ADJ-00017477

Complainant

Respondent

Anonymised Parties

Quality Control Analyst

A Pharmaceuticals Company

Representatives

Ms. Eleanor Power, BL., Sean Ormonde & Co., Solicitors.

Arthur Cox

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00022573-001

11/10/2018

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

CA-00022573-002

11/10/2018

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

CA-00022573-003

11/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00022573-004

11/10/2018

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

CA-00022573-005

11/10/2018

The Complainant was a Quality Control Analyst employed with the Respondent from 15 June 2015 until 6 September 2018. The Complainant was paid on average €5,000 per month depending on the shifts she did, and she worked 39 hours per week. The Complainant said that she worked two shifts, one in the morning and one in the afternoon. The Complainant said that the Respondent had indicated that it would be trialling a night shift, where four new employees were hired, and it required two employees from its current staff pool to meet the new night shift requirements. It sought volunteers from over one hundred staff and not one person volunteered. The Complainant was selected as one of the two staff from the existing staff to do this work. The Complainant said a shortlist was drawn up of just four employees from which the Managers selected the two for the new night shift trial. The Complainant said that the policy for selection was not transparent. She and Ms. A were selected, whereas Ms. B and Ms. C were not, the latter two employees happen to be not married and did not have children. The Complainant said that if the Respondent had applied a strict seniority criteria she would not have been selected. The Complainant said that she was called to a meeting, without forewarning, at the beginning of May 2018 with Mr. X, Ms. Y and Ms. A where she was told she would be changed over to work the night shift. They said that this arrangement was a trial and would remain in place for a number of months. The Complainant said that she informed all that her partner travels with his work and she has two small children and the new arrangement just does not suit. She said they told her she does not have an option. The Complainant said that she was upset with the nature of the meeting and was afraid that it might have repercussions on her employment. She went out sick from work as she was very upset afterwards and was placed on a sick leave certificate. The Complainant said that she subsequently contacted Mr. X and again highlighted the difficulty she had working the night shift. However, she was told she had no other choice. The Complainant said that she contacted two other managers and two other coordinators raising her concerns but to no avail. The Complainant said that she received a phone call from her trade union representative stating that an agreement had been reached between the trade union and Management and she no longer had to work the night shift. However, when she returned to work the agreement had been withdrawn and she was again expected to work the night shift. The Complainant said that the manager had understood her reluctance as he too had young children and could not do it. The Complainant said that Ms. A did not mind working nights as she had child care available for her son. The Complainant said that on her return to work she noticed a change in attitude from Ms. A towards her. The Complainant presented a letter from her own doctor stating that “the current medical condition of [the Complainant] requires her to avoid working in the night shift”. However, she received an email from Mr. X stating that due to her contractual arrangement and business requirements she was expected to work the night shift. The Complainant said that due to the intense stress she began to suffer nosebleeds that required attention from a work nurse. The Complainant said that she met with HR on 21 May 2018 and was extremely upset. However, she was told that if she lodged her medical certificate, stating that she could not work nights, the Respondent would terminate her contract. The Complainant said that she attended her GP on 25 May 2018 and was diagnosed as suffering from work-related stress. The Complainant said that she had discussions with a workplace facilitator who informed her that he could do nothing more for her that his hands were tied. On 31 July the Complainant emailed her manager looking to be returned to her normal shift pattern on her return to work, or else she would be handing in her notice, despite the fact that she enjoyed her job. She said that her manager said that on her return to work she would be working the planned night shift arrangement. She said she had no choice but to furnish her resignation which she did on 7 August 2018, and she received a response from HR on 16 August 2018. The last day of her employment was 6 September 2018. The Complainant said that at the start of September 2018 she returned to the workplace to say goodbye to her work colleagues. She learned that management had met the previous day and decided to abandon the night shift trial. She said that she failed to understand why the Respondent did not approach her seeking to keep her in employment when the only issue outstanding was her unavailability to work the night shift, which was now cancelled. The Complainant claims that she was not notified in writing of the changes in the terms of her employment regarding the night shifts prior to her resignation on 6 September 2018.

