ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00018655
Parties:
| Complainant | Respondent |
Anonymised Parties | {A Training Consultant} | {A Training Company} |
Representatives |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00023959-001 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00023959-002 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023959-004 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023959-005 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00023959-007 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00023959-008 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00023959-009 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00023959-010 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00023959-011 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00023959-012 | 07/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028092-001 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028092-002 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028092-003 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028092-004 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028092-005 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00028092-007 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00028092-008 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00028092-009 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028092-010 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00028092-011 | 29/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00028092-012 | 29/04/2019 |
Date of Adjudication Hearing: 26/09/2019
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.
Background:
The Complainant was employed by the Respondent from 30th August 2016 to 9th January 2019 as a Training Consultant. |
Summary of Complainant’s Case:
CA-0023959-001 The Complainant claims wages for 2-6th July 2018, 25th October 2018 and 25th November 2018 total €5,411 net. She was authorised by the managing director to work from home following an accident at work and this is permitted in the Employee handbook. Payment of sick-leave is at the discretion of the company, but this was always paid previously. The Respondent on 11th July requested her to take unpaid leave or annual leave for week of 2-6 July 2018. On 23rd August 2018 the Complainant was requested to leave work and to furnish a fitness for Work Certificate in order for her to return. She was told she would continue to be paid for her sick-leave in an email of 14th September 2018 providing she attended a physiotherapist appointment on 2nd October 2018. She received a further email from the Respondent on 12th October 2018 informing her that she would remain on unpaid sick-leave until she is fit for work dating back to 20th September 2018. She was paid holiday pay for 2 weeks annual leave in September. CA-0023959-002 The Complainant did not receive pay from 25th December 2018 to 25 January 2019 and her bonus for second half year of €1,500. The bonus should equate to 10% of salary and was due on 25th July 2018. All other staff were paid their bonus by payroll in September 2018. CA-0023959-004 The Complainant was authorised to work from home. The Respondent subsequently refused to pay her for the day of €120.25 net. The Complainant was forced to take this day as a day’s annual leave following a meeting on 11th July 2018. She seeks payment of €120.25 net. CA-0023959-005 The Complainant booked annual leave from 17th September to 28th September 2018 (10 days). She was on certified sick-leave at this time. She seeks annual leave payment for August 20th to 28 August 2018 €841.75 net. The Complainant claims a breach of S20 (2) of the Act as she was not paid in advance of her holidays. CA-0023959-007 The Complainant says she was recruited as an Account Manager and her employer changed her role and title to Training Consultant in 2018 and it was never notified to her in writing. Her employer refused to pay her bonus in July and stated this was due to a disciplinary matter and other conditions attached to this. The Complainant says she was never notified of any conditions attaching and is a breach of the Act. CA-0023959-008 The Complainant complains under the Industrial Relations Act 1969 about her treatment by her manager following her accident in June 2018. She was requested to furnish detailed medical information after each appointment in a small open plan office, when she was on a crutch and her wrist was in a splint. Her employer was aware of the general nature of her injuries. The Complainant felt harassed and anxious as a result and felt she was required to furnish the information. She feared retaliation if she complained and suffered a panic attack on 30th July 2018. On 13th August she attended her GP for an unrelated complaint the nature of which she did not disclose to her manager. She began to be criticised and treated in a hostile manner without cause. On 29th August 2018 and 26thOctober 2018 in her grievance the Complainant notified the company of her concern. The Complainant says the Respondent refused her the right to utilise the grievance procedure and denied the behaviour of the manager on 19th November 2018. The Complainant says the