Complainant

Respondent

Parties

Mr Louis  O'Neill

City Break Apartments Limited City Break Apartments

Representatives

Mr Michael O’Doherty BL instructed by Mr Setanta Landers Setanta Solicitors

Mr David Colgan BL instructed Mr Martin Maloney  M.P. Maloney 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-00053318-001

17/10/2022

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

CA-00053318-002 WITDRAWN AT HEARING

17/10/2022

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

CA-00053318-003

17/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053318-004 WITHDRAWN AT HEARING

17/10/2022

These matters came before the Workplace Relations Commission dated 17/10/2022 as a complaint submitted under section 77 of the Employment Equality Act, 1998 and a complaint submitted under the Protected Disclosures Act, 2014 respectively.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 31/10/2023. 

The complaints submitted pursuant to section 6 of the Payment of Wages Act, 1991 and pursuant to section 27 of the Organisation of Working Time Act, 1977 alleging contravention by the Respondent of provisions the aforementioned statutes during the Complainant’s employment were withdrawn at hearing. 

The Complainant was employed by the Respondent from 26/03/2021 until he resigned his employment on 18/08/2022.  The Complainant was initially employed in the role of Reservation Agent from which he was subsequently promoted to the role of General Manager.  The Complainant was paid €2,916.66 gross monthly working a 39-hour week. 

The Respondent provides accommodation services to the tourist, commercial and short-term market. 

CA-00053318-001

The Complainant claims that he was discriminated against by reason of his disability.  The Complainant claims the Respondent treated him unlawfully by discriminating against him in victimizing him.  The Complainant claims the Respondent failed to give him reasonable accommodation for a disability.  The Complainant claims the Respondent treated him unlawfully by discriminating against him in conditions of employment.  The Complainant claims the Respondent dismissed him for discriminatory reasons.   The Respondent denies the claims as alleged or at all. 

CA-00053318-003

The Complainant claims he was penalised or threatened by his employer for having made a protected disclosure under the Protected Disclosures Act, 2014. 

The Respondent denies the claim as alleged or at all. 

Written factual and legal submissions were filed by both parties. 

As per Written Submission

The Respondent is a private limited company involved in short and medium-term letting of accommodation.  The Complainant was responsible for managing a property belonging to the company called City West Aparthotel, now renamed as City Ark Aparthotel.  He started in the company as a Reservations Agent in March 2021 and shortly after was promoted to General Manager Citywest in August 2021 effective from 14 August 2021.

In or around Monday 15 November 2021 the Complainant noted difficulties in respect of staffing etc. He approached two of the officers of the company Jonathan Drake (Johnny) and Philip Cassidy about this at the time and they had both said they would have a look into it.  At that meeting Jonathan Drake and Philip Cassidy informed Mr O’Neill that they were aware of some difficulties he was encountering early on in his role, but that he was now doing an amazing job and had taken to it very well. All agreed that he would remain in the position of general manager of Citywest.  As a result of this discussion the Complainant felt reassured that he was doing a good job managing a 400-bedroom property on his own.

The Complainant was furnished with a contract of employment for Reservations Agent but it had incorrect information, so he returned it.  He was not furnished with a revised contract, nor was he ever furnished with an employee handbook.  When he was promoted to General Manager he was not given an updated contract.  The Complainant was paid a gross salary of €35,000.00 per annum.

The Complainant was involved in a road traffic accident on his way to work on Friday the 8th April 2022. He suffered injuries to his neck and back, and psychological injury.  The Complainant was certified as unfit for work, between 11 April to 22 April 2022, by his GP following the road traffic accident.  The Complainant agreed to attend a meeting with Mr Jonathan Drake while on certified sick leave.  Mr Jonathan Drake had informed the complainant that the purpose of this meeting was to discuss his return to work.  This meeting took place in Musashi sushi bar located in Parnell Street on the 20 April 2022. 

At that meeting Mr O Neill was informed by Mr Jonathan Drake he was being removed from his role as General Manager.  Mr Drake stated that it had always been agreed that if someone better came along, the Complainant’s role would no longer be available to him.  Mr Drake offered the Complainant ‘the number 2’ position to his replacement.  Mr Drake stated that he required an immediate affirmation and acceptance of this from the Complainant.  Mr O Neill explained that he could not give an immediate answer as he was not in the right frame of mind.

The Complainant notified Mr Drake, one week later, by text message, that he was ready to return to work.  The Complainant was informed by phone call from Mr Drake that he had been replaced by another member of staff and there was no role for him.  The Complainant attempted to query this but was told by Mr Drake ‘let’s not fight this, Jenny is doing a brilliant job and has taken to it very well’.  The Complainant queried if he was being made redundant from his position and Mr Drake said, ‘yes if that’s what you want to call it’.

In or around 6 May 2022, the Complainant wrote to the company officers to enquire as to why he was being made redundant from his position.  After sending a follow-up email on 9 May, he then received a response from Mr Drake.   Said response stated that the Complainant’s job title and position remained the same but that a new COO was being employed “to tighten up policies and procedures and focus on revenue management”.

The Complainant was subsequently certified as unfit for work for a further period of two weeks.  The Complainant agreed to return to work on 23rd May 2022. Upon his return to work, the Complainant discovered, on his own work computer, email correspondence between the company officers and financial controller.  The emails exchanged convey, inter alia, the following:

A conspiracy to replace the Complainant and discussions of strategy on how to best do so.  Commentary that if there were any issues to dismiss the Complainant and pay him redundancy. Mocking the Complainant’s mental and physical health. 

Notwithstanding the discovery of these emails the Complainant resolved to continue to do his job. He was at this time suffering from psychological stress and injury and needed to work for financial reasons.  Unfortunately, a few days later the Complainant was certified as unfit to return to work by his GP due to these issues triggering his PTSD and mental health issues.

This certificate ran from the 2 - 30 June 2022.  The Complainant notified the Respondent of this.  He was immediately removed from all group chats on 2 June 2022.  The lack of engagement continued until on or around the 26th July 2022 where the Complainant’s solicitors wrote to the respondent indicating that the email sent in or around 10 May 2022 constituted a protected disclosure and calling on them to confirm the position of the Complainant.

On 15 August 2022, the company wrote to the Complainant’s solicitors on record indicating that there were certain deficiencies in the performance of the Complainant and they had made a decision to add an additional member to the management team.  No details of the alleged deficiencies were provided in said letter or had ever been discussed with the Complainant.  On 23rd August 2022, when the Complainant’s solicitors wrote to the Respondents and outlined as follows:

Our client has raised, through his solicitors, including detailed contemporaneous documentation of the owners of this business discussing his unlawful termination. The response to this is to invite the individual to utilise the internal grievance procedure and you, the owners do not believe it is in the interests of either party to attempt to resolve the matters through written correspondence. Thus, you wish our client to submit to an undocumented, internal procedure where the owners and operators who are the subject matter of the grievance and will then attempt to deal with the matter peculiarly affecting them, internally, informally, and in an undocumented way. Clearly this is a further attempted victimisation of our client denying him his contractual and statutory rights. In the ordinary course, it would normally be incumbent on an employee to exhaust all internal remedies before he can take himself as dismissed but given the documented, and it appears, undenied information, seeking to excise our client from his role and the clumsy attempt to categorise his replacement as the “chief operating officer” of a hotel instead of the manager our client is satisfied that he has exhausted all internal remedies and you can take this communication as confirmation that the employment relationship is terminated.

