Complainant

Respondent

Anonymised Parties

Office Manager

Medical Device Manufacturer

Representatives

Robert Jacob, Jacob and Twomey Solicitors

Director

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-00020856-001

30/07/2018

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

CA-00020856-002

30/07/2018

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

CA-00020856-003

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00020856-004

30/07/2018

The complainant was employed as an Office Manager by the respondent commencing employment in July 2016.  The complaints allege that the complainant was subjected to discriminatory behaviour during her employment and that she was penalised for raising concerns in respect of health and safety and was also penalised for making a protected disclosure.  The complainant’s employment terminated on 4 May 2018 and she alleges that this termination amounted to an unfair dismissal.  The complaints were lodged with the WRC on 30 July 2018.

This matter was heard by way of a remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant was subjected to appalling acts of bullying and harassment during her employment.

The complainant was penalised when concerns were raised by her of bullying and harassment and in relation to illegal activities being carried out by the respondent.

The complainant’s employment was terminated shortly after she raised these concerns.

The complainant rejects the claim by the respondent that the termination of her employment was due to redundancy.

The respondent was invited to set up business in Ireland by a government agency.

The business ran into difficulties because of a change in European regulations regarding medical devices / machinery.

The remarks complained of would not be considered offensive in the country where the respondent was based.

The respondent’s Managing Director was subjected to offensive language by the complainant.

Most of the employees, including the complainant, had their employment terminated because the respondent could not get regulatory approval for the manufacture of the machines.

The complainant was interviewed for the position of Office Assistant by the respondent’s Managing Director (MD) in July 2016.  The complainant in evidence stated that during the course of the interview the MD asked her whether she was married, and also questioned her about her children, husband, husband’s job, house and car.  The interview was conducted in an open office area within the hearing of other employees.  No notes were taken by the MD.

The complainant was in part-time employment at the time of the interview.  When the MD subsequently offered her the position he wanted her to start immediately.  The complainant advised that she had to give notice but agreed to start with the respondent on the days that she was not working in her existing employment.

The complainant at the start of her employment informed the MD that she was not happy about the questions asked at her interview.  The MD responded that he was not familiar with the laws of Ireland.  At this stage the respondent was in the process of setting up the Irish operation but the MD was often outside the country.  The complainant stated that she realised that the tasks she was being asked to perform went significantly beyond those of an Office Assistant.  The MD had asked if he could contact her outside office hours and the complainant had agreed.  This had led to a situation where she was working long hours and answering texts, emails and phone calls at all times of the day and night.

The respondent had put forward a business plan for the commencement of the manufacture of medical machinery in Ireland.  This plan had to be approved by a government department dealing with inward investment.  This plan had been rejected and the complainant became involved in reviewing and rewriting this plan.  The revised plan was accepted.  The complainant was instructed to recruit another staff member.  Around about this time the MD began to refer to the complainant as “Mama Beautiful Mama” instead of using her name.  When the complainant told him that this was unprofessional in a business environment the MD stated that it was a compliment and continued to use the phrase until January 2018.

The complainant was required to travel to a trade show in Dubai where the respondent had a stand.  On the stand were samples of the machines which it was hoped to manufacture in Ireland.  These sample machines were in fact manufactures in South Korea but the complainant was to inform customers that they would be manufactured in Ireland. The attitude of the MD to the complainant at this show was extremely rude with the complainant being ignored, being summoned by the MD by him clicking his fingers and being reprimanded for assisting to negotiate a significant contract with a customer and not allowed sign off on that deal.  The complainant accepted that she told the MD to f*** off during this time but stated that this occurred after three days of unacceptable, intimidatory behaviour on his part.

The complainant had been tasked with hiring more staff, in particular a person who could adapt and re-write the technical brochures for the machines to bring them into line with Irish / EU regulations and also two sales people.  In respect of the latter the MD specified that he wanted one male and one female salesperson and that the female should be “pretty”.  The complainant was not invited to the next trade show in Dubai in March 2018.  The complainant stated that it was around this time that the relationship between herself and the MD began to break down.  The complainant in her submission gave examples of this deterioration.  These included refusing to transfer money for staff salaries, accusing her of selecting inappropriate persons for the sales positions and demanding that she terminate the employment of some employees despite her stated dissatisfaction and reluctance in that regard.  The complainant took time off because of the resultant stress and ill-health but the MD continued to text and harass her during this time.

On 1 April 2018 the MD arrived into the Irish office and stated that he was here to “fight” with the staff and that he was “wearing his armour”.  The MD berated the complainant and accused her of lying.  On 9 April the complainant received a phone call from the MD who instructed her that all employees, including the complainant, must “evacuate” the building.  When the complainant asked the MD what she should tell the other employees he replied, “tell them nothing”.  The complainant then put on the speaker on the phone so that the other staff could hear the conversation.  The complainant texted the MD later that day and received a reply to the effect that the MD would update her later.  The following day the complainant asked for an update and particularly if she should go to work and the MD responded with the word “no”.  The complainant then contacted her solicitor on behalf of the staff. 

