Complainant

Respondent

Anonymised Parties

A Project Worker

A Charity

Representatives

Eamonn Gibney HR Dept

Peter Flood, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00031551-001

14/10/2019

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

CA-00031551-002

14/10/2019

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

CA-00031551-003

14/10/2019

The Complainant commenced employment with the Respondent as a Project Worker on 19 November 2018 and received a monthly salary of €2,178.50. She was informed on 15 May 2019 that her employment was being terminated and alleges that this was procedurally unfair. She also asserts that the dismissal was attributable to her having raised safety concerns about a client and a disability she has which she informed the Respondent of on 7 January 2019.

CA-00031551-001:

The Complainant asserted that she was unfairly dismissed without recourse either to her contractual rights to be treated fairly or the written procedures and policies in her contract and other policies.

Specifically, she alleged that despite her contract of employment stating that she would “receive.

the appropriate coaching and training to enable you to perform your job satisfactorily” during the stipulated probationary period, she did not receive this.

It was also highlighted that the Respondent’s Disciplinary Procedure, which was not adhered to, provided that during the probationary period:

• The employee is informed of the required standard and that unless improvement is evident the employee may not be confirmed in post.

• An improvement plan and time frame is put in place. A three-month time frame is reasonable.

• The employees’ performance /conduct /attitude is assessed at each supervision session and progress or not is recorded.

• A final performance review will take place with the employee after the improvement plan time frame has been completed. The manager in conjunction with the Head of Service will confirm the employee in post or not depending on the level of improvement attained.

CA-00031551-002:

The complainant stated that she was penalized for raising concerns under the Health, Safety and Welfare Acts on 7th January 2019. She asserted that she highlighted these concerns due to her perceived danger surrounding the safety of a service user who was being evicted from the housing that she supervised. She believed that this raising of concerns was held against her and represented a causal/determinative factor in her dismissal.

CA-00031551-003:

The Complainant claimed that she was discriminated against after she informed her manager on 7 January 2019 that she had a disability, namely post-natal anxiety and asserted that this was a causal/determinative factor in her dismissal. She also alleged that the Respondent failed to provide reasonable accommodation for her as a result of her disability.

The Complainant was one of two staff based at one of the Respondent’s locations in South County Dublin.

The Respondent stated that the Complainant completed numerous training courses while in its employment and met with her line manager on three occasions during her probation where concerns were raised about her performance and conduct. In addition, three supervision meetings also took place with the Complainant where issues the Respondent had with her were also highlighted. While the Respondent acknowledged that the Complainant informed her line manager that she had been diagnosed with post-natal anxiety on January 2019 which made it extremely difficult for her to be apart from her son, it was highlighted that she was made aware of the EAP service but declined to avail of it.

On January 23, 2019 a meeting took place where the Complainant was informed that her performance was not at the required level and that unless there was some significant improvement she would not pass her probation thus leading to the termination of her employment.

The probation review meeting took place on May 15, 2019. It was attended by the Complainant, her line manager as well as the Respondent’s HR Manager. At this meeting, the Complainant was informed that her employment was being terminated due to her underperformance and her ongoing failure to meet the standards required in the role. It was also highlighted at this meeting that concerns about her inadequate performance had been communicated on numerous occasions during the probationary period of employment. When the Complainant asked for further details, she was informed that she was regularly late for work, was not completing reports on clients and that a fire safety audit score had been low. The dismissal letter issued to the Complainant referred to the aforementioned meeting of January 23 in addition to the support and supervision meetings held over the course of her probationary period of employment.

The Respondent disputed that the Complainant’s dismissal had anything to do either with safety concerns she had raised or her alleged disability and highlighted that issues with her performance, her conduct as well as her timekeeping had been discussed with her prior to being made aware of these matters in January 2019.  

CA-00031551-001:

The Respondent’s representative opened a Labour Court Recommendation to me, namely Mental Health Commission v A Worker (LCR 22316)wherein the Court stated:

The Worker accepted at the outset of the Court hearing that she was pursuing this appeal under the Industrial Relations Act in addition to a separate case under the Employment Equality Acts and that both cases are based on the same set of facts. Therefore, the Court notes that the dispute between the parties is being pursued as a matter of employment law under the Employment Equality Acts and that it would be inappropriate for the Court to recommend concession of the Worker’s claim under the Industrial Relations Act.

I note that in the instant case the Complainant is also seeking to pursue a separate case under the Employment Equality Acts and that both cases are based on the same sets of facts. Accordingly, I cannot make a recommendation in favour of the Complainant in respect of this particular complaint.

CA-00031551-002:

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides the requirements for a penalisation complaint referred to the WRC under Section 28 of the Act.  Specifically, Section 27(1) defines what constitutes ‘penalisation’ and Section 27(2) provides a non-exhaustive list of the actions constituting same.  Penalisation is defined as “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 employment”. 

Section 27(3) provides a list of protected acts where an employer shall not penalise or threaten penalisation against an employee including (a) acting in compliance with the relevant statutory provisions and (b) performing any duty or exercising any right under the relevant statutory provisions. 

The onus and burden of proof rests with the Complainant in terms of demonstrating how the factual matrix falls with the terms of this Act.  As confirmed by the Labour Court in O’Neill -v- Toni and Guy Blackrock Limited (2010) E.L.R. 21, in order to make out a complaint of penalisation it is necessary for an employee to establish that the detriment complained of was imposed “for” having undertaken one of the protected acts under Section 27(3) of the 2005 Act. 

I am satisfied in the instant case that the Complainant has not adduced any evidence that her dismissal was in retaliation for undertaking any of the protected acts under Section 27(3) of the Act. Indeed, I find that it was solely attributable to her underperformance, her failure to meet standards as well as her persistent tardiness, all of which had been communicated and raised with her initially at a supervision meeting on December 7 2018, before she raised her concerns about the staffing levels and the safety of a particular client on January 7 2019, and on a number of occasions after that.

CA-00031551-003:  

The Complainant also alleges that she was dismissed for discriminatory reasons.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

It is only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant alleged that her dismissal was discriminatory because she had informed the Respondent that she suffered from post -natal anxiety. However, I note that difficulties surrounding her performance and her tardiness had been raised with her on 7 December 2018, prior to her informing the Respondent of her disability on 7 January 2019. I further note that there were ongoing performance difficulties and timekeeping issues which the Respondent raised with the Complainant after this and that these were not disputed by her during the course of these various meetings, prior to her dismissal at the end of her probationary period.

The Labour Court in Melbury Developments v Valpeters EDA0917 found in order to substantiate a claim of discrimination “…This requires the Complaint must first establish facts from which discrimination may be inferred. What are those facts will vary from case to case and there is no closed category of facts which can be relied on. 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….”.

I find that there is no evidential basis for the Complainant’s assertions that her dismissal is attributable to her disability and that therefore no prima facie case of discrimination has been made out.

As well as claiming that she was discriminatorily dismissed, the Complainant also alleged that the Respondent failed to provide reasonable accommodation for her

Section 16 of the Acts provide:

• (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

·        

• • (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
  • (2) [ Not relevant]

“(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.

When examining whether the Respondent provided reasonable accommodation for her, I note that the Complainant never stated at any time that she could not perform any aspect of her role due to her disability. I am satisfied therefore that the question of whether to provide reasonable accommodation did not arise.

CA-00031551-001: I do not make a recommendation that is favourable to the Worker in respect of this dispute

CA-00031551-002: I find that the complaint was not well founded for the reasons set out above

CA-00031551-003: I find that the Complainant was not discriminated against.

Discriminatory dismissal; penalisation;