Legal Submissions:

The Complaint falls under Section 2(C) 1998 Act.  The Complainant was unfit for work as a result of being involved in a road traffic accident where he sustained injuries.

Discrimination was defined under Section 6(1) of the 1998 Act as:

“discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.” 

Section 30 of the 1998 Act is taken to imply a “non-discriminatory equality clause” in the contract of employment where the statement of terms of employment does not contain a gender equality clause as required by virtue of section 21 of the 1998 Act.

The case of Customer Perception Ltd v Leydon [2004] E.L.R 101 contains a similar scenario to the instant case.  The Complainant was involved in a road traffic accident which resulted in reduce movement in her shoulder, back and head.  The Labour Court held that the injury at issue came within the meaning of para. (c) of the definition of disability:

“Applying these well-known principles of statutory construction, it is clear that the term disability must only be given the meaning ascribed to it by section 2 of the Act. It would be impermissible for the Court to rely upon a definition derived from any other source..... Further, in construing the plain language used in this definition, words must be given their ordinary and natural meaning. taking the ordinary and natural meaning of the term malfunction …the condition from which the complainant suffered in consequence of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.”

In the case of A Technology Company v A Worker [EDA0714], the Labour Court clearly outlined the fact that there must be a connection between the disability and the alleged discriminatory act. In this case, the Complainant’s case is clearly that the alleged acts (such as the unilateral removal of her duties) clearly show a causal connection with her disability.  Crucially important for the within consideration, is the fact that the causal connection that this Adjudication Officer must consider is not necessarily born out of motive or intention to discriminate, but rather from the facts before the WRC which will allow the Adjudication Officer to infer discrimination. In the words of the Labour Court in A Technology Company:

“a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable that a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”  [emphasis added]

In the case of Southern Health Board v Mitchell [2001] DEE011 the Labour Court considered the evidential burden which the Complainant must discharge before a prima facie case is made out and stated:

 “The first requirement of Article 4 of the Directive 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.”

Similar complaints were raised in the recent decision of ADJ-00014132.  The Adjudicator when considering the complaints for discriminatory dismissal, victimisation and failure to provide reasonable accommodation upheld the complaints for discriminatory dismissal.   The Adjudicator made their decision based on the fact that the Respondent’s actions were not satisfactory, nor did they produce evidence to rebut the rebut the presumption of discrimination based on the Complainant’s disability. 

In the instant case the Complainant was discriminatory dismissed based on his disability.  When the Complainant informed the Respondent that he was unfit to return to work by his GP due to PTSD and mental health issues suffered relating to his return to work.  The Complainant was immediately removed from all group chats and has received no response to any messages since. 

The Complainant furnished a grievance, but this has been ignored.  The Complainant’s Solicitor wrote to the Respondents on 23 August 2022 and confirmed that the employment relationship had been terminated due to the Respondent’s behaviour.

Victimisation:

Victimisation is defined in broad terms under The Employment Equality 1998 Act section 74(2) provides: “

(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).”

The Labour Court in the case of Department of Defence v Barrett EDA 1017 stated in relation to victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution.  Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.”

When considering whether a complaint of discrimination had been made in a victimisation complaint in the above case the Labour Court stated:

“It is well settled that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld. However, the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected acts referred to at s.74(2) of the Acts.”

In Rene O’Reilly v Dublin City University [ADJ-00020428] the adjudicator stated that when considering protection against victimisation under Section 72(2) of the 1998 Act it was not dependent on a successful complaint of discriminatory treatment as per Barret.  That it would be determined on the on the balance of evidence if adverse treatment took place.

The Complainant, while on certified sick leave, was removed from his role as General Manager and demoted to Reservation Agent.

Failure to provide reasonable accommodation:

Section 16 of the 1998 Act sets out the responsibility on an employer to make reasonable accommodation for an employee with a disability:

"(3) (a) For the purposes of this section, a person with 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) An 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 and advance in employment

(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, but

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

ln the Supreme Court decision of Nano Nagle School v Marie Daly [2019] IESC 63 it was held that for the purposes of the entirety of Section l6 of the 1998 Act;

"a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance.”

After extensive discussion of the obligations on employers arising pursuant to Section l6 of the 1998 Act, McMenamin J summarised by stating that the fundamental criterion is "to consider -whether the degree of redistribution, or "accommodation", is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer.” 

In the case of A Health and Fitness Club-v-A Worker EED037 wherein The Labour Court stated;

" This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before 15 coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity. The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision. In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Conditions of Employment:

Under Section 8 of the Employment Equality Act 1998, there is a prohibition on discrimination by employers under subsection (1):

“(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…………

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The Respondent has demoted the Complainant as a result of his disability rather than accommodated.

Protected Disclosure:

The Protected Disclosures Act 2014 (as amended) provides that an employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee for having made a protected disclosure. The Protected Disclosures Act 2014 (as amended) provides at section 5 that: “

(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if:

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in a work related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

Section 3 of the 2014 act defines “penalisation" as:

“any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes— (a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

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

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

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training, (j) a negative performance assessment or employment reference, (k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment, (l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;”

In Crawley v Dundalk Institute of Technology (ADJ 00026170, 23 February 2022), the Adjudication Officer held that:

“the key question arising then is what information is disclosed in the complainant’s email of December 2018 that carries a reasonable inference of wrongdoing that is relevant and can be said to fall in any way into the order of relevant wrongdoings in the Act.” 

In the matter of Baranya v Rosderra Meats Group Limited [2021] IESC 77, the Supreme Court held that, per Hogan J., an Adjudicating body must examine,

“…did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of S.5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer”.

In the case of O’Neill v Toni and Guy Blackrock Limited [2010] ELR 21, the Labour Court considered the requirement for a causal connection in claims of penalisation in respect of claims under the Safety, Health and Welfare at Work Act, 2005, prior to the enactment of the Protected Disclosures Act 2014.

When considering causal connection under the Protected Disclosures Act 2014 in Anna Monaghan vAidan & Henrietta McGrath Partnership [2017] 28 ELR 8), the Labour Court held that the provisions concerning penalisation were “broadly similar” to those in the 2005 Act.  The Labour Court stated that:

“It is clear from the language of section 27 of the 2005 Act that in order to make out a complaint of penalisation it is necessary for an Appellant to establish that the detriment of which he or she complains was imposed 21 “for” having committed one of the acts protected by section 27 (3) of the 2005 Act. Thus the detriment giving rise to the complaint must have occurred because of, or in retaliation for, the Appellant 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 Appellant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or the reasons which influenced the decision maker in imposing the impugned detriment.”

