Complainant

Respondent

Anonymised Parties

An Operative

An Outsourcing Agency.

Representatives

Self-Represented

Lisa Weatherstone of Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031012-001

18/08/2019

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

CA-00031012-002

18/08/2019

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

CA-00031012-003

18/08/2019

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

CA-00031012-004

18/08/2019

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

CA-00031012-005

18/08/2019

The issues in contention concern alleged Discrimination on Disability grounds, alleged Unfair Dismissal, Contract information issues and Industrial Relations complaints regarding Bullying and Harassment.

Act

Complaint/Dispute Reference No.

Summary Complaint

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

CA-00031012-001

No proper Contract of Employment provided.

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

CA-00031012-002

On appointment the job was changed, and no written information was provided regarding the changes made

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

CA-00031012-003

Case withdrawn.

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

CA-00031012-004

The Complainant alleged serious Bullying and Harassment occurred especially from immediate Supervisors. It was alleged that his Medicine or Tablet Box had been intentionally maliciously hidden or lost by Colleagues. His dignity and personal self-worth were regularly undermined. The Company Grievance processes were seriously unfair and biased.

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

CA-00031012-005

The Complainant alleged that he had been Discriminated against on the Grounds of Disability, Race and Family Status. Specifically, the Employer had failed to make proper allowances for his well-recognised Disability, he was not provided with Reasonable Accommodation and was denied proper facilities to self-medicate. The Complainant detailed a list of dates and specific incidents in support of his case. These mainly involved the processing and proper handling of Stores materials. A proper mechanically powered Pallet Truck was never provided, and the Complainant was compelled to manually carry heavy loads. The heavy lifting was completely injurious to his medical condition.

Act

Complaint/Dispute Reference No.

Summary Employer Responses.

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

CA-00031012-001 No proper Contract of Employment provided.

A Proper contract was provided within twelve weeks of commencement. Contract provided in evidence.

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

CA-00031012-002 On appointment the job was changed, and no written information was provided regarding the changes made

The Respondent accepted that the actual job offered Engineering Stores Envoy was different to the job advertised -Stores Buyer but this was made clear from the start and the employment contract offered reflects this fact. Contract submitted in evidence.

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

CA-00031012-003 Unfair Dismissal

Case Withdrawn

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

CA-00031012-004 Grievances and Bullying and Harassment claims

The Respondent has very well established and comprehensively documented Employment procedures. A number of Grievances were raised by the Complainant and were fully investigated. Written evidence was provided of all grievances lodged and responses made. Meeting minutes were presented as evidence and Oral evidence was presented by the respective Managers. The allegations regarding the malign interference with the Box of Pills is completely without substance. The respective Supervisor gave evidence of her dealings with the Complainant.

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

CA-00031012-005 Discriminated against on the Grounds of Disability, Race and Family Status

The Respondent completely denied these allegations. Regarding the series of incidents cited by the Complainant, these were unrelated and could not in any way be characterised as Discrimination on Disability Race or Family Status.

The Complainant had not identified any suitable Comparator against which his claim could be measured. The Respondent maintained that no prima facie case of discrimination had been made and cited the Melbury Development v Valpeters case (EDA A0917) requiring the Complainant in an Equality case to firstly establish a credible factual basis. This was completely lacking in this case.

As regards Reasonable Accommodation all proper steps were taken by the Respondent. It was always recognised that the Complainant had a “complex medical history”, and this had always been allowed for.

Considerable case law was cited, and the Respondent Legal Representative made a detailed Oral submission supported by extensive Witness evidence.

3:1             Lay out of Adjudication being adopted.

There are 4 complaints being pursued. The principal one is the Employment Equality Act, 1998 complaint - CA -00031012-005. Much of the evidence relating this matter is also pertinent to the Industrial Relations Act, 1969 complaint CA-00031012-004.

Accordingly, I will deal with the Equality/Discrimination complaint first and then follow on with the other complaints.

