ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028707
Parties:
| Complainant | Respondent |
Parties | Dominika Mohun | Global Diagnostics Ireland Limited |
Representatives | Anthony Collier Collier Law |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00038575-001 | 07/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994 | CA-00038575-002 | 07/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00038575-003 | 07/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00038575-004 | 07/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038575-005 | 07/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038575-006 | 07/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00043933-001 | 06/05/2021 |
Date of Adjudication Hearing: 05/10/2021
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
A hearing of the case took place on 5 October 2021. Two Complaint Forms were submitted by the complainant to the WRC. The first Complaint Form was received by the WRC on 7 July 2020. The second Complaint Form was received by the WRC on 6 May 2021. The complainant commenced employment with the respondent on 22 July 2013, her employment ended on 30 March 2021. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
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General Background Provided by the Complainant:
The complainant submitted that she commenced employment with the respondent as an administrator in July 2013 and was promoted to operations manager sometime in or around 1 July 2016.
The complainant went on maternity leave in May 2018 and extended this leave returning to work in May 2019. Around the time of her return to work the complainant discovered she was pregnant and submitted a maternity leave application form dated 7 August 2019. The complainant submits that this form clearly refers to a ‘top up’ of €250 per week for a total of 26 weeks in addition to state benefits. The complainant submits that this ‘top up’ benefit forms part of her terms and conditions of employment.
The complainant submits that immediately upon submitting her maternity leave form she received an email from the HR Administrator with a form attached referred to as the Maternity Benefit ‘Top Up’ form. The complainant submits that this form sought to amend the complainant’s terms and conditions of employment as it included the following condition; “Employees must return to the workplace for a period of 12 months following their maternity leave, in order to retain the ‘top up’ payment.
The complainant replied to the email expressing her shock at the change. The complainant felt harassed by the respondent’s conduct and felt she was being subjected to discriminatory treatment because she was pregnant. The complainant submits that the respondent was clearly introducing terms and conditions that were less favourable than those she was on prior to entering her first term of maternity leave. When the complainant investigated the matter more, she found out that the policy had been changed in June 2018, one month after the complainant went on maternity leave. The complainant felt the amendment of her terms and conditions was punitive and directed at her personally as she began her first term of maternity leave. The complainant submits that but for her pregnancy and her maternity leave the respondent would not have proceeded to change the ‘top up’ policy. The complaint submits she felt harassed and victimised by the respondent’s actions.
The complainant submits that she entered into email correspondence with the Managing Director which reinforced her view that she had been specifically targeted by the respondent in this matter.
The complainant submits that the amended ‘Top Up’ term imposed less favourable terms and conditions upon her that were previously available prior to the commencement of her first term of maternity leave. The complainant submitted a complaint to the WRC on 14 October 2019, seeking adjudication under section 7 of the Terms of Employment (Information) Act, 1994. Concerning the respondent’s unilateral amendment of the complainant’s terms and conditions of employment affecting her contractual entitlement to the maternity ‘Top Up’ payment. There was much correspondence between the parties which the complainant submits caused her great distress. On 12 December 2019, the received a letter from the respondent noting that they would pay the complainant the ‘top up’ payment on a ‘without prejudice’ basis pending the outcome of the WRC hearing. The complainant submits that there were no further attempts made by the respondent to resolve her grievance.
A hearing of the complainant’s complaint received by the WRC on 14 October 2019, took place on 10 March 2020. At this hearing the complainant submits that she raised additional complaints.
The complainant submits that upon becoming aware of the complainant’s additional complaints she was informed that Human Resources had advised that no new positions would be offered to her. The complainant returned to her role with the respondent following her second period of maternity leave on 18 August 2020. The complainant her trust and confidence in senior management had been severely impacted by the respondent’s harassment, discriminatory behaviour and penalisation during her pregnancies.
The complainant submitted her resignation to the respondent in December 2020 agreeing six-weeks’ notice. During her notice period in January 2021, the complainant was informed that a new casual contract would be offered to her. The complainant submits that she was informed that she should not be offered the casual contract and/or re-hired due to her outstanding complaints referred to the WRC. The complainant submits that she was distressed by the respondent’s ongoing punitive, harassment and discriminatory treatment.
A-00038575-001 – Complaint under Section 30 and 31 of the Maternity Protection Act 1994
Summary of Complainant’s Case:
In her complaint Form the complainant submitted that, she was not on the expiry of her maternity leave, allowed return to work and that her terms and conditions were less favourable than they were before she went on Maternity Leave. In direct evidence at the hearing of 5 October 20211, the complainant stated that there was only one change to her terms and conditions of employment when she was on maternity leave. This change referred to the repayment of additional maternity benefits if an employee left within a certain timeline.
