Complainant

Respondent

Parties

Trevor  O'Mahony

Mycro Sportsgear Ltd

Representatives

James Mc Evoy Work Matters

Terrence O'Sullivan TJOS Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00048442-001

02/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00048442-002

02/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00048442-003

02/02/2022

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

CA-00048442-005

02/02/2022

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

CA-00048442-006

02/02/2022

The Complaint Form was received 2 February 2022.

The Complainant swore an affirmation.

Mr. Ronan Curran, General Manager, swore an affirmation along with Thomas Murray, Assistant Manager who also swore an affirmation.

At the outset of the hearing the Protected Disclosures Act, 2014. The Unfair Dismissal claim was withdrawn prior to the hearing.

The Complainant commenced 1 August 1999.

CA-00048442-001- Terms of Employment

The Complainant gave evidence that he never received a contract of employment. He worked 5 days and earned €100 per day.

The Complainant was challenged under cross examination about his rate of pay. It was put to him that the average weekly pay from 2017 – 2021 was a gross of €315.70 and a net of €292.66.  In response the Complainant said the figures were due to his sick leave but did not have any alternative evidence to establish his average rate of pay over the 23 years with the Respondent.

It was put to the Complainant that he was given a contract. It was accepted that a contract was offered but the payment figures were incorrect, and it was never agreed.

CA-00048442-003 – Equality

It was the Complainant’s case that he was discriminated against on the ground of his disability with the Respondent failing to provide reasonable accommodation and victimised him with the most recent date of discrimination being 12 January 2022.

The Complainant gave evidence that he had an injury as a result of the Respondent’s failure to provide adequate equipment in the workplace. He referred to text messages to the Respondent raising these issues.  Medical reports were produced dated 8 October 2021 and 27 January 2022 relating to this injury.

The Complainant used all his sick days and annual leave to take time off due his injury by October 2021.

On 8 October 2021 the Complainant text asking why his wages were reduced and explained that due to the equipment he was “in agony” and felt he was being “punished” for this. He was told to change the bolt which took “about 30 seconds”. It was the Complainant’s evidence that the cutter would be working for a few minutes before it would break, and he would have to try and repair it. Pictures of the cutter was presented. It was his evidence that these text messages came after he presented a letter from his doctor reporting on his back.

On 12 October 2021 he sent a text to Mr Murray complaining of back pain and he “shouldn’t be doing work that repeatedly strains my back. I ground 4 loads yesterday and my back was killing me after it.” He asked to reduce his hours to 3 days a week to help his back recover.

It was the Complainant’s evidence that he was given alternative tasks when he returned to work in October 2021. The Respondent paid for physiotherapy for a month in November 2021.

On 12 January 2022, the Complainant was told by the Respondent unless he could work on face guards he would have to go home. He stated he was advised by the General Manager that employees on work experience could carry out the tasks he was currently undertaking.  Mr Curran said he was sorry to which the Complainant replied that sorry won’t pay the mortgage. It was the Complainant’s evidence that he was “let go” on the spot. The complainant presented text messages from that day where he states, “this morning ronan told me they can’t use me till my injury is fixed and layed me off.” He continues; “since the injury happened from using bad equipment at work I can’t understand why mycro isn’t supporting me here. I hope u can help”.

The Respondent replied; “Hi Trevor, I’ve spoken to Ronan and am aware of the difficulties for everyone involved. This is temporary and we look forward to seeing you when you recover. Regards, Barry”

An undated email from the General Manager replying to an email from the Complainant dated 14 February 2022 reference the last time they spoke and confirming his job was “here for you whenever you decide to come back. You have been laid off, but I am unable to write this letter [Illness Benefit letter] for you, because your representative is claiming you have been dismissed. You know you haven’t been sacked and if you clear that up for me, maybe I can write that letter for you to get your medical card?”

It was the Complainant’s evidence that his doctor advised him to go on Illness Benefit and a letter was sent to the Respondent for the Department of Social Protection which is the letter Mr Murray refused to sign as stated in his email reply above.