Following the enactment of the Protected Disclosures (Amendment) Act 2022 since the above decision, the burden of proving that the dismissal did not arise from the making of a protected disclosure by the Complainant rests on the Respondent.  Section 12 of the amended act provides that:

 “7(c) In any proceedings by an employee under the Workplace Relations Act 2015 in respect of an alleged contravention of subsection (1), the penalisation shall be deemed, for the purposes of this section, to have been as a result of the employee having made a protected disclosure, unless the employer proves that the act or omission concerned was based on duly justified grounds.” 

In Liam McMullan v Inspire Wellbeing (ADJ 00032530, 7 February 2023) the Adjudicating Officer held that:

“At the time the complaint was lodged, the burden of proof was the “but for” test: whether the protected disclosure was an operating cause in the act of detriment, as opposed to be the main cause or the whole cause.  This burden of proof was significantly altered by the Whistleblowing Directive (Directive 2019/1937) and the transposing Protected Disclosures (Amendment) Act, so that it is presumed that the detriment was due to the protected disclosure.   In line with the Directive, this reverse burden of proof applies to all aspects of detriment, including deeming that a person has not passed probation or that their employment should end.”

The communication sent on the 10th May 2022 constitutes a protected disclosure pursuant to Section 5.  The Complainant, upon his return to work, discovered emails between the company officers and financial controllers.  The emails exchanged convey the following:

1.       A conspiracy to replace the Complainant and discussions of strategy on how to do so.

2.       Commentary that if there were any issues to dismiss the Complainant and pay him redundancy.

3.       Mocking of the Complainant’s mental and physical health.

Burden of Proof:

It is stated under 85A(1) of the 1998 Act (as amended) as follows:

“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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.”

The following case law is cited by the Complainant:

A Sales Representative-v-A Book Wholesaler DEC-E2016- 131

Inoue v NBK Designs Ltd [2003] E.L.R. 98

C-127/92 Enderby v Frenchay Health Authority and Secretary of State for Health

Valpeters v Melbury Developments Limited [2010] ELR 64

Tara Curran v Edward Slevin And Company T/A Slevins Department Store [ADJ – 00037336]

A Company v A Worker ED/01/1

Hallinan v. Moy Valley Resources DEC-S2008-25

In Kavanagh v Aviance DEC-2007-039

O’Brien v Persian Properties Limited [2012] 23(4) E.L.R. 211

Hallinan v. Moy Valley Resources DEC-S2008-25

Melbury Developments Ltd. v. Valpeters (EDA0917)

The Complainant was injured in a car accident on his way to work and subsequently removed from role.  The employer confirmed this was a redundancy and internal communications show a campaign to remove the complainant.  All formal requests for grievances and investigations did not advance. The employer effectively removed the complainant from his role in May 2022.  His discovery of the conspiracy to remove him was on 22 May 2022.  His removal from group chats was on 2 June 2022. His solicitors letter indicating that there no trust in any internal process and taking his employment as the employee holding that the employment relationship was terminated as he could have no faith in the internal process which was proposed to be dealt with by the owners informally issued on 23 August 2023.  We would ask the adjudicator to make a finding of discriminatory dismissal.

Summary of Direct Evidence of Complainant on Oath:

The Complainant was employed by Johnny Drake (hereafter JD) as a reservations agent having previously worked in the Red Cow.  He reported into JD and Philip Cassidy (hereafter PC).  The Complainant states there were issues with his contract which he did not sign, and he did not receive a handbook or any material related to grievance / disciplinary procedures or to sick pay. 

The Complainant states he enjoyed his job – loved his job and he describes himself as a “peoples person.”  The Complainant states he did well in the first few months and he had no previous experience in the industry.  He states he had a good relationship with his employers.  The Complainant states in August he had a conversation about Matteo (current GM) leaving with JD and he was promoted to GM role.  He states there was no formal interview just a conversation with JD.  He described the GM role as being totally different to reservations agent role and he was managing 6 or 7 staff. 

The Complainant states on the day after the Christmas Party he received a letter outlining his promotion to GM and advising him of his rate increase and informing him his probation period was now complete and he was a permanent full-time employee.  The letter outlined that his terms and conditions of employment remained unchanged and there were new duties, responsibilities and tasks on his job description in line with his new position.  The Complainant states he knew what his new duties were because he had followed the previous GM for a few days.  The Complainant states the job was a massive change for him and there were issues getting staff and he states it was quite a difficult journey going from being friends with people to managing them. 

In December 2021 the Complainant states he spoke to JD and PC and they told him he was doing a good job and to keep going.  The Complainant states he discussed the staffing issues with them and he received no training or no advice – just keep doing what you are doing.  The Complainant states it was challenging and he was doing a good job and did not receive any negative feedback. 

In April 2022 the Complainant was involved in a road traffic accident on his way to work when he collided with the rear end of a car in heavy traffic on the m50.  The Complainant states his car was written off and it went up in smoke.  The Complainant states he was brought by ambulance to Beaumont Hospital with a neck and back injury where he remained until 5pm that day.  The Complainant’s friend to whom he was speaking on the phone as the accident occurred informed HR of his accident.  The Complainant states JD tried to call him and left voice message to say hope he was ok. 

The Complainant states he was out of work for 2 to 3 weeks.  He states his mental health deteriorated rapidly and he was fearful of being a passenger in a car.  He states he had flashbacks and trouble sleeping. 

In or around 20 April 2022 the Complainant met with JD in a restaurant in Parnell Street for a return-to-work meeting.  He states JD had said the purpose of the meeting was to ease him back to work but that was not the outcome.  The Complainant states he was informed by JD that he was going to bring in a higher person and he would be No2.  The Complainant states he was not in the right frame of mind to make any decisions when asked by JD what he thought of the proposal.

The Complainant states he had told JD before Christmas when he met with him in Butler’s café in the Liffey Valley that he was struggling with his mental health.  After the meeting in the restaurant in Parnell Street JD asked the Complainant to think about what he had proposed.  When the Complainant was feeling ready to return to work he phoned JD and he returned on 27 April.  When he returned to work he found that his colleague Jenny had taken over his role in his absence and he states that she was offered the role and she turned it down.  The Complainant states he felt down about that and that he could be replaced in a matter of days and he had thought his employers would be more caring and compassionate. 

The Complainant wrote to JD and PC as he wanted them to confirm what was going on the text of which was read into evidence by Complainant representative and I quote as written by the Complainant: 

I am writing this email to raise the issue of getting treated in a less favourable way. I believe that I have been subjected to a bad treatment by the management, Which I had never expected.

As you are both aware I was involved in a car accident on Friday the 8th of April 2022, On my way to work.  

Since then I have been signed off work by my GP due to post traumatic stress disorder/anxiety and now depression since my job position has been lowered and taken from me with no explanation as to why.  I feel I was ready to come back to work on Monday the 9th of May 2022 but as advised by Johnny on the 5th of May 2022, I would be returning as a reservations agent. I was never notified that if I was off sick and covered by GP certs that my position would be on the line or taken away from me. 

In November of 2021 I brought to both of your attention that I felt like I was not up to standard and I suggested that I would maybe step down.  However as we had all agreed it was a very stressful time with the Christmas period etc and that I would remain as a General Manager.  I was told by both of you that I was more than capable for this role.  Since then everything has been running very smoothly and there has been no talk or no mention of anyone coming in that is more senior or more experienced than me. 

