Complainant

Respondent

Anonymised Parties

Employee

Employer

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 77 of the Employment Equality Act, 1998

CA-00021486-001

30/08/2018

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

CA-00021486-002

30/08/2018

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

CA-00021486-003

30/08/2018

The complainant was employed in a Technical Sales Support position with the respondent commencing in October 2017.  The complaints allege that the complainant to discriminatory behaviour during his employment, that he was penalised for raising concerns regarding Health and Safety and that he was penalised for making a protected disclosure.  The complainant’s employment terminated on 4 May 2018 and the complainant alleges that his dismissal was as a result of him having raised the concerns and making a disclosure as outlined above.  The complaints were lodged with the WRC on 30 August 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 treatment on the grounds of gender and family status for the duration of his employment.

The complainant was penalised for raising concerns about having to misrepresent medical products as being CE certified when they were not.

The complainant was dismissed shortly after raising a grievance relating to bullying and harassment by the employer.

Remarks in relation to the complainant’s family and home were part of social discourse and would be normal in the parent company’s homeland.

The respondent provided training for the complainant and brought him to Dubai to attend a trade fair.

There was a change in EU regulations regarding the manufacture and sale of the machines the respondent hoped to produce in Ireland.  This led in turn to significant delays and the requirement to make staff, including the complainant, redundant.

The complainant was recruited to join the respondent’s employment in October 2017 as a Technical Sales Consultant.  At his job interview the complainant was asked by the respondent’s Managing Director (MD) if he was married, how many children he had, was he planning to have more children and where did he live.  The complainant was given responsibility for writing machine manuals, the installation and maintenance of the machines and other general technical work.

The complainant stated that his next meeting with the MD was in December 2017 as the MD was based for most of the year in Dubai.  There was a discussion about operation manuals and the requirements for same in Europe and the MD was irritated at being informed about the requirements in this regard.  The complainant said that he enquired about technical training and was told that he would be sent to South Korea for this.  The complainant was sent on a 3-day training course in Ireland around this time.  The complainant stated that he also raised concerns about the copyright of the material that he was being asked to work on for the compilation of the manuals and that the MD assured him that permission had been granted in this regard.  The complainant was never shown evidence of this permission.

In January 2018 the complainant attended a trade show in Dubai.  The complainant said that he was concerned as the respondent’s machines were being represented as being made in Ireland when in fact they were made in South Korea.  They also did not have the required certification for sale in Europe.  The complainant stated that he negotiated a potential agreement with a distributor at the trade show which could have been worth €3.2 million but that he received no support from the MD and that ultimately the deal collapsed as there was no manufacturing facility.  The complainant said that he found the MD’s attitude during the show to be intimidatory and that he was informed by the MD that he was being closely watched.  In March the complainant was scheduled to attend another show in Dubai but, unfortunately, his brother died suddenly the day before he was due to travel.  The complainant considered attending the show as he was fearful of the reaction of the MD but colleagues persuaded him otherwise.

On 9 April 2018 the complainant was with the Office Manager when a phone call was received by her from the MD who instructed her to have the employees “evacuate” the building.  When the Office Manager asked the MD what she should tell the employees the MD replied “tell them nothing”.  The staff then left the building.  A number of employees later contacted a solicitor in this regard and following an exchange of letters the staff resumed work on 16 April.  The complainant said that shortly afterwards he, along with other members of staff, lodged a grievance in respect of his treatment at work.  He did not receive a response to that grievance.

On 4 May the complainant was requested to attend a meeting without notice.  He met a person who was an advisor to the respondent.  This person informed the complainant that his employment was being terminated with immediate effect by reason of redundancy.  There was no further explanation and no mention of a right of appeal.

The respondent’s MD in his evidence said that in his culture questions about family and children were part of normal social discussions and were not intended to offend.  Some members of staff had asked the MD about his family.  The respondent had been invited to Ireland to set up a company manufacturing certain machines for the medical market in Europe.  There was a change in the European regulatory regime and this resulted in a delay to the project.  The respondent still proceeded to recruit staff including administrative, sales and technical staff.  The MD himself was mostly based in Dubai and, as a consequence, was often absent from the Irish facility.

A number of prototype machines were manufactured in South Korea and these were exhibited at trade shows.  The MD disputed the evidence regarding telling staff to inform potential customers that the machines were made in Ireland and were certified for sale.  The MD was aware that the machines would have to comply with the new regulations and get the necessary certification before beginning manufacture in Ireland.  The MD had brought staff to trade shows in Dubai where there appeared to be a clash of different cultures.  After the second trade show he felt that some employees in Ireland were re-acting very emotionally.  The MD said that he believed that the staff should have a break and that is why he instructed them to “vacate” the building.  The MD explained that he used the word “vacate” because if he instructed them to leave the building it might appear that their employment was terminated.  The staff were paid for the time that they were absent from the workplace.  Some time after that the MD received a number of written complaints from members of the staff.

Because of the delays the project at this stage was over budget and the respondent engaged outside experts to examine all aspects of the operation including employee issues.  The advice was that the certification process to approve the commencement of manufacture of the machines would be lengthy and in the absence of sales income the present operation was unsustainable.  The process of redundancy was undertaken by one of the local consultants on behalf of the respondent.  The MD also stated that in his opinion some staff had formed the opinion that the respondent was rich and that they could get a settlement.      

Complaint No. CA-00021486-001:

This is a complaint under the Employment Equality Act, 1998, to the effect that the complainant was discriminated against by reason of his gender and family status and that he was dismissed for discriminatory reasons.  The complaint also alleges that the complainant was discriminated against in conditions of employment and that he was harassed by the respondent.

