Complainant

Respondent

Anonymised Parties

Sales Assistant

Retailer

Representatives

Sean Ormonde & Co. Ms. Eleanor M Power BL

Pat Collier Collier Broderick

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025411-001

30/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00025411-002

30/01/2019

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

CA-00025411-003

30/01/2019

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

CA-00025411-004

30/01/2019

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

CA-00025421-001

30/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00025421-002

30/01/2019

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

CA-00025421-003

30/01/2019

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

CA-00025421-004

30/01/2019

The Complainant was employed as a sales assistant by the Respondent from August 30th, 2016 to the date of termination of her employment on January 4th, 2019. Her duties included stocking shelves, assisting customers, working the till, cleaning, stocktaking as well as all other general shop duties. The Complainant was paid a wage of €9.55 per hour and she worked 30-hours per week. The Complainant is of Romanian heritage.

The following complaints are before me:

            I.            The Complainant’s complaint pursuant to section 8 of the Unfair Dismissal Acts 1977-2007, that the Complainant had to leave her employment due to the conduct of her employer and/or others at her workplace; and

          II.            The complaint pursuant to section 28 of the Safety, Health and Welfare at Work Act, 2005, that the complainant was penalised for making a safety related complaint.

        III.            The complaint pursuant to the Employment Equality Act, 1998 – 2015, that the Complainant was discriminated against by the Respondent by reason of her gender, race and disability in victimisation, failing to reasonably accommodate her disability, harassment and her conditions of employment; and

        IV.            The complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 that the Complainant did not receive her contract in writing or at all from the Respondent and that the Complainant’s Terms were altered without written notice from the Respondent.

The Respondent denies all allegations and complaints made.

The Complainant signed for a contract of employment but never received a contract nor a copy of the employee handbook. She also did not receive training.

On September 4th, 2018 the Complainant went to her GP and was certified medically unfit due to anxiety and work-related stress. The Respondent was on notice of this issue and the impact the work environment was having on the Complainant’s health, yet no steps were taken to address or investigate the reasons for her anxiety and work-related stress. The Complainant was declared fit for work on September 14th, 2018.

A new supervisor, Mr H, commenced work with the Respondent at the beginning of November 2018. Mr H immediately created problems for the Complainant. She outlined a number of incidents where she feels she was uniquely singled out and reprimanded in front of other colleagues. These included using her mobile phone while on duty, chewing gum and not wearing black shoes. She submits that the above incidents amounted to harassment as she believes she was singled out because of her gender, disability and race.

On December 12th, 2018 the Complainant was called to a meeting with Mr H and a Mr K, regional manager where her performance was questioned to the effect that she was not turning out pallets quickly enough. She was not afforded representation at this meeting. Thereafter, she submits, her working environment was made hostile and intolerable by the actions of Mr H and he did not treat any other employee in such a manner.

On December 17th the Complainant sent a grievance by text to the Respondent’s Helpline. The complaints related to being singled out for unfair reprimands, the ‘ambush’ meeting with Mr H and Mr K and the subsequent reduction in hours when she had raised these issues previously with Mr B.

On December 31st, 2018 a supervisor, Ms. P, returned from her holiday break and informed the Complainant, in the office, that she had just received her complaint. The Complainant took the opportunity also to inform Ms. P of an incident the previous day when Mr H reprimanded her for waiting around. The Complainant had given another employee a pair of scissors and was waiting for it to be returned. The Complainant felt demeaned and embarrassed by the incident. No action was taken, or proposed to be taken, on foot of the Complainant’s complaints.

On the 31st of December 2018 the Complainant handed in her notice as she could not continue in the hostile and toxic work environment. The Complainant set out her reasons for leaving in a form stating she enjoyed her time at the Respondent until her new manager began bullying her.

Legal Arguments:

Constructive Dismissal:

The Complainant cited the following cases, amongst others, regarding the behaviour of the Employer:

Kennedy v Foxfield Inns Ltd trading as the Imperial Hotel UD549/1994

This case concerns complaints that a manager had made disparaging remarks and unwanted physical contact. The Tribunal held: “the question for the Tribunal is to decide whether the claimant’s decision to terminate her employment was reasonable. We are satisfied on the evidence, by virtue of the type of conduct of which she had complained, coupled with the status of the perpetrator of that conduct, the claimant’s situation in her employment became intolerable to the extent that she was left with no option but to terminate her employment.”