3:2     CA -00031012-005 - Complaint of Discrimination under the Employment Equality Act,1998

on five grounds of

Family Status

Disability

Race

Victimisation

Failure to provide “Reasonable Accommodation”

3:3       The relevant Law and the issue of the Burden of Proof.

In plain English the Burden of Proof is the initial requirement for a party in an Employment Equality Act,1998 case to establish relevant and credible inferences on which to back their case. A case does not have to be proven at this early stage but has to have a reasonable basis for going ahead. It is extensively discussed in EmploymentEquality Law, by Bolger, Bruton and Kimber, Roundhall 2012.

I have drawn assistance from their commentary in the discussion set out below.

Section 85A of the Employment Equality Acts identifies the burden of proof requirement to be established by both the Complainant (generally the worker) and the Respondent (generally the Employer).

The section shifts the burden of proof to the Respondent where facts are established by a Complainant

“from which it may be presumed that there has been discrimination in relation to him or her”.

It is well recognised in the case law that direct evidence of discrimination is infrequent and therefore the rules on burden of proof have to take account of this in providing for effective judicial remedies for aggrieved employees. The issue of the evidential requirements for both Complainants and Respondents has been carefully considered and promulgated in the case law of the Tribunal and the Labour Court.

The starting point is the decision of the Labour Court in Southern Health Board v Mitchell, [2001] ELR 201, now somewhat dated, but remains the leading decision on the shifting of the burden of proof.

The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be made out:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or court at the level of balance of probabilities and if proven must be of sufficient significance as to raise an inference of discrimination.

In establishing the facts to meet burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy EDA 0821 as follows:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

The argument that mere membership of a protected class, in this case being of Non-Irish Nationality and having a Disability was sufficient for a Complainant to meet his or burden of proof in terms of s.85A was subsequently rejected in emphatic terms by the Labour Court, initially in the context of race discrimination but now beyond:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. 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.” Valpeters v Melbury Developments [2001] ELR 64

Therefore, the evidence adduced by the Complainant must be of a sufficient significance to raise a presumption of discrimination which then arises for rebuttal by the Respondent by way of proving non-discriminatory reasons for the unfavourable treatment.

The quality of evidence necessary to rebut a presumption of discrimination was considered by the Labour Court in Portroe Stevedores v Nevins. {2005] ELR 282.

The Labour Court, following the decision of the English Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite Securities Ltd, [2003] IRLR 332 held that, since the facts necessary to prove an explanation would usually be in the possession of the Respondent, it required “cogent evidence” to discharge that burden. Mere denials of discriminatory motive, in the absence of independent corroboration, had to be approached with caution since discrimination was “usually covert and often rooted in the subconscious of the discriminator”.

The decision reflects the reality that it is easier for an employer to prove the factor which influenced its treatment of a Complainant which they allege constitutes discrimination. Generally, the Complainant is not in a position to have this information and therefore as the reasons for the explanation are in the possession of the Respondent, “cogent” evidence is required to discharge the burden of proof.

An employer will inevitably face some difficulties in discharging their onus of proof if it shifts to them, given that it has been held that unless they can show that the

“discriminatory ground was anything other than a trivial influence on the impugned decision”,

the claim will succeed. Cork City Council v McCarthy EDA 0821

This requires the Respondent to demonstrate that their actions were in no sense whatsoever influenced by one of the protected classes within the Employment Equality Acts.

In summary therefore for an Equality complaint to succeed it has to be founded on a reasonable factual basis and cannot rely on assumptions or speculations that have no reasonable factual basis.

All cases rely on their own facts and evidence and I will consider these now in the order of the five-grounds claimed. There was extensive witness evidence from Respondent Managers and Supervisors which was available for Complainant cross examination.

3:4       The Five Grounds of Discrimination claimed.

These were Family Status, Disability, Race, Victimisation and Failure to provide “Reasonable Accommodation”

3:4:1       Family Status

In his Oral evidence the Complainant alleged that his immediate Supervisor, Mr Xa, made a number of threatening remarks regarding the Complainant’s Wexford home Address. The Complainant felt that his physical family home was being threatened, he was going to be attacked there and his children put in danger.