It was submitted by the Complainant that the Respondent was able to make accommodations prior to Christmas, physiotherapy was offered , he was working reduced days but come January  he was let go.

The Complainant was cross examined as whether he is claiming he was laid off or dismissed from his employment. It was put to him that in the complaint form he was subject to lay off three times. It was the Complainant’s evidence that he was laid off indefinitely.

It was put to him that he was never dismissed, and he did not behave like he was laid off as he sent in medical certificates for the period from 12 January 2022 to 8 March 2022. The email of 14 February 2022 was raised and the email from Complainant to the Respondent where he states he was laid off “indefinitely” and was applying for a medical card. A letter stating this was required by the Complainant.

It was the Complainant’s evidence that he has been on illness benefit up to two weeks before the hearing and had not been available for work but is now trying to get back to work.

Upon inquiry the Complainant gave evidence he was not asked to attend an Occupational Health Doctor but did present medical reports from his own doctors dated 8 October 2021. It was his evidence there was no meeting or formal meetings around these reports.

Asked who told him that the work could be undertaken by work experience students, it was the Complainant’s evidence that it was Mr Curran on 12 January 2022.

CA-00048442-002 – Public Holidays

Initially, the Complainant received public holidays but when there was a change of management

Asked what public holidays he worked he could not specify which dates he worked. It was his evidence that he did work in holiday.

It is his evidence that he did not receive payslips or contract.

It was put to the Complainant that he got paid time off when the business shut during Christmas which included 3 public holidays. He accepted this. The Complainant stated he was not paid the other public holidays other than Christmas. The 6 month time limit was put to the Complainant.  

CA-00048442-005 – Protected Disclosure

This claim was withdrawn at the hearing.

CA-00048442-006 – Health and Safety

It was the Complainant’s evidence that he raised the issue of the defective equipment with the Respondent occasions and referred to text messages in his evidence.

In September 2021, he was “having serious difficult with the cutter” so Mr Murray advised him to use an alternative cutter, but he was his evidence that it was “crap”. The messages continue with the Complainant being told to ask another staff member about repairing the cutters. 

On 6 July 2021 and again on 21 September 2021 the Complainant sent links to new cutters to the Respondent to purchase.

CA-00048442-001- Terms of Employment

It was Mr Murray’s evidence that contracts were provided to all staff in May 2017. The Complainant was the only one that did not sign it or return it to him.

Mr Murray set out the average weekly pay for the 5-year period from 2017 to 2021 which amounted to €315.71 gross weekly.

Upon cross examination, Mr Murray stated that the Complainant was supposed to come back to him with the contract, but he did not do so.

Mr Curran gave evidence that in 2017 all employees received a contract of employment, but the Complainant did not return his.

CA-00048442-005 – Protected Disclosure

This claim was withdrawn at the hearing.

CA-00048442-002 – Public Holidays

Mr. Murray evidenced that the business closed during Christmas, with all staff receiving their regular pay, including for the three public holidays. Under cross-examination, regarding the record of working hours, Mr. Murray explained it was based on trust. He would inquire about the hours worked from the employees and then relay this information to the accountant. When asked about providing records to the Workplace Relations Commission, he admitted he had none.

Challenged on how he could ensure correct pay without records, Mr. Murray evidenced his daily presence in the workplace, his role in managing wages, and that the Complainant would inform him of his workdays. It was Mr Murray’s evidence that payslips were provided upon request. Sometimes the Complainant would ask for one and sometimes Mr Murray would drop one down to him.

Mr Murray was asked if the Complainant worked on the following public holidays; June, August and October 2021, to which he said he did not know. Mr Murray was sure that the Complainant was paid over Christmas because everyone was paid. This was reaffirmed in re-examination.

Mr Curran gave evidence that the Respondent always took 2 – 2.5 weeks off around Christmas.

