Complainant

Respondent

Anonymised Parties

A General Operative

A Manufacturer of professional hair & cosmetic products

Representatives

  Self -represented

 Peninsula

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-00038620-001

26/05/2020

The Complainant commenced employment with the Respondent on the 28th of March 2019 and submitted his resignation on 2nd of December 2020.

The complainant has submitted a claim of discrimination and harassment on grounds of disability under Section 77 of the Employment Equality Act, 1998.   The claims were lodged on 26th of May 2020 and so the cognisable 6-month period for the complaint dates from the 27th of November 2019.

The Complainant commenced employment with the Respondent on the 28th of March 2019.

The complainant submitss that he was working with Mr. F, Supervisor who was often too busy to help with training or guidance and often blamed previous employees that they had failed to label products correctly, shortfalls on ordering stock and supplies, negligence, and sabotage.

The complainant submits that he approached Mr. F on his 13th week regarding his probation and wages.    Mr. F said he would sit down and discuss over the coming days as he said there were issues that needed addressing and that he personally was becoming very ‘fucking pissed off’ with the complainant. No meeting took place.

The complainant submits that on Thursday 12th of September there were issues with production, and the complainant was subject to a great deal of verbal abuse from Mr. F who was engaging in an intimidating and offensive manner.

On the following Tuesday morning the 17th of September, the complainant submits that he arrived at work and a tank had released half of its content's and there was no obvious visible spillage.  The complainant asked Mr. F about it, and he became very angry and told the complainant that he had better figure out what he had done.

The complainant was later approached by Mr. M, Warehouse manager and told to go to the respondent’s other premises where he was met by Mr. P Managing director and asked to explain the incident.

Mr. P asked if the complainant had mistaken or forgotten to add correct contents to the tank and stated that Mr. F had brought to his attention that there were ongoing issues.   The complainant submits that he told them that the valve was maybe left open and had released down an open drain on the floor. The complainant submitss that he was then asked if he had been drinking the night before and was told that other staff members had said they smelled drink on his breath that morning

The complainant submits that it was at this meeting that he disclosed the fact that he was a recovering alcoholic and following this he was asked to produce a doctor’s cert to say he was fit for work.   He submits that he was suspended form work and when he returned, he was moved to a different location ‘the bleach room’ where he remained for the next 3 months until his resignation.

The complainant submit that he was forced to work in ‘’the bleach room’ where no one lasted very long and that this was an attempt to force him to leave.

The complainant submits that other staff members talked behind his back and claimed that he smelled of alcohol.   He submits that empty beer bottles were left lying around outside the back door of the premises and that a product in a container on a shelf was labelled ‘Alcoholic’ in an attempt to taunt him and ‘push his buttons’.

The Complainant handed in his notice on or around the 2nd of December 2019.   The Complainant ended his employment on or around the 20th December 2019.

The Complainant commenced employment with the Respondent company as a General Operative on the 28th of March 2019

The Complainant handed in his notice on or around the 2nd of December 2019.   The Complainant ended his employment on or around the 20th of December 2019.  The Complainant lodged the claims to the WRC on the 26th of May 2020.

On the morning of the 17 the September 2019, there was a spillage of product from a tank in the warehouse. The Complainant claims it was his supervisor Mr. F who was responsible for the spillage while Mr. F claims it was the complainant.

 On the 17th of September 2019 Ms. S (Floor Manager) verbally reported to Mr. P the Managing Director of the Respondent Company, that she had smelled alcohol on the Complainant’s breath on a number of occasions.

Mr. P instructed Ms. S to relay this information to him in written form.  On the 17th of September 2019 Ms. S forward an email to Mr. P (Managing director) detailing the occasions on which alcohol was smelled on the Complainant’s breath.  On the 17th of September 2019, Mr. P and Mr. M (Warehouse Manager) requested the Complainant to attend the second premises of the Respondent.

 At the second Respondent premises an informal meeting between the Complainant, Mr. P and Mr. M was held.   The afternoon of the 17th of September 2019 it was agreed the Complainant would provide a medical certificate from his Doctor. The Complainant returned to the Respondent premises on the 23rd of September 2019 and provided the Respondent with a medical certificate/letter from his Doctor. The Complainant continued to work at the Respondent premises until the 20th of December 2019

The Respondent recorded several unexplained absences from work, on behalf of the Complainant. Over a period of forty weeks, the Complainant had unexplained absences during sixteen of those weeks. No grievance was raised during the Complainant’s nine-month employment period.

On 26th May 2020 the Complainant commenced proceedings under Section 77 of the Employment Equality Act 1998. This is strongly disputed by the Respondent

It is submitted that no evidence in support of the Complainant’s assertions that he has been discriminated against have been put forward on his behalf. The Respondent will attest that the Complainant was treated fairly and respectfully at all times during his employment, as were all employees, in line with common decency and the Respondent’s Employee Handbook.  It is submitted that allegations of impropriety against other staff members have been raised by the Complainant, a fact which the Respondent disputes. It is submitted that the Complainant’s discomfort was never brought to the management’s attention. It is submitted that no grievance was raised on behalf of the Complainant. It is submitted that the first time the Respondent became aware of any dissatisfaction on the part of the Complainant was on receipt of the Notice of Hearing.