Mr. Xa is no longer an employee of the Respondent and was not available to give any evidence.

Listening to the Complainant’s evidence I felt that the remarks made at the time of early introductions by Mr Xa (something along the lines of “I know a few people there”) were, in an Irish cultural context harmless.

In the absence of any other concrete evidence, reports to the Gardai of suspicious activity or strange cars outside the family house for example, I could not see how a Complaint of Discrimination on Family Status could be sustained. I had to find that this Complaint failed for want of any prima facie basis.

3:4:2       Disability.

There was a very large volume of evidence presented in this context. It was clear that the Respondents knew at the time of his appointment that the Complainant had a “Complex medical history. It was openly accepted throughout the proceedings that the Complainant had a Disability.

The Respondent pointed out that the Complainant had identified no Comparator against which any alleged Discrimination could be measured and, on this basis, alone the Complaint must fail.

However, having read the extensive paper work (in excess of 600 pages) and listened to the oral evidence (with cross examination) from both sides the best I could find in favour of the Complainant was a number of possible manual handling incidents. While Mr. Xa, the initial immediate Supervisor, was not available, having left the Company, to give any evidence some of his e mails were available. He was concerned in his mails to his Superiors that the Complainant might not be physically capable of the job and the problems that this might give rise to. His early conversations with the Complainant, as a new recruit, sounded a bit direct but we were relying solely on the Complainants’ recollections.

However, as evidence of direct or indirect Discrimination on Disability Grounds I did not think there were of a sufficed evidential standard. Later in the employment relationship the Respondent made full use of the Occupational Health Consultants Medmark and carried out numerous Grievance and Investigatory meetings/reports.

Oral Evidence from the Country Manager, Mr Xb, the HR Executive, Ms Xc and the Field Support Person, Ms Xd was, in my view, competent and professional. I gave it good evidential weight.

This oral evidence described their early personal interactions with the Complainant and their later involvement with Investigations and Appeals. They were all aware of the medical situation of the Complainnat and the need to be accommodating in the work situation. The Country Manager, Mr. Xb had initially interviewed the Complainant for the Buyer role and was fully aware of his personal situation. A Newspaper article giving the Complainant’s history and war experiences was in wide circulation. All the Managers were fully knowledgeable of the Respondent HR Procedures in cases of this nature. I failed to see any evidence of a Disability Discrimination situation.

From a full review of the evidence I failed to see any concrete evidence of Discrimination, as understood from the Employment Equality Act,1998, on the grounds of Disability.

3:4:3       Race Discrimination

I failed to see any prima facie grounds here. The Non-Irish background of the Complainant was obvious and from all the evidence, both Oral and Written, I could not see any element of Racial Discrimination.

3:4:4       Victimisation.

In this context victimisation as set out in Section 74 of the Employment Equality Act,1998 is generally agreed to mean an employee suffering some form of what could be described as a Retaliatory action from an Employer as a result of the employee making equality/discrimination complaints.

The relationship between the Parties during the Summer /Autumn of 2019 and extending into early 2012 was complicated, indeed almost torturous, in terms of meetings, appeals and further appeals.

Put simply the interactions between the Parties continued, the Complainant was on sick leave and was assessed by Occupational Health/Medmark.

Regarding the Outcome of two major Appeal meetings from June 2019 and August 2019 I simply could not see any evidence of Victimisation.

The Victimisation complaint lacks a proper prima facie basis. It is Not Well Founded. Victimisation did not take place.

3:4:5       Reasonable Accommodation.

Allowing for some minor questions over exact dates the Complainant was physically present on the manufacturing site from 26th March to the 7th May 2019 - approximately 5 to 6 weeks. During this period the Complainant alleged that he was prevented on a number of occasions from making his necessary Blood Dialysis medical routines by Mr. Xa, the now unavailable Manager and from being denied the use of proper manual handling equipment resulting in his kidney condition being seriously exacerbated.