CA-00048442-003 – Equality

The Whatsapp messages were opened by Mr Murray and in particular the alternatives offered to the Complainant. Mr. Murray confirmed alternatives proposed to the Complainant. He evidenced that he offered the Complainant fewer assignments and warehouse work. Mr. Murray consistently worked with the Complainant to address his concerns. As the Complainant's Line Manager, Mr. Murray acknowledged the existence of a company handbook and the absence of sick leave pay.

In October 2021, Mr. Murray mentioned an informal discussion with the Complainant about medical reports but could not recall any formal meeting records. He affirmed the Complainant was offered alternative work and physiotherapy. Between 11 October 2021 and 12 January 2022, Mr. Murray evidenced that they accommodated the Complainant until his tasks were completed, leading to his layoff. He confirmed the Complainant remained employed but had no contact since 12 January 2022

Mr Murray was asked about the cutters to which he replied the Respondent had the same cutters for the “last 20 years and generally worked fine”. It was his evidence that the Respondent could not get them during covid. It described the “teeth” on the cutter were fine with duct tape on the handle to extend it.

Asked if he followed up on the links to the cutter websites, it was his evidence that he regularly checked online himself 2-3 times a week and received them in December 2021. Mr Murry was asked did he give the new cutter to the Complainant, and it was his evidence, he thought the Complainant was unable to work because of his back. Mr Murray said he brought them onto the floor where the facemasks were cut.  He said he could not be 100% sure of the conversation he had with the Complainant but said the three cutters were available. He confirmed only one employee at a time could the cutter.

It was Mr Curran’s evidence that he spoke the Complainant on 12 January 2022 and discussed the work that had been done over the previous 3 months. He explained to the Complainant he was undertaking duties that did not need to be done. He explained the Complainant’s job was always there for him and to come back when his back was “right”. Mr Curran’s evidence was the Complainant was laid off temporarily until his back recovers and then he can come back to work. Mr Curran never told him he was dismissed, and the Complainant never resigned. It was Mr Curran’s evidence that he presumed he was still an employee. In relation to the medical certificates, Mr Curran was of the view that he thought the Complainant’s back was “still at him”.

Asked about the email of 14 February 2022 and Mr Curran’s reply on 24 February 2022, Mr Curran said he did not hear back from Complainant.

Asked about the claim for victimisation, it was Mr Curran’s evidence there were no acts that amount to victimisation. He concluded that the Complaint was laid off until he could do his job.

Upon cross examination, Mr Curran was asked about the 3-month period before January. It was his evidence that the Respondent was trying to help him out but the time had come where there was no more alternative work and the Respondent needed him to take a break. He explained that cutting face guards would have been his normal job. The Respondent was “probably” taking work from someone else to accommodate the Complainant.

Asked about his understanding of lay off, Mr Curran said it was temporary and for a certain period of time where the work is not there. He was asked if the Complainant’s work still needed to be done to which Mr Curran confirmed it was. Referencing the submissions, Mr Curran confirmed the work was there, but it was the Complainant who refused to do it. The Complainant said this was because of his back. It was Mr Curran’s evidence that; “I let him go because he won’t do the work” and “I left him go temporarily because he said he cannot do the work”. It was Mr Curran’s evidence that the Complainant would have to let the Respondent know when he was ready to come back to work.

Mr Curran confirmed he was not aware of the new cutter as that was Mr Murray’s area.  It was Mr Curran’s evidence that the cutters were fine, and it was a bolt that needed to be fixed but the handles were good.

Asked if the Complainant received any notification of the layoff, Mr Curran said it was effective immediately. Mr Curran was asked if how the Complainant was selected for lay off, to which Mr Curran responded it was because he was unable to do the work and later confirmed it was because of his disability. Mr Curran confirmed the last communication with the Complainant was 24 February 2022.