The complainant’s solicitors then wrote to the respondent seeking clarity as to whether the complainant’s employment had been terminated.  A reply was received from the respondent’s legal advisors to the effect that the complainant was not dismissed and should return to work the following Monday, 16 April.  Upon returning to work the complainant submitted a written grievance in respect of her treatment.  No response was received in this regard.

On 4 May the complainant was summoned to a meeting without any prior notice being given.  The meeting was conducted by an individual who was a business advisor to the respondent and who stated that he was acting on the instructions of the MD.  The complainant was informed that she was being made redundant with effect from that day.  Other members of staff were also made redundant by the same process.

The respondent’s position was explained by the MD.  The respondent had been invited to set up a business in Ireland to manufacture medical machines that were at that time being manufactured in South Korea.  Business advisors were hired and a business plan was approved in 2017.  European regulations which would govern the sale of such machines in the EU were changed and this caused a major delay as regards getting permits for the manufacture of the machines in Ireland.  Prototype machines were made in Korea and these were displayed at trade shows in Dubai.  The MD stated that he spent most of his time in Dubai where the parent company was based.  Some staff from Ireland were brought to Dubai for the trade shows.  The respondent’s presence at the trade show was designed to promote the product and not to sell it.  The reason that he would not allow a contract to be signed was because at that time there was no machine to sell.

There were different cultures between Dubai and Ireland.  The MD stated that questions about family which had been asked at interview were considered normal in his country.  He also stated that there was a need to know how people managed their time.  The MD stated that calling the complainant “Mama” was meant as a compliment as the most valuable member of a family was the mother.  The MD felt that some staff at the trade shows had re-acted very emotionally to the requirements in Dubai.  The complainant had told him to f*** off, which in Dubai would be considered a crime, but he did not do anything about that.

Following the trade shows he felt that there was a bad atmosphere amongst staff in the Irish workplace when he visited the site on April 1.  He then began to receive written complaints from the staff. The MD also hired experts to deal with issues that had arisen with the business including a person to deal with staff issues.  The MD stated that he felt that the Irish staff believed that he was very rich and that they could extract a settlement from him.  On 9 April the MD decided that a break was required in relation to the staff and he telephoned the complainant and told her that the staff were to “evacuate” the building.  He did no ask them to leave the building as he felt that that would imply that they were being dismissed.  Upon receipt of the letter from the complainant’s solicitors he confirmed their return to work and paid the staff for the period of absence.    

The MD stated that it was clear at this stage that the project was in trouble as it was significantly over budget with no sign of authorisation for the manufacturing process to begin.  Because of these business reasons it was necessary to make 3 members of staff redundant and this included the complainant.  It was arranged that the persons concerned should be informed of the redundancy by one of the business advisors and this occurred on 4 May 2018.   Following this procedure and the resignation of another employee, the respondent retained only one member of staff to look after the office.    

Complaint No. CA-00020856-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015, to the effect that the termination of the employment of the complainant was an unfair dismissal.  Section 6(1) of the Act states:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    N/A

It would seem from the evidence that there was a major deterioration in the relationship between the parties in the last months of employment.  There appear to be several factors in this breakdown including the events that occurred at the trade show in Dubai and the failure on the respondent’s part to get authorisation from the regulatory authorities for the manufacture of the medical machinery.   The complainant had previously played a major role in the setting up of the office in Ireland.  She had taken on board a lot of responsibility, particularly having regard to the fact that the MD of the respondent spent most of his time in Dubai.

The respondent’s position is that the change in the regulations pertaining to the manufacture of the machines had led to a situation whereby authorisation to manufacture the items in Ireland would be a lengthy process and this in turn had led to a review of the existing operation in Ireland.  The respondent, therefore, had decided that a number of employees had to be made redundant and that this included the complainant.  I note, however, that the respondent retained one member of staff in an administrative position. 

Section 7(2) of the Redundancy Payments Act, 1967, sets out the circumstances whereby a person who is dismissed shall be taken as being dismissed by reason of redundancy.  This includes at 7(2)(c) the following:

the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise…

It is important in considering a redundancy situation, particularly one whereby some employees are being made redundant and others are being retained, that fair and proper procedures apply to the selection of a person for redundancy.  In this case there was no evidence from the respondent as to how the decision to make the complainant redundant was arrived at.  It is obvious that no consultation took place with any of the employees and that they were called in and presented with a fait accompli by an advisor to the respondent.  There was no evidence as to the criteria used to select the person that was being retained in employment in administration.  The EAT considered this aspect in Boucher & Others v Irish Productivity Centre as follows:

“The onus of proof is on the employer to establish that he acted fairly in the selection of an employee for redundancy.”