I feel that since my car crash the management is using my mental health as an excuse to lower my title, I feel you are using the talk we had in November against me and I feel this is really unfair to do as I have been a very loyal and committed member of staff for over a year now.  I stepped up as a general manager and committed when no one else did, Since then I have worked extremely hard to get the property and the staff to we’re it is today.

Not only have you told me that you were hiring someone more experienced, You have passed my position on to one of my reception staff members who is still in training to be a reservations agent with no management experience.

Please see attached below all of my up to date medical certificates and also my letters of employment stating my role. 

I trust that the management will take this matter very seriously and I hope you have a response by the end of the day. 

If you have any furtherquestions please contact me via email.

The Complainant states the Respondent replied his job title remains the same and stated they had hired a more experienced employee as Chief Operating Officer (hereafter COO) to tighten up policies and procedures and to focus on revenue management and that his position remains the same.  The Complainant states his job title did not remain the same and that the new COO is doing the roles he did and he states they were all his jobs.  The Complainant states this makes him feel like sh*t and states there was never a need for a COO. 

The Complainant states he returned to work on 28 May when he logged on to the Desktop the email account was open.  The Complainant states he would not know how to hack and the emails were open for all to see and he “absolutely made copies”. 

The Complainant states he would never have discussed a WRC case with the Financial Controller and he states there was no back to work meeting in response to questions from his representative about content of specific emails.  With referenced to content of other specific emails the Complainant states it is absolutely sickening and he is a person they are speaking about – a loyal member of staff.  The Complainant states they were never caring employees and that it was all a game to them and an act.  The Complainant states he stayed to work for 7 to 9 days after reading the emails and his mental health was deteriorating, his mental health issues PTSD, anxiety and depression.  The Complainant states he was removed from email groups after he had sent in medical certs on 2 June.  The Complainant states he had not resigned and that he was still GM and was just keeping his sick certs up to date. 

The Complainant states the only issues he had were mental health issues PTSD, anxiety and depression and staffing when asked to comment on a letter from the Respondent to his solicitor regarding deficiencies in his performance.  The Complainant states before he saw the emails he thought he was doing a good job and he had never been told he was underperforming.  The Complainant states the job of the new COO is exactly the same as his - the same responsibilities.  The Complainant states that they thought he was not fit to do the job.  He states he loved the job; he is a peoples person, always on time, dedicated, he would stay back late and had no problems coming in early or on his day off.

Summary of cross-examination of the Complainant

When asked the Complainant states he had no previous experience of GM and when asked if he struggled in the role the Complainant states it had its challenges and there were lots of issues with staffing after Covid.  When asked to confirm the only problem was staffing the Complainant answers yes.

Mr Colgan refers the Complainant to the letter/email he wrote to the Respondent (set out above under direct evidence of Complainant) and puts it to the Complainant that he wrote this letter of his own accord and yet he has just confirmed the only problem he had was staffing while the letter outlines the Complainant felt he was not up standard for the role and that he had brought this to the Respondent’s attention in November 2021 suggesting he would maybe step down.  The Complainant states he was suffering from his mental health at that time and he had confidence issues and it was a brand-new role and anybody would struggle. 

Mr Colgan asks how the Complainant could know all his functions were taken away from him as he has put it forward that his job got taken away from him.  The Complainant states it shows all the job responsibilities on the new organisational chart and when asked if he had this when he first got appointed to the role he replies no that he did not have it at that time.  The Complainant states he had little responsibility when he returned to work apart from housekeeping and when it was put to him did he accept they might be taking it light on him as he was starting back from a period of sick leave he does not accept this.  The Complainant states he should have had a back to work meeting as they had taken his job away from him and he repeats it is clear they have taken his job away from him.

Mr Colgan puts it to the Complainant that he has been told by the Respondent that his position remains the same to which the Complainant replies “that doesn’t mean I have to believe it.”  The Complainant does not accept his position remains the same regardless of what the Respondent email in reply to his email/ letter says and asks why would he believe an email?   Mr Colgan puts it to him again that the correspondence from the Respondent in written ink (email) was the position and the Complainant replies “no he does not accept that.”

Mr Colgan asks the Complainant if he has seen a psychiatrist for his mental health issues – his PTSD depression and anxiety and the Complainant replies that he has and when it is put to him that he did not tell the Respondent of his mental issues he replies no. 

Mr Colgan asks the Complainant if all staff use the same log on for Desktop in the office and he replies yes.  The Complainant states he logged on and Gmail was open.  Mr Colgan asks if he saw clearly that it was not his email and he replies yes.  Mr Colgan puts it to the Complainant that he could see emails to someone from someone that is not him and yet he proceeds to read them?  The Complainant replies they were clearly about him so “why wouldn’t he look at them.”  Mr Colgan put it to the Complainant that he knew it was not his email account and instead of just reading the emails he took pictures of them he replies “yes.”  When asked why he took the pictures the Complainant replies because they were about him. 

Mr Colgan put it to the Complainant that he should have closed the email account and when pressed on why he took both steps – reading them and then photographing them – and asked what was the purpose of doing so the Complainant replied it was so that they couldn’t deny it. 

Mr Colgan asks why the Complainant did not request a meeting and talk to them after he read the emails he replies he was not in the right frame of mind with his mental health issues.  Mr Colgan puts it to the Complainant that he could have asked for a meeting and he replies it would be too intimidating with three of them and cites mental health issues. 

Mr Colgan asks the Complainant would he have thought of raising grievance and he states no and when asked why not and states he does not know why and refers to his mental health issues and not being in the right frame of mind.

Mr Colgan refers to the group chats of which there 10 and 3 of which the Complainant was removed from.  He puts it to the Complainant that he was just back from sick leave and the only things discussed on those group chats was work stuff so it could have been in his best interests to have been removed from them which the Complainant does not accept.

As per Written Submission. 

On 29 March 2021, the Complainant was offered employment in the role of Reservation Agent. This offer was subject to a 6-month probationary period. The Complainant ’s salary was €26,400.00 per annum (pro rata).  The Respondent provided the Complainant with a statement of main terms and employee handbook on that same date.

In or around August 2021 the Complainant was promoted to General Manager.  On 08 April 2022 the Complainant was involved in a road traffic collision.  On 11 April 2022 the Complainant commenced a period of sick leave.  On 16 April 2022 the Complainant tendered a medical certificate covering the dates 11 April 2022 to 22 April 2022.  This medical certificate provided no details with respect to the Complainant ’s medical condition.

On 20 April 2022 the Complainant attended an informal meeting with Mr Jonathan Drake, co-founder of the Respondent, during which there was discussion of the Complainant ’s health and alterations within the workplace that may be necessary during the Complainant ’s absence and subsequent to the Complainant ’s return.  This included the creation of a new role to which the Complainant would report. 

By email of Friday 06 May 2022 the Complainant contacted the Respondent setting out various issues.  At 12.22 on Monday 09 May 2022 the Complainant wrote to the Respondent asking, “Any updates on the above?