In the case of Porter vs Atlantic Healthcare Ltd UD971 97 1/2017 the claimant began to develop issues at work when a new manager was appointed to the store in which she was working. The claimant asserted that this new manager would call her names, such as flirt and floozy, and would call her away from Jobs before she could complete them and then would criticise her for not having completed them. The claimant reported this behaviour to an assistant manager. This assistant manager simply told the claimant’s manager, and nothing was done about the complaint. The claimant’s mother was in a serious road accident and the claimant sought to take force majeure leave. Her manager refused this leave but then ultimately told the claimant that if she took the lead she would “deal with her” on Monday. The claimant took the leave and contacted the area manager to resolve the issue. When the claimant returned to work she was told that she had been selfish towards her teammates and that carer's leave was the correct leave to take. The behaviour continued towards the claimant and the claimant developed a stress related condition. The Employment Appeals Tribunal held that the claimant’s decision to leave her employment was not a voluntary one.

in the case of Allen vs Independent Newspapers [2002] ELR 132 the claimant had been the crime correspondent for the respondent newspaper. The claimant had been on a flexible working arrangement while undertaking this function. The claimant was then asked to take over the respondent’s social column. The claimant agreed to take over this role as a temporary measure. The claimant was moved to a more fixed working schedule. The claimant complained about the working environment and made specific allegations against one colleague. No action was taken on the claimant’s complaint against her colleague and in fact he subsequently was appointed as her manager. The claimant complained to her direct line manager about the hostile environment and received no response. The claimant then took her complaint to a group managing editor who attempted to arrange a meeting to resolve the issues. The complaint developed a stress related condition and resigned her position soon after this development. The Employment Appeals Tribunal were unanimous in their finding that it was reasonable in the circumstances for the claimant to resign her position. Further, the Tribunal held that the complainant was entitled to take the detrimental affect her employment was having on her health into consideration in arriving at her decision to resign.

In the case of A Worker (Mr O) vs an Employer [2005] E.L.R. 132 the  Labour Court observed that the definition of dismissal under the Equality legislation was similar to the concept of constructive dismissal under the Unfair Dismissals Act. This was applied in the case of Stone vs I Maloney a and Sons Ltd DECE2010-196. The Equality officer cited the Labour Court in the latter case when it was stated:

“It (the Labour Court) set out the main applicable tests, these being the ‘contract’ test and the ‘reasonableness’ test and held that these tests may be used in combination or in the alternative. I find that in the case at hand, the reasonableness test is the relevant one. This test asks whether the employer conducts its affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. What can be regarded as reasonable, or unreasonable, depends on the circumstances of each case. However, it is an important element of the reasonableness test that the employer has an opportunity to address the employee’s grievance or complaint.”

In the case at hand, the Complainant maintains that the Respondent acted so unreasonably as to devastate trust and confidence in the Respondent, to leave the complainant with no option other than to resign her Employment.

The Complainant further submits that she submitted a plethora of complaints, verbal and written, formal and informal, through an internal process that she considers to be unfair, and that these were not addressed at all by the Respondent.

Employment Equality Acts:

Gender:

The Complainant was continually subject to belittling and demeaning comments as well as reprimands in relation to her work. She was constantly reprimanded for minor issues when her male colleagues were not similarly reprimanded for such actions.

Disability:

The Complainant submits that while it may not be immediately obvious to an employer that an employee was suffering from a disability, the employer must establish that they had no actual, constructive or implied knowledge of the employee’s disability. In the case of A Cleaning Operative v Contract Cleaning CompanyDEC-E2010-089 the Equality Officer was satisfied that the respondent was aware of the claimant’s disability despite the medical certificates not specifying the illness from which she suffered.

The Complainant informed the Respondent of her health issues in or around September 2018. The Complainant submits, in the case at hand, that the Respondent was on notice of a disability as a medical certificate was provided. The Respondent failed to offer support or assistance to the Complainant. The Complainant submits she was berated in meetings despite the Respondent being on notice of her disability and was singled out for unwarranted treatment despite her disability. The Respondent also failed to reasonably accommodate the Complainant despite her disability.