Legal submissions

The Complainant referred to the appropriate tests that are associated with constructive dismissal, namely, the contract test and the reasonableness test. She said that she is aware that the burden of proof is with her to demonstrate that the Respondent acted so unreasonably as to leave her with no option other than to resign from her employment, that the action amounted to a repudiatory breach of her contract of employment. She also claims that the Respondent failed to address the issues she raised with the night shift work. The Complainant cites the following authorities in support of her argument in relation to the behaviour of the employer, namely, Kennedy v, Foxfield Inns Ltd trading as the Imperial Hotel UD 549/1994; Allen V Independent Newspapers [2002] ELR 132; A Worker (Mr O) v. Employer [2005] ELR and Stone v I Maloney & Sons Limited DEC2010 – 196. The Complainant claims that it has been held that an employee must, prior to resignation invoke the internal grievance procedures to afford the Respondent an opportunity to address the issues raised. The Complainant claims that she was continually making complaints about having to work the night time shift and it cannot be said that she did not attempt to engage with her employers. In relation to the claim of discrimination, the Complainant cited the leading authorities in Schorbus C-79/99; Ntoko v Citibank [2004] ELR; Dublin Corporation v Gibney’s EE5/1986 and A Technology Company v A Worker EDA0714, in framing the case with regard to the tests for direct discrimination, establishing a prima facie case and the evidential requirement. The Complainant claims that she has met that required standard and the burden of proof shifts to the Respondent to rebut.  The Complainant maintains that the selection process for the night time shift was discriminatory. She said at the time she was allowed to return to her day time shift, however, that position changed when another employee Ms. A, an Irish employee who similarly suffered from work related stress, was not asked to work the night shift when she returned from sick leave, the Complainant was then again selected to work the night time shift. She claims that this amounts to less favourable treatment on the race ground. In relation to the family status ground she cites the decision in Joyce Fitzsimmons Markey v Gaelscoil Thulach nOg (EED 049) and Long v Hanley Group DEC-E2010-015, in support of her case that the Respondent failed to treat her appropriately and fairly in light of her concerns that the change in her roster was based on her family status. In relation to victimisation the Complainant said that she feels that she was victimised on account of her family status and race in refusing to work the night shift and by raising this issue with numerous personnel including HR.

The following is a summary of the Respondent’s case.