At 17.44 on 09 May 2022 the Respondent replied to the Complainant addressing numerous matters and informing the Complainant that an organisational chart had been drawn up in order to clarify the roles and responsibilities.  This email confirmed that the Complainant ’s job title was unaffected.  At 19.02 on 09 May 2022 the Complainant responded raising several queries.

At 18.19 on 10 May 2022 the Respondent replied to each of these queries setting out the Respondent’s position.  On 11 May 2022 the Complainant tendered a medical certificate covering the dates 09 May 2022 to 22 May 2022.  This medical certificate provided no details with respect to the Complainant’s medical condition.   On 22 May 2022 the Complainant returned to work.

On 23 May 2022 the Complainant employed Ms Jelisaveta Rnjak in the role of Chief Operations Officer.  On a date unknown but likely subsequent to 22 May 2022 and prior to 02 June 2022 the Complainant, without any authorisation from the Respondent, accessed the emails of Mr Drake. 

Having gained unauthorised access, the Complainant conducted searches of Mr Drake’s emails, including searches in relation to other employees of the Respondent.   Without authorisation, the Complainant took photographs of Mr Drake’s work emails, including photographs of emails relating in part to other employees, and retained said photographs.  The Respondent does not know how much commercially or personally sensitive data was obtained by the Complainant by this means. 

On 02 June 2022 the Complainant tendered a medical certificate covering the dates 02 June 2022 to 15 June 2022.   This medical certificate provided no details with respect to the Complainant ’s medical condition.  On 17 June 2022 the Complainant tendered a medical certificate covering the dates 02 June 2022 to 30 June 2022.   This medical certificate described the Complainant as suffering from a medical illness.

By letter of 26 July 2022 the Complainant’s solicitor wrote to the Respondent on behalf of the Complainant setting out a range of matters.  The Complainant’s solicitor appended to this letter a selection of the photographs taken by the Complainant when the Complainant gained unauthorised access to Mr Drake’s emails.  This included information in relation to other employees.   On 29 July 2022 the Complainant tendered a medical certificate covering the dates 28 July 2022 to 10 August 2022.  This medical certificate provided no details with respect to the Complainant’s medical condition.   On 10 August 2022 the Complainant tendered a medical certificate covering the dates 11 August 2022 to 24 August 2022.  This medical certificate provided no details with respect to the Complainant’s medical condition.

By letter dated 15 August 2022 the Respondent wrote to the Complainant’s solicitor setting out that the Complainant’s solicitor was correct insofar as the Complainant’s performance since his promotion had been below the expected standard.  The letter continued that as a result of the Complainant s underperformance certain alterations were made within the workplace to enable the Complainant’s performance to improve.  This letter clarified the position that the Complainant had not been subject to a demotion.

The letter requested further information as to the purported protected disclosure made by the Complainant.  This letter further invited the Complainant to utilise the internal grievance process in order to address his issues.  On or about 18 August 2022 the Complainant verbally resigned his position.  By letter dated 23 August 2022 the Complainant’s solicitor wrote to the Respondent setting out that the Complainant would not at that time be providing any information in relation to the purported protected disclosure raised by the Complainant.  Further, the Complainant would not utilise the internal grievance procedures.  The Complainant’s solicitor justifies this position on the basis of certain assumptions in relation to the grievance procedure. 

By letter dated 26 August 2022 the Respondent wrote to the Complainant’s solicitor asking that the Complainant reconsider his decision to resign.  The Respondent stated their willingness to appoint an independent investigator in the event that the Complainant wished to utilise the internal grievance process.  Further, the Respondent requested further details of the purported protected disclosure alleged in prior correspondence from the Complainant’s solicitor and details of the penalisation which was also previously alleged on the Complainant’s behalf by the Complainant ’s solicitor.  On 12 October 2022 the Complainant’s solicitor issued a letter on behalf of the Complainant.   In this letter the Complainant’s solicitor refers to a protected disclosure made on 10 May 2022 however the Complainant’s solicitor failed to provide any details of the contents of said protected disclosure, notwithstanding the Respondent’s letters of 15 and 26 August 2022.  The same letter also contends incorrectly that, notwithstanding what was expressly stated by the Respondent in correspondence of 10 May, 15 August and 23 August 2022, the Complainant was removed from his contracted role on 30 April 2022.

The Complainant commenced the within claim on 17 October 2022.

Discrimination pursuant to s.77 Employment Equality Act 1998

The Complainant alleges he was subject to discrimination on grounds of disability.  Specifically, the Complainant alleges:

(a) Victimisation;

(b) Failure to provide him with a reasonable accommodation for his disability;

(c) Discrimination in conditions of employment; and

(d) Discriminatory Dismissal.

Section 2 Employment Equality Act defines “disability” as:

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body;

(b) the presence in a body of organisms causing, or likely to cause, chronic disease or illness;

(c) the malfunction, malformation or disfigurement of a part of a person’s body;

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction;

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality or judgment which results in disturbed behaviour. 

The Respondent is unaware of any condition affecting the Complainant that would satisfy this description.  In relation to the Complainant’s health, the Respondent received several medical certificates from the Complainant, none of which provide any details with respect to any medical condition or disability which may satisfy the definition set out above.

The Complainant’s undated letter received by the Respondents on 06 May 2022 alleges that the Complainant’s sickness certificates were given due to “post traumatic stress disorder/anxiety.”  At no time did the Complainant provide any medical evidence to support this contention.  To the date of writing, the Complainant has not provided any further information, including medical certification, which would establish that the Complainant was suffering a disability.

In the event that the Complainant is able to establish that he is suffering from a disability, the existence of a disability, in itself, is not enough to establish a claim of discrimination.  In Margetts v.Graham Anthony and Company (EDA038) it was held “The Complainant must adduce other facts from which it may be inferred, in the balance of probabilities that an act of discrimination has occurred.”

With respect to whether an employer is on notice that an Employee is suffering from a disability, the decision of the Labour Court in A Worker v. An Employer EDA 1927 is instructive.  While factually distinct from the within case as it related to an alleged discriminatory dismissal and failure to provide reasonable accommodation, it was held:

It would be, in the view of the Court, entirely unreasonable and unrealistic to expect employers to engage in guesswork about whether or not medical complaints brought to their attention required further enquiry by them in order to establish if they indicated the existence of a disability that required them to take appropriate measures within the meaning of the Employment Equality Acts to assist an employee.

That decision goes on to state that the decision maker acting on behalf of the Employer “was not provided with any medical evidence that the Complainant had a disability.  He was provided with mere assertions to that effect by the Complainant.”  The Court went on to say:

As this court noted in Melbury Developments Ltd. v. Valpeters (EDA0917), albeit in a somewhat different context, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’…[the Employer] could not have been expected to accept the Complainant’s assertions in the absence of medical evidence.

Victimisation

Per Employment Equality Law (Bolger, Bruton & Kimber, 2nd Ed. 2022):

Victimisation… is a statutory tort within the Employment Equality Acts 1998 -2021 (the “Employment Equality Acts”), entirely distinct from discrimination within the Acts. Victimisation is not concerned with protecting against adverse treatment connected to any of the protected grounds within the Employment Equality Acts, but rather it protects against persons involved in the enforcement of rights under the Employment Equality Acts, whether as complainants, witnesses, or persons who assisted those parties.