matter was never investigated and no witnesses were interviewed. The Respondent retaliated and launched an investigation. The Complainant claims she was bullied by the Managing Director. When she went on sick-leave on 23rd August 2018 she was not notified of any company matters including bonus, nor invited to the Christmas party. Calls she made were not returned and communication was by email which misrepresented facts. She was refused the right to return to work on 2 occasions despite being certified fit. The Complainant’s email was monitored in breach of her right to private life in accordance with Article 8 of the ECHR and the ruling in Barbulescu v Romania. She felt the investigation was an attempt to engineer her exit and to damage her reputation. The disciplinary procedure was not followed and the investigation was biased and was retaliatory. In order to defend herself the Complainant had to contact former business contacts, and other parties. She was accused of trying to overstate her claim for Occupational Injury Benefit, which delayed her and caused upset. CA-0023959-009 The Complainant complains of discrimination on the disability ground and a breach of equal pay as she has not been paid her bonus which was paid to all other staff. She was notified her half yearly bonus would be paid in July 2018 but this was never paid to her. All other staff were paid their bonus in September 2018. The Respondent said the bonus was not paid due to serious breaches of discipline. The Complainant says no proper investigation was completed. The Respondent ignored all communications that she was fit for work in order to participate in the disciplinary process. CA-0023959-010 The Complainant says she was discriminated against by the Respondent in the refusal to accept her fitness to work certificate on 29th August 2018. She was forced to leave work on 23rd August. She was forced to attend Occupational Health for assessment of musculoskeletal injuries when fit for work, already back at work for 5 weeks. The Respondent never referred other staff to Occupational Health previously for back injuries or following accidents. She was dissatisfied with the Occupational Health Provider of the Respondent who breached confidentiality when she disclosed an excessive amount of detail regarding the Complainant’s mental health. She only consented to be assessed for musculoskeletal injuries. The Respondent would not offer an alternative and their failure to engage or communicate with the Complainant is discriminatory. The Complainant was obstructed from pursuing her grievance due to her sick-leave. The Respondent said they could not arrange a meeting as she was not medically fit in the circumstances. The Complainant’s own GP was treating her mental health condition, and certified her as fit for work. It was not causing any performance or attendance issues. There were no actions taken by Occupational Health to treat her condition or give accommodation and the suggestion of reassessment was inappropriate. The treatment received by the Complainant was discriminatory and stigmatising. There was no response to her request to return to work on 10th December 2018. The Complainant objects to the use of the disciplinary procedure against her in her absence as she was refused the right to access the procedures due to her absence. She was excluded from all communication formal and informal on sick-leave which is not the culture, and was not invited to the Christmas party. CA-0023959-011 The Complainant says she as penalised for refusing to co-operate with a breach of S86 of the Organisation of Working Time Act 1997 as she objected to being on certified sick-leave and annual leave at the same time. As a result her employer obstructed her attempts to claim injury benefit. The Respondent refused to sign the Department of Social Protection forms, said there were errors it was not an occupational injury and it was overstated. The claim must be submitted for the first date of injury and the forms made it clear the Complainant was paid for the first week of her illness. There were great difficulties in getting the forms signed due to the conduct of the Respondent which caused the Complainant concern regarding the accusations made, delay in payment and significant time to address all inaccuracies. CA-0023959-012 The Complainant says she has been penalised pursuant to S28 of the Safety Health & Welfare at Work Act 2005 due to her employer receiving a solicitors letter notifying him of her personal injury and application to the Injuries Board on 21st August. She was sent home from work out of the blue on 23rd August, refused to accommodate a return to work on 29th August when certified fit, forced attend Occupational Health obstructed return and orchestrated the termination of her employment. Due the Complainant’s complaint regarding her treatment and breach of privacy on 26th October, further complaint on 30th November and notification of intention to seek assistance from the WRC, the Respondent initiated an investigation 4 days later to engineer my exit. CA-0028092-001 Loss of earnings 25th December 2018 to 25th January 2019 which is a total of €3,255. This is a continuation of CA-00023959-001. CA-0028092-002 