Upon inquiry, Mr Curran was asked why he had not contacted the Complainant since January 2021. It was his evidence that the “lay off is ongoing because he has two legal claims against us.” Mr Curran confirmed in evidence that he had not met the Complainant, nor had he had him medically assessed since January 2022.

CA-00048442-006 – Health and Safety

In response to the claim for penalisation it was Mr Murray’s evidence that the Respondent offered him alternative work, physiotherapy and they did what they could.

CA-00048442-001- Terms of Employment

Section 3 (4) of the Act states-

“A statement furnished by an employer shall be signed and dated by or on behalf of the employer.”

It was accepted under cross examination that the Complainant did in fact receive a contract in 2017 but took issue with the pay details. It was the Respondents’ evidence from both witnesses that it was for the Complainant to follow up. While I do not accept the onus is on the employee, I do accept that he was provided with a contract of employment.

Consequently, I find the complaint is not well founded.

CA-00048442-002 – Public Holidays

The time limits for submitting claims to the WRC are set out in Section 41 of the Workplace Relations Act, 2015 which provides that:

‘(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

The Complaint was received by the WRC on 2 February 2022. The six-month time limit within which the initiating complaint relates to is 3 August 2021 in which there are 5 public holidays. It was the accepted by the Complainant that he was paid for the 3 public holidays in Christmas 2021 upon cross examination.  No evidence was presented that the remaining 2 public holidays were paid to the Complainant.

No application was made for the extension of time by the Complainant.

Consequently, I find the complaint is well founded.

CA-00048442-003 – Equality

Section 6 (1) of the Employment Equality Acts 1998 – 2015 defines discrimination as:-

“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

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

(i) exists,”

Section 6 (2) continues:-

“(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

The employer’s obligations are set out in Section 16 (3):-

“(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources,

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;”

The Complainant’s disability is not in dispute. The dismissal is in dispute along with the claim of failure to reasonably accommodate and victimisation.

Failure to reasonably accommodate

Bolger, Bruton, Kimber; Employment Equality Law , 2nd Ed. 2022 at para. 7-107 summaries the obligation on employer:-

“In the employment sphere, the obligation of reasonable accommodation requires employers to remove barriers and make adjustments to the work environment or structure, in order that disabled individuals are placed in a similar position to their non-disabled counterparts. It requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace.”

The text has been corrected for spelling and grammar in UK English:

There is undisputed evidence of the Complainant seeking new equipment to allow him to carry out his job, a request to reduce his working hours, and undertake alternative duties.

The Complainant’s WhatsApp was undisputed, which set out his complaints relating to his back, the link between the work and his back injury, and the “broken cutter” to the Respondent.

Medical reports and certificates were produced; however, I can only consider the certificates dated 21 January 2022, the report of 8 October 2021, and 27 January 2022, as the remainder relate to the period after the Complaint Form was submitted to the WRC. The medical report of October 2021 was referenced in the WhatsApp communication to the Respondent, and it is both parties’ evidence that the Complainant underwent a series of physiotherapy paid for by the Respondent. There was no evidence from the Respondent of any consultation that took place either with the Complainant or Physiotherapist or an Occupational Health Doctor after the treatments ended to ascertain whether the Complainant was fit to return to work or if reasonable accommodations were necessary.

It is also accepted that the Complainant did seek and was given alternative duties to “mix and match” with his current work between 11 October 2021 and January 2022 by his Line Manager. This is contrary to the medical advice of 8 October 2021, wherein it is advised the Complainant stay off the cutters for “at least 4 weeks”. 

It was the Respondent’s evidence that this alternative work was no longer available in January 2022, which led to the Complainant being laid off. There was no evidence of consultation or discussion with the Complainant at this time or updated medical advice. It was undisputed that Mr Curran told the Complainant on 12 January 2021 that his lay off was effective immediately until his back recovered.

Mr Curran gave evidence that the Complainant was still an employee of the Respondent but other than the email response regarding a medical card application form in February 2022, he had not consulted or engaged with the Complainant since, nor had he been medically reviewed on behalf of the Respondent.