Victimisation is defined at s.74(2) Employment Equality Acts as follows:

(2) 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.

In respect of s.74(2)(a), the Complainant raised certain issues in writing with the Respondent on 06 May 2022.  On foot of same the Respondent replied on 09 May 2022 and 10 May 2022.  The Respondent took no steps, either directly or indirectly, with respect to the Complainant such that would constitute dismissal or adverse treatment. 

In respect of s.74(2)(b), the Complainant did not commence proceedings against the Respondent until subsequent to his resignation.

In respect of s.74(2)(c), at no time was the work of the Complainant compared to that another employee for any purposes of the Employment equality Act. 45.

In respect of s.74(2)(d), the Complainant was not a witness under the Employment Equality Act or the Equal Status Act 2000.  

In respect of s.74(2)(e), the Complainant did not, by lawful means, oppose any unlawful act under the Employment Equality Acts or the Equal Status Act 2000. 47.

In respect of s.74(2)(f), the Complainant did not give notice of any intention to take any of the above actions. 

In the event that the Complainant satisfies any of the above requirements, it is denied that on foot of same the Complainant was subject to any adverse treatment.  In particular, it is denied that the Complainant was demoted while on certified sickness leave.  On the contrary, on multiple occasions the Complainant ’s position was confirmed to him.

The Complainant contends that discussions with respect to the appointment of a new person to whom he would report occurred during an informal meeting on 20 April 2022 while the Complainant  was on sick leave.  The Complainant tendered a statement to the Respondent that might be interpreted as possibly disclosing a disability on 06 May 2022 at the earliest.  Accordingly, it cannot be the case that the Complainant’s purported disability was the cause of the appointment of the new Chief Operating Officer.

Reasonable Accommodation

The Complainant alleges the Respondent failed to provide the Complainant with reasonable accommodation for his disability.  The Respondent is a stranger to the needs of the Complainant in this regard.  Had the Complainant sufficiently engaged with the Respondent, it may have been possible to identify adjustments in the workplace that would enable the Complainant to return to work.   At no time during the Complainant ’s employment did the Complainant articulate any specific issues with respect to his role that would necessitate a reasonable accommodation and to date no such accommodation has been articulated by the Complainant or on his behalf.

Discrimination in conditions of employment

The Complainant alleges he was demoted as a result of his disability.  The Complainant was not demoted, as was articulated to him in correspondence on multiple occasions.  The Complainant and Respondent agree that the Complainant was struggling in his role from some months prior to April 2022.  In order to assist the Complainant, the Respondent hired a Chief Operating Officer for the facility of which the Complainant was General Manager.  While this role was created and a person was employed to fulfil this role, this did not constitute a demotion of the Complainant.  At all times the Complainant’s job title and pay remained the same.

Discriminatory Dismissal

The Respondent did not dismiss the Complainant.  The Complainant resigned.  In order to succeed in a claim for discriminatory constructive dismissal, it is for the Complainant to establish that he had no reasonable alternative to resignation.  In Jaclann Holdings Ltd. v. David Clarke (EDA1914) the Complainant resigned without exhausting the Respondent’s grievance procedures.  Subsequent to his resignation, the issues the Complainant had with the Respondent were addressed and the Complainant was informed of same.  The Complainant failed to respond.

In the within case, on 15 August 2022 the Complainant was invited to utilise the internal grievance process which to date the Complainant had failed to do. On or about 18 August 2022 the Complainant resigned his employment without utilising the grievance process.  In their letter of 23 August 2022 the Complainant’s solicitor, in refusing on behalf of the Complainant to utilise the grievance procedure, cited an array of presumed procedural defects for which there was no evidence.

By response, in a letter dated 26 August 2022 the Respondent addressed these presumptions made by the Complainant or on his behalf and remedies which would address same.  No further engagement was received from the Complainant or his solicitor until 12 October 2022 and no acknowledgement was made of the efforts on the part of the Respondent to address the concerns raised on behalf of the Complainant.  There were reasonable alternatives to the resignation of the Complainant, including utilising the grievance procedure, which the Complainant, through his representatives, declined to utilise.

Penalisation pursuant to Schedule 2 Protected Disclosures Act 2014

The Respondent is unaware of any purported protected disclosure raised by the Complainant.   The Respondent requested the details of same in correspondence.  The Complainant itemises three documents from his unauthorised search of Mr Drake’s emails as the basis for his claim that he was subjected to mistreatment.

(a)That there was a conspiracy to replace the Complainant and discussions of strategy on how best to do so;

(b) Commentary that if there were any issues to dismiss the Complainant and pay him redundancy;

(c) Mocking of the Complainant’s mental and physical health. 

The Complainant makes these allegations under circumstances where:

(a) The Complainant was not replaced and it has been the consistent position of the Respondent that he had not been replaced;

 (b) The Complainant relies upon partial excepts from emails to which he had no rightful access;

(c) When these matters were brought to the attention of the Respondent, the Complainant was invited to utilise the grievance procedure and he failed to do so.

The Complainant was not subject to mistreatment as a result of having made a protected disclosure. s.11 2014 Act prohibits the dismissal of an employee for having raised a protected disclosure.  The Complainant was not dismissed.

S.12 2014 Act prohibits the penalisation of an employee who has made a protected disclosure. “Penalisation” is defined at s.3 2014 Act as:

any act or omission that affects a worker to the worker’s detriment, and in particular includes –

(a) 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) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and,

(i) threat of reprisal.

The Complainant was not dismissed, nor was he subjected to any of the above treatment.  No acts or omissions were carried out by the Respondent which affected the Complainant to the Complainant’s detriment.  In the event that it is found that the Complainant was subjected to any of the above treatment, it is denied that same was as a result of the Complainant raising a protected disclosure. 

While it may be held that the content of certain emails is objectionable, these do not constitute an act or omission on the part of the Respondent that affected the Complainant.  This is because the only harm caused by these emails was the purported offence to the Complainant.  The Complainant is unable to identify any act or omission by the Respondent that affected him, other than his own act, namely to have gained unauthorised access to his employer’s emails and claimed offence at what he found.  It is the Complainant himself who gained unauthorised access to these emails and now seeks a legal remedy for his alleged offence at their content.

The Respondent denies all of the claims raised by the Complainant.   In particular, it is denied that the decision to appoint a Chief Operating Officer to whom the Complainant would report was a decision taken as a result of:

(a) The Complainant ’s disability

 (b) The Complainant ’s raising of a protected disclosure. 

In particular, this is denied on the following basis:

(a) The decision to appoint a new person to whom the Complainant would report was taken and communicated to the Complainant on or about 20 April 2022, prior to the Complainant raising any possibility of his suffering a disability and prior to the Complainant ’s raising of a protected disclosure.

(b) This is evidenced by the Complainant’s correspondence via his solicitor on 26 July 2022.