The Complaint further submits that the Complainant was victimised and harassed on the grounds of race, gender and disability.

In A Complainant v A Hospital DEC-E2002-009, the Labour Court held that, where an employer is informed of harassment, it is the employer’s responsibility to put in place such procedures as would enable the appellant to avail of working conditions free from discrimination. The Complainant submits that the Respondent in this case failed to prevent harassment or adequately investigate the incidents of harassment brought to its attention.

Complaint pursuant to the Safety, Health and Welfare at Work, Act, 2005.

In Neill v Toni and Guy [2010] E.L.R., the claimant was successful in a claim for penalisation where he complained about the quality of latex gloves provided by the employer for handling colouring agents. After this complaint the claimant in this case was given a written warning and was later dismissed for alleged misconduct. The Court held:

“It seems to the Court that a form of shifting the burden of proof, similar to that in employment equality law should be applied in the instant case. Thus, the claimant must establish, on the balance of probabilities, that he made the complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that the claimant’s complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied, it is for the respondent to satisfy the Court, on credible evidence and to the normal civil standard that the complaints relied upon did not influence the claimant’s decision.”

The Complainant maintains that her complaints to her line manager resulted in her being subjected to increased hostility from her manager, a reduction in her rostered hours and increased scrutiny and criticism of her work.

Complaints pursuant to section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant submits that she never received a contract of employment nor a statement of her terms and conditions of employment. Further, she submits that the terms of her employment were altered by the Respondent on this occasion in the form of a reduction in rostered hours. The Complainant was not notified of these changes in writing.

The Respondent is a retailer with a chain of shops throughout Ireland. A total of 1000 staff from 32 countries across 4 continents, are employed in its retail and wholesale chain. Forty-six per cent of the staff are non-Irish and there is a wide diversity of cultures in the workplace.

The Complainant started her employment with the Respondent on the 30th of August 2016 as a Sales Assistant. She signed the staff handbook acknowledgement form as well as a full statement of her terms of employment under the Terms of Employment (Information) Act, 1994. The staff handbook includes policies on dignity at work, grievances and operational procedures. The Complainant worked for one manager in the period 30/08/2016 through to 01/11/2018 and a second manager in the period 01/11/2018 through to when she resigned her position on 31/12/2018.

The Respondent exhibits extensive documentation of numerous training modules signed off by the Complainant, contrary to her submission that no training was given. The Respondent submits that the assignments of tasks by the Manager, in line with her job description, does not constitute harassment or discriminatory treatment.

The Respondent submits that there was no reduction in the hours of work of the Complainant despite the allegation to the contrary by the Complainant. The Respondent submits a detailed analysis of every hour worked by the Complainant which shows the Complainant worked an average of 4 days per week and 30 hours per week. The Complainant worked 40 hours or more on 8 weeks during 2018; 2 of the 8 weeks occurred in the 8-week period between 01/11/2018 and the 31/12/2018, which was the period the Complainant took issue with the new manager. In comparison with the previous year, the Complainant had worked 10% more hours in the period she alleges penalisation.

At the time of commencement of employment, the Complainant signed an extensive health questionnaire to show that she suffered from no illness or disability. The Complainant was absent due to illness for a total of 8 days in the period 2016 to 2019. The medical certificate submitted in September 2018 did not name any illness or disability therefore the question of discrimination or reasonable accommodation on the grounds of disability does not arise.

The Complainant raised no grievance with the Respondent from commencement of her employment through to 18/12/18. The Complainant stated in her exit interview questionnaire that she enjoyed working with the Respondent “till she started getting bullied by her new manager”. The Complainant’s new manager started on 01/11/2018. The Complainant submitted a grievance on the 18/12/2018, 6 days after her manager held a performance conversation with her.

The Respondent acknowledged receipt of this grievance and advised that the first point of contact should be the Complainant’s Multi Site Manager, Mr K, who was copied on the reply email. The Complainant was advised that Mr K was likely to be in contact the following week to arrange a meeting. The Respondent’s human resources department followed up 2 days later to get an update and was advised that Mr K had spoken to the Complainant and would meet with the Complainant on the issue.