The Complainant complains regarding non-payment of bonus from July to December 2018. Based on deals closing the Complainant is owed 533 euro. The Complainant was present for 2 out of 6 months of the bonus period, other colleagues received their bonus in January 2019. CA-0028092-003 The Complainant did not receive paid public holidays for 25, 26 December 2018 and 1st January 2019 which is 375.6 euro. CA-0028092-004 The Complainant was not compensated for her annual leave entitlements of 10th July, Sept 20, 21, 24-28 September, 3 days gifted at Christmas and 2 half- days. CA-0028092-005 The Complainant was not compensated for public holidays on termination of employment on 31 October, 25 December, 31st December, 1st January which is 125 euro per day. CA-0028092-006 The complaint of unfair dismissal is withdrawn. CA-0028092-007 The Complainant complains regarding disciplinary sanctions up to and including dismissal under S13 of the Industrial Relations Act 1969 and is a continuation of the complaint at CA-0023959-008. The Complainant complaints of harassment and failure to provide a safe place of work, by misrepresenting facts, failure to allow her remedy through the grievance procedure, failure to investigate her complaints, receiving communications on a Friday afternoon, failure to respond to calls, excluded from office activities, denying entitlements in relation to disciplinary action, and breaching privacy, and failure to allow her return to work. CA-0028092-008 The Complainant has been discriminated against by her employer due to her disability in failing to remit payment for her bonus and Christmas holiday pay. CA-0028092-009 The Complainant has been discriminated against, penalised and victimised which destroyed her trust and confidence in her employer leaving her with no option but to resign due to discriminatory dismissal. The Complainant says she was discriminated against when the company failed to pay her when working from home. Sick pay is at the discretion of the company but it is established practice and was paid previously. The Complainant relies on Elmes v Vedanta Lisheen Mining that she had a right to sick pay but established custom and practice and while working from home as other staff are paid for this. The Complainant was not paid her bonus in July and January and other colleagues were paid. The company said this was because she did not have a review, but this was already completed for 2018. The company said this was due to disciplinary issues. The bonus was dependant on cash collection targets. The Complainant says her employer refused to accept a valid fitness for work certificate dated 27th August 2018 and forced her to engage in an occupational assessment which is discriminatory. She was only absent for 2 weeks, no other employee was treated in this manner. The employer should have carried out a workplace risk assessment. The employer interfered in the occupational health process which was not independent. Her employer refused the right to avail of the grievance, misrepresentations about payment for work, breaches of privacy. The Complainant sought the grievance to be hosted virtually and the employer offered no accommodation that this could be done. The Respondent refused to address the complaints regarding bonus and non-payment of sick pay leading to stress and anxiety of the Complainant. There was no investigation of the breach of privacy complaint. When the Complainant notified the company that she intended to make a complaint to the Workplace Relations Commission, the employer retaliated with an investigation which was not impartial. No witnesses were interviewed. The employer refused to return the employees calls. Employment records were tampered with and monies due not paid. CA-0028092-010 The Complainant was penalised for refusing to co-operate with a breach of the Organisation of Working Time Act 1997 with a contentious investigation. The employee does not know how the information came to light and believes there was monitoring of her computer which breached her privacy. The investigation was fact finding with the employer as judge, and an independent external agency should have been engaged to conduct the investigation. Findings were upheld and fair procedures were not followed, the Complainant was not involved in the investigation at all. CA-0028092-011 The Complainant was victimised for referring her complaints to the Workplace Relations Commission pursuant to S74 of the Employment Equality Acts 1998-2015, although she could not obtain a remedy through the grievance procedure. The Complainant was notified about the investigation 6 days after she notified the company that she intended to complain to the WRC. The employee does not know how the information came to light and believes there was monitoring of her computer which breached her privacy. The investigation was fact finding with the employer as judge, and an independent external agency should have been engaged to conduct the investigation. Findings were upheld and fair procedures were not followed, the Complainant was not involved in the investigation at all CA-0028092-012 The Complainant has been penalised for invoking her rights under the Industrial Relations (Amendment) Act 2015. The employer would not allow the Complainant to proceed with her grievance. The employee does not know how the information came to light and believes there was monitoring of her computer which breached her privacy. The investigation was fact finding with the employer as judge, and an independent external agency should have been engaged to conduct the investigation. Findings were upheld and fair procedures were not followed, the Complainant was not involved in the investigation at all. |