Section 6(1) of the Act states:

For the purpose of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where –

(a)    a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which –

(i)                  exists,

(ii)                existed but no longer exists,

(iii)               may exist in the future, or

(iv)               is imputed to the person concerned.

Section 6(2)

states:

As between any 2 persons, the discriminatory grounds (and the description of those grounds for the purpose of the 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 a 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”)…

Section 14A(7) 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.

In his submission the complainant referenced the remarks made by the MD when interviewing him for employment in October 2017.  The complainant submission also refers to him being repeatedly harassed and victimised for having raised concerns of discrimination with his employer.  The complainant instanced being suspended from employment.  All staff, however, were suspended from employment.  The only example of a complaint being lodged by the complainant was with regard to the written grievance made in mid-April.  That grievance detailed the behaviour of the MD in the weeks previously, including remarks made to the staff about looking for a fight and about being dressed in body armour.  There was no further evidence of specific remarks or behaviour directed at the complainant.  The termination of his employment on 4 May took place at the same time as that of two female employees.

Section 85A of the Act states:

(1)     Where in any proceedings facts are established by or on behalf of the 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.

The interpretation of this section has been considered by the Labour Court in the case of 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 these 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 was no infringement of the principle of equal treatment”.

The clear example of discriminatory behaviour relates to the remarks made by the MD at the job interview which took place prior to the commencement of employment on 29 October 2017.  This complaint was filed with the WRC on 30 August 2018.  Section 77(5) of the Act states:

Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after 6 months from the date of occurrence or, as the case may require, the most recent act of discrimination or victimisation to which the case relates”.

It follows therefore that the complaint with regard to that matter is out of time and cannot be considered.  As regards the other elements of the complaint, whilst I accept that the actual termination of his employment (and that of two colleagues) was carried out in a most unsatisfactory manner, I am not satisfied that the complainant has established facts of such sufficient significance such as to give rise to the presumption that he was the subject of discrimination or victimisation.  I therefore find that the complaint is not well founded. 

Complaint No. CA-00021486-002:

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 complainant states in his submission that he was instructed to represent the respondent’s products as being CE Certified and as having been made in Ireland when they were not.  The complainant alleges that when he raised concerns with his employer in this regard by lodging a formal grievance his employment was terminated shortly afterwards.

Section 5 of the Act states:

(1)    For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of 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 purposes of the Act –

(a)    that an offence has been, is being 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 or safety of any individual has been, is being or is likely to be endangered…

 The respondent in reply denied telling staff to pass off the products as being certified or as being made in Ireland.  The machines on display at the trade shows were prototype machines made in South Korea.  The intention was to acquire the certification necessary for the products to be manufactured in Ireland for sale in Europe.  Manufacturing could not commence without the proper certification.  As it transpired, the regulatory regime changed and the time-line for acquiring certification from the authorities lengthened considerably such as to postpone the ability to start the manufacturing process.  The respondent’s evidence was that a consequent review of the project led to the decision to make three employees redundant and that this included the complainant.

Section 27 of the Act states:

In this section “penalisation” includes 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 any term or condition of his or her employment.

Section 27(2)(a) specifies dismissal as an example of penalisation.

Even if it is accepted that the actions of the complainant in lodging his complaint under the grievance procedure amounted to a protected disclosure it is necessary to show that the penalisation occurred as a result of making that disclosure.  In the case of Minister for Business, Enterprise and Innovationv McLoughlin (PDD192) the Labour Court said:

“As this Court pointed out in O’Neill v Toni and Guy Blackrock Ltd. (2010 E.L.R.21) it is necessary for a complainant to show that the detriment of which he or she complains was imposed “for” having committed a protected act.  This suggests that where there is more than one causal factor in a chain of events leading to the detriment complained of a protected act must be an operative cause in the sense of “but for” the complainant having committed the protected act he or she would not have suffered the detriment”.

As already noted the complainant’s employment was terminated along with that of another two employees at the same time by reason of redundancy.  The evidence of the respondent was to the effect that the project was over budget and there would be no income source pending the commencement of the manufacturing process which in turn had to await a prolonged certification procedure.  In the case before me I have carefully considered all the evidence but I have concluded that on the balance of probabilities the main cause of the termination of the complainant’s employment was due to redundancy and consequently the complainant has failed to prove that but for his disclosure his employment would not have been terminated.

Therefore, whilst I have great sympathy for the complainant’s position in that he was recruited to an operation which appears to have been badly researched and managed, I must find that this complaint is not well founded.

Complaint No. CA-00021486-003:

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 and 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 said that he had been the victim of bullying and harassment by his employer, in particular the respondent’s MD, and that he had filed a formal grievance in this regard in mid-April 2018.  No response had been received to this grievance but instead the complainant was dismissed on 4 May 2018.  The complainant in his submission outlined the behaviour of the MD as set out in his formal grievance.   The position of the complainant was that his dismissal was as a direct result of lodging a grievance.  The respondent, as outlined in the previous complaint, stated that the termination of the employment of the complainant as well as that of two other employees was due to redundancy which in turn was caused by the budgetary issues already outlined in the previous complaints.

The onus on the complainant with regard to this complaint is based on the same principles as outlined in the previous complaint, that is, it must be established that “but for” lodging his concerns in the form of a formal grievance his employment would not have been terminated.  Based on the evidence before me I have accepted that the employment of all three employees was terminated due to redundancy.   Consequently, I find that the complainant has failed to prove that his dismissal was due to him raising a complaint under the Act.  I find that the complaint is not well founded.    

Complaint No. CA-00021486-001:

This is a complaint under the Employment Equality Acts, 1998 – 2015.  For the reasons set out above I find this complaint not to be well founded.

Complaint No. CA-00021486-002:

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

Complaint No. CA-00021486-003:

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