Complainant

Respondent

Parties

Adrijan Vuckovic

Kepak Cork Unlimited Company Kepak

Representatives

Mr Matthew Maguire BL instructed by Fachtna O’Driscoll Solicitors

Ms. M. P. Guinness BL instructed by Gerald O'Donnell Solicitors Caulstown

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030330-001

16/08/2019

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

CA-00030330-002

16/08/2019

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

CA-00030330-003

16/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030330-004

16/08/2019

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

CA-00030330-005

16/08/2019

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

CA-00030330-006

16/08/2019

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

CA-00030330-007

16/08/2019

The Complainant worked for the Respondent as an agency worker in a meat processing factory for a gross pay per week of €580.00, net €490. He worked as a meat grader in the Slow Cooked Business Unit. He suffered an injury and recovered. He is claiming that the Respondent subsequently discriminated against him by withdrawing work from him because of his disability, in breach of the Act. The Respondent denies this claim.

The worker was injured at work on the 5th of February 2019 at the premises of the Respondent and took sick leave as a result. The Complainant submits that the injury was an abdominal muscle injury because of lifting some crates. He submits that the injury described was debilitating and comes under the definition of disability under the Act. On April 18th the worker received a note from his doctor stating that he was fit for work, which was submitted to the Respondent. Subsequently, the Complainant made several attempts to contact Agency A regarding a return to work date but was eventually told by Agency A, that the Respondent “was full” and that there was no need for him to come back. The Complainant does not accept this assertion and submits that work would not have been withdrawn from him but for his disability.

The Complainant also asserts that job advertisements for meat boners/butchers and general operatives were posted soon after his departure from the Respondent. He claims that he was trained for a few weeks for the skilled positions of meat boner/butcher and was able to resume such a role with the Respondent but was not given the opportunity to take up one of the advertised jobs.

The Complainant gave evidence that he acquired a job with a retail business soon afterwards, but the effects of being denied access to employment by the Respondent had a detrimental financial effect on both him and his family. He asserts that his family had to move back to Croatia as a result.

The Complainant submitted that the Respondent was in breach of section 8 (5)(a) of the Act in that the Respondent discriminated against the Complainant by withdrawing work from him. The Complainant submits that Agency A is the employer for the purposes of the Act.

The Complainant was employed by an employment agency (Agency A), which is a recruitment agency, engaged by the Respondent to provide general operatives to work at its factory premises. The Respondent therefore submits that it is not the employer for the purposes of the Act. The Complainant was placed to work as a general operative on the 24th of September 2018 in the Slow Cooked Business Unit. He claims that he sustained an injury to his abdomen while lifting trays at work on the evening of 5 February 2019. He remained unable to work until he submitted a “return to work” certificate from his GP dated Thursday 18 April 2019, just before the Easter bank holiday weekend.

The Respondent submits that 130 employees (exclusive of Agency Staff) worked in the Slow Cooked Business Unit. In addition, during the month of February 2019, 20 workers from Agency A and 25 from Agency B worked there. By April 2019, these figures had reduced to 19 from Agency A and 16 from Agency B, due to a downturn in production. The Slow Cooked Business Unit operated on two shifts and typically operated 6 days a week. On February 5, 2019 (the date of the Complainant’s alleged accident) a total of 18 Agency staff were assigned to the grading team over the two shifts: 11 from Agency A and 7 from Agency B. By Tuesday 23 April 2019 that figure had reduced to 15: 10 from Agency A and 5 from Agency B.   Documentary and verbal evidence was provided by the Respondent’s management staff to show evidence of this downturn and a falloff in hours at the Business Unit.

The Respondent submits that the production/ labour planner in the Slow Cooked Business Unit communicated the Respondent’s labour requirements with the recruitment agencies, on a daily basis. The Respondent further submits that the need for Agency workers varies depending on the time of year and new product launches and/or promotions.

The Respondent submits in evidence that the positions required after the Complainant had departed were skilled positions and the Complainant did not have these skills. The Complainant confirmed this in cross examination.

On legal argument, the Respondent submits section 85 (A) of the Employment Equality Acts which sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of the discrimination raised. The Respondent cited the Labour Court case of Mitchell vs Southern Health Board [2001] ELR 201 in support of this point.

The Respondent argues that the Complainant has not identified any comparator to support the allegation of discrimination and that this is required to fulfil the prima facie test.

In conclusion, the Respondent asserts that there was a clear drop off in production and therefore a subsequent drop off in the requirement for additional staff. The Respondent therefore denies that the Complainant was discriminated against because of a disability.

Discrimination:

Discrimination is defined as follows under section 6 of the 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.

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;

The Court has found that a temporary malfunction due to physical injury in the shoulder, back and neck after a road traffic accident in Customer Perception v Leydon 15 ELR 101 could be classed as disability under the definition.