The Respondent is a multinational pharmaceutical company, specialising in the manufacture of generic drugs. It has been in operation at its current site since 1996 with a workforce of over 600, across the areas of Research and Development (R&D), Operations and Regional/Global Support functions. The Complainant was employed as a QC (quality control) Analyst from 15 June 2015 (originally on a series of fixed term contracts) until her resignation, which took effect on 6 September 2018. The Respondent highlights the Complainant’s contract of employment states under the heading "Responsibilities” reads, "your working week is 39 hours, you may be required to work any shift pattern as outlined in Clause 16 of the Site Agreement: - e.g. Days, Two, Three or Four Shift Cycle. Your manager will tell you which shift pattern you will be required to work”. The Complainant joined the trade union on commencement of her employment and further confirmed her acceptance of the Site Agreement on 12 May 2015, where her work pattern until 5 June 2018 was a two-shift pattern, working 6am – 2pm; and 2pm – 10pm on alternate weeks, Monday to Friday. The Respondent said that at the beginning of 2018 the Quality Control Lab where she worked had a backlog of testing, by reason of technical issues encountered at the end of 2017. This testing backlog was preventing the site from meeting customers supply targets and contributed to increased inventory levels on site. A number of technical issues in the Lab around this time caused test deadlines to be missed. Accordingly, the Respondent decided that a three-shift cycle should be implemented in the Lab on a trial basis for the purpose of improving QC reliability (i.e. from 6am to 2pm, 2pm to 10pm and 10pm to 6am, on a weekly rotation, Monday to Friday.) The third shift trial was to be implemented from existing resources and two analysts were to be rostered per shift. The three-shift pattern was initially offered to QC staff on a voluntary basis. It attracted a higher hourly premium of 25%, to compensate for the third shift being a night shift. If there were insufficient volunteers, the shift would be rostered according to seniority (least senior first). The Respondent said that Mr. X, Senior Manager of QC Operations, held meetings in March/early April 2018 in the Lab to update all Quality Control staff on the implementation of the three-shift pattern and asked for volunteers. Mr. X sent an email on 16 April 2018 to ask again for volunteers. When no volunteers were forthcoming, management reviewed the seniority list to select analysts for the third shift. Analysts were selected on the basis of seniority/length of service, with the least senior/shortest serving six analysts to be selected. On review, this cohort of six analysts included two analysts that were at that time performing work on a new product just launched on the market. As part of this work, they had undergone intensive training in R&D and were working with colleagues in R&D on the testing of that new product. The R&D function works a day shift pattern only and, due to the critical nature of this work, these two analysts were excluded from the selection process, with the next two least senior analysts (including the Complainant) selected for the three-shift pattern. There was no objection on the part of her trade union to this arrangement. When the six analysts were selected for the three-shift pattern, Mr. X met with each of them in the presence of a facilitator (the employee’s supervisor) in early May 2018 to inform them of the decision. Mr. X then emailed the relevant analysts on 18 May 2018 with an outline of the proposed shift pattern due to commence on 5 June 2018 on a trial basis to run until the end of August 2018. Around this time, two of the analysts requested to speak to Mr. X individually and expressed their concerns about moving to the three-shift pattern and the impact it would have on their home life. On foot of these conversations, Mr. X moved one of the analysts to a different slot on the third shift to accommodate childcare. The trade union representatives met with Mr. X on several occasions over a two to three-week period and offered proposals such as "on call analysts" to try and avoid analysts working nights on the three-shift pattern. Mr. X discussed this proposal with senior QC management and the Quality Director but this was found to be unfeasible. The trade union representatives also stated that the analyst that was due to work nights with the Complainant was happy to work the night shift alone thereby releasing the Complainant, and that this had been discussed and agreed with all the analysts selected for night shift. QC management discussed this proposal and agreed to implement it, on the basis that it had been agreed by all the analysts. The Complainant called to Mr X's office to ask about the proposal (end of May 2018) and Mr X told her that once he confirmed that all the analysts were in agreement with the proposal, she would most likely not be required to work the night shift. However, Mr X met with one of the impacted analysts shortly afterwards and she was in a very distressed state. This individual told Mr X that she had not been part of a discussion about the Complainant not working nights and that she had not agreed to it. She went on to explain the impact that the night shift would have on her own domestic arrangements and did not understand why the Complainant was being offered preferential treatment. On 21 May 2018, the Complainant requested a meeting with HR. On or about 23 May the Complainant met with Ms. Z in HR, where the Complainant expressed her upset at the proposed change to her shift, explaining her personal circumstances. Ms. Z listened to her concerns. Ms. Z pointed out the term in her contract of employment relating to shift work and discussed the process that was taken to reach the decision that the Complainant should be included in the three-shift pattern. The Complainant claimed others were willing to take her place and Ms. Z advised her to encourage them to come forward. Mr X subsequently met with the Complainant and her Trade Union representatives and explained that, as that all parties had not agreed, the full three shift pattern for all six analysts (including the Complainant) would be implemented on a trial basis on 5 June 2018 as originally agreed. The Complainant went on sick leave from 24 May 2018 until her resignation in September 2018. She submitted medical certificates to her supervisor and was referred to an occupational health specialist as per Company policy. The Respondent said during the summer of 2018, QC reliability improved, and QC management agreed a set of three metrics with senior site management. It was agreed that these metrics would be monitored closely on a weekly basis and, that when they were maintained for a sustained period, the necessity for the third shift would be reviewed. The Complainant contacted Mr X by email dated 31 July 2018 and stated that, if she would be required to return to work on three shift cycle, she would have to resign. Mr X replied and told the Complainant that there was at the time no alternative to the three-shift pattern and he would regret her resignation but that she should take the decision that was best for her. The Complainant met with Mr X, at his office on 8 August 2018. They discussed the three-shift pattern and Mr X explained the improvement in QC reliability over the summer of 2018 and that the Respondent was possibly only a week or two away from justifying the removal of the third shift. Mr X sympathised with the Complainant on how this impacted on her family situation but explained that even if the three-shift trial ceased the following week, there was no guarantee that it wouldn’t return in the future. The Complainant then informed Mr X that she would therefore have to resign her position. She submitted her resignation to Mr X at this meeting, providing for a termination date of 6 September 2018. He said that he would be sorry to see her leave and that she would be missed from the lab. The Complainant subsequently asked Mr X for a reference, which he said he would be happy to provide for her. The Complainant spoke with Mr X on 6 September 2018. He again confirmed his willingness to provide a favourable reference and the Complainant told him that she had enjoyed her time at the lab, had learned a lot and wished the Respondent well. She explained that she was happy with her decision to resign and that she was taking some time to spend with her family and had decided to commence a course in teaching English and was interested in looking into that as a career. She noted that she was excited about the future and bore no animosity to Mr X or to the Respondent.