Mr K met with the Complainant on the 31/12/2018 and he assured her (1) that following the busy Christmas period her complaint would be dealt with in the New Year and (2) that he was working with the manager to ensure the Complainant could focus on the stationery section.

The Complainant did not raise any issue under the respect and dignity at work procedures. The grievance on the 18/11/2018 took issue with:

·         Her hours and days being cut from the start of November. The Respondent submits that detailed records show that this was not the case.

·         Being told by her manager that she was not allowed have her mobile phone on the floor. The Respondent submits the employee handbook explicitly states: “Staff are also not permitted to have their mobile phones on them during their hours of work.”

·         Being called out for chewing gum. The Respondent submits that the handbook states: “Chewing gum is not allowed”.

·         Being spoken to about taking a break without informing the management. The Respondent submits that the Complainant acknowledges that she should not have done it.

·         Being asked to switch from working on stationery items to working on tills. The Respondent submits that this was part of the job description.

·         Not being informed in advance about a formal conversation between the Complainant, Mr K and the following day being asked to sign an illegible note in relation to the conversation. The conversation was in relation to tasks not being carried out, which was within the Complainant’s job description.

On the 31/12/2018 the Complainant resigned her position, 13 days after submitting her grievance and on the same day that she met with Mr K. The Complainant was advised on that day that her grievance would have been processed after the Christmas period, early in the New Year.

Respondent’s Legal Argument:

The Respondent argues that the Complainant did not discharge the burden of proof required regarding constructive dismissal under section 1 of the Unfair Dismissals Act, 1977, as amended. Particularly, she fails to show a demonstrated breach of contract on behalf of the Respondent and furthermore, she does not show that the Respondent acted so unreasonably as to make the continuation of the contract intolerable therefore and it was unreasonable for the Complainant to resign.

The Respondent submits that at all times it operated within the terms of the contract of employment between the parties. The Respondent cites the test set out in Conway v Ulster Bank UD474/1981 to confirm the position that the Respondent did not violate any term of the contract or company policies, express, implied or otherwise. The Respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the Respondent no longer intended to be bound by the contract”. No change occurred in the contract to make it “so radically different from what was before”.

In accordance with best practice and company policy in managing staff, the Respondent:

·         Held a conversation with the Complainant in relation to the breaches of the rules relating to mobile phones, chewing gum and completing work which was assigned to her.

·         Assigned an area manager, Mr K, to process her grievance.

·         Mr K contacted the Complainant to advise that he was working on her case and, given the time of year, would deal with it after Christmas.

·         Mr K met with the Complainant who then advised that she was not going ahead with her grievance but was resigning her position.

The Respondent submits that it acted reasonably in contrast to the Complainant who failed to engage the grievance process. Neither did she and exhaust such process to show that she had acted reasonably at all times, as is required to show constructive dismissal. The Respondent cites McCormack v Dunnes Stores UD1421/2008 where the Tribunal stated that there was a high burden of proof on the Complainant to show that she had exhausted all internal procedures to resolve her grievance with her employers. Furthermore, the Respondent cited Conway where the Complainant was found not to have acted reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints.”

Constructive Dismissal:

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The Labour Court in Caci Non-Life Limited v Daniella Paone [2017] UDD 1750 stated:

“It is well-settled law that a complainant who is advancing a claim of constructive unfair dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Furthermore, it is incumbent on an employee to avail himself/herself of the employer’s grievance procedure before resigning so as to put the employer on notice of the employee’s issues and to permit the employer an opportunity to address them. (See for example the determination of the Employment Appeals Tribunal in Conway v Ulster Bank LimitedUD474/1981).”

The Complainant’s evidence was that problems started with the arrival of a new manager on November 1st, 2018. Prior to this she expressed happiness with the workplace. Her unhappiness is encapsulated in the grievance she made on December 17th, 2018, regarding her treatment. This dealt with hours being cut (which the Complainant accepts may have been due to inadvertence and she also confirmed that this matter was rectified in two weeks). She also took issue with being reprimanded for chewing gum, using her mobile phone whilst at work and for taking an informal break, which she admits she should not have done. The Respondent asserts that the chewing of gum and the use of a mobile phone on the job was explicitly prohibited. The Complainant had also an issue with being ‘ambushed’ regarding a performance issue where unhappiness was expressed about her rate of pallet clearing. The Complainant asserted that she was being singled out and stated that other colleagues who engaged in similar behaviour were being ignored.