The other significant issue here is the failure of the Respondent, despite repeated requests from the Complainant, to purchase new cutters. The only evidence from the Respondent as to the burden, financial or otherwise, of purchasing new cutters was in relation to the unavailability of them during Covid. Mr Murray accepted that the Complainant sent him links to websites to purchase the cutters, but by the time he went to purchase them, they were gone. However, these links were sent on 6 July 2021 and again on 22 September 2021. I find it inconceivable that such a piece of equipment was not available from July 2021 to December 2021 when Mr Murray said they were eventually purchased.

It is also implausible that when the new cutter was purchased, the Complainant was laid off without any discussion or medical opinion to base this decision on what reasonable accommodation could be made.

I find the Respondent did discriminate against the Complainant on the grounds of his disability by failing to provide reasonable accommodation.

Victimisation

Section 74 subsection (2) of the Acts defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

As a standalone complaint, a Complainant must establish that he was subjected to adverse treatment as a result of taking action or in reaction to the specific situations set out in (a) to (g) of Section 74(2). Based on the evidence before me, there was nothing to indicate that the Complainant was involved in any of the situations provided for in Section 74(2). The first indication that the Complainant had initiated a complaint for discrimination came as a result of the Complaint Form to the WRC. It is noted on the Complaint Form that the Complainant indicates his employer was not aware he was referring the matter to the WRC. Consequently, I find the Complainant was not subjected to victimisation by the Respondent. 

Dismissal

The Complainant was laid off on 12 January 2022, a fact agreed upon by both parties. The first indication the Respondent received that the Complainant was claiming dismissal was through the Complaint Form submitted to the WRC on 2 February 2022. No communication between the parties was produced between 12 January 2022 and 2 October, other than a medical certificate for the period from 12 January 2022 to 8 February 2022. It is noted that a follow-up medical certificate was sent to cover the period up to 8 March 2022. However, the most significant piece of evidence is the email from the Complainant to the Respondent on 14 February 2022, 12 days after he claimed he was dismissed, wherein he refers to being laid off on two occasions in the short email. It has not gone unnoticed that this email was omitted from the Complainant’s submission, with only the Respondent’s reply presented.

Consequently, I find the Complainant was not discriminated against by way of dismissal as a result of his disability or at all.

Redress

The Respondent discriminated against the Complainant on disability grounds by failing to provide reasonable accommodation. The issue first arose on 6 July 2021 with the Complainant sending a web link for cutters, but no cutter was received until December 2021. Despite arranging physiotherapy and alternative duties following the Complainant’s medical report of 8 October 2021, these measures did not align with the doctor's advice to avoid cutters for at least four weeks. The Complainant’s persistent reports of his back injury and the broken cutter resulted in his layoff, significantly impacting his mental and physical health as he pleaded for support from his employer of over 25 years.

Consequently, I am awarding the Complainant compensation in the sum of €9,427.60.  This represents 6 month’s salary based on the daily sum in the contract of €103.60 for an average 3.5 day working week. There were no payslips, bank lodgements or time sheets presented by the parties, so I am taking the average working week as per the contract of employment of 3.5 days.

I further order that the Respondent comply by its obligations under the Employment Equality Acts by engaging with the Complainant around his return to work and obtaining medical advice from an Occupational Health Doctor as to what if, any, reasonably accommodations are recommended to allow him safely to return to the workplace.

CA-00048442-005 – Protected Disclosure

This claim was withdrawn at the hearing.

CA-00048442-006 – Health and Safety

Section 27 (1) Safety, Health and Welfare at Work Act, 2005 that ‘penalisation’ includes “any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment”

Section 27 (2) continues:

“Without prejudice to the generality of subsection (1), penalisation includes-

(a) suspension, layoff or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977-2001) or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty) and

(e) coercion or intimidation.”

