Complainant

Respondent

Parties

Rimantas  Fabricijusas

Hilton Foods Ireland

Complainant

Respondent

Anonymised Parties

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Representatives

Giedrius Savickas Lithuanian Support Group

Joseph Ritchie Donal M. Gahan, Ritchie & Co Solicitors

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-00042658-001

18/02/2021

The Complainant alleges that he was discriminated against by his employer on the grounds of religion when he refused to present for COVID 19 testing.

The Complainant outlined that the HSE recommendations were just that, recommendations and that as a result testing was not a mandatory requirement. He felt that it was a very personal matter and not one that should be overseen by his employer. On the first occasion when the Complainant was asked to submit himself for testing and refused, he was asked to leave the Respondent’s premises immediately. The Respondent did not give him an option. They just demanded that he be tested or leave. The Complainant felt pressurised. He is extremely frustrated now as he has not been able to return to work since then.

The Complainant accepts that all employees were required by the Respondent to test for COVID 19. He also accepts that all employees who refused to be tested were suspended and as a result were treated the same way that he was.

The Respondent operates a meat processing and packaging plant in Drogheda, County Louth and currently employs over 350 people. The Respondent supplies some of the major retailers in the country.

The Complainant worked as a line leader in the Respondent’s meat processing factory. He contends that the introduction of testing for COVID 19 by the Respondent was in contravention of his ‘beliefs, views and creed’. The Complainant has not given any details in relation to that either in his submissions or during his evidence today.  The fact is that the Complainant did not wish to partake in the testing regime because of his own personal views arising from COVID and had nothing to do with his religious beliefs.

Government restriction were introduced on 13 March 2020.  As part of the restrictions that were introduced, people were directed to stay away from the workplace unless their work was deemed essential. Food production facilities, including meat plants, were deemed essential. NPHET introduced testing of employees in food production plants from August 2020. The reason for the testing regime is outlined in a Staff Information Leaflet which was produced by the HSE in which it states:

‘People who work in settings like meat processors or food production may be at higher

risk of becoming infected with COVID-19. The National Public Health Emergency Team

(NPHET) has recommended that all employees who work in meat processing or food

production sites may be tested for COVID-19 once weekly. This testing is being performed as part of the response to the COVID-19 pandemic. Testing aims to identify

staff within workplace settings, who have the virus even if they don’t have symptoms.’

The HSE was involved in supervising the testing regime and carried out random inspections. The testing introduced by NPHET was not mandatory in the sense that if someone didn’t wish to have a test, they didn’t have to have one. However, if employees were unwilling to be subjected to testing on a large scale, then the likelihood is that the HSE would have directed the closure of the plant.

Following the introduction of the testing regime, the Respondent introduced a COVID-19 policy which deals with the introduction of Covid testing as part of the measures to protect employees. The policy provides that any employees who fails to comply with the protective measures ‘will be subject to the company’s disciplinary policy up to and including dismissal’.

Out of the 375 employees only five of them refused to partake in testing. The Complainant was one of them. By letter dated the 30 October 2020 the Complainant was advised that he was suspended on full pay pending an investigation. The investigation meeting was held on the 9 November 2020 and minutes were kept of that meeting. During the meeting the Complainant was asked whether he knew the meaning of the policy that was introduced, and he replied that he did. When he was asked why he refused to take the test he replied:

‘The test is fake and not normal. What’s the point of the test if people are waiting a few

days to get their result and then another shift is working after they got tested? If I am

not feeling sick then I don’t see any point in taking the test….I have worked in Hilton Foods for 12 years and I don’t have any days absent and all the time I come to work. I don’t think there is a need for me to need the test, and that’s my choice. I understand if I came to work in the morning and have a quick test and have the results after 5 or 10 minutes and then I can go work but someone can be negative, and they could then be positive the next day.’

When it was explained to the Complainant that the Respondent could suspend employees, based on its COVID 19 policy,  for refusing to take the test the Complainant responded:

                  “Yes, I would still refuse. This is pressure for people and I have no choice.”

Following the investigation meeting the Complainant was invited to a Disciplinary Hearing by letter dated 11 November 2020. The letter also advised the Complainant that his refusal to comply with the testing policy was a breach of company policy. This meeting was initially scheduled for the 16 November but by letter dated 13 November was rescheduled for the 19 November. Following that meeting, the Complainant was invited to a Disciplinary Outcome Hearing on the 24 November by letter dated 23 November 2020. By letter of the 24 November the Complainant was advised that he was suspended without pay with the option to return to work if he agreed to comply with the COVID 19 testing regime or when the pandemic had passed. By letter dated the 27 November the Complainant wrote criticising the investigation. By e-mail dated the 28 November the Complainant stated, ‘We are using our right to refuse to recommend Covid 19 testing as it violates our constitutional rights and is against our beliefs, views and creed.’ This was the first occasion that such an assertion was made in those terms. These were replied to by letter dated 30 November 2020.

Following the Disciplinary process, the Complainant was suspended without pay on the basis that he could return to work on meeting the conditions set out in the letter of the 24 November 2020.

All employees of the Respondent were subjecting to the Covid 19 testing as set out in the policy. All employees who refused to be tested were treated the same way.

At the commencement of the hearing the Complainant alleged that he was discriminated against on the basis that he was from Lithuania. His claim form, submitted to the WRC, alleged that the discrimination was on the grounds of Religion citing “beliefs, views and creed”. The Complainant was represented at the time of lodging the claim but was not represented at the hearing. Taking into consideration the fact that the Complainant was not represented and was presenting his claim through an interpreter, I allowed him to give evidence in relation to the alleged discrimination on any of the grounds as set out in the Act.

Section 85 A5(1) of the Employment Equality Acts states as follows:

“Where in any proceedings facts are established by or on behalf of a complainant for which it may be presumed that there has been discrimination in relation to him

or her, it is for the respondent to prove the contrary.”

It is well-established law that the Complainant is required to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person, is, has been, or would be treated on the basis of one or more of the nine discriminatory grounds cited.  In Southern Healthboard v Mitchell the Labour Court stated:

“The first requirement is that the Complainant 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 Complainant must prove, on the balance of probabilities, the primary

  facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if those primary factors establish 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.”

 In the case of Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Court stated:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts will vary from case to case and there is no closed categories of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination.

However, they must be established as facts on credible evidence. Mere speculation or

assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of

establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Having carefully considered the evidence of the Complainant together with the documentation he submitted to the WRC, I find that the complainant has failed to set out any facts that could lead me to conclude he has established a prima facia case of discrimination on any of the nine grounds set out in the Act. He has in fact admitted that the Respondent treated all of its employees, regardless of race or religion etc in the same way. On that basis I find that the complaint fails.

The Complainant has failed to establish a prima facia case of discrimination. The complaint fails.