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Summary of Respondent’s Case:
The respondent submitted that this matter was covered in WRC hearing of March 2020 and in a WRC Decision, ADJ00025207.
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Findings and Conclusions:
The complainant did receive her full entitlements under the Act. The matter of the ‘Top Up’ payment was covered in ADJ-00025207. The matter is therefore Res Judicata.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not upheld. |
CA-00038575-002 – Complaint under Section 30 and 31 of the Maternity Protection Act, 1994
Summary of Complainant’s Case:
In her Complaint Form the complainant submitted that she did not receive her entitlement to maternity leave. In direct evidence at the hearing of 5 October 2021, the complaint stated that this complaint refers threats made in a three-week period when she was being told that she would not be getting the ‘Top Up’ payment. The complainant stated that even though she contacted the Board of Directors she was still left waiting for a decision.
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Summary of Respondent’s Case:
The respondent submitted that the complainant took her full maternity leave (10 December 2019 – 9 June 2020) along with entitled extended maternity leave (10 June 2020 to 23 June 2020). The respondent stated that the complainant received her full maternity entitlements and the full ‘Top Up’ payment of €250 per week for 26 weeks.
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Findings and Conclusions:
The complainant did receive her full entitlements under the Act. The matter of the ‘Top Up’ payment was covered in ADJ-00025207. The matter is therefore Res Judicata.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not upheld. |
CA-00038575-003 - Complaint under Section 77 of the Employment Equality Act, 1998.
Summary of Complainant’s Case:
In her Complaint Form, the complainant submitted that she had been discriminated by reason of her Gender and Family Status; that she had been discriminated against in Conditions of employment and that the most recent date of discrimination was 10 March 2020. She submitted that her terms and conditions of employment were less favourable than they were before she went on maternity leave. In direct evidence at the hearing, the complainant submitted that at the WRC on 10 March 2020, she mentioned that she would be taking further legal action against the respondent’s HR Manager. The complainant stated that on foot of this she was sent a letter which stated that she would not get the ‘Top Up’ unless she signed up to the new ‘Top Up’ policy. The complainant stated that no one else was sent this letter and thus she was discriminated against. The complainant also stated that this was further penalisation of her because she had said she was taking a case to the WRC.
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Summary of Respondent’s Case:
The respondent stated that there was no evidence to support the complainant’s allegation. In addition, any letter sent to the complainant was a standard document.
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Findings and Conclusions:
Burden of Proof The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim. 1.1 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 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 respondent to prove the contrary.”
This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. On the evidence adduced I find that the complainant has not established a prima facie case and her complaint therefore fails.
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Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Decision The complainant was not discriminated against.
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CA-00038575-004- Complaint under Section 77 of the Employment Equality Act, 1998.
Summary of Complainant’s Case:
In her Complaint Form, the complainant submitted that she had been discriminated against by reason of her Gender and Family Status. She submitted that she had been discriminated against in victimising her and that the most recent date of discrimination was 10 March 2020. The complainant submitted she was subject to adverse treatment for having opposed by lawful means an act which was unlawful under the Act. The complainant stated that the claim for victimisation in this complaint relates to the same facts as outlined in the previous complaint. The complainant submits that she was pressurised into signing a document. She was in a vulnerable state at the time and was not approached in person by the HR Manager as she should have been. The complainant stated that she felt targeted by not being approached in person and by a letter being left on her desk.
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Summary of Respondent’s Case:
The respondent submitted that no specific examples of harassment have been provided. The majority of communications regarding the employee’s workload, return to work dates, remote working and monthly targets were set by her manager. The respondent submits that there was absolutely no sanction against the complainant.
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Findings and Conclusions:
Burden of Proof The general rule in the context of the burden of proof is that the burden lies on the party asserting a claim. 1.1 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 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 respondent to prove the contrary.”
This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. On the evidence adduced I find that the complainant has not established a prima facie case and her complaint therefore fails.
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Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The complainant was not victimised.
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CA-00038575-005 – Complaint under Section 7 of the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
In her Complaint Form, the complainant submitted that she had been penalised or threatened with penalisation for invoking or having given notice of an intention to exercise any rights under the Act. The complainant stated that this complaint was related to the three-week period between the complainant receiving the letter which she submits set out to intimidate her by saying if she did not sign up to the new policy, she would not get the ‘Top Up’ payment and the agreement that the payment would be paid. In regard to a specific example of intimidation, the complainant stated when she met the HR Manager, she was totally ignored by her.