It is submitted that the Complainant has to not only to establish the primary fact upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.   The respondent refers to the case of Cork City Council -v- McCarthy EDA21 2008 where the Labour Court recommended that: ‘‘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 of 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 in particular facts 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’’

The Respondent refers to the matter of A Software Engineer -v- A Respondent DEC-E2012-195, the complainant, who suffered from multiple sclerosis failed to adduce facts to satisfy the Tribunal that he was treated less favourably than others on the basis of his disability.

 Similarly in Margetts -v- Graham Anthony and Company Limited EDA038 the Labour Court referred to the mere fact that the complainant fell within one of the grounds as insufficient in itself to establish a claim of discrimination.

In this regard it is noted that Complainant has not provided, any evidence other than his own statement in support of these allegations. The Complainant has not made reference to another employee to substantiate or corroborate his claims. The Respondent disputes any claim that the Complainant was treated “less favourably” than any other employee within the Respondent company.  It is submitted that the Complainant has not satisfied the requirements of section 85A in the present case.

 It is submitted that if the Complainant wished to prove the factual basis to which his complaint relates, it is incumbent on him to fully exhaust the Respondent’s internal procedures for investigating such allegations. The Complainant alleges he was subjected to taunting behaviour from his colleagues in the form of: “An empty beer bottle inside the warehouse for days Empty bottles of beer stacked at the door for weeks A sanitizing product which may contain alcohol was renamed Alcoholic An empty Heineken glass on canteen work top for weeks”.

 It is submitted that Mr. P and Mr. M were the only members of staff aware of the Complainant’s disability.   The Respondent confirms the warehouse is close to a nightclub and there may have been beer bottles left outside the warehouse premises from people coming back from the nightclub. It is submitted that this is outside of the control of the Respondent.  It is submitted that the consumption of alcohol is not permitted on the company premises given the health and safety implications surrounding the products and machinery used in the warehouse. The existence of the beer bottles on the factory floor is disputed. It is submitted that had beer bottles been present on the factory floor at any time, same should have been brought to the manager’s attention. The Respondent confirms that the company produces some beauty products with high alcohol content.

The alcohol used in production comes in the form of 100% pure alcohol, and is stored in large containers in the warehouse, marked as “Alcohol” and not “Alcoholic”. The Respondent disputes the statement of the Complainant that a product was renamed as “Alcoholic”. The Respondent admits that pint glasses have been used as water glasses for staff in the canteen and that the Respondent cannot be faulted for a drink’s logo being present on dishware in the communal canteen. It is submitted that the Complainant fulfilled his role without the requirement for reasonable accommodation and this matter is not at issue nor has it been raised by the Complainant in his claim.

It is submitted that the Complainant’s role was not changed from General Operative. That the Complainant continued to fulfil his role after bringing it to the attention of Mr. P and Mr. M that he had a disability. It is submitted that Mr. P requested the Complainant to take the remainder of the day off on the 16th September 2019 and obtain a Doctor’s note certifying his fitness to work, and in line with the Respondent’s Alcohol & Drugs Policy, which states: “Where the Company has a reasonable belief that you are under the influence of some form of intoxicants it may at its discretion send you home for the remainder of the day without pay. This is not considered a form of disciplinary action but is done solely in the interests of the Health and Safety of you, your work colleagues and any customers or third parties.”

 In this regard the Respondent refers to the Labour Court decision of The Irish Aviation Authority v Christopher Reddin - UDD170: “It is the responsibility of the Respondent to ensure that risks to others are identified and controlled while employees have a responsibility to take reasonable care to ensure the health and safety of themselves and others who may be affected by their acts or omissions. “

The Complainant raised no grievance in respect of any allegations made against the Respondent company nor its employees. The first occasion the Respondent company was aware that the complainant had any faults with his former employer was on receipt of the Notice of Hearing on 3rd November 2021. The Complainant has failed to prove prima facie that he was discriminated against. The Complainant has failed to identify a comparator as is required under the Employment Equality Acts. The Respondent submits that all employees of the Respondent company are treated equally. The Complainant’s claim should be dismissed.

Discrimination is dealt with in Section 6(1) of the Employment Equality Acts, 1998 to 2008 which states that discrimination occurs where:

“…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)”

 Section 6 (2) (g) of the Acts defines the discriminatory ground of disability as follows – “as between any two persons… that one is a person with a disability and the other is not or is a person with a different disability”.

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of disability.

Harassment

Harassment is defined in section 14A (7) of the Employment Equality Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court and stated as follows: -

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. 

The complainant advised the hearing that he was treated less favourably on grounds of disability.

The issues for decision in this case are:

(i)            Whether or not the Complainant was subjected to discrimination on the grounds of disability contrary to Section 8 of the Employment Equality Act 1998 (as amended)

(ii)            Whether or not the Complainant was subjected to harassment contrary to Section 14(A) of the Employment Equality Act 1998 (as amended).