Further, it is denied that the Complainant ’s communication of 06 May 2022 constitutes a protected disclosure.  Per Bolger et al. in Employment Equality Law (2022, 2nd Ed. at 7.62) “Impairments may be visible or invisible, real or imputed, but the common denominator is the response to the belief in such impairment.”  At the time that the Complainant was informed of the changes to the workplace structure, on 20 April 2022, the Respondent was only aware that the Complainant was absent from work for medical reasons.  The Respondent had no basis to believe the Complainant was subject to an impairment that would constitute a disability. 

The Complainant and the Complainant ’s solicitor make criticism of the Respondent with reference to documentation obtained by the Complainant without authorisation.  Notwithstanding that fact, the Complainant was entitled to raise a grievance in respect of these documents. The Complainant did not do so.  Instead, the Complainant resigned. 

Further, the Complainant did not resign immediately.  The Complainant went on sick leave and after some period of time, and without taking any further steps except for sending letters via his solicitor, the Complainant resigned.  The Complainant was determined to resign, regardless of the invitations made to the Complainant to engage with the Respondent’s grievance processes. 

Further, the Complainant asserts that there was a “conspiracy” to dismiss the Complainant.   This assertion is made contrary to repeated assertions made to the Complainant, directly and through his solicitor, that his role was available to him at any time.   If there were such a conspiracy, the Complainant would have been dismissed.  There was no such conspiracy.  The Complainant was not dismissed.

Summary of direct evidence of Respondent witness Mr Philip Cassidy (hereafter PC) on oath

PC confirms he is a director of the Respondent company.  PC states he had a very good relationship with the Complainant.  He described the Complainant as very pleasant, willing and a hard worker.  PC’s recollection of the meeting in November 21 attended by the Complainant, JD and himself was that they met in the back office as the Complainant had said he wanted a chat.  The Complainant articulated concerns about his ability to carry out his role.  PC states he tried to encourage him by advising him to stick with it and we will get some support but stick with it as it will be really good for your CV.  The witness states he would he supportive of all the team and tells them he is available 24/7 and they all have his mobile number.  He states they value people like the Complainant in the organisation as it is so hard to get good people and it is a rapidly expanding business. 

PC states there had been a requirement to hire a COO for some time with cash flow experience etc.  PC states JD identified the person appointed as she had corporate experience too and she had a lot to bring to the table.  PC confirmed the majority of his communication with the Complainant would be through What’s App but he had sat with the Complainant and his friend at the Christmas party, and he was a pleasure to be around.  PC states the Complainant had expressed concern about the role and they wanted to work with him.

Summary of cross-examination of Respondent witness PC

Mr O’Doherty asks the witness if he is the Complainant’s boss as much as JD to which he replies yes.  The witness is asked when other than at the meeting referenced above on 21 November did the Complainant raise concerns about his job.  PC states there was a one on one before Christmas where he wanted to step aside but he encouraged him to keep at it.  When asked if there any notes taken of this meeting the witness replies he’s sure there were to which Mr O’Doherty responds they are not exhibited.

The witness is asked if he was involved in the hiring of the Complainant to which he replies no and when asked if he was involved in the appointment of the COO he replies no and that it was a completely different role to that of the Complainant as there was business coming from every direction.

Mr O’Doherty refers to the emails and in particular the email with subject line “new GM City West” to which the witness replies he does not do titles and he never has and call it whatever you like she was brought in to manage revenue affairs.  When asked if he accepts that the Complainant was GM the witness replies yes.  When asked why the new staff member is called a GM in some documents / emails and a COO in others and that the Complainant’s nose might be out of joint to which the witness replies no and refers to the meeting he had in November where the Complainant indicated he wanted to step aside.  Mr O’Doherty puts it to the witness that the COO took most of the Complainant’s job to which he replies there is a crossover in every business but particularly in 24/7 business and if the COO is not available somebody has to take up the mantle and if the GM not available same story – there has to be a crossover. 

Mr O’Doherty refers to an email that reads any problems just sack him just pay him his entitlements and move on.  When asked to explain what he meant by this the witness states there was lots of toing and froing going on in the background and pay him his dues means make sure he is looked after if this is the way this is going as we thought a lot of him.  Mr O’Doherty puts it to the witness that this is inconsistent with hiring a COO to which the witness replies at no time was the Complainant called aside and asked to leave as all we wanted was to help him and bring him along from the first day.

Summary of direct evidence of Respondent witness Mr Ronan Liddy (hereafter RL) on oath

RL is financial controller in City Break Apartments and also oversees the financial aspect of City West.  He states the Complainant came in as a reservations agent and was promoted quickly to GM.  RL states he has lots of admiration for the Complainant and his strength was at front of house, but he was not strong from a systems perspective particularly payments.  There were some issues with staff and some performance issues that accelerated as the business underwent a rapid expansion.  The Complainant had indicated he was feeling the pressure.  RL states they knew revenue was going to increase and the new COO would work in both town and City West to help the Complainant along and to assist him as he (RL) was spending a lot of time in City West which was not really his role, and it would help to free the Complainant up for what he was good at.

RL stats they had received the doctor’s certs for when the Complainant was out of work but they didn’t say anything – just not fit for work.  The hiring of a new COO was no reflection on the performance of the Complainant, but things were getting a lot busier and they needed assistance on all levels. 

Summary of cross-examination of Respondent witness RL

Mr O’Doherty’s opening line of questioning of the witness focuses on the evidence of the Respondent that there were issues regarding performance from a payments perspective and questions how these identify a shortfall in performance to which the witness replies they are indicative of how deposits that should have been charged weren’t to which Mr O’Doherty replies he does not accept that these were performance issues.  Mr O’Doherty puts it to the witness that he said in evidence that the Complainant was feeling the pressure in November to which the witness replies there was nothing formal said by the Complainant after that. 

The line of questioning then focuses on the emails to which the witness is central.  It is put to the witness that the Complainant denies making a reference to a WRC complaint and the witness states he heard this from somebody in the office.  The witness states this would be of concern to him in his role of financial controller of the company.    When asked what the witness means when he said play the game he replies it was an off the cuff comment and there was no game to be played.  When asked why they might offer him counselling the witness replies they weren’t sure what his illness was as certs told them nothing.  It is put to the witness that the Complainant’s argument is that he was demoted after the car crash and subsequent mental health issues to which the witness replies “he never told me and I am not a doctor.” 

Mr O’Doherty makes reference to general office chat and a perception that the Complainant was demoted to which the witness responds that his position remained the same and the COO was there to oversee him as a new role in the organisation due the rapid expansion.  When asked about the new organisational chart the witness states there were lots of changes happening and they would have discussed it with the Complainant.  When asked if they had negotiated this with him the witness says he was only in work one day.  Mr O’Doherty puts it to the witness that the Complainant says he did all the COO tasks before he went on sick leave with which the witness does not agree.  Mr O’Doherty puts it the witness that the emails clearly show the Complainant was replaced and that it was entirely reasonable for him to walk out. 