Summary of Respondent’s Case:
The Respondent strenuously denies all complaints made by the Claimant. No independent evidence has been provided to support the claims. The Claimant has been certified by an independent medical expert in Occupational Health as unfit to work since 6th September 2019 and refuses to accept this. The Claimant has no contractual entitlement to sick-pay. The Claimant refused to attend a medical assessment so remained on unpaid leave. Only then the allegations of bullying intimidation and discrimination surfaced including the Claimants request for an independent investigation to try to undermine independent medical advice and to force the company to ignore medical advice regarding her return to work. Once it became clear to the Claimant that we could not facilitate a return to work as long as she was certified as unfit for work and continued to refuse to do so, the Claimant voluntarily resigned and is trying to frame this as a constructive dismissal. CA-0023959-001 The Claimant claims the employer had no right to deduct her pay during periods of leave, but the Claimant has no contractual entitlement to sick-pay. The Company agreed to pay for one week of 2 weeks certified sick-leave. The claim of unlawful deduction is untrue. CA-0023959-002 The Claimant claims she was not paid for 1 October 2018 to date of resignation and non-payment of bonus for July -Dec 2018. The Claimant was on unpaid sick-leave from 6 September and has no entitlement to payment. CA-0023959-004 The Claimant was paid in full for all holidays including 2 weeks in September 2018 when she was on unpaid leave. A schedule of annual leave and public holiday pay has been provided. On receipt of her resignation the company wrote to the Claimant explaining she owed the company 10.5 days leave total €1,413.00. CA-0023959-005 The Claimant claims she has not been paid for public holidays which is untrue. She was on unpaid sick-leave but accruing payment for holiday pay. She was overpaid in aggregate. CA-0023959-007 This complaint is denied. The Complainant was not present for the majority of the second half year and so was not entitled to participation in the bonus pool. If performance is unsatisfactory this is taken into account. CA-0023959-008 The complaint under the Industrial Relations Act 1969 is vigorously denied. The Claimant has failed to provide any evidence of disciplinary sanctions as there were never any sanctions imposed on the Claimant. The Claimant was not dismissed she resigned. This is vexatious. CA-0023959-009 The Claimant complains of discrimination in her conditions of employment, harassment, victimisation and discriminatory dismissal. This is strenuously denied. No evidence has been provided to support this claim, nor to support the claim the Complainant has a disability. This is vexatious and the Claimant is confused as to the difference between a disability and fitness for work. CA-0023959-010 The Claimant alleges non-receipt of equal pay on the grounds of her disability. There is no evidence of a disability, nor evidence of discrimination due to a disability. The Claimant was on unpaid leave as she was certified as unfit for work and as a result of refusal to attend a medical assessment she remained on unpaid leave. As she was unavailable for the majority of the second half of the year 2018, she was not entitled to participate in the bonus pool. CA-0023959-011 The Claimant alleges she was penalised for refusing to co-operate with a breach of S86 of the Organisation of Working Time Act 1997 which is denied there is no evidence of this. CA-0023959-012 The Claimant alleges she has been penalised pursuant to S28 of the Safety Health & Welfare at Work Act 2005 which is strenuously denied there is no evidence of penalisation. CA-0028092-001 The Claimant seeks Loss of earnings 25th December 2018 to 25th January 2019 which is a total of €3,255. The Claimant has no entitlement to wages as she was on unpaid sick-leave. CA-0028092-002 The Claimant seeks bonus from July to December 2018. As she was unavailable for the majority of the second half of the year 2018, she was not entitled to participate in the bonus pool. CA-0028092-003 The Claimant was paid in full for all public holidays. A schedule of annual leave and public holiday pay has been provided. On receipt of her resignation the company wrote to the Claimant explaining she owed the company 10.5 days leave total €1,413.00. CA-0028092-004 The Claimant was paid in full for all statutory annual leave entitlements. A schedule has been provided, there was an overpayment to her of €1,413.00. CA-0028092-005 The Claimant claims she has not been paid for public holidays which is untrue. She was on unpaid