Legal Submissions

In relation to the Terms of Employment (Information) Act 1994 the Respondent said that Section 5 of the 1994 Act provides as follows: “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) […]”

The Respondent said it is satisfied that no change has occurred with respect to the Complainant's contract of employment and therefore no such notification for the purposes of Section 5 of the 1994 Act was required. The Complainant 's contract of employment clearly establishes that she may be required to work a three-shift cycle. The Respondent said that it had communicated at length with the Complainant and her colleagues about the change to the shift pattern. Further, a written notification was issued to her in the form of the email from Mr X to her on 5 June 2018. The Respondent refers to the recent determination of the Labour Court in Philmic Limited t/a Premier Linen Services v Edgars Petraitis TED1616 in which the Labour Court found that the employer had complied with its obligations under the 1994 Act in all material respects. In assessing the compensation payable to the claimant at nil, the Court took account of the fact that the claimant could not evidence any detriment suffered as a result of the minor established breaches of the 1994 Act. It is submitted that in this case, it would also be unjust and inequitable to award any compensation to the Complainant in circumstances where she was communicated with at length about this change and was at all material times aware of the change in her working hours and indeed resigned by reason of same.

Constructive Dismissal

The Respondent referred to the two tests contained in the statutory definition of constructive dismissal. The first is the “contract test” which entails “entitlement” to terminate the contract. The second is the “reasonableness” test, which entails that it was “reasonable” for the employee to resign because of the conduct of the employer. In this case, only the reasonableness test is relevant as the Complainant is precluded from asserting that the Respondent breached her contractual rights or entitlements so as to entitle her to treat her contract of employment as discharged. As noted previously, the Complainant’s contract of employment envisages that she would work any shift pattern provided for in clause 16 of the Site Agreement and the possibility of a two, three or four shift cycle is also envisaged. The Respondent said that it is well-settled that in constructive dismissal cases, the onus of proof is on the employee and not the employer. It is for the employee to establish to the satisfaction of the Adjudication Officer that, because of the conduct of the employer, the employee was or would have been entitled, or, it was or would have been reasonable for the employee, to terminate the contract of employment, without giving prior notice of termination to the employer. The employer does not have to prove anything. The Respondent said heavy onus of proof rests on any employee alleging that he/she has been constructively dismissed. In McCormack Core v Dunnes StoresUD1421/2008 the EAT stated as follows: “in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of his employment other than to terminate his or her employment”. It further stated that in order to succeed in a claim for constructive dismissal: “The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.” It is not sufficient for an employee to establish that the employer has acted either in breach of contract or unreasonably. The employee must satisfy that the employer’s breach of contract or unreasonable behaviour was sufficiently grave so as to justify the employee terminating his/her employment without notice. This is an especially heavy burden of proof for an employee to discharge. Furthermore, the employee must show that it was the employer’s conduct, and not any extraneous factor, that caused the employee to terminate his/her employment. The test of “reasonableness” was stated in the following terms by Lord Denning in the UK Court of Appeal in Western Excavating (ECC) Ltd. v Sharp[1978] ICR 221 “if [the employer] conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving.” The Respondent said it is well-established that to succeed in a claim for constructive dismissal, an employee must demonstrate that he/she has utilised and exhausted (or at a minimum, substantially exhausted) his/her employer's internal grievance procedures. In Conway v Ulster Bank Ltd UD474/1981 the EAT held that an employee is required to invoke the employer’s grievance procedures in an effort to resolve the grievance before resigning from their position. The Tribunal considered that