The question arises as to whether the Complainant has shown that the behaviour of the manager in question amounts to a repudiation of the Complainant’s contract to such an extent that she was entitled to terminate her employment. The Complainant cites Kennedy v Foxfield Innstrading as the Imperial Hotel UD 549/1994 and Porter v Atlantic Homecare Ltd971/2007 as examples of where the behaviour by managers was deemed to be so unacceptable as to amount to a repudiation of contract allowing termination of contract. However, these two cases can be distinguished from the present case. In Foxfield there was evidence of disparaging remarks and unwanted physical contact. In Porter there was also name calling over a protracted period and intimidating behaviour which gave rise to the claimant developing a stress related condition. In the instant case the Complainant gave no evidence of disparaging remarks of any kind nor of personal invective directed towards her. Her only work-related stress event that she claims caused her to suffer illness occurred in September 2018, before the new manager arrived. She gave evidence that she fully understood what constituted bullying behaviour however she had every opportunity to pursue such a claim but stopped short. She did claim she was bullied in a post termination questionnaire but choose not to pursue such a complaint whilst still employed. The Complainant submits that she made a number of informal complaints about being ‘picked on’ but did not give times and dates of these complaints. Therefore, I found her evidence to unreliable on this point and preferred the evidence of the Respondent where it showed that the only grievance received was the formal one of December 17th which makes no mention of bullying.

Fundamentally, no evidence was given that the disciplinary process was at any time, threatened or used against the Complainant. There is no doubt that the Complainant had a legitimate grievance in her perception of being singled out for reprimand and this justifiably required further investigation. However, I cannot find, in the required objective analysis, as referred to by the Labour Court in Caci Non-Life Ltd , that in applying the workplace rules (which  the Complainant had signed up for), the behaviour of the manager amounted to a repudiatory breach by the Respondent; it may have been unfair at times in the manner it was carried out, but it didn’t fundamentally breach the contract nor was there a breach of a fundamental term that I could discern.  

The second strand of the test on constructive dismissal is described by the Labour Court in Caci Non-Life:

“Furthermore, it is incumbent on an employee to avail himself/herself of the employer’s grievance procedure before resigning so as to put the employer on notice of the employee’s issues and to permit the employer an opportunity to address them. (See for example the determination of the Employment Appeals Tribunal in Conway v Ulster Bank LimitedUD474/1981).”

In Conway v Ulster Bank UD474/1981 the Claimant was found not to have acted reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints.”

The Complainant submitted a grievance which was received by the Respondent on December 18th, 2018. The Respondent met with the Complainant on December 31st, 2019, but the Complainant clearly stated that she didn’t wish for her grievance to be investigated as she was resigning from her employment. The Complainant did not permit the Respondent an opportunity to address her grievance. The Complainant asserts that the internal procedures were unfair and ultimately exhausted but gave no evidence to support this argument. The Complainant cited Allen vs Independent Newspapers [2002] ELR 132 and Porter vs Atlantic Healthcare Ltd UD971 97 1/2017. In Allen, the claimant pursued her grievance though different senior managers and stages. In the instant case the Complainant made a grievance but declined to have it investigated. In Porter the claimant made a complaint against a manager, but it was ignored. Evidence was given in this case that the Respondent was about to address the grievance before the Complainant resigned.

The burden of proof required in cases of constructive dismissal is a high bar for a Complainant.  It requires the Complainant to show that the conduct of her employer was either so unreasonable that she had to leave her job, or, that there was a fundamental breach in her contract of employment that made the continuation of his employment untenable.  In the case under consideration, I find no evidence that the Respondent acted in breach of the complainant’s contract.  I believe that the Complainant was upset and uncomfortable with her supervisor and felt singled out for reprimands at times. However, she stopped short of making a bullying complaint but filed a workplace grievance instead. This suggests a level of unhappiness with the way her work was being managed, as distinct from behaviour that could amount to a repudiatory contract breach by a supervisor. Crucially, she did not allow the Respondent to investigate her grievance.