sick-leave but accruing payment for holiday pay. She was overpaid in aggregate. CA-0028092-006 The complaint of unfair dismissal is withdrawn. CA-0028092-007 The complaint under the Industrial Relations Act 1969 is vigorously denied. The Claimant has failed to provide any evidence of disciplinary sanctions as there were never any sanctions imposed on the Claimant. The Claimant was not dismissed she resigned. This is vexatious. CA-0028092-008 The Complainant alleges discrimination due to her disability in failing to remit payment for her bonus and Christmas holiday pay which is untrue. The Claimant was on unpaid sick-leave but accruing payment for holiday pay. She was overpaid in aggregate. The Claimant was not paid her bonus as she was not available for her review in September as she was on sick-leave. She was not eligible for her bonus in January 2019 as she was not unavailable for the majority of the half year. CA-0028092-009 The Claimant complains of discrimination in her conditions of employment, harassment, victimisation and discriminatory dismissal. This is strenuously denied. No evidence has been provided to support this claim, nor to support the claim the Complainant has a disability. This is vexatious and the Claimant is confused as to the difference between a disability and fitness for work CA-0028092-010 The Claimant alleges she was penalised for refusing to co-operate with a breach of S86 of the Organisation of Working Time Act 1997 which is denied there is no evidence of this. CA-0028092-011 The Claimant complains of victimisation. This is strenuously denied. No evidence has been provided to support this claim, nor to support the claim the Complainant has a disability. This is vexatious and the Claimant is confused as to the difference between a disability and fitness for work. CA-0028092-012 The complaint under the Industrial Relations Act 1969 is vigorously denied. The Claimant has failed to provide any evidence of disciplinary sanctions as there were never any sanctions imposed on the Claimant. The Claimant was not dismissed she resigned. This is vexatious.
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Findings and Conclusions:
I have read and considered carefully the written and oral submissions of the parties. CA-0023959-001 The Complainant was on certified sick-leave following an accident on 7th June 2018. She was paid for 1 week and claims wages for 2-6th July 2018 which were not paid, when she worked at home and was authorised to do so. The Respondent disputes that the Complainant was able to work at home due to her broken wrist and inability to drive. The Complainant gave evidence that she worked on existing leads only and was notified after she completed the work that she would not be paid. Pursuant to S6 of the Payment of Wages Act 1991, I find the complaint is well founded in part, and direct payment of two and a half days wages by the Respondent to the Complainant of €336.55 gross. CA-0023959-002 The Complainant complains that she did not receive her normal remuneration while on sick-leave. The Respondent’s sick-policy provides payment of sick-pay is at the employer’s discretion, which was not exercised in the Complainant’s favour. Pursuant to S6 of the Payment of Wages Act 1991 I find this aspect of the complaint is not well founded. The Complainant also seeks payment of her bonus for second half year of €1,600 plus 2 months bonus pro-rata time worked. The Respondent says the bonus is discretionary, is subject to a performance review, and there were disciplinary issues. The Complainant was not present for the majority of the second half year and so was not eligible for the pool. The applicable contractual clause states: “You would also be eligible for the staff bonus scheme, which is paid ½ yearly every January and July. The bonus pool is based the sales team’s achievement of monthly cash collection targets and the allocation of this pool is based on individual performance. The potential pool is uncapped.” The first half year bonus was paid to other staff in September when the Complainant was on sick-leave and she was not paid. The Complainant was not notified of any disciplinary issue until December 2018. The terms of the bonus payment are clear. The Complainant is no longer working with the Respondent. I am cognisant of the decision of the High Court in Finnegan v J & E Davy [2007] IEHC 18. I find the Complainant’s claim is well founded and direct payment of a half-year bonus of €1,342.00 by the Respondent. CA-0023959-004 The Complainant complains she did not receive her full annual leave entitlements pursuant to S27 of the Organisation of Working Time Act 1997. The Respondent has provided a schedule of payments made and emails from the Complainant supporting the annual leave taken. The Respondent agreed to pay sick-pay until 20th September 2018 while the Complainant was attending Occupational Health. The Complainant was paid for holiday leave from 21st September 2018 to 28 September 2018. I find the complaint is well founded in part. The Complainant is owed one half days annual leave for 2018 I direct payment of €67.31 by the Respondent to the Complainant. The Complainant also complains that her holiday pay was paid while