ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00028049

Parties:

Complaint(s):

Date of Adjudication Hearing:  13/12/2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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 complaint.

Background:

Preliminary Matters:

A number of preliminary issues were raised by the respondent employer concerning the standing of the complainant to bring the complaints as he is not an employee and trades as company; in the alternative some claims are statute barred as the 6 month time limit to bring the complaint relating to the prohibited conduct was exceeded; not naming the right respondent; seeking compensation for an alleged wrong based on the same facts as 4 distinct claims and  4 separate actions; making complaints  against the employer that they are a stranger to; failing to detail facts that would ground a  discrimination complaint and would allow the respondent employer to know what case they have to answer.

The complainant states that he identified a number of safety concerns and reported these to the company. He believes that he is being penalised for doing so. He states that he had an expectation of being offered an employment contract and took up the role with the respondent employer based on that understanding. He also moved his family from Spain based on that belief. The complainant states that his contract for services with the company was ended abruptly and before its specified end date arising from complaints that he had made concerning discrimination and alleged plant safety failures.

The matters raised by counsel were explained to the complainant. As a lay litigant he stated that he ticked the boxes that he believed matched the claims being made against the company. He accepted that he had his own company and that his invoices were made out to another third party and not to the respondent. He carried out work personally for the respondent; and worked under their direction; however, his invoice for work provided was not paid by the respondent directly to him.

In the interest of fairness and efficiency and allowing for the number of preliminary points raised; I determine that it is appropriate in this case in the first instance to make determinations on the preliminary issues raised by the respondent counsel:

 Employment Equality Complaints:

In the complainant’s addendum received on the 3rd of July 2020  states:

I believe that the discriminatory and punitive attitude towards me is due to seven factors:

1. I am a foreign worker in Ireland
2. my age [over 55 years]
3. my family situation [having three children in care and a wife that is not employed] In spite of the three factors mentioned above, that seem to have been regarded as weaknesses that can be speculated for submitting me into behaving in ways contrary to the laws and with the rules of the hirer, I shown no sign of intending to accept compromise, and
4. I reported openly all issues that I found, insisting by repeatedly reporting the most serious issues
5. I have not hidden that, although I have great respect for the achievements made so far and for the huge amount of work used for developing and for maintain automatic control systems, I think that there are many improvements that can be made
6. I refused to share my knowledge regarding efficient methodologies for automation systems engineering, without a proper agreement
7. I dared to complain about being discriminated with the occasion of my most recent holiday
8. by dismissing me, the issues that I reported may be further concealed from the top management of the hirer, from the relevant authorities and from the customers, and the false claims may be maintained

Preliminary Decision

Section 79(3A) of the  Employment Equality Act provides that:

(3A) If, in a case which is referred to the  Director General of the Workplace Relations Commission under section 77 , a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

( a ) whether the complainant has complied with the statutory requirements relating to such referrals,

( b ) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

( c ) whether the complainant is an employee, or

( d ) any other related question of law or fact,

The Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

 Employee Definition:

At subsection 2 a contract is defined as:

‘ contract of employment ’ means, subject to subsection (3) —

( a ) a contract of service or apprenticeship, or

( b ) any other contract whereby —

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written

At subsection 3 it states:

(3) For the purposes of this Act—

( c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer.

And:

( d ) in the case of a contract mentioned in paragraph ( b )(i) of the definition of ‘ contract of employment ’ —

(i) references in this Act to an employee shall be construed as references to the party to the contract who agrees personally to execute the work or service concerned and references to an employer as references to the person for whom it is to be executed,

(ii) any comparisons to be made for any of those purposes shall be between persons personally executing work or service for the same person or an associated person under such a contract or contracts, and

(iii) in particular, and without prejudice to the generality of the foregoing, references in sections 19(4)( a ) and 22(1)(a) to employees shall be construed as references to those persons.

In this case the complainant has agreed personally to undertake work for the respondent through an Agent who placed him with the company. The respondent states that PE Global, the recruitment company who placed him with the company are the proper respondent as they discharged  payments due to him. However the Act states at (d)(i) above:

and references to an employer as references to the person for whom it is to be executed,

In this case the work is being executed for Johnson and Johnson and ultimately they are liable for the pay of the agency worker; based on these facts the employer is the respondent for the purposes of the Act. However, the Act at section 8 also states:

Discrimination by employers etc.

