Complainant

Respondent

Anonymised Parties

General Operative

Steel and Metal Galvaniser

Representatives

Self-represented 

IBEC

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-00040368-001

12/10/2020

The complainant submits that he was penalised on the basis of his disability contrary to section 74(2) of the Employment Equality Acts 1998-2015.

 The complainant commenced employment with the respondent on the 2 November 2015 in a temporary capacity and was appointed to a permanent position of general operative on 29 February 2016.

His gross weekly wage is €647.

He submitted his complaint to the WRC on 12 October 2020.

The complainant clarified at the outset of the first hearing that the complaint was one of penalisation. 

The complainant stated that he sustained an injury to his wrist on 5 December 2019 while working alone on a two- person job. In late February 2020, his solicitor notified the respondent of his intended Personal Injuries claim to the Personal Injuries Accident Board.

He maintains that he was penalised as result of this claim and because of the injury which he sustained in the workplace. The complainant itemised the instances of penalisation at the first hearing. 

Acts of penalisation,

He was victimised in a series of incidents for taking an action set out in section 74(2) of the Employment Equality Acts 1998-2015.

The complainant gave evidence on the acts of penalisation at the hearing on the 1/10/2021.

His transfer to Plant 1 in early March 2020 so as to be placed under the window of the production supervisor for close monitoring,

The refusal of overtime opportunities in March 2020,

Sending him to the company doctor in July 2020. He went out on sick leave again in May 2020. He telephoned the respondent EHS manager on 6 July to inform him of his impending return to work. He was sent to the company doctor on 16 July 2020. He believes that the requirement to attend the company doctor was purposefully delaying his return to work until the 20 July.

Ignoring the company doctor’s recommendations about lighter duties.

Although the complainant had approached the production manager on the 20 or 21 July, the respondent ignored the doctor’s recommendations that he should rotate through the tasks; not to exceed two hours doing jigging – a task that involved a lot of wrist movement, and to allow him to work at his own pace for the first 2- 4 weeks after his return to work.

He was assigned to jigging for 8 hours on 22 July. The EHS manager stated he would sort it out with the foreman. But the foreman was unhelpful, obstructive and assigned him to heavy duties.

Suspending him with pay for a week on 27 August 2020.

The complainant went on leave on 27 August as his mother was being tested for Covid 19. He notified a foreman of his absence e and its cause, but he does not know if the foreman passed the message on up the line. On 2 September 2020 he returned to work on the basis of his negative Covid test. The production manager told him to wait in the yard as he had no medical certificate to cover the previous three days’ absence.  Due to Covid 19 related pressure on GP surgeries, he was unable to ger a medical certificate until after his return to work on 4 September.

While the respondent did agree date to pay him later for non-payment of three days’ wages, this was only done after he had submitted his complaint to the WRC on 12 October 2020.

Allocating him to the night shift in September 2020,

He was moved on to the night shift in 10 October 2020 despite explaining to the respondent Production Manager that owing to a Court Order granting him access to his son three nights a week, he could not work the night shift. He told the Group Operations Director of this on 7 September who replied they were not there to oblige families. He invited the two managers to read the Court Order, but they declined to do so.

The Group Operations Director refused his request to do 3 weeks on the night shift and then revert to the day shift. Another colleague moved from the day shift to the evening shift and was told by the respondent that there was no issue if family obligations necessitated his return to the day shift.

Concerning the respondent’s argument that the reason for his transfer on to the night shift was because of his administrative skills, the complainant stated that there was no need for a person with administrative skills in the period September – November 2020 as having been assigned by that stage to the night shift, he was not actually deployed to do such work. Regarding the respondent’s statement that the second person on the night shift was not trained to do the tasks associated with the night shift, the complainant stated that the second person was well able to do the administrative work. There was a Polish colleague, trained and available for the night shift.

Cross examination of the complainant on the 1/10/2021.

The complainant stated that the protected act was his solicitor’s notification to the respondent at the end of February that proceeding were to issue on foot of the complainant’s wrist injury.

In cross examination the complainant stated that he told the Group Operations director on the 7 September that he was unhappy with the proposed movement on to the night shift and that he would be referring the matter to the WRC to which the Group Operations Director said, “go ahead”.

He told the Group Operations Director that he has been singled out because of his family circumstances and because of his Personal Injuries claim.

 The complainant identified his comparator as Mr GM. The comparator who also had family requirements was allowed to do three weeks on the night shift in September and then revert to the day shift.

The complainant confirmed that he did not have a disability.

Witness 1; complainant’s shop steward.