she was on sick-leave and this should not have occurred. This complaint is well founded and the Complainant’s holiday leave should have been paid when she resigned. She has been paid all monies due and I direct payment of €150 compensation for the breach. CA-0023959-005 The Complainant complains that she did not receive her public holiday entitlements pursuant to S27 of the Organisation of Working Time Act 1997. The Respondent has provided a schedule of payments made and emails from the Complainant supporting the leave taken. The Respondent has paid all public holidays owed. The complaint is not well founded. CA-0023959-007 The Complainant complains that there has been a change to her terms and conditions without notification her title changed title and conditions relating to her bonus. The Complainant was well aware of her title as Training Consultant. The terms of the bonus are clearly set out in the Complainant’s contract. This complaint is not well founded. CA-0023959-008 The Worker complains about her treatment by the Respondent pursuant to S13 of the Industrial Relations Act 1969. She was unable to utilise the grievance procedure as she was not certified as fit for work. The Worker was dissatisfied with the investigation of disciplinary issues, however no disciplinary sanction was given. The Complainant has now left the Respondent and so the dispute is moot. I do not make any recommendation. CA-0023959-009 The Complainant complains that she has been (i)discriminated against in terms of S6 (2) of the Employment Equality Acts 1998-2015 and contrary to S8 in respect of her training and conditions of employment, (ii) harassed by the Respondent on grounds of disability in terms of S6 (2) and contrary to S14A of the Acts, (iii) victimised by the Respondent in relation to S74 (2)of the Acts, and (iv) in dismissing her for discriminatory reasons. The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that: “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.” Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent. S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs 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 discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. Disability in the Acts means – (a) The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) The presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) The malfunction, malformation or disfigurement of a part of a person’s body, (d) A condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) A condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour… The Complainant had an accident on 7th June 2018 which resulted in some physical injuries and she was subsequently absent for two weeks certified sick-leave from 25th June to 6th July 2018. On 23rd August 2018 the Respondent sought a fitness for work cert from the Complainant as the Complainant was still using crutches and appeared to have a new issue with her hip. Thereafter a dispute arose between the parties as to the fitness of the Complainant to return to work ultimately leading to the Complainant refusing to attend the Respondent’s Occupational Health Adviser for further assessment as there was another medical issue to be investigated. The Complainant produced various certificates of fitness for work from her GP during this period and sought to return to work. There is sufficient medical evidence provided by the Respondent’s Occupational Health reports of 20th September 2018 and 10th October 2018 that the Complainant was suffering from some physical injuries and another medical disability, and as such has grounds to bring this complaint. The Complainant disputes the entitlement of the Respondent’s Occupational Health Providers to assess her fitness for work and objects to this. However, the overriding duty of an employer to an employee is to ensure compliance with the Safety Health & Welfare at Work Act 2005 and to provide a safe place of work following an injury/illness. The Respondent was dissatisfied with the Complainant’s GP fitness for work certificates as they were aware there was another medical issue which was impacting on the Complainant and required clarity on this that the Complainant was fit to return. The Complainant alleges that she was treated less favourably as a result of her disability, as she was not paid for all of her sick-leave and was required to attend Occupational Health. I accept the Respondent’s evidence that they did not pay another colleague for long-term sick-leave. Each employee illness must be dealt with on its own individual basis and there are no grounds for suggesting that the requirement to be assessed by Occupational Health is discriminatory. The Complainant would not accept the entitlement of the Respondent to be satisfied that she was fit for work and for the grievance process in order to deal with ongoing issues and has interpreted all of the actions of the Respondent as linked to discriminatory conduct. She has resigned as a result. There is no evidence supporting this claim. I find that no prima facie case of discrimination, harassment, victimisation or discriminatory dismissal against the Complainant on the grounds of disability has been adduced, and the complaint fails.