“Where selection for redundancy involves consideration of employee’s contribution and versatility to the respondent those in the group likely to be dismissed should be made aware that such assessment was being made and they should be given the opportunity to give views which should be considered.”

It is clear that the respondent did not engage in any such process.  In addition, from the evidence given by the MD it appears that other factors apart from the purely economic ones were also at play in the decision to select the complainant for dismissal.  I also note that there was no provision for the complainant to appeal the decision to dismiss.  It is apparent, therefore, that the selection of the complainant for redundancy was seriously flawed as was the process utilised for the termination of her employment.

Section 6(7)(a) of the Unfair Dismissals Act,1977, (as amended) allows an adjudication officer to have regard “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

I find that the decision of the respondent to select the complainant for dismissal was inherently flawed and that as such the complainant was unfairly dismissed under the provisions of the Act.

Complaint No. CA-00020856-002:

This is a complaint under the Employment Equality Act, 1998, alleging that the complainant had been discriminated against by the respondent by reason of her gender and family status and had suffered victimisation. 

Section 6(1) of the Act states:

For the purposesof 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.

Section 6(2) of the Act states:

As between any 2 persons, the discriminatory grounds (and the description 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”)

(b)    that they are of different civil status (in this Act referred to as “the civil status ground”)

(c)     that one has a family status and one does not (in this Act referred to as “the family status ground”)…

The complaint is based on the actions of the MD at the job interview, events during the complainant’s employment and interactions at the trade show in Dubai.

Section 85A of the Act states:

(1)    Where in any proceedings facts are established 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.

The interpretation of this Section has been considered by the Labour Court in Southern Health Board v Mitchell (DEE011).  The Court stated 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 those facts are established to the satisfaction 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 was no infringement of the principle of equal treatment”.

The complainant was interviewed for employment by the MD in July 2016.  The complainant stated that during the course of her interview she was asked questions that were inappropriate and discriminatory.  Examples of these questions were as follows:

Was she married?

Did she have children?  How many?  Ages?  Their education?

Was she planning to have more children?

What age was she?  Why did she look younger than her age?

Did her husband have a good job?  Were they happy?

There were also questions as regards her house and car.

The complainant had at the commencement of her employment told the MD that these questions were wholly inappropriate and the MD had replied to the effect that he was not familiar with Irish law.

Some weeks into the job the MD began referring to her as “Mama, Beautiful Mama”.  The complainant stated that she had voiced her objections to this remark but that the MD had responded that it was meant as a compliment and had continued to use this form of address until late January 2018.

The complainant also said that throughout her employment she was put under a lot of pressure dealing with excessive telephone calls, text messages and emails many of which took place during weekends, early mornings, late at night, during holidays and family occasions.  As a result, the complainant worked long hours and had difficulty sleeping.

The complainant stated that during the trip to the trade show in Dubai she found the MD’s behaviour to be extremely intimidating and erratic.  Examples given by the complainant included ignoring any contribution made by her to a conversation at which he was present, clicking his fingers at her and forcing her move aside when she was explaining the use of products to male colleagues.  The complainant also gave evidence of the MD’s anger when she assisted in the negotiating of a valuable deal with a potential customer.  The complainant stated that his behaviour at the trade show finally led to her to swear at the MD.  Arising from this the MD told the complainant that he wished to speak to her husband about this show of disrespect.

On 16 April 2018 the complainant lodged a formal grievance in writing outlining the issues that were of concern to her.  These issues included the remarks made at the job interview, examples of the excessive demands made upon her workwise, belittling remarks and behaviour and alleged intimidation, bullying and harassment.  The complainant did not receive any acknowledgement or response to these complaints.  As detailed above, the complainant was made redundant on 4 May.

The job interview was conducted in July 2016.  The complaint was lodged with the WRC on 30 July 2018.  The complainant did advise the MD shortly after commencing employment that she considered these remarks to be totally inappropriate.  It was April 2018, however, before the complainant raised a formal grievance in this regard.  Having regard to the time limits contained in Section 77(5) of the Act I find that this element of the complaint is statute barred. 

The complainant also raised the issue of being addressed as “Mama, beautiful Mama” by the MD.  She gave evidence that she had informed the MD that she objected to being addressed in this manner but that the MD continued to use this form of address until a few months prior to her termination of employment.  The MD stated that he viewed this remark as a form of compliment as in his culture a mother was the most respected member of the family.  Even allowing for cultural differences, it is fundamentally wrong for someone to keep using a phrase or term that the recipient has made clear that they find offensive.  Section 14A(7)(a) of the Act states:

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,

being conduct which in either case has the purpose of violating a person’s dignity and creating an intimidating, hostile, humiliating or offensive environment for the person.      