Having taken all the above evidence into account, I find that the Complainant has not made out the standard of the burden of proof required to demonstrate that the conduct of her employer was such that she had no alternative but to leave her job. Furthermore, she did not utilise the grievance procedure as required. I therefore find that her complaint of constructive unfair dismissal is not well founded.

Complaints pursuant to the Employment Equality Acts 1998-2015 (The Acts):

The Complaints pursuant to the Employment Equality Act, 1998 – 2015, are that the Complainant was discriminated against by the Respondent by reason of her gender, race and disability in victimisation, failing to reasonably accommodate her disability, harassment and her conditions of employment.

Discrimination:

Section 6 of the Acts state that discrimination for the purposes of this Act:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

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

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

…(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”), …

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

Disability:

The Act prohibits discrimination on the grounds of disability. Section 2(1) provides:

“disability” 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,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Harassment:

Section 14(A)(7) of the Acts provides:

(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Victimisation:

Section 74(2) of the Acts provides:

For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Prima Facie Case:

The initial burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably on the discriminatory ground cited. Section 85(a) of the Act states as follows:

(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

Conclusions on Equality Complaints:

Disability:

The first issue to be decided is whether the Complainant had a disability as defined under the Act. It is important to distinguish illness from disability. The jurisprudence of the CJEU in HK Danmark acting on behalf of Ring v Dansk Almennyttigt Boligselskab [2013] I.R.L.R. 571, gives clarity on Council Directive 2000/78 where the CJEU had sought to differentiate disability from sickness.

“Disability … must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long term one … on the other hand , an illness not entailing such a limitation is not covered by the concept of discrimination.” (para.47)”

The Complainant gave evidence that she attended her GP on September 4th and was certified as medically unfit from the 4th of September 2018 to the 14th of September 2018, when she was declared fit to return to work. She states that her condition was due to work related stress. Evidence was given that the medical certificates given to the Respondent did not state the illness nor the cause of the illness. No medical evidence of any alleged debilitating effect this had on the Complainant was presented nor was any evidence presented as to how her illness could be defined as coming under the Acts. Furthermore, the Complainant stated in her grievance of December 17th, 2018, some months after the period of certified illness in September 2018, that she was happy and had no issues until the arrival of a new manager on November 1st, 2018. The Respondent could not reasonably impute that she had a disability that needed to be accommodated under these circumstances. All the foregoing evidence points clearly to a short illness, from which it seems she made a recovery, as distinct from a debilitating mental impairment as referred to in HK Danmark above. She further gave evidence that the manager did not make any disparaging remarks about her illness, nor did she believe that she was singled out for any special behaviour because of her illness.

I cannot establish that the complainant was in possession of a disability in accordance with s.2(1)(e) of the Acts. Therefore, her discriminatory complaints under this ground are not well founded. The Complaint of not being reasonably accommodated by the Respondent fails as a corollary.

Gender:

In evidence the Complainant accepted that female colleagues, as well as male colleagues, were similarly not reprimanded for a breach of workplace rules or otherwise subject to the impugned management practice that was directed at her. The Complainant gave no evidence or details regarding any act or behaviour that could be described as harassment or discrimination on the gender ground under the Act. The Labour Court in Artur Val Peters stated “Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

I find that the Complainant did not establish any primary facts of gender discrimination or harassment therefore she did not discharge the burden of proof required and her complaint on the ground of gender fails.

Race:

For a Complaint of discrimination under the Employment Equality Acts to be made out, The Complainant must demonstrate a nexus between the alleged discriminatory treatment and her race. The Complainant is of Romanian heritage as was the manager against whom she is has made the Complaint of discrimination and harassment. The Complainant gave evidence that it in her opinion she was being singled out for reprimands, as distinct from her non-Romanian colleagues, because it was a Romanian cultural thing regarding gender. She gave no evidence or further detail on this and accepted that she could not identify any incident where she believes she was disparaged or otherwise subjected to unacceptable behaviour because she was Romanian. When further pressed about this the Complainant said that some colleagues mentioned that perhaps the manager had a problem with her because they were of the same nationality. The Complainant also acknowledged that if she felt that she was being discriminated on the grounds of race she could have made a complaint under the Respondent’s Dignity at Work policy. She chose not to make such a complaint, nor did she ever raise the issue with the Respondent.