CA-0023959-010 The Complainant alleges non-receipt of her bonus on the grounds of her disability. I find on the evidence the bonus was retained by the Respondent on grounds not linked to the Complainant’s disability. Payment of the bonus by the Respondent to the Complainant has been directed in my decision CA-0023959-002. I find no prima facie case of discrimination against the Complainant on the grounds of disability has been adduced, and the complaint fails. CA-0023959-011 The Complainant alleges that she has been penalised for refusing to comply with a breach of the Organisation of Working Time Act 1997. This complaint is not well founded. See CA-0023959-004 the Respondent has been directed to discharge the shortfall in annual leave to the Complainant. CA-0023959-012 The Complainant alleges a breach of S28 of the Safety Health & Welfare at Work Act 2005 and that she was penalised for her notification of a personal injury claim to her employer in August 2018 and notification of referral to the Workplace Relations Commission. The Complainant disputes the entitlement of the Respondent’s Occupational Health Providers to assess her fitness for work and objects to this. However, the overriding duty of an employer to an employee is to ensure compliance with the Safety Health & Welfare at Work Act 2005 and to provide a safe place of work following an injury/illness. The Respondent was dissatisfied with the Complainant’s GP fitness for work certificates as they were aware there was another medical issue which was impacting on the Complainant and required clarity on this that the Complainant was fit to return. The Complainant did not accept the legitimate duty of an employer to ensure an employee’s fitness for work. This complaint is not well founded. CA-0028092-001 The Complainant seeks wages unpaid from 25th December to 25th January 2019. The Complainant was on unpaid sick leave and had no contractual entitlement to wages. The complaint is not well founded. CA-0028092-002 The Complainant seeks bonus unpaid for 2 months worked in the second half year. I have already addressed this complaint in CA-00023959-002. The bonus relates to the performance of the employee and business in this period. The Complainant was only present for 2 months and was not eligible for the pool. This complaint is not well founded. CA-0028092-003 The Complainant seeks public holidays. This is a duplicate complaint which has already been addressed in my decision CA-00023959-005 and is not well founded. CA-0028092-004 The Complainant seeks annual leave. My jurisdiction relates to statutory holiday leave entitlements under the Organisation of Working Time Act 1997. This is a duplicate complaint which has already been addressed in my decision CA-00023959-004 and is not well founded. CA-0028092-005 The Complainant seeks public holidays. This is a duplicate complaint which has already been addressed in my decision CA-00023959-005 and is not well founded. CA-0028092-006 The complaint of unfair dismissal was withdrawn. CA-0028092-007 The Worker complains about her treatment by the Respondent pursuant to S13 of the Industrial Relations Act 1969. A decision has already been given in relation to this dispute in CA-0023959-008. CA-0028092-008 The Complainant alleges discriminated by her employer due to her disability in failing to remit half year bonus and Christmas holiday pay. A schedule of leave paid has been provided by the Respondent and this was paid apart from one half day. This has already been addressed in my decision CA-00023959-004. The bonus relates to the performance of the employee and business in this period. The Complainant was only present for 2 months and was not eligible for the pool. No prima facie case of discrimination has been adduced by the Complainant. CA-0028092-009 The Complainant alleges discrimination, victimisation and discriminatory dismissal by her employer. A decision has already been given by me on this complaint in CA-0023959-009. CA-0028092-010 The Complainant alleges she was penalised for refusing to co-operate with a breach of the Organisation of Working Time Act 1997 when her employer allegedly retaliated with monitoring and an investigation against her. There is no evidence supporting