his tasks. The complainant said that at this time the supervisor sided with the manager's version of events and accused him of not being a team player. The complainant said he requested to have a Union member present before continuing with the meeting. A Union member came in, but he was not interested in what he (the complainant) had to say and stated that they would only act as a witness at the meeting. The meeting recommenced and he was told by the supervisor that if he did not do what his manager told him he would be sent home on unpaid leave and he would be removed from his job the next day.

After the meeting was finished, he went on his 15-minute break and then he returned to work and continued his work until the end of the shift and went home. He said that when he got home he realised his feet were cut and he was bleeding from the blisters. He made an appointment to see the doctor the following day. He got a sick note from the doctor for 3 days. Following this his employment was terminated.

On the 19th of December 2018 he received a call from a supervisor and he was informed that there had been reports about him from two managers and that he was not to come to work that night as he was fired from the job. He requested a right to appeal the decision and he was informed that he couldn't. He said he then rang the HR department and it was confirmed to him that he had been dismissed and again he asked to appeal the decision and he was informed that he should contact the HR manager. On the 21st of December 2018, he received a letter from the respondent confirming the dismissal and advising him that his conduct and the performance of his duties had been unacceptable.

The complainant submitted that he was unfairly dismissed because he was not given an opportunity, in advance of the decision to dismiss him, to state his case. He said he didn't get any warning during the course of his employment and that his dismissal came out of the blue. He believes he was dismissed because he referred a grievance which was not heard in a satisfactory manner. He said that the company failed to follow fair procedures and he was given no right of appeal.

The respondent did not attend the hearing, but the complainant presented documentation he had received from the respondent. In an email from the complainant's manager dated the 19th of December 2018, the manager asked that the complainant be removed from the list after his temporary work for Christmas was completed because the complainant's attitude towards his managers and his work was totally unacceptable. In a further email to HR one of the complainant's manager said that he was aggressive and insulting towards his managers. On the same day the 19th of December, a letter of dismissal was issued to the complainant stating that he was dismissed because of his conduct and the performance of his duties was unacceptable. In response to communications from the complainant, the HR manager wrote to him on the 10th of January 2019 confirming that he was dismissed because of issues relating to his conduct and performance of his duties. The letter went on to state that the termination of casual employment is at the discretion of the company which retains the right to terminate casual employment at any time in the event of misconduct or unsatisfactory standard of work. It further stated that there is no obligation on the company to offer any further periods of casual employment.

I note that the complainant was dismissed on the 19th of December on the same day he referred a grievance about the refusal of his manager to change his task because he found it difficult to walk due to his boots causing blisters on his feet. The letter of dismissal stated that the complainant’s conduct and performance of his duties had been unacceptable. The complainant said that he had never been warned about his conduct or his performance.

It is clear from the respondent’s letters, that there were no procedures adopted by the respondent in terminating the complainant’s employment and they failed to follow the company’s Disciplinary Procedures. There is no evidence that the complainant was ever warned about his conduct before he was dismissed   There is an obligation on employers before deciding to dismiss to follow fair procedures and natural justice in accordance with S.I. 146/2000 –Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

In relation to applying fair procedures, The Labour Court in the case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798 stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

I am satisfied that the respondent has failed to show that there were any substantial grounds justifying the dismissal and furthermore the respondent did not comply with fair procedures. For these reasons, I find that the complainant was unfairly dismissed. I recommend the respondent pay the complainant compensation in the amount of €1,000.

I recommend that the respondent pay the complainant €1,000 to resolve the dispute.

The complainant said that he was discrimination against and the age ground country to the Employment Equality Act. He said that when older employees working with him complained about their boots they were given new ones straight away. He said that when he complained he was told that he would have to put up with them and he was not given a choice of new boots. He also said that he was required to keep walking up and down with boxes even though his feet were hurting him, and he was refused a transfer to a different task. He said that another employee who is 7 years older than he is was moved straight away when he complained that his boots were hurting him. He said that overall that the older employees were treated better than he was. He believes he was discriminated against because of his age.

The Respondent did not attend the hearing

Section 6(1) of the Employment Equality Acts provide:

“discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would

be treated in a comparable situation on any of the grounds specified in

subsection (2) (in this Act referred to as the ‘discriminatory grounds’)”

Section 6(2) provides:

“As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are—

…….

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

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and

a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work

shall be taken to discriminate against an agency worker unless (on one of the

discriminatory grounds) that agency worker is treated less favourably than another

agency worker is, has been or would be treated.

…….

(5) Without prejudice to the generality of subsection (1), an employer shall be taken

to discriminate against an employee or prospective employee in relation to access to

employment if the employer discriminates against the employee or prospective

employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom

employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements

for employment which are not specified in respect of other persons or

classes of persons, where the circumstances in which both such persons or

classes would be employed are not materially different,”

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a Complainant 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."

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The LC stated 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 claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established the was discriminated against on the age ground. It is only when he has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the Respondent to rebut the prima facie case raised.

The Complainant said in evidence that he was discriminated against because older workers were treated more favourably than him. The complainant has put forward no cogent evidence whatsoever to support his contention that he was treated less favourably on the age ground, in relation to his conditions of employment, than another person was treated in similar circumstances. Therefore, he has failed to a prima facie case of discrimination on the age ground. I find therefore that the complainant was not discriminated against on the age ground contrary to the Act.

I find that the complainant has failed to establish that he was discriminated against on the age ground contrary to the terms of the Employment Equality Acts.

Industrial Relations Act, unfair dismissal, failure to follow procedures, Employment Equality Act, age discrimination, failure to establish a prima facie case.