The lifting of some tubes/drums of oil in week one being cited as an example and later the carrying of fluorescent bulb tubes up a flight of stairs. In the Oil tube incident in week one the Blood dialysis was delayed by approximately 30 minutes, from Complainant evidence and the carrying of the Fluorescent tubes, later in the month, began but was not completed.

Grievances were Raised by the Complainant and were comprehensively investigated by the Country Manager and HR Executives from Head Office. Full evidence was given with written reports and outcomes presented. Reading the internal e mail traffic from HR to the Line Managers/Supervisors it was clear that the Complainant was recognised as having a Disability and care was to be taken in assigning him tasks.

To suggest that there was a policy of refusing or denying Reasonable Accommodation I found hard to substantiate.

The legal Position is contained in Section 16 of the Employment Equality Act,1998. Section 16(3) is relevant and is quoted below.

(3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer.

( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer ’ s business, and

(iii) the possibility of obtaining public funding or other assistance. ]

(4) In subsection (3)—

F34[ ‘ appropriate measures’ , in relation to a person with a disability —

( a ) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned,

( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; ]

16(3)(b) is particularly apt in this case. The Complainant is still in employment, has been medically approved to return to work and all parties are fully aware of his Disability. The nature of his position is well known, the need for time breaks for dialysis and the restrictions on lifting weights understood.

On balance and having reviewed all the evidence I found it hard to see how a complaint of Discrimination on the Reasonable Accommodation grounds was well founded.

I could not endorse this Complaint and I find that it is not Well Founded. No discrimination on Reasonable Accommodation grounds, as claimed, took place.

3:5      Summary Findings /Employment Equality Complaints.

Having reviewed all the evidence both written and oral I did not find that Discrimination as alleged on the grounds of Family Status, Disability, Race, Victimisation and Failure to provide “Reasonable Accommodation” had taken place.

The Complaint is dismissed.

3:6     Industrial Relations Act,1969 Complaint CA -00031012-004

The essence of the Complainant’s case here was the manner in which he was treated by colleagues especially Supervisor Mr. Xa and the Field Support Person Ms.X. He felt that proper Bullying and Harassment procedures had not been followed.

A major issue was the question of an allegation of the Complainant’s personal medication – what were referred to as “his Pills” going missing or being interfered with. Other issues were the purchasing of a special pair of large size safety shoes for a main Site employee, the actions of Ms Xd in talking loudly to the Complainant while she was on phone call, and the H& S “Alert” actions of the Complainant when it was alleged a chemical container in a delivery was leaking. In all these matters the Complainant felt that he had been “belittled and publicly humiliated”.

A representation issue was the refusal of the Respondent to allow a Barrister and a Journalist attend on behalf of the Complainant at internal investigations.

In a Bullying and Harassment situation Legal precedent requires the Bullying and Harassment alleged be of a Repeated and Continuous nature. It also generally requires that the Employer either wilfully ignores or brushes off in a casual manner employee complaint of the alleged actions.

In this case the allegations made, and Grievances raised were comprehensively investigated at “first instance”, were the subject of Appeal Hearings and then subject to an overarching Senior Management Final Appeal regarding how the entire process had been carried out. Considering that the Complainant had only been physically present at the work site for approximately five weeks, this has to be characterised as a comprehensive Employer response. Detailed minutes /reports /findings of all stages were presented in evidence. Oral evidence was given by the Country Manager, Mr Xb and by Ms Xd, the Field Support Person - effectively the closest colleague to the Complainant. They were subject to cross examination by the Complainant.

The oral evidence from Ms. Xd, who had worked closely with the Complainant, did not portray anything remarkably unusual. I found her evidence straightforward and credible. Mr. Xa, the immediate Supervisor in the early days, was no longer an employee and could not be questioned. From his e mails it was clear that he was concerned that the Complainant might not be physically up to the job.