8.— (1) In relation to—

( a) access to employment,

( b) conditions of employment,

( c) training or experience for or in relation to employment,

( d) promotion or re-grading, or

( e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

 (2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

However I do note that agency workers have protection regarding basic terms and conditions as noted by Purdy in Equality in the Workplace [Bloomsbury 1st Edition 2015]:

[4.11]

The Employment Equality Acts specifically include agency workers, albeit that the discriminatory treatment is limited to circumstances where the agency worker can show that they were treated less favourably than another agency worker, is, has been or would be treated. 14 This has been nullified by the Protection of Employees (Temporary Agency Work) Act 2012, which provides that an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment. 15 Thus agency workers can now compare themselves with non-agency workers and cannot be treated less favourably in relation to basic working conditions.

His complaints concerning access to a new role; terms and conditions and holiday scheduling when relying on the Equality Acts must identify a relevant comparator and the complainant has failed to do so.

The complainant details 4 complaints under the Employment Equality Act 1998 as amended:

1. Discrimination based on Family Status.
2. Discrimination based on Age.
3. Discrimination based on Race.
4. Discrimination by Victimising him.

The respondent states that at paragraph 66 of their submission:

Prima facie, the first EEA claim is outside of the six-month time limit within s. 77(5) of the EEA as the last alleged discriminatory act appears to be 23 September 2019.

The complainant states in his WRC form that the last date of discrimination was on the 19th of April 2020 and not the 23rd of September 2019, which relates to the early termination of his contract.

In the narrative of the complaint form he states that his contract ended abruptly on the 19th of March 2020. On the facts based on an email dated the 19th March 2020 from the recruitment agency, the complainant was informed that his work at the manufacturing plant was over, which was meant to expire on the 3rd of May 2020. Therefore the last discriminatory act would appear to be the 19th of March 2020.

Not an Employee for Purposes of  Equality Employment Act

I note the respondent relies on several cases to show that an contractor cannot rely on employment rights provisions where the said complainant has never previously asserted that they were in fact an employee and indeed rely on the self-employed status or other legal entity when making a return to Revenue( McDonagh v Ianrod Eireann[2015] 26 E.L.R. 21, McGinley v Bord Gais FTD091 and Castleisland Cattle Breeding v Minister for Social Welfare [2004] I.R. 150.) The statutory definition of what constitutes an employee varies significantly between Acts. In this case the statutory provisions appear to encompass the complainant as he is carrying out work personally for the respondent company; reports to the respondent’s management and ultimately they are liable for his pay, in so far as an Agency worker while paid by the Employment Agency, that payment is made possible in so far as the client pays the Agency. Agency workers are clearly encompassed by the provisions of the Employment Equality Acts. While in this case the complainant also has a company who in turn is paid by the Employment Agency for the work that he completes for the respondent; the essential nature of the work between the complainant and the respondent appears to be akin to an Agency Worker. On this basis I determine that I have jurisdiction to hear the equality complaints.

CA 00035937-001Family Status:

The complainant details a grievance concerning his neighbour and the fact that all members of his family had to endure nuisance arising from parties organised for 3 consecutive nights by his neighbour.  This nuisance appears to have occurred in October 2017. The complainant’s wife also wrote to the respondent the 19th of October about issues her child faced with homework in college and also on  the 23rd of September 2019 alleging that her husband was being discriminated against by the respondent and sought compensation for the alleged discrimination.

The complaint form was lodged with the WRC on the 29th of April 2020. The matters relating to his accommodation and his child’s schooling are not matters that can be progressed under the Act. The grievance raised by his wife alleging discrimination on his behalf is statute barred as it occurred on the 23rd September 2019, and was registered with the WRC more than 6 months from the date of the alleged discriminatory incident.

I determine that the complaint made under Family Status is statute barred. I also determine that it is not a matter properly brought under the Act and is misconceived as the employer has no liability under the Act for the behaviour of his neighbour. No vicarious liability can arise from the behaviour of a stranger.

CA 00035937-006 Age Discrimination

The complainant has indicated that he was discriminated against on the ground of age. The details of that allegation are sparse.