this complaint and it is not well founded. CA-0028092-011 The Complainant alleges she has been victimised for making a complaint regarding her treatment pursuant to S77 of the Employment Equality Acts 1998-2015 on 30th November 2018. She was notified the employer commenced an investigation into certain disciplinary issues on 6th December 2018. Certain findings were made but the disciplinary process was deferred until the Complainant’s fitness for work was established and her return to work. No disciplinary sanctions were given. I have already found in CA-0023959-009 the actions of the employer in seeking to clarify the Complainant’s fitness for work were justified and were not discriminatory. No prima facie case of victimisation has been adduced and the complaint fails. CA-0028092-012 The Complainant alleges she has been penalised for invoking her rights under S20 (1) of the Industrial Relations (Amendment) Act 2015. No evidence has been adduced to substantiate this complaint and it is not well founded. |
Decision:
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.
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-0023959-001 Pursuant to S6 of the Payment of Wages Act 1991, I find the complaint is well founded in part, and direct payment of two and a half days wages by the Respondent to the Complainant of €336.55 gross. CA-0023959-002 The Complainant complains that she did not receive her normal remuneration while on sick-leave. Pursuant to S6 of the Payment of Wages Act 1991 I find the Complainants claim for normal remuneration is not well founded. I find the Complainant’s claim in relation to her bonus for the first 6 months of 2018 is well founded and direct payment to her of a half-year bonus of €1,342.00 by the Respondent. CA-0023959-004 I find the complaint is well founded in part. The Complainant is owed one half days annual leave for 2018 I direct payment of €67.31 by the Respondent to the Complainant. This complaint is well founded and the Complainant’s holiday leave should have been paid when she resigned. I direct payment of €150 compensation for the breach by the Respondent to the Complainant. CA-0023959-005 The complaint is not well founded. CA-0023959-007 This complaint is not well founded. CA-0023959-008 I do not make any recommendation. CA-0023959-009 I find that no prima facie case of discrimination, harassment, victimisation or discriminatory dismissal against the Complainant on the grounds of disability has been adduced, and the complaint fails. CA-0023959-010 I find no prima facie case of discrimination against the Complainant on the grounds of disability has been adduced, and the complaint fails. CA-0023959-011 This complaint is not well founded. See CA-0023959-004 the Respondent has been directed to discharge the shortfall in annual leave to the Complainant. CA-0023959-012 This complaint is not well founded. CA-0028092-001 The complaint is not well founded. CA-0028092-002 This complaint is not well founded. CA-0028092-003 This is a duplicate complaint which has already been addressed in my decision CA-00023959-005 and is not well founded. CA-0028092-004 This is a duplicate complaint which has already been addressed in my decision CA-00023959-004 and is not well founded. CA-0028092-005 This is a duplicate complaint which has already been addressed in my decision CA-00023959-005 and is not well founded. CA-0028092-006 The complaint of unfair dismissal was withdrawn. CA-0028092-007 A decision has already been given in relation to this dispute in CA-0023959-008 and I make no recommendation. CA-0028092-008 No prima facie case of discrimination has been adduced by the Complainant and the complaint fails. CA-0028092-009 A decision has already been given by me on this complaint in CA-0023959-009. No discrimination has been shown and the complaint fails. CA-0028092-010 There is no evidence supporting this complaint and it is not well founded. CA-0028092-011 No prima facie case of victimisation has been adduced and the complaint fails. CA-0028092-012 No evidence has been adduced to substantiate this complaint and it is not well founded. |
Dated: 24th August 2020
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
Discrimination alleged, prima facie case |