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Summary of Respondent’s Case:
The respondent stated there is no evidence to support the complainant’s allegation.
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Findings and Conclusions:
Protection against penalisation 6C. (1) of the Act states: An employer shall not penalise or threaten penalisation of an employee for — (a) invoking any right conferred on him or her by this Act, (b) having in good faith opposed by lawful means an act that is unlawful under this Act, (c) giving evidence in any proceedings under this Act, or (d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs. (2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014 . (3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned. (4) If a penalisation of an employee, in contravention of subsection (1) , constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts. (5) In this section ‘ penalisation ’ means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes — (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.
On the evidence adduced I do not find that the complainant was penalised.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded.
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CA-00038575-006– Complaint under Section 7 of the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
In her Complaint Form, the complainant submitted that she was penalised having opposed or having given notice of an intention to oppose in good faith an action that is unlawful or giving notice of her intention of doing so under the Act. The complainant submitted that she was penalised and/or threatened with penalisation for invoking her rights under the Act. At the hearing the complainant stated that this claim refers to the repeated attempts to unilaterally and unlawfully change her terms and conditions of employment and the reaction to her when she raised her concerns. This matter was detrimental to her well-being.
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Summary of Respondent’s Case:
The respondent did not have anything further to add regarding this complaint.
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Findings and Conclusions:
Protection against penalisation 6C. (1) of the Act states: An employer shall not penalise or threaten penalisation of an employee for — (a) invoking any right conferred on him or her by this Act, (b) having in good faith opposed by lawful means an act that is unlawful under this Act, (c) giving evidence in any proceedings under this Act, or (d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs. (2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014 . (3) In proceedings under Part 4 of the Workplace Relations Act 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed until the contrary is proved that the employee concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned. (4) If a penalisation of an employee, in contravention of subsection (1) , constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of that penalisation both under this Act and under those Acts. (5) In this section ‘ penalisation ’ means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes — (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation.
On the evidence adduced I do not find that the complainant was penalised.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded.
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CA-00043933-01 - Complaint under Section 77 of the Employment Equality Act, 1998.
Summary of Complainant’s Case:
In her Complaint Form, the complainant stated that she had been discriminated on the grounds of her Gender and Family Status. The complainant submitted that the respondent treated her unlawfully by discriminating against her in getting a job. The complainant submitted that she had been discriminated against in victimising her, in Conditions of employment and in harassing her. The most recent date of discrimination being 19 January 2021. At the WRC hearing, complainant submitted that she was discriminated against by not getting a job. The complainant submitted that after she had handed in her resignation, she was asked to stay on working with the respondent on a casual basis, with an increase in her hourly rate. She commenced in this role on 11 January 2021. The complainant stated that on 19 January 2021, the Managing Director was approached by the HR Manager who suggested the MD should reassess taking the complainant on. The complainant stated that she had been told this by the MD. The complainant submits that she was victimised because she had decided to take aa case against the company. The complainant stated that she was discriminated against in Conditions of Employment when the recommendation was made that she should not be taken back into employment. The complainant submits that this amounts to implied discrimination. The complainant submits that she has been harassed and this harassment is ongoing and continuous, repeated when the issue of her annual contract was raised.
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Summary of Respondent’s Case:
In response to the claim of not getting a job, the respondent stated there were no witnesses to support the claim and that the complainant worked on a casual basis until March 2021. In response to the claim of victimisation the respondent stated that this was based on hearsay and that there were no witnesses to support the claim. In response to the claim regarding Conditions of Employment, the respondent stated that the complainant had been issued with a contract of employment. In response to the claim of harassment, the respondent stated that the complainant’s evidence was based on hearsay, that she had been issued with a contract and had worked until 30 March 2021. The respondent stated that the complainant worked on a casual basis from 8 January 2021 until 30 March 2021. The respondent stated that there was no witness to support the complainant’s allegation
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Findings and Conclusions:
Burden of Proof The general rule in the context of the burden of proof is that the burden lies on the party asserting a claim. 1.1 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 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 respondent to prove the contrary.”
This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. On the evidence adduced I find that the complainant has not established a prima facie case and her complaint therefore fails.
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Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find the complainant was not discriminated against, in getting a job. I find the complainant was not victimised. I find the complainant was not discriminated against in conditions of employment. I find the complainant was not harassed.
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Dated: 15th December 2021
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Conditions of employment, res judicata, burden of proof, |