In his oral and written evidence, the Complainant stressed his feelings that his dignity had not been respected and his previous Bomb Disposal experiences in the Military not given due weight. He had applied for a Buyer position but ended up with a “Stores Envoy” position – in plain English a type of Storeman. This hierarchical issue appeared to be a major issue with him. He was used to a much higher degree of job autonomy and the stores job at the Worksite, reporting to staff whom he clearly regraded as his “Juniors” in terms of life experience and general chemical knowledge was a major irritant to him. The irritation of his colleagues when he raised the Safety Issue regarding the leaking chemicals in the delivery was symptomatic. It was clear that they saw their role as average on site Contractors and the Complainant had clearly gone “way above his pay grade” in relation to this incident. He had been employed, in their view, as a Store Man not a chemical safety expert and or Bomb disposal person. In conclusion I felt that having reviewed all the extensive evidence this difference in Outlook was at the root of much that had happened.

Regarding the alleged missing “Pills” this was contested by the Respondents. It was completely unclear what had happened or who had done what. From the evidence of Ms Xd, I did not detect any malign intent towards the Complainant’s Pill Box or other medications. As the site was a Pharmaceutical manufacturing facility she was aware of the possible contamination issue from unexplained “Pills” turning up on the site. She took the issue seriously but strongly contested the Complainant’s view that the “pills” had been in some way tampered with to annoy the Complainant.

Regarding the Representational issue, the Respondent Rule book allowed for a Colleague or Trade Union representative and declining a Barrister and a journalist as attendees on the Complainants side in internal investigations was perfectly within proper procedures.

The Manual Handling incident in week one regarding the Oil containers and later the Fluorescent tubes delivery and carrying them up a flight of stairs were possibly Health and Safety issues. There was no evidence that the incidents had been, with a malign pre-knowledge of his medical condition, staged managed or even happened inadvertently on the day to intentionally bully and harass the Complainant

In final conclusion I did not see in all the extensive evidence, any real or concrete evidence of any sustained Bullying or Harassment as understood in the relevant legislation.

This Complaint is accordingly not well founded. No Bullying and Harassment as defined in the Employment Equality Act and or relevant Health and Safety Legislation -The Safety, Health and Welfare at Work Act, 2005 took palce.

3:7       Terms of Employment (Information) Act, 1994 Complaint CA - 00031012-001

The Complainant alleged that he had not received a proper Contract of Employment. In Respondent evidence it was admitted that he had received a Stores Envoy contract. It was accepted that he had originally applied for and as he understood been interviewed for a Buyer Position. In evidence presented it was clear that the contract and letter of offer/e mail had made clear that the position was that of Stores Envoy.

The Respondent produced a Contract of Employment in evidence which was not denied by the Complainant. The Complainant had not signed the Contract due to the job title issues. However, in numerous Legal precedents the non-signing of a Contract by an employee does not invalidate the contract or create a notification issue/fault under the Terms of Employment (Information) Act, 1994 A recent Adj Decision Teacher v a School (Adj-0019917) discussed this point in some detail

Accordingly, the complaint is not well founded.

3:8       Terms of Employment (Information) Act, 1994 Complaint CA - 00031012-002

The allegation here is that the Contract of Employment was “unilaterally” changed from Buyer to Stores Envoy post appointment.

The material written evidence pointed to the job of Stores Envoy being made clear pre-appointment.

The complaint of a lack of proper notification in change in Terms and Conditions is accordingly Not Well Founded and is dismissed.

Act

Complaint/Dispute Reference No.

Summary decision and or Recommendation.

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

CA-00031012-001

Complaint Not Well Founded.

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

CA-00031012-002

Complaint Not Well Founded.

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

CA-00031012-003

Complaint withdrawn.

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

CA-00031012-004

The allegations in regard to Bullying and Harassment actions and procedures were not found to have been sustained.

I accordingly Recommend that the outcomes of the Internal Investigations and Appeals be accepted by the Complainant as a fair and reasonable outcome.

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

CA-00031012-005

Discrimination on the grounds of Family Status, Race, Disability, Victimisation and Failure to Provide Reasonable Accommodation did not, as understood in the Employment Equality Act,1998 take place.

Complaints are Not Well Founded.