I refer to the Labour Court in Val Peters and the fundamental standard of evidence required by the Complainant to establish facts under section 85A of the Acts: “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 evidence of the Complainant in this instant case points more to speculation and opinion rather than the primary facts required for the burden of proof to be discharged. I find that the Complainant has not discharged this burden satisfactorily and therefore her complaint of discriminatory treatment and harassment, on the ground of race, fails.

Victimisation:

The key elements of victimisation provided for in section 74(2) of the Acts are as follows:

·         The employee had taken action of a type referred to at section 74(2) of the Acts

·         The employee was subjected to adverse treatment by the Respondent, and,

·         The adverse treatment was in reaction to the protected action having been taken by the employee.

·         There must be a causal connection between the taking of proceedings and any alleged treatment by the employer.

The Complainant accepts that she never initiated a complaint, formal or otherwise, under the Employment Equality Acts whilst in the employ of the Respondent therefore her complaint of victimisation on the grounds of disability, race and gender fails.

Complaint pursuant to the Safety, Health and Welfare at Work, Act, 2005.

The Complainant submits that she was penalised for making a safety related complaint.

Section 27 of the Act in relevant part states:

“(1) In this section ‘penalisation’ includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, …

(3) An employer shall not penalise or threaten penalisation against an employee for–

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work …

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).”

In Tony and Guy Blackrock Limited v O'Neill [2010] 21 E.L.R.1 the court considered the circumstances in which an infringement of s.27 may occur. It stated:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

The Complainant must establish: (a) on the balance of probabilities that she committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. If both limbs are satisfied, the burden shifts to the Respondent to show, on credible evidence, and to the normal civil standard, that the protected act did not influence the detriment imposed.

The Complainant gave evidence that she made a grievance about her manager ‘singling her out’ for reprimands and questioning her performance. She states that her hours were reduced because of making a complaint which she submits qualifies as penalisation under the Act. The fundamental issues to be considered are: (a) whether the grievance made was a protected act, and if it was, did the Complainant suffer a detriment as determined under the Act.

Firstly, the grievance made against her manager was not a bullying complaint, even though she was aware that she could have made such a complaint under the Dignity at Work Policy. No mention of bullying is made in the grievance, which instead refers to unfair reprimands of behaviour and performance to which the Complainant believes she was subjected to. Secondly, the Complainant gave evidence that her hours were reduced from November 1st to approximately mid - November, when the hours were restored. The only cogent evidence of a grievance complaint being made by the Complainant was that which she submitted by text on December 17th, 2018. There was no evidence that her hours were reduced or that she suffered any detriment after that date.

I cannot find that the grievance described was a protected act under section 27 of the Safety, Health and Welfare at Work Act, 2005. It had the attributes of a workplace grievance with no reference, or by construction, signify a health and safety issue. Notwithstanding this finding, the Complainant could not show any detriment, as determined under the Act, after making the grievance. Therefore, I find that the Complainant has not discharged the required initial burden of proof to show that she was penalised for making a health and safety complaint and therefore her complaint fails.

Complaint pursuant to the Terms of Employment (Information) Act, 1994:

The Complainant submits that she did not receive her contract in writing or at all from the Respondent pursuant to section 7 of the Terms of Employment (Information) Act, 1994. The Complainant further submits that the terms of her employment were altered by the Respondent in the form of a reduction in rostered hours. The Complainant was not notified of these changes in writing.