The complaint form references age in the following narrative:

On 23.09.2019 I declined the invitation for a meeting next day, in a one to one format, confirming that as immigrants we are facing discriminatory attitudes in general, in Ireland, showing what other attitudes at work I regard as discriminatory, iterating the reasons that made me believe that another one to one meeting cannot bring anything to me, and proposing him, in turn, to discuss with Declan Fagan about organizing a meeting with the participation of Barry O’Sullivan [Vice President Manufacturing Visual Care], who shown genuine concern and interest in increasing the efficiency of the automation related activities. I proposed to meet Barry O’Sullivan in order to avoid further discrimination or attempts to leverage the knowledge about my age, and about my family status, and hence my obvious need to get into a permanent employment position or to continue as contractor, as a mean to exploit my expertise and know how regarding automation systems engineering, without proper payment and recognition. I received no explicit reply to my counter-proposal regarding a meeting with Barry O’Sullivan or with any other more senior manager,and I regarded this act of ignoring the proposal made by me, in good faith, as also an implicit evidence of the intention to conceal the problems that I reported previously during my activity

The age discrimination is referenced to have occurred on 23rd of September 2019. The complaint was registered with the WRC on the 29th of April 2020, it is statute barred as the complaint has not been registered on time, which is 6 months from the date of the alleged discrimination.

The complainant has also failed to identify an agency comparator as required under the Act.

In addition no facts are detailed in the complainant’s submission that would meet a prima facie case of age discrimination. This means that the respondent can’t respond to the allegation as the facts required to ground such an allegation are absent. As such facts are not present it is misconceived to pursue a claim for age discrimination. The Act places the burden of proof on the complainant to meet that prima facie threshold and it has not been met based on the narrative in the complaint form or indeed in the supplementary submissions referred to as an Addendum.  No primary facts have been detailed that would give rise to a presumption of age discrimination. The complainant relies on an assertion that age discrimination has occurred without any supporting factual evidence to ground that allegation.

CA 00035937-007Race:

In the complaint form ,the complainant states:

Later I learned about similar attempts to gather knowledge, by other managers, in relation with other foreign national contractors, without being necessarily followed with an invitation to join as permanent employee, to a subsequent contract or to a pay rate raise.

There is sparse factual evidence presented to ground this complaint. No agency comparator has been identified to show how on the ground of age; the complainant was treated less favourably. On the facts detailed the complainant does not meet the initial prima facie test to raise an inference or presumption of discrimination that is required to be rebutted by the respondent employer. I dismiss the claim as no prima facie case has been made out that would establish a presumption or inference of discrimination on the ground of race.

CA 00035937-008Victimisation:

At work, I found that competence, and respect for law, regulations and company procedures is not the only requirement: the foreign nationals are also supposed to support discrimination without telling anything [since complaining is followed by punitive action] and to follow unwritten rules that are contradicting and overriding official regulations or instructions, just for bringing in more profit for the company and, presumably, higher bonuses for the managers that are imposing and tolerating such a perverted behavior, without regard to the potential detrimental effects on the safety and health of workers and of the consumers of the medical devices, in total contrast with the so much claimed credo of the company. Because I insisted to speak up about the problems that I considered that were infringing severely some stringent regulation, I ended up being dismissed. This attitude of the hirer perpetuates a devious form of corruption, by instilling fear of being harassed, marginalized or dismissed to all people working there, if they dare to speak up about problems, while, at leas officially, the top managers of the hiring company are constantly requesting an attitude of no compromise of safety or quality

The complaint of victimisation is further elaborated upon in CA 00035937-005.

The initial burden of proof rests with the complainant to make out a prima facie case based on primary facts that give rise to an inference of discrimination. The complainant has not detailed primary facts to support his allegation:

The Labour Court in several determinations have repeatedly emphasised that the facts must be significant to give rise to such an inference and in a recent case Public Appointments Service and Mr Bernard Lester (EDA 2022) the Court detailed what this meant:

Discussion and Decision

Section 85A (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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 Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“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.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“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 or 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.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Having regard to the submissions of the Parties in this case, and the extensive correspondence between them opened in the course of the appeal, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A (1) of the Act. The Complainant’s case is grounded largely on his belief that it was sufficient for him to list out his work-related experience in his application form submitted in February 2018 to PAS and this act alone should have guaranteed him progression to the interview stage of the recruitment process. In fact, it was incumbent on the Complainant himself to demonstrate to the Shortlisting Board in his written application - having regard to his undeniably extensive professional experience - that he met the criteria listed in the advertisement for the position so as to merit being shortlisted for interview.