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.

The complainant submits that he is a recovering alcoholic and that the respondent is aware of this.  This respondent at the hearing does not dispute the existence of a disability and states that they were aware that the complainant was a recovering alcoholic and that they were aware of this from the time he commenced employment with them.

The complainant at the hearing stated that he was called to a meeting on the 17th of September 2019 with Mr. P told him that allegations had been raised by staff members that the complainant had smelled of drink on different occasions while at work.  The complainant submits that he was suspended from work that day and told to get a doctors cert. 

The respondent advised the hearing that the complainant was called to a meeting following an incident where product had leaked from a tank and where both he and his supervisor had blamed each other.  On the same day the respondent received allegations that other staff members had on occasions smelled alcohol from him and that he had sometimes appeared ‘giddy’ after returning form lunch.  The respondent raised this with the complainant and during this meeting the complainant advised the respondent that he a was a recovering alcoholic and that he was in AA. The respondent stated that they had been aware prior to his starting work with them that he was a recovering alcoholic.    The complainant told the respondent at the meeting on the 17th of September that he had had a relapse back in January and added that his sponsor had thought that it was a bit too soon for him to have gone back to work.  The respondent advised the hearing that upon hearing this they became concerned as to the complainant’s fitness to work and asked the complainant for a letter from his doctor which stated that he was fit for work.  The respondent stated that the complainant was working with dangerous chemicals and that there could be serious consequences if mistakes were made.  The respondent advised the hearing that the complainant was not suspended and that he returned to work about 3 days later with the doctor’s letter.

The Complainant continued to work for the e respondent but submits that he was moved to a different location ‘the bleach room’.  The complainant submits s that prior to this he had been in production making products and driving a forklift.   The respondent advised the hearing that they only had 7 staff and that people moved around between the different areas.  The complainant was a general operative and like other general operatives worked in each area.  The respondent stated that the complainant had had words with another staff member Mr. F on the morning of the 17th prior to the meeting and there had been an issue regarding fluid being spilled from a tank for which each blamed the other.   The respondent said they were aware that the complainant he did not get on with Mr. F whom he had been working with in production and had words with him and so following this they had put the complainant in the bleach room away from Mr. F.   The complainant agreed that he had not got on with Mr. F and stated that he had had words with him on Thursday the 12th of September and again the following week on  the 17th of September after an incident where a tank had released half of its contents and Mr. F had accused the complainant in this regard.    It was later this day that the complainant was called to the meeting with Mr. P and Mr. M.  

The complainant stated that he and Mr. F had since then put their differences behind them.  The complainant in later evidence alleged that Mr. F had harassed him by calling him a ‘bastard’ when he told him he was leaving the company.   He later stated that this was in the context of calling him a ‘lucky bastard’ because he was getting out of there.    I note that eh complainants’ evidence regarding his relationship with Mr. F was inconsistent.   The respondent advised the hearing that once the complainant was moved to the bleach room and away from Mr. F he was ‘happy out’ and did not raise any issues.    The complainant at the hearing stated that he hadn’t known this but had thought he was moved to make him leave.  

The complainant at the hearing stated that he did not raise any issues as he felt he was better off moving to another job which suited him better.

The complainant advised the hearing that he continued to work in the bleaching room for 3 months before giving in his notice at the beginning of December 2019. 

 The complainant told the hearing that he was at the time told by the respondent that he would have to give a months’ notice but that he stated that he could not do this as he was starting a new job in the New Year.

The complainant stated that he had lodged the complaint with the WRC as he had felt that false allegations were made against him by staff members who had been talking behind his back.

The complainant at the hearing was asked to outline the alleged incidents of discrimination.  He alleged that there were beer bottles left hanging around the ground outside the respondent premises and said he found it strange that he was suspended form work for allegedly smelling of drink but yet there were beer bottles outside the back door.

The respondent in reply to this stated that the premises is on the way to a nightclub and that people regularly left beer bottles on the ground outside the back door en route to and from the nightclub.  The respondent stated that it had no control over this and that it was nothing to do with the respondent.

The complainant advised the hearing that he was taunted by for being an alcoholic and as evidence of this stated that there was a bottle with some kind of chemical in it on a shelf and that the label had ‘Alcoholic’ on it.   The complainant stated that he felt that this was labelled as such in an attempt to ‘push his buttons’ .  The respondent submits that the chemical product in the container contained alcohol and so it was labelled ‘Alcoholic’.    The respondent stated that this was in no way related to the complainant or his disability.

The complainant submits that he was moved to the bleaching room after this however he did not raise this as an issue with the respondent and did not raise any grievance in this regard.

The complainant when questioned on this at the hearing stated that he did not raise it as an issue or a grievance but that he felt that he was better off finding a new job.

The complainant advised the hearing that he had left the respondent company because he had found another job which was more suitable for him.

In all of the circumstances of the within complaints and having considered the totality of the evidence adduced I find that the complainant was not discriminated against or harassed on the grounds of disability in relation to the issues raised.

I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against or harassed on the grounds of disability by the respondent in relation to the issues raised.