The Minimum Notice and Terms of Employment (Information) Act 1994 require that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Section 3 of the Act specifies the details that must be included in the written statement of terms and conditions which an employer is obliged to issue to each employee within two months of the employee commencing employment with that employer. Section 3(1) provides as follows:

An employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing the following particulars of the terms ofthe employee’s employment, that is to say—(a) the full names of the employer and the employee,(b) the address of the employer in the State or, where appropriate, the addressof the principal place of the relevant business of the employer in the Stateor the registered office (within the meaning of the Companies Act, 1963),(c) the place of work or, where there is no fixed or main place of work, a statementspecifying that the employee is required or permitted to work at variousplaces,(d) the title of the job or nature of the work for which the employee is employed,(e) the date of commencement of the employee’s contract of employment,(f) in the case of a temporary contract of employment, the expected durationthereof or, if the contract of employment is for a fixed term, the date onwhich the contract expires,F5[(fa) a reference to any registered employment agreement or employmentregulation order which applies to the employee and confirmation of wherethe employee may obtain a copy of such agreement or order,]F6[(g) the rate or method of calculation of the employee’s remuneration and thepay reference period for the purposes of the National Minimum Wage Act,2000,(ga) that the employee may, under section 23 of the National Minimum WageAct, 2000, request from the employer a written statement of the employee’saverage hourly rate of pay for any pay reference period as provided in thatsection,](h) the length of the intervals between the times at which remuneration is paid,whether a week, a month or any other interval,(i) any terms or conditions relating to hours of work (including overtime),(j) any terms or conditions relating to paid leave (other than paid sick leave),(k) any terms or conditions relating to—(i) incapacity for work due to sickness or injury and paid sick leave, and(ii) pensions and pension schemes,(l) the period of notice which the employee is required to give and entitled toreceive (whether by or under statute or under the terms of the employee’scontract of employment) to determine the employee’s contract of employmentor, where this cannot be indicated when the information is given, the methodfor determining such periods of notice,(m) a reference to any collective agreements which directly affect the terms andconditions of the employee’s employment including, where the employer isnot a party to such agreements, particulars of the bodies or institutions bywhom they were made.

5. Notification of changes

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

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

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

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

The evidence given by the Complainant on this complaint was not convincing. The Respondent presented a signed copy of the Written Statement of the Terms of Employment as required under the above Act. The Complainant accepted that she signed this and likewise that she had also signed for a handbook which explicitly stated that the terms therein formed part of her conditions of employment. The Complainant stated that she signed both but never got copies of same, despite her signature to a declaration that said otherwise. I preferred the evidence of the Respondent on this issue therefore I find that the complaint of not receiving the Terms and Conditions contrary to section 3 of the Act is not to well founded and therefore fails.

Section 5 requires notification in writing by the employer if there is any change to the statement furnished under section 3. The section under ‘hours of work’ in the Complainant’s terms reads: “These will normally be in the range from 8-40 hours per week and subject to the Organisation of Working Time Act, 1997… The Respondent gave documentary evidence to show that the Complainant worked an average of 32 hours across 4 days in the 9 weeks up to the 31st of December 2018 and argues that there was no reduction in hours. The Complainant states that her hours were reduced upon the arrival of the new manager in November 2018 from 40 to 24, but that that these hours were later restored in two weeks. The records show that there was a pattern of variation of hours over 3 years from 25 to 44. The fundamental issue here is that there was no change in the original Terms of Employment. Such a range of variation is alluded to in the original terms, therefore I cannot find that there was a requirement to notify the Complainant in writing of an alteration of those expressed terms. I therefore find that there was no breach of section 5 of the Terms of Employment (Information) Act, 1994 and the complaint fails.

CA-00025411-01:

I find that the complaint pursuant to section 8 of the Unfair Dismissal Acts 1977-2007, that the Complainant had to leave her employment due to the conduct of her employer and/or others not to be well founded and therefore fails.

CA-00025411-02:

I find that the complaint pursuant to section 28 of the Safety, Health and Welfare at Work Act, 2005, that the Complainant was penalised for making a safety related complaint not to be well founded and therefore fails.

CA-00025411-03:

I find that the complaint pursuant to the Employment Equality Act, 1998 – 2015, that the Complainant was discriminated against by the Respondent by reason of her gender, race and disability in victimisation, failing to reasonably accommodate her disability, harassment and her conditions of employment, not to be well founded and therefore fails

CA-00025411-04

I find that complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 that the Complainant did not receive her contract in writing or at all from the Respondent and that the terms of her employment were altered without written notification, not to be well founded and therefore fails

Constructive Dismissal, Penalisation, Harassment, Victimisation, Race, Gender, Disability, Terms of Employment.