Disability discrimination is found as follows:

Section 6 (2) provides that as between any two persons, the discriminatory grounds are:

… (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) …

Access to Employment:

The Complainant further argues that specifically the Respondent transgressed section 8(5)(a) of the Act about access to employment

8. Discrimination by employers etc.

In relation to—

(1)(a) access to employment,

(b) conditions of employment,

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

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) insofar as such advertisement relates to access to employment.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different...

Prima Facie requirement:

Section 85A (1) of the Act states: 

“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 Company to prove the contrary”. 

In the case Southern Health Board v Mitchell (2001 ELR 201) the Labour Court set down a three-part test to establish proof of discrimination under the legislation. Firstly, the complainant must prove on the balance of probabilities the primary facts upon which he seeks to rely in raising a presumption of unlawful discrimination. Secondly, those facts, if proved must appear to the Court to be of sufficient significance to raise the presumption contended. Thirdly, if the burden shifts to the employer it must prove on the balance of probabilities that the impugned decision was in no sense whatsoever influenced by one of the grounds proscribed under the Act.

A further qualification of the required prima facie test was provided by the Labour Court in Barnmac Contracting Ltd v Zilys and Volkovas EDA1022.

Section 85A of the Acts provides, in effect, that a Complainant must prove facts from which discrimination can be inferred before the onus of proving the absence of discrimination shifts to the Respondent. It is well settled that the practical application of this principle requires the Complainant to first prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. The Complainant must then satisfy the Court that the facts so proved are of sufficient significance to raise an inference of discrimination. If the Complainant fails to prove the primary facts relied upon or to satisfy the Court that they are sufficiently significant to establish a prima facie case of discrimination his or her case cannot succeed.The Complainants have not pointed to any other worker of a different nationality who was treated differently by the Respondent in respect to the matters complained of. In these circumstances the it was submitted on their behalf that their case should be considered by reference to how a hypothetical comparator of Irish nationality would have been treated by the Respondent.

It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced, and it would clearly be impermissible for the Court reach conclusions of fact based upon mere supposition or speculation.

Conclusions:

Whether ceasing to offer agency work is a denial of access to employment.

The Act states clearly, in s.8(3), that: “In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work. I am satisfied that the Respondent is properly described as a provider of agency work to the complainant.

Section (8)(5), which was quoted by the Complainant, states:

…Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered…

Based on a logical interpretation of this section, I conclude that the withdrawal of agency work to an agency worker by the provider of agency work, is prohibited under the Act if it is shown to be for discriminatory reasons.

Prima Facie Case:

I now must determine whether the Complainant has established a case that he had a disability as defined under the Act. The Complainant described how he had suffered an abdominal muscle injury whilst lifting crates at the workplace of the Respondent. I note that medical certificates attesting to the debilitating effect this had on the Complainant were sent to Agency A, who in turn passed it on to the Respondent. The Complainant was on sick leave from February 5th to April 18th, 2019. The Complainant’s evidence suggested that he made a recovery from his injury. It was only a temporary condition, albeit requiring recuperation and absence from work. The Labour Court found, as in Leydon above, that temporary injury constituted a disability within the meaning of the Acts. I conclude that the Complainant had a disability when he was on sick leave. However, Leydon can be distinguished somewhat in that the Complainant in that case was still restricted in driving a car upon return to work. The disability, although temporary, still pertained. The evidence of the Complainant in this instant case is that he basically had no further ill effects and that he was declared medically fit to carry out his work without condition, when handing in his fitness to work certificate. The Complainant also gave evidence that the withdrawal of the agency work by the Respondent occurred not when he had a disability, but sometime after he had submitted a fitness certificate.

The Complainant presented no evidence of a comparator nor was any reference made to a hypothetical comparator. The need for a comparator is referred to in Section 6 (2) provides that as between any two persons, the discriminatory grounds are:

… (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) …

I note the Labour Court’s position in Barnmac Contracting, albeit a complaint on race grounds, but nevertheless it’s a decision which stands as applicable to confirm the principle that a Complainant must have some evidential basis of a suitable actual or hypothetical comparator to fulfil the prima face test. In this instance, it would mean that the Complainant must produce evidence of a comparator, or reference a hypothetical comparator, who has not a disability, or has a different disability, and who was treated more favourably by the Respondent in not having his agency work withdrawn. In following the Labour Court lead, I clearly cannot reach conclusions of fact without such evidence. There is no reliable basis upon which the I could assume, without evidence, that the type of default relied upon by the Complainant in this case would not have occurred if he had not a disability.

In conclusion, I find that the Complainant had a temporary disability which can attract the protection of the Act. However, evidence was given that when agency work was withdrawn, the Complainant no longer had a disability at that juncture; he was declared fit to work. Furthermore, the Complainant produced no evidence of a comparator nor any evidence to suggest that the denial of access to agency work was discriminatory. Therefore, I find that he did not make out a prima facie case as required under the Act, and the Complaint fails.

CA-00030330-001: Based on all the foregoing, I find that the Complainant did not make out a prima facie case of discriminatory treatment, therefore the Complaint the complaint of discrimination fails.

Employment Equality, Agency Worker, Disability,