His trade union representative stated that the complainant feels he is being victimised. He was a good worker, very punctual. Something went wrong ever since he lodged the Personal Injuries complaint; the respondent is not playing ball. They could have put him back on the day shift without any adverse consequences for production.

The respondent denies that the complainant was discriminated against on the disability ground. The respondent denies that the complainant was penalised contrary to Section 74 of the Employment Equality Acts 1998-2015. .

The respondent drew attention to the failure of the complainant to comply with Section 5 of the WRC Procedures which requires that the complainant should set out the details of the complaint. This omission leaves the respondent somewhat prejudiced in this regard and the respondent asks the adjudicator to note that their submission was done on the basis of very scant details of the complaint.

It is the respondent’s position that this complaint is manifestly frivolous or misconceived within the meaning of section 77A(1) of the Employment Equality Acts 1998 to 2015.

The respondent operates a hot dip galvanising plant which is a process designed to protect steel products/ constructs such as lampposts, power transmission lines and other steel structures from corrosion.

At the reconvened hearing on the 1 /10/2021, the respondent’s witnesses addressed the instances of alleged penalisation.

Witness 1: Production Manager.

Suspension vs Covid issue.

On the 27 August 2020, the complainant left work early at 10.45am. He failed to comply with the respondent’s absence procedure which requires him to notify his supervisor of the reason for his absence. Word had gone around the plant that the complainant’s mother was being tested or Covid 19.  The complainant asserted that he contacted another foreman to whom he was not responsible to advise him of his absence and reason for same. The witness disputes the complainant’s assertion that he had only the foreman’s number. He had the witness’s’ number as he frequently texts staff about shifts etc.  The witness discovered the complainant’s absence in a circuitous fashion.

He did not turn up for work on Friday 28 August, Monday 31 August or on Tues 1 September. He returned to work on the 2 September. The respondent production manager advised him that in accordance with public health guidelines, he would not be able to return to work unless his mother had received a negative Covid 19 test, or 14 days had passed since the day of the test as the complainant was a close contact.

On 4 September the complainant advised the production manager of his mother’s negative result though he had been in possession of this result since 1 September and had failed to inform the respondent. He returned to work on the 4 September.

He had no medical certificate to cover the three days absence contrary to the company’s absence policy. He sent a W App message concerning his previous three days of absence on 4 September, but it came a day late. He was therefore not paid for the three days on which he was on unauthorised absence. Later, in November, the complainant’s union raised the matter of the forfeited salary with the witness. As a good will gesture, the respondent paid the complainant for the unauthorised absence of three days for which he failed to follow absence procedures. After payment of salary for these days, the complainant did not raise the matter again.

Allocation to the night shift.

The respondent employs approximately 140 employees, eighty of whom are tasked with jigging functions. Jigging is one step in the process of galvanising steel; it entails hanging items on a wire prior to suspending them in molten zinc.

The complainant’s signed contract allows for rotation through the 3 shifts which the respondent operates. Staff are not hired unless they confirm their agreement to work over the three shifts. The respondent accommodates staff requests when they can. Throughout his employment with the respondent he has been offered the three shifts.

The reason the complaint was placed on the night shift was because of his skills and abilities. He is strong on administration and there was a need for tracking and tracing orders on the night shift. Two employees who had worked on the night shift and who had administrative skills had left. Their skill set had to be replaced. Concerning the complainant’s point that a colleague who had family issues was accommodated with a move to the day shift, he had not the same skills as the complainant. It is imperative to swop out like for like when rotating people in and off shifts.  The people that the complainant is comparing himself to are dippers. The complainant is not a dipper. He was mainly engaged on jigging.

The number of tasks which he could complete on the day shift had narrowed due to his wrist issues.

Implementation of Doctor’s recommendations.

The respondent accommodated the company doctor’s recommendations of 16 July 2020. There is no record of the complainant spending eight hours on jigging as asserted. Anytime he stated he had difficulties with his wrist he was facilitated.

Witness 2; Group Operations Director

The witness has been employed with the company for 20 years.

Implementation of company doctor’s recommendations.

The respondent’s representative stated that on 22 July the complainant was transferred to lighter ‘cut down’ duties which entails wire cutting using a bolt cutter and does not require any excessive twisting of the wrist. When he complained of soreness in his wrist he was relieved of jigging duties.

Meeting of the 7 September with the complainant and compliance with section 74(2) of the Acts.

The complainant advised him at this meeting that he was not in a position to do the night shift as he had a Court Order granting him access to his son three nights a week. The witness did not ask to see the Court Order nor did the complainant show it to him. The witness explained to the complainant that they have to rotate the shifts throughout the year.