Section 27 (3) of the Act provides:

An employer shall not penalise or threaten penalisation against an employee for

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under Section 11 or appointed under Section 18 to perform functions under this Act…..”

Section 27 (3) states:-

“An employer shall not penalise or threaten penalisation against an employee for—

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,”

The Labour Court inO’Neill v. Toni and Guy Blackrock Limited [ELR21] considered in detail the matter of a causative link as follows:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3.  Thus, 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 a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”.

The word “detriment” was also considered by the Labour Court and relied on Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All E.R. 26 which is the authority for the “proposition that the test for what constitutes a detriment is an objective one and the Court should consider if a reasonable worker would or might take the view that the treatment complained of was, in all the circumstances, to his or her detriment”.

The Respondent presented no evidence regarding the penalisation claim, and the Complainant's evidence was undisputed. It was acknowledged that the Complainant’s complaints about the cutting equipment were safety, health, or welfare issues as per Section 27(3)(c). The Respondent failed to provide evidence of safety or risk assessments for the equipment.

The Complainant consistently reported issues with the cutters from 6 July 2021, evidenced by WhatsApp messages with his Line Manager. Despite the Complainant’s attempts to refer the Respondent to a website selling new cutters in July and September 2021, the Respondent claimed unavailability, contradicted by messages from 22 September 2021. The cutter was eventually purchased in December 2021, just before the Complainant’s layoff. This is of particular note.

He alleged penalisation by the Respondent through layoff without pay in January 2022 and claimed dismissal on his WRC Complaint Form by 2 February 2022.

The Complainant also reported a wage reduction in the week ending 8 October 2021 due to unfinished work, attributed to the faulty cutter. This aligns with the piecework terms of his contract, which also requires reporting to the Line Manager if daily targets are not met. The Respondent attributed the wage reduction to the Complainant's refusal to fix the bolt on the cutter.

Consequently, I find that the Complainant’s claims fall within Section 27(3)(c).

Applying the Toni and Guy test, it is evident that the Complainant’s complaints about equipment safety led to his layoff and payment issues. The broken cutter impacted him physically and mentally, as shown in his December 2021 text message. Upon returning to work in January 2022, he was laid off without consultation or pay. Mr Curran’s comments regarding the work undertaken by the Complainant could be done by work experience students and his justification at the hearing; “I let him go because he won’t do the work” indicate the motive behind the decision to lay him off, to the detriment of the Complainant.

The complaint is therefore found to be well-founded.

CA-00048442-001- Terms of Employment

I find the complaint is not well founded.

CA-00048442-002 – Public Holidays

I find the complaint is well founded and award the Complainant the sum of compensation of €414.40 representing the 2 public holidays not paid together with compensation of 2 days for the breach of the Act. 

CA-00048442-003 – Equality

I find that the Complainant was not discriminated against on the grounds of his disability by way of dismissal by the Respondent as of 2 February 2022, the date the complaint was referred to the WRC.

I find the Complainant was not victimised by the Respondent.

I find the Complainant was discriminated against by the Respondent in its failure to provide reasonable accommodation in the workplace.

I am awarding the Complainant compensation in the sum of €9,427.60.  This represents 6 month’s salary based on the daily sum in the contract of €103.60 for an average 3.5 day working week. There were no payslips, bank lodgements or time sheets presented by the parties, so I am taking the average working week as per the contract of employment of 3.5 days.

I further order that the Respondent comply by its obligations under the Employment Equality Acts by engaging with the Complainant around his return to work and obtaining medical advice from an Occupational Health Doctor as to what if, any, reasonably accommodations are recommended to allow him safely to return to the workplace.

CA-00048442-005 – Protected Disclosure

This claim was withdrawn at the hearing.

CA-00048442-006 – Health and Safety

I find the complaint was well founded.

I award the Complainant compensation in the amount of €18,855.20, equivalent to one year's salary. This is based on a working week of 3.5 days at a daily rate of €103.60.

Employment equality – penalisation – disability – dismissal – reasonable accommodation