The complainant has also failed to identify a comparator as required under the Act.

CA-00035937-002 Terms of Employment( Information) Act 1994

The claim for penalisation relates to an allegation that the complainant was not allowed to take scheduled annual leave:

As stated above, I opposed Brian McNamara’s tentative to correct me for asking a due holiday, in the terms priory agreed, I reported this abusive and discriminatory behavior to his manager, and I stated afterwards that I considered myself discriminated, since none of my colleagues working in the same position as mine was met with such an attitude. One month before the expiration date of my contract, I asked Brian McNamara to inform me regarding the renewal of my contract. I was expecting, as agreed in my discussion with Brian, to be hired as contractor, for another year, in the same role. In contrast with the previous year, when I received promptly a positive reply to a similar inquiry, this year I was told that I will have to discuss this issue only with PE Global

Substantially this same grievance was raised under the Employment Equality Act in CA-0003533-008/005 alleging discrimination and cannot be pursued again under a different Act.

On the contrary, all of them took, to my knowledge, time off and much longer holidays than me, without any negative comment regarding their intentions. I regarded and I regard this attitude towards me as a clear discrimination, both because I am not Irish, and also because I am not an employee. Within the complaint notification sent to my hirer, there is also a questionnaire including several questions about the off time taken by my colleagues, mostly Irish. I have not received reply to any question, but I’m sure that my time off represents about half of the time off taken by my Irish colleagues, therefore the reaction to my intention to take a holiday was not justified. As a consequence, I’ve sent to Brian’s manager, Declan Fagan, on 19.06.2019, an e-mail message with this content: “I was very surprised and upset by Brian’s message below. After one year of work, in which almost half I was alone in the D shift, and I still covered others when they were away – even this months I covered two days when Tom could not come - I deserve a holiday that is not shadowed by such a rejection. I think it might be useful that you have a word with Brian, and that its probably the one to one discussion he wants to have, since the topic of planning holidays is appropriate for a team discussion

As stated by the respondent:

Further it would amount to a breach of the rule in Henderson v Henderson - as detailed in the subsequent paragraphs-for both claims to proceed. In many respects, this is similar to the approach adopted by the Labour Court in the decision of A School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.”

I determine that this complaint is not well founded as it replicates the same complaint under the Employment Equality Act and the employee cannot rely on the same facts to obtain redress under more than one head of liability.

CA-00035937-003 under Section 28 of the Safety, Health & Welfare at Work Act, 2005:

The complainant is claiming that he is being penalised for making a complaint concerning the measurement of the temperatures of the heat seal heads and the penalisation manifested itself in reducing his next contract to 6 months. The complainant states that he was on the following contracts:

I was hired as contractor at Johnson & Johnson Visual Care (Ireland),and I agreed with PE Global four contracts, first one as myself, commencing at 6th of November 2017, and expiring at 2nd of November 2018, and three other subsequent contracts contracting as director of an umbrella company, the second one just substituting my first contract, otherwise containing the same terms, the third one commencing at 2nd of November 2018, and expiring at 2nd of November 2019, and the fourth one commencing at 4th of November 2018, and expiring at 3rd of May 2020. The last contract ended abruptly, on 19th of March 2020, prior to the agreed expiring date, in circumstances that are described below, in this complaint

However in CA-00035937-005 he also alleges victimisation arising from a discriminatory act and brings that complaint under the Employment Equality Act based on facts that are similar:

we received the punitive actions for complaining about the discriminatory actions taken against me, and for fulfilling my legal and contractual obligations, which were according to the discrimination act… and that was used as the cause of the termination of the contract  we received, therefore, direct and indirect discrimination – since I am and I might be the only contractor, at that time and now that was set for this punitive behavior, company policy and contractual terms without any legal reason

Based on this alleged discrimination the complainant seeks the following compensation:

Therefore for the brutal actions of the employer against me that affected all my and my family life’s course, I request as compensation the amount of 1500000 euro.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant 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 Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

The complainant has detailed a number of grievances that he believes contributed to the non-renewal of his contract such as a complaint about holiday scheduling, the employer failing to pay a premium during the Pandemic, his family status, his race, raising safety concerns, not willing to give his ideas for process improvement without receiving payment. The complainant has also pursued penalisation/victimisation claims under four different Acts based on the same facts. It is clear in this case that there are several factors that are alleged to have contributed to his dismissal or the ending of his agency contract. It is not clear that the complainant has identified any protected act that in the absence of same, the complainant would not have suffered the alleged detriment. There are several  causal competing factors such as grievances about pay; holidays; rental accommodation; schooling; safety; payment for suggesting process payments; failure to deliver on  promises to make him a permanent employee;  that allegedly gave rise to the detriment or penalisation; some may and some most definitely do not constitute a prohibited act as required under the Employment Equality Act. However, based on a multitude of such alleged causal facts no one factor can be identified as the causal or operative factor.

I determine that this complaint is not well founded as the complainant has failed to identify an operating causal factor that gave rise to penalisation. I also determine that the complaint is not well founded as previously cited by the respondent the Labour Court has determined that a complainant can’t rely on the same facts to obtain redress under more than one head of liability:

Further it would amount to a breach of the rule in Henderson v Henderson - as detailed in the subsequent paragraphs-for both claims to proceed. In many respects, this is similar to the approach adopted by the Labour Court in the decision of A School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.”

I determine that this complaint is not well founded as it replicates the same complaint made under the Employment Equality Act and seeks to obtain redress under more than one head of liability based on the same facts.

CA-00035937-004 Section 6(1) of the Prevention of Corruption (Amendment) Act 2010

This Act has been repealed; however, the provisions are contained in .Section 20(1) of the Criminal Justice Act 2011 and the complaint repeats what was alleged in complaint CA-000353937-005:

At work, I found that competence, and respect for law, regulations and company procedures is not the only requirement: the foreign nationals are also supposed to support discrimination without telling anything [since complaining is followed by punitive action] and to follow unwritten rules that are contradicting and overriding official regulations or instructions, just for bringing in more profit for the company and, presumably, higher bonuses for the managers that are imposing and tolerating such a perverted behavior, without regard to the potential detrimental effects on the safety and health of workers and of the consumers of the medical devices, in total contrast with the so much claimed credo of the company

Again the complainant on the same facts is seeking compensation under a separate legal heading essentially for the same alleged wrong as pursued under the discrimination complaint and alleged discrimination.

As stated by the respondent:

Further it would amount to a breach of the rule in Henderson v Henderson - as detailed in the subsequent paragraphs-for both claims to proceed. In many respects, this is similar to the approach adopted by the Labour Court in the decision of A School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.”

I determine that this complaint is not well founded as it replicates the same complaint under the Employment Equality Act and an employee cannot rely on the same facts to obtain redress under more than one head of liability

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Preliminary Decision:

Section 79(3A) of the  Employment Equality Act provides that:

(3A) If, in a case which is referred to the  Director General of the Workplace Relations Commission under section 77 , a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

( a ) whether the complainant has complied with the statutory requirements relating to such referrals,

( b ) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

( c ) whether the complainant is an employee, or

( d ) any other related question of law or fact,

The Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly:

I also note that 77 A of the Act states:

77A. — (1) The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.           

Definition of Employee Under the Act

I note the respondent relies on several cases to show that an contractor cannot rely on employment rights provisions where the said complainant has never previously asserted that they were in fact an employee and indeed rely on the self-employed status or other legal entity when making a return to Revenue( McDonagh v Ianrod Eireann[2015] 26 E.L.R. 21, McGinley v Bord Gais FTD091 and Castleisland Cattle Breeding v Minister for Social Welfare [2004] I.R. 150.) The statutory definition of what constitutes an employee varies significantly between Acts. In this case the statutory provisions appear to encompass the complainant as he is carrying out work personally for the respondent company; reports to the respondent’s management and ultimately they are liable for his pay, in so far as an Agency worker while paid by the Employment Agency, that payment is made possible in so far as the client pays the Agency. Agency workers are clearly encompassed by the provisions of the Employment Equality Acts. While in this case the complainant also has a company who in turn is paid by the Employment Agency for the work that he completes for the respondent; the essential nature of the work between the complainant and the respondent appears to be akin to an Agency Worker. On this basis I determine that I have jurisdiction to hear the equality complaints