the employee in that case did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. In McCormack Core v Dunnes Stores, the Tribunal stated that an employee must demonstrate: “he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with her/her employers.” The Respondent said that the Complainant never invoked its Grievance Procedure. It said that it is surprising, given that she was taking advice from her trade union throughout this process. Not only did the Complainant not exhaust the internal Grievance Procedures, she made no effort to avail of any internal procedures at the Respondent for raising a complaint. It said that no allegation of unfair selection was ever made by the Complainant prior to her solicitor sending a letter to the Respondent on 22 October 2018, over a month after her resignation. The Respondent made considerable efforts to ensure that the selection process for this third shift was conducted in a fair and transparent manner and, where possible, facilitated individual employees' personal circumstances. For example, as noted above, although still required to work the third shift pattern, another employee who had certain childcare arrangements was moved to another time slot. The Respondent also attempted to facilitate the Complainant not working the third shift pattern by seeking colleagues’ consent to work this third shift alone. It was only when this was not agreed to by a colleague, that the Respondent confirmed to the Complainant that she would be required to work the third shift pattern.

Employment Equality Act 1998

The Respondent said the Complainant alleges that she was discriminated against by it by reason of family status and race. The Respondent said that three of the six analysts (including the Complainant) chosen for the shift pattern had children and therefore no claim for discrimination on the family status ground in particular can be sustained. Equally, there is no evidence to demonstrate any discrimination by it against the Complainant on the race ground.

Access to Employment

The Respondent said the Complainant is precluded from raising a discrimination complaint with respect to access to employment in circumstances where she had a job at the Respondent and resigned from this role. Insofar as she may be claiming that the change to her shift pattern somehow discriminated against her with respect to access to employment, this is denied. The Complainant was placed on a three-shift pattern following a fair selection process, untainted by discrimination, and based on objective criteria. This shift pattern is within the terms of the Complainants contract of employment and the Respondent consulted with the Complainant’s union, which did not object to this change.

Victimisation

The Respondent said that the Complainant is precluded from making a claim of victimisation. Section 74 (2) of the Employment Equality Acts 1998 – 2015 (the “Acts”) define victimisation as:

“adverse treatment of an employee by his or her employer occurs as a reaction to…” and it lists seven instances.

The Respondent said that it has not discriminated against the Complainant, as she did not take any of the specified steps in Section 7(2) in relation to the alleged adverse treatment of an employee by her employer while employed by the Respondent and therefore a claim for victimisation cannot be made out in these circumstances.

Conditions of Employment

In relation to the Conditions of Employment claim the Respondent said that the Complainant has alleged that she was discriminated against by it by reason of her race and family status, contrary to section 8 of the Acts. It said that the burden of proof falls on the Complainant to establish facts from which it may be presumed that there has been direct or indirect discrimination on the ground of race or family status. It is only if the Complainant establishes such facts that any question of the onus of proof shifting to the Respondent arises. It cites the decisions in In Southern Health Board v Mitchell [2001] ELR 201, in relation to the evidential burden the Complainant must discharge. The decision in Melbury v Val PetersEDA0917, where the Labour Court, in considering allegations of discrimination on the ground of race, held as follows: - “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” It also refers to the decision in Graham Anthony & Co Limited v Margetts [2003] EDA038, where the Labour Court stated: - “…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 said that no such evidence has been adduced by the Complainant in this case and the Complainant has not established a prima facie case of discriminatory treatment contrary to the Acts.  