There was also evidence from the complainant in relation to the MD’s attitude to her at the trade show where it was stated that she was treated in a different and humiliating manner compared to male colleagues / customers.  A further example in her evidence was in relation to the remark made by the MD about contacting her husband to discuss the incident when the complainant had used swear words when speaking to the MD.  I find that the complainant has established that the conduct complained of, and which was the subject of her complaint, did occur and that it gives rise to a presumption of discriminatory behaviour.  The onus therefore shifts to the respondent to prove the contrary.  The response of the respondent to the effect that certain remarks and behaviour were due to cultural differences does not explain or excuse the making of such remarks or the committing of such behaviour.  It is surely the prerequisite of any business setting up in another country to seek advice on the laws and customs that prevail in that country.  Such a response, therefore, does not discharge the onus and consequently I find that the respondent engaged in discriminatory behaviour in relation to the complainant on the grounds of gender and family status.   

Complaint No. CA-00020856-003:

This is a complaint under the Safety, Health and Welfare at Work Act, 2005, to the effect that the complainant was penalised for making a complaint under the Act.

Section 27(3) of the Act states:

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,

(d)    giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e)    N/A

(f)      N/A

The complainant alleges that she was penalised for making a complaint to her employer in relation to bullying and harassment.  As noted the complainant submitted a formal complaint in writing under the grievance procedure to the respondent in mid-April.  Included in the list of complaints was an allegation of intimidation, bullying and harassment.  The list also referenced excessive contact by the respondent and having to perform other job roles outside of working hours.    

The Labour Court considered Section 27 of the Act in O’Neill v Toni and Guy, Blackrock (2010) E.L.R.21 as follows:

“It is clear from the language of Section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for the complainant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the 2005 Act.  Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act.  This suggests 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 complainant having committed the protected act he or she would not have suffered the detriment.”

In the present case the position of the respondent is that the dismissal of the complainant was due to the business factors outlined above and that it was these factors that led to the termination of the employment of three members of staff including the complainant.  In the light of the evidence before me I cannot accept that the complainant has established that “but for” the fact that she made her complaint she would not have been dismissed.  I therefore find that this complaint is not well founded.

Complaint No. 00020856-004:

This is a complaint under the Protected Disclosures Act, 2014, to the effect that the complainant was penalised for having made a protected disclosure.

The Act states at Section 5:

(1)    For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the passing of this Act) made by a worker in the manner specified in section 6,7,8,9 or 10.

(2)    For the purposes of this Act, information is “relevant information” if –

(a)    in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b)    it came to the attention of the worker in connection with the worker’s employment.

(3)    The following matters are relevant wrongdoings for the purpose of this Act –

(a)    that an offence has been committed or is likely to be committed,

(b)    that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or service,

(c)     that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)    that the health and safety of any individual has been, is being or is likely to be endangered…

The alleged wrongdoings in this case included the issue of the staff being required to inform potential customers that the medical machines were manufactured in Ireland when in fact they had been made in South Korea and had not been certified for manufacture in this country.  As in the previous complaint the complainant is required to demonstrate that the making of the complaint was the cause of the detriment which she suffered.  The complaint lodged in mid-April makes no reference to the issue of the machines’ origin or other issues of alleged wrong-doing mentioned in the course of the hearing.  I do not believe, therefore, that the complainant has established a clear causal link between her making a protected disclosure and suffering a detriment as required by the provisions of the Act.  I therefore find this complaint to be not well founded.

Complaint No. CA-00020856-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015.  For the reasons set out above I find that the complainant was unfairly dismissed.  I note that the complainant secured employment on 14 May 2018 and that her gross pay was close to what she was in receipt of from the respondent.  Having regard to all those circumstances I order the respondent to pay to the complainant the sum of €2,400.00 as compensation in this regard.

Complaint No. CA-00020856-002:

This is a complaint under the Employment Equality Acts, 1998 – 2015.  For the reasons set out above I find that the complainant suffered discriminatory behaviour related to her gender and her family status and I therefore find the complaint to be well founded.  I therefore order the respondent to pay to the complainant the sum of €6,000.00 as compensation in this regard.

Complaint No. CA-00020856-003:

For the reasons set out above I find this complaint under the Safety, Health and Welfare at Work Act, 2005, not to be well founded.

Complaint No. CA-00020856-004:

For the reasons set out above I find that this complaint under the Protected Disclosures Act, 2014, is not well founded.  

Unfair Dismissals Acts     Employment Equality Acts     Discrimination     Safety, Health and Welfare at Work Act     Protected Disclosures Act     Penalisation