CA-00035937-001  Family Status:

The complainant details a grievance concerning his neighbour and the fact that all members of his family had to endure nuisance arising from parties organised for 3 consecutive nights by his neighbour.  This nuisance appears to have occurred in October 2017. The complainant’s wife also wrote to the respondent the 19th of October about issues her child faced with homework in college and also on  the 23rd of September 2019 alleging that her husband was being discriminated against by the respondent and sought compensation for the alleged discrimination.

The complaint form was lodged with the WRC on the 29th of April 2020. The matters relating to his accommodation and his child’s schooling are not matters that can be progressed under the Act. The grievance raised by his wife alleging discrimination on his behalf is statute barred as it occurred on the 23rd September 2019, and was registered with the WRC more than 6 months from the date of the alleged discriminatory incident.

I determine that the complaint made under Family Status is statute barred. I also determine that it is not a matter properly brought under the Act and is misconceived as the employer has no liability under the Act for the behaviour of his neighbour. No vicarious liability can arise from the behaviour of a stranger. I dismiss the complaint.

CA-00035937-002 Terms of Employment( Information) Act 1994

The claim for penalisation relates to an allegation that the complainant was not allowed to take scheduled annual leave:

As stated above, I opposed Brian McNamara’s tentative to correct me for asking a due holiday, in the terms priory agreed, I reported this abusive and discriminatory behavior to his manager, and I stated afterwards that I considered myself discriminated, since none of my colleagues working in the same position as mine was met with such an attitude. One month before the expiration date of my contract, I asked Brian McNamara to inform me regarding the renewal of my contract. I was expecting, as agreed in my discussion with Brian, to be hired as contractor, for another year, in the same role. In contrast with the previous year, when I received promptly a positive reply to a similar inquiry, this year I was told that I will have to discuss this issue only with PE Global

Substantially this same grievance was raised under the Employment Equality Act in CA-0003533-008/005 alleging discrimination and cannot be pursued again under a different Act.

On the contrary, all of them took, to my knowledge, time off and much longer holidays than me, without any negative comment regarding their intentions. I regarded and I regard this attitude towards me as a clear discrimination, both because I am not Irish, and also because I am not an employee. Within the complaint notification sent to my hirer, there is also a questionnaire including several questions about the off time taken by my colleagues, mostly Irish. I have not received reply to any question, but I’m sure that my time off represents about half of the time off taken by my Irish colleagues, therefore the reaction to my intention to take a holiday was not justified. As a consequence, I’ve sent to Brian’s manager, Declan Fagan, on 19.06.2019, an e-mail message with this content: “I was very surprised and upset by Brian’s message below. After one year of work, in which almost half I was alone in the D shift, and I still covered others when they were away – even this months I covered two days when Tom could not come - I deserve a holiday that is not shadowed by such a rejection. I think it might be useful that you have a word with Brian, and that its probably the one to one discussion he wants to have, since the topic of planning holidays is appropriate for a team discussion

As stated by the respondent:

Further it would amount to a breach of the rule in Henderson v Henderson - as detailed in the subsequent paragraphs-for both claims to proceed. In many respects, this is similar to the approach adopted by the Labour Court in the decision of A School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.”

I determine that this complaint is not well founded as it replicates the same complaint under the Employment Equality Act. The Labour Court has determined that an employee cannot rely on the same facts to obtain redress under more than one head of liability.