CA-00022573 – 003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

Relevant Law

Section 5 of the Terms of Employment (Information) Act 1994 provides as follows:

“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) […]”

Applying the above statutory provisions to the facts of this case as presented, I am satisfied that no change has occurred with respect to the Complainant's contract of employment and therefore no such notification for the purposes of Section 5 of the 1994 Act was required. The flexibility to work the third, and even a fourth shift, existed in the Complainant’s contract. Notwithstanding, I also note the level of communications from the Respondent when it engaged with the employees ahead of the trial.

I find that the complaint is not well founded.

CA-00022573 – 004 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Relevant Law

Section 1 of the Unfair dismissal act defines “dismissal”, in relation to an employee, means—

“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.” The term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition, Section 1(b) of the Act which provides that: In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of her contract of employment. It was not in dispute that the Complainant resigned from her position as of 6 September 2018. The Complainant is claiming that she was constructively dismissed from her position as Quality Control Analyst with the Respondent as she was forced to work the night shift although she had informed her employer of the difficulty that would cause for her. As the Complainant is claiming constructive dismissal, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment. The appropriate legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.” According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, it said that “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.” The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. The Complainant claims that she was unfairly and discriminatorily selected to work the night shift which because of her personal circumstances with her young family she was not able to do. She claims that this was not taken into consideration and she was told that if she did not work the night shift there would be repercussions. She tried to reason with her employer, and it would not listen, so she was forced to resign from her employment. The Respondent disputes the claim of constructive dismissal. It said that it had to make changes to its working process model as it was not reaching its targets. It said that all employees’ contracts of employment were flexible to allow for up to four different shifts. The trade union was involved and raised no issues. No new people were hired for the night shift, all staff came from within the existing staff – six people were selected on the basis of least seniority with the company since there was no volunteers. They tried to accommodate staff within reason, including flexibility to change staffs’ rosters and if they could identify someone to do the night shift for them that would be looked at. The Complainant never worked the night before she resigned. She never raised a formal grievance and never appealed its decision although she had the trade union working closely with her throughout. I note and accept that this change to the Complainant’s usual working arrangement was a big imposition on her and this caused her much concern. However, it’s clear that the Respondent was acting within reason in trying to come to terms with its backlog and it appears that this methodology could help solve that problem. I have noted the submissions in relation to the selection policy for the six staff and I prefer the Respondent’s explaining of the process followed here. I note the Complainant had raised her concerns and was quite stressed around this time. Notwithstanding, I do believe that the Respondent was fair in its approach with all staff and on the balance of probabilities do not accept that the Complainant was threatened by the HR over the possible repercussions if she filed medical certificates due to a medical condition. I note she never worked the night shift as she was certified unfit for work. I note the discussion that the Respondent had with the Complainant where it could not guarantee that the night shift would not be dispensed with as no decision was made on it, and therefore she had to make a decision about her future. I note she had the assistance of the trade union and no formal grievance was ever lodged. It is well established that in advancing a claim for constructive dismissal an employee is required to show that they had no option in the circumstances of their employment other than to terminate their employment. The notion places a very high burden of proof on an employee to demonstrate that they acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with his employers. The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”. The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case … In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to activate the internal procedures before taking the step to resign from her employment. Notwithstanding, I also would suggest that the Respondent acted fairly and was in open consultation with its employees and the trade union with respect to implementing the change to the work processes. I have not found that the actions of the Respondent were so intolerable that the Complainant simply had to remove herself from her employment. I find from the facts of the case that the Complainant was neither entitled to resign from her employment in circumstances amounting to a breach of her contract of employment.

CA-00022573 – 005 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Discrimination

The Relevant Law

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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) ...”. Section 6(2)(c) of the Acts defines the discriminatory ground one has family status and the other does not (in this Act referred to as “the family status ground”) and 6(2)(h) they are of different race, colour, nationality or ethnic or national origins, (in this Act referred to as “the race ground”).