The complainant made no mention of any complaint of discrimination or of any pending claim. The complainant made no mention of penalisation. The witness acknowledges that staff may have family issues but that it is impossible to facilitate every request. The majority of staff are in their twenties. He postponed the complainant’s move on to the night shift for a further two weeks to enable him to make alternative arrangements. The complainant responded by telling the witness that he could not accept this decision and that he would be going to his trade union. The witness heard nothing further. The witness stated that he had never heard the complainant mention the word penalisation until the hearing today. Had he done so he would have referred him to the relevant policies on discrimination.

The respondent’s representative states that the complainant has failed to make out the act that triggered the alleged instances of penalisation

The respondent asks the adjudicator to dismiss the complaint.

Given that the complainant stated at the outset of the first hearing and confirmed this during the course of the second hearing that his complaint was solely one of penalisation, that, therefore, is the only matter on which a decision is required.

I am obliged to establish if the complainant was victimised contrary to section 74(2) of the Acts on the basis of his disability.

Relevant Law.

Victimisation is defined in section 74(2)

“For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of

the complainant was solely or mainly occasioned by the complainant having, in good faith—

a) sought redress under this Act or any enactment repealed by this Act for discrimination or

for a failure to comply with an equal remuneration term or an equality clause (or a similar

term or clause under any such repealed enactment),

b) opposed by lawful means an act which is unlawful under this Act or which was unlawful

under any such repealed enactment,

c) given evidence in any criminal or other proceedings under this Act or any such repealed

enactment, or

d) given notice of an intention to do anything within paragraphs (a) to (c).”

I must examine the complainant’s complaint within the confines of him exercising the above statutory protections. The complainant maintains that the series of incidents set out in his evidence amount to penalisation. The complainant did not lodge a complaint under the Employment Equality Acts 1998-2015 prior to the commencement of what he sees as retaliatory actions. The complainant did not

“oppose by lawful means an act which is unlawful under this Act or any or any such repealed enactment”,

Nor did the complainant indicate to the respondent that he intended to make a complaint under the Act.

In order to sustain his complaint of victimisation he must demonstrate that prior to the commencement of the alleged victimisatory behaviour, he had activated the protections against discrimination as set out above. In the Department of Defence -v- Barrett EDA1017, the Labour Court set out the three elements which must be present for a successful claim of victimisation under Section 74(2) of the Acts:

“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts;

(2)  The Complainant was subjected to adverse treatment by the Respondent, and;

(3)  The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant must have taken an action of a type referred to at Section 74(2) of the Acts before considering the second and third limbs of the above test.  Even if the complaint of discrimination does not stand up, it is the making of such a complaint that triggers protection under Section 74(2) of the Acts.

The complainant’s evidence did not identify how he had invoked any of the rights set out in section 74(2) of the Employment Equality Acts 1998-2015.  While he did initiate proceedings against the respondent in a personal injuries claim, and his evidence is that it was this act that triggered the retaliatory behaviour on the part of the employer, the complaint before the WRC has been submitted under the Employment Equality Acts and not under the Safety, Health and Welfare at Work Act, 2005. While he may have a legitimate grievance in relation to how he was treated after he lodged the Personal Injuries claim, those proceedings are not an action or notification of his intention to defend his entitlement to no less favourable treatment on the disability ground.

The complainant did refer to the meeting of the 7 October. His evidence was that he would take the matter of his assignment to the night shift to his trade union or to the WRC. He was assigned to the night shift following that meeting, and he does cite this assignment as an instance of penalisation. But notification of a plan to refer the proposed move to the night shift to his trade union or the WRC does not comply with the requirements set out in section 74(2) of the Employment Equality Acts 1998-2015.

 In Moriarty v. Dúchas DEC-E2003-013, the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2) of the Employment Equality Acts. She stated

 “It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”

All or some of the actions / statements which the complainant attributes to the respondent and which he cites as evidence of penalisation, some of which are contested, may or may not have been retaliatory, but the evidence fails to connect the retaliation- if retaliation it was- to any claim made about discrimination or penalisation. Because this is a precondition to an examination of the treatment complained of, the complainant cannot succeed in this complaint of victimisation.

 I find this complaint to be misconceived.

I do not find that the complainant was victimised on the basis of a disability.

I do not find that the complainant was penalised contrary to section 74(2) of the Employment Equality Acts 1998-2015.

Failure to connect the retaliatory action to a defence of one’s rights under section 74(2) of the Acts. Complaint not upheld.