CA-00035937-003 under Section 28 of the Safety, Health & Welfare at Work Act, 2005:

The complainant is claiming that he is being penalised for making a complaint concerning the measurement of the temperatures of the heat seal heads and the penalisation manifested itself in reducing his next contract to 6 months. The complainant states that he was on the following contracts:

I was hired as contractor at Johnson & Johnson Visual Care (Ireland),and I agreed with PE Global four contracts, first one as myself, commencing at 6th of November 2017, and expiring at 2nd of November 2018, and three other subsequent contracts contracting as director of an umbrella company, the second one just substituting my first contract, otherwise containing the same terms, the third one commencing at 2nd of November 2018, and expiring at 2nd of November 2019, and the fourth one commencing at 4th of November 2018, and expiring at 3rd of May 2020. The last contract ended abruptly, on 19th of March 2020, prior to the agreed expiring date, in circumstances that are described below, in this complaint

However in CA-00035937-005 he also alleges victimisation arising from a discriminatory act and brings that complaint under the Employment Equality Act based on facts that are similar:

we received the punitive actions for complaining about the discriminatory actions taken against me, and for fulfilling my legal and contractual obligations, which were according to the discrimination act… and that was used as the cause of the termination of the contract  we received, therefore, direct and indirect discrimination – since I am and I might be the only contractor, at that time and now that was set for this punitive behavior, company policy and contractual terms without any legal reason

Based on this alleged discrimination the complainant seeks the following compensation:

Therefore for the brutal actions of the employer against me that affected all my and my family life’s course, I request as compensation the amount of 1500000 euro.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant 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 Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

The complainant has detailed a number of grievances that he believes contributed to the non-renewal of his contract such as a complaint about holiday scheduling, the employer failing to pay a premium during the Pandemic, his family status, his race, raising safety concerns, not willing to give his ideas for process improvement without receiving payment. The complainant has also pursued penalisation/victimisation claims under three different Acts based on the same facts. It is clear in this case that there are several factors that are alleged to have contributed to his dismissal or the ending of his agency contract. It is not clear that the complainant has identified any protected act that in the absence of same, the complainant would not have suffered the alleged detriment. There are several  causal competing factors such as grievances about pay; holidays; rental accommodation; schooling; safety; payment for suggesting process payments; failure to deliver on  promises to make him a permanent employee;  that allegedly gave rise to the detriment or penalisation; some may and some most definitely do not constitute a prohibited act as required under the Employment Equality Act. However, based on a multitude of such alleged causal facts no one factor can be identified as the causal or operative factor.

I determine that this complaint is not well founded as the complainant has failed to identify an operating causal factor that gave rise to penalisation. I also determine that the complaint is not well founded as previously cited by the respondent the Labour Court has determined that a complainant can’t rely on the same facts to obtain redress under more than one head of liability:

Further it would amount to a breach of the rule in Henderson v Henderson - as detailed in the subsequent paragraphs-for both claims to proceed. In many respects, this is similar to the approach adopted by the Labour Court in the decision of A School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.”

I determine that this complaint is not well founded as it replicates the same complaint made under the Employment Equality Act and seeks to obtain redress under more than one head of liability based on the same facts.

CA-00035937-004 Section 6(1) of the Prevention of Corruption (Amendment) Act 2010

This Act has been repealed; however, the provisions are contained in . Section 20(1) of the Criminal Justice Act 2011 and the complaint detailed repeats what was alleged in complaint CA-000353937-005:

At work, I found that competence, and respect for law, regulations and company procedures is not the only requirement: the foreign nationals are also supposed to support discrimination without telling anything [since complaining is followed by punitive action] and to follow unwritten rules that are contradicting and overriding official regulations or instructions, just for bringing in more profit for the company and, presumably, higher bonuses for the managers that are imposing and tolerating such a perverted behavior, without regard to the potential detrimental effects on the safety and health of workers and of the consumers of the medical devices, in total contrast with the so much claimed credo of the company

Again the complainant on the same facts is seeking compensation under a separate legal heading essentially for the same alleged wrong as pursued under the discrimination complaint and alleged discrimination.

As stated by the respondent:

Further it would amount to a breach of the rule in Henderson v Henderson - as detailed in the subsequent paragraphs-for both claims to proceed. In many respects, this is similar to the approach adopted by the Labour Court in the decision of A School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.”

I determine that this complaint is not well founded as it replicates the same complaint to pursue a victimisation complaint under the Employment Equality Act and the complainant cannot rely on the same facts to obtain redress under more than one head of liability.