The Complainant has cited Ms. A (‘Irish’ in relation to race), Ms. B and Ms. C (“no children” in relation to family status”) as her comparators. The Complainant said that both she and Ms. A were selected to work the night shift. However, both were out on certified sick leave and when Ms. A returned she was not expected to work the night shift; however, the Complainant was expected to work the night shift if and when she returned to work. I note from the Respondent’s evidence, that there was no arrangement. Ms. A worked the night shift however, the Complainant never returned to work. I prefer the Respondents evidence here and I find the Complainant has failed to raise a prima facie case of discrimination on the race grounds of the basis of less favourable treatment than her comparator. In relation to the family status ground the Complainant claims that appropriate comparators are Ms. B and Ms. C, as the other four workers were hired for the night shift specifically. However, I note the Respondents evidence here that all six staff were from the existing cohort of employees. The selection was done on the basis of the least senior. However, Ms. B and Ms. C were involved in another specific project where they got specific training and were accordingly not considered for the night shift because of their role in this other project. I note therefore that the appropriate examination of the cohort selected for the night shift needs to be evaluated. I see that six people were selected including the Complainant and Ms. A who also had young family. However, the Respondent identified the other four employees selected and it is their evidence that out of the other four employees one had children and three had no children. All the other five where Irish. I prefer the Respondents evidence here and I find the Complainant has failed to raise a prima facie case of discrimination on the family status grounds of the basis of less favourable treatment than the appropriate comparator, on the basis that some had the same family status as her and some had a different family status as her. I note the decision in Melbury Developments v Arturs Valpetters [EDA 0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”. Having considered the evidence I am satisfied to conclude that the Complainant has not established any facts what so ever which give rise to the presumption of discrimination on the part of the Respondent. Therefore, I must state that I am satisfied that a prima facie case has not been established by the Complainant and the burden of proof did not shift in the course of the hearing. Section 85A of the Employment Equality Act 1998 has not therefore been invoked. Therefore, I am satisfied that the complaint brought under section 77 of the Employment Equality Act, 1998 in relation to direct discrimination on the grounds of family status and race fails.

Victimisation

The Relevant Law

Victimisation is defined by Section 74(2) of the Act as follows: -

·         For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complaint was solely or mainly occasioned by the Complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).

In the case Department of Defence v Barrett, EDA1017,the Labour Court held that in order to make out a claim of victimisation under the Act it must be established that: -

a. The Complainant had taken action of a type referred to at Section 74(2) of the Acts (a protected act),

b. The Complainant was subjected to adverse treatment by the Respondent, and,

c. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

In the case of the Public Appointments Service v Kevin Roddy [EDA1019]  the Labour Court held that: “To  be encompassed within the ambit of section 74(2)(b) “proceedings” must come  within the definition as defined by Section 2 under Interpretations where “proceedings” means—(a)  proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and (b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act” Under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts.” Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts it is necessary that the Complainant demonstrates the connection between her actions in relation to defending her entitlements under the Act and the adverse treatment complained of. There were no submissions made or evidence adduced of any substance in relation to victimisation. The Complainant did not perform any of the protected acts and was not involved in any of the circumstances specified in Section 74(2) of the Act and I am satisfied there could not therefore have been any adverse treatment as a reaction to any such act/event. Accordingly, the Complainant’s complaint under victimisation fails.

CA-00022573 – 003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

 Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint is not well founded.

CA-00022573 – 004 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the complaint is not well founded.

CA-00022573 – 005 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

 Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:　

(i)                  the Complainant has failed to establish a prima facie case of direct discrimination on grounds of family status or race in terms of Section 6(2).

(ii)                the Complainant has failed to establish a prima facie case of victimisation in terms of Section 74(2) of the Acts.

　Accordingly, her complaint fails.　

Employment Equality Acts - Unfair Dismissals Acts - Terms of Employment (Information) Act - not well founded – night shift