 CA-00035937-005Victimisation

 The complainant alleges victimisation arising from a discriminatory act:

we received the punitive actions for complaining about the discriminatory actions taken against me, and for fulfilling my legal and contractual obligations, which were according to the discrimination act… and that was used as the cause of the termination of the contract  we received, therefore, direct and indirect discrimination – since I am and I might be the only contractor, at that time and now that was set for this punitive behavior, company policy and contractual terms without any legal reason

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant 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 Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

The complainant has detailed a number of grievances that he believes contributed to the non-renewal of his contract such as a complaint about holiday scheduling, the employer failing to pay a premium during the Pandemic, his family status, his race, raising safety concerns, not willing to give his ideas for process improvement to his supervisor without receiving payment. The complainant has also pursued penalisation/victimisation claims under four different Acts. It is clear in this case that there are several factors that are alleged to have contributed to his dismissal or the ending of his agency contract. It is not clear that the complainant has identified any protected act whether complained about or that occurred that he has classed as the operative factor that caused or gave rise to the alleged victimisation.  As the complainant has failed to identify an operative factor and but for that factor his dismissal would not have occurred, I determine that this complaint is misconceived. I dismiss the complaint.

CA 00035937-006Age Discrimination

The age discrimination is referenced to have occurred on 23rd of September 2019. The complaint was registered with the WRC on the 29th of April 2020, it is statute barred as the complaint has not been registered on time, which is 6 months from the date of the alleged discrimination.

In addition no facts are detailed in the complainant’s submission that would meet a prima facie case of age discrimination. This means that the respondent can’t respond to the allegation as the facts required to ground such an allegation are absent. As such facts are not present it is misconceived to pursue a claim for age discrimination. The Act places the burden of proof on the complainant to meet that prima facie threshold and it has not been met based on the narrative in the complaint form or indeed in the supplementary submissions referred to as an Addendum.  No primary facts have been detailed that would give rise to a presumption of age discrimination. The complainant relies on an assertion that age discrimination has occurred. I determine that the complaint is statute barred. As the complainant has failed to make out a prima facie case, I determine that the respondent has not discriminated against the complainant on the ground of age. I dismiss the complaint.

The initial burden of proof rests with the complainant to make out a prima facie case based on primary facts that give rise to an inference of discrimination. The complainant has not detailed primary facts to support his allegation. As the complainant has not made out a prima facie case I determine that the complainant was not discriminated against.  I dismiss the complaint.

CA 00035937-007Race:

In the complaint form ,the complainant states:

Later I learned about similar attempts to gather knowledge, by other managers, in relation with other foreign national contractors, without being necessarily followed with an invitation to join as permanent employee, to a subsequent contract or to a pay rate raise.

There is sparse factual evidence presented to ground this complaint. No agency comparator has been identified to show how on the ground of age; the complainant was treated less favourably. On the facts detailed the complainant does not meet the initial prima facie test to raise an inference or presumption of discrimination that is required to be rebutted by the respondent employer. I dismiss the claim as no prima facie case has been made out that would establish a presumption or inference of discrimination on the ground of race.

CA 00035937-008Victimisation: This complaint repeats the facts and under the same head of liability as detailed at CA 00035937-05.

The complainant alleges victimisation arising from a discriminatory act:

we received the punitive actions for complaining about the discriminatory actions taken against me, and for fulfilling my legal and contractual obligations, which were according to the discrimination act… and that was used as the cause of the termination of the contract  we received, therefore, direct and indirect discrimination – since I am and I might be the only contractor, at that time and now that was set for this punitive behavior, company policy and contractual terms without any legal reason

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant 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 Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

The complainant has detailed a number of grievances that he believes contributed to the non-renewal of his contract such as a complaint about holiday scheduling, the employer failing to pay a premium during the Pandemic, his family status, his race, raising safety concerns, not willing to give his ideas for process improvement to his supervisor without receiving payment. The complainant has also pursued penalisation/victimisation claims under three different Acts. It is clear in this case that there are several factors that are alleged to have contributed to his dismissal or the ending of his agency contract. It is not clear that the complainant has identified any protected act whether complained about or that occurred that he has classed as the operative factor that caused or gave rise to the alleged victimisation.  As the complainant has failed to identify an operative factor and but for that factor his dismissal would not have occurred, I determine that this complaint is misconceived. I dismiss the complaint.

Dated:   08th February 2022

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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