Summary of direct evidence of Respondent witness Mr Johnny Drake (hereafter JD on affirmation)

JD states he is a director of the Respondent company and acts as MD.  JD states the Complainant came in as a reservations agent in March 2021 and he is a nice guy with good energy.  Matteo was GM but he went back to Croatia and he (JD) approached the Complainant as he had the most experience and he was given the role with increased salary.  There were some issues about payments – extended stays where people hadn’t paid.  The Complainant reached out to him in November because he (the Complainant) wanted to meet off site.  JD met with him in the Liffey Valley and he said he was struggling with the role and the position.  JD states he told him they were there to support, it’s a 395-bed property and he was only 23 but they always bring people on and train them up. 

JD states he knew he was struggling as the numbers were growing dramatically and he states he knew the Complainant needed more support.  JD states in January / February they got the government contract for an additional 26 rooms to accommodate 78 Ukrainians.  That pipeline then increased dramatically to 240 rooms.  JD states this is not a B & B it is a huge property with a lot of moving parts.  The COO hired has 14 years’ experience in hotels but most important for them she has experience as a senior corporate accounts manager with a revenue administration background.  Her function in the company is revenue administration and corporate accounts.  JD states the Complainant as GM would look after the day-to-day operations.  The COO has very good experience she is a mature lady, and she would provide excellent team building experience for the Complainant.  JD states in reference to the emails that he was frustrated by that time as he was trying to bring the Complainant on, and he felt it was being rejected and not embraced.

Summary of cross-examination of Respondent witness JD

Mr O’Doherty confirms with the witness that he gave him the job in March and promoted him in August and asks where are the revised terms and conditions to which the witness replies they are with HR and when asked why they are not exhibited JD replies he does not know.  When asked if the duties were put down in writing the witness responds HR would look after that.  Mr O’Doherty asks the witness how would the Complainant know what to do to which the witness replies he had worked under Matteo for six months and how can he now argue his role was taken away from him if he is saying he did not know what his role was in the first place. 

Mr O’Doherty refers to road traffic accident on 8 April and puts it to the witness that he wasn’t aware of the extent of the Complainant’s injuries to which the witness replies correct.  JD states he got a text at 8.30am and he tried to call him to see if everything was ok and left a message to say call him if he needed anything.  JD states the Complainant called him that night to say thanks and that he was safe and well. 

Mr O’Doherty asks the witness if he referred the Complainant to occupational health when he returned to work in line with Health and Safety legislation to which JD responds they had a back to work meeting in a restaurant in Parnell Street.  It is put to the witness the Complainant actually returned to work on 20 May and there is a statutory requirement on an employ to refer to occupational health.

It is put to the witness that he has heard the Complainant’s account of the meeting on 20 April where he offered him the No2 job as he was bringing in a COO to help with the business and the growth to which the witness replies he would not have used the term No2.  It is put to the witness that the Complainant has stated he (JD) wanted an immediate answer to the proposal which the witness denies and states “this is not correct.”  JD states they discussed issues since the crash and the issues the Complainant was having with his insurance at that meeting. 

It is put to the witness that there was an understanding on the Complainant’s part that if somebody better came along they would get the role to which the witnesses says no that is not correct but they were aware there were struggles. 

It is put to the witness that the Complainant says he phoned him on 27 April to say he was ready to return and he gave evidence that JD said he was replaced by Jenny and she’s doing a brilliant job and that he asked the witness if he was redundant and the Complainant states the witness replied if that’s what he wanted to call it.  JD responds this is not correct but they needed somebody in the interim – they were unsure as to when the Complainant would be back. 

Mr O’Doherty makes reference to the email sent on or around 06/05/2022 (set out above) and asks the witness if he accepts if he is on notice about PTSD, depression and anxiety to which the witness responds yes to which it is put to him that in the August letter he states he is not aware.  The witness is asked if he accepts the submission is incorrect to which the witness replies they did not receive any detailed medical certificates.

Mr O’Doherty’s line of questioning now turns to the emails.  He asks the witness when he is talking about the Complainant’s position what does he mean to which JD replies the job title would remain the same the roles would have remained the same and the COO was hired to specifically oversee the accounts.  The witness is asked if other than the finance piece is he saying no other role was handed to the COO to which the witness responds correct. 

Mr O’Doherty refers the witness to the company handbook where it provides persistent absence will be referred to company appointed doctor.  The witness states they had 14 weeks of certs they never took issue with them as they always thought the Complainant would be back. 

Mr O’Doherty asks the witness if there were performance issues why did he not communicate his dissatisfaction.  The witness responds he did not express his dissatisfaction and they brought somebody in with experience and asks of Mr O’Doherty is “is there a rule you cannot do that?”   

When asked why deficiencies in performance were not addressed JD stated he only come back for a few days.  JD stated the Complainant was never demoted from his position. 

CA-00053318-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the manner in which events unfolded during the tenure of the Complainant’s employment in the Respondent company.  

Notwithstanding, I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. 

The issues for consideration by me in the within complaint are as follows:

(1)    whether or not the Complainant was subjected to discriminatory treatment on the grounds of his disability contrary to section 8 of the Act;

(2)    whether or not the Complainant was subjected to victimisation contrary to section 74(2) of the Act;

(3)    whether as a person as with a disability within the meaning of section 2 of the Act, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to section 16(3) of the Act;

(4)    whether or not the Complainant was discriminated against in conditions of employment; and

(5)    whether or not the Complainant was dismissed for discriminatory reasons. 

The first issue that I will consider relates to the claim of discrimination on grounds of disability. 

(1)    Claim of discrimination on grounds of disability:

The Relevant Law:

Section 6 of the Employment Equality Act, 1998 states:

6.—F14(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,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) 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”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

The within complaint is made pursuant to the Employment Equality Acts on the disability ground.  Discrimination on grounds of disability occurs where a person with a disability is treated less favourably than another is, has been or would be treated, where the other person is a person without a disability or a person with a different disability. 

The Burden of Proof

Section 85A (1) provides as follows:

—(1) “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 requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in so doing, then, and only then, is it for the respondent to prove the contrary.  The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

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

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  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.”

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…provides for the allocation of the probative burden in cases within its ambit.  This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations, 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.”  

Disability:

The interpretation section of the Employment Equality Act, 1998 provides the following definition of disability:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person withoutthe condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

It is well settled that for an employee to come within the protections of the Act, they will first have to show that they suffer from a disability.  This issue has been addressed by the Labour Court on a number of occasions included among which is the case ofA Worker v. An Employer [EDA 1927] cited by the Respondent and also in the case of A Retail Company v. A Worker [EDA 2012]where the Labour Court held as follows:

“In circumstances where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners.  The failure of the Complainant to call such a practitioner in evidence means that the Court is left entirely to rely on the written evidence provided.”

“The Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise.  The burden of establishing this falls on the Complainant.  In view of the fact that insufficient evidence has been provided to the Court on this issue, it is not possible for the Court to determine that the Complainant had a disability at the time in question.” 

The Relevant Facts:

It is common case the Complainant was involved in a road traffic accident on 08/04/2022.  I note the Complainant commenced submitting medical certificates to the Respondent on 11/04/2022 and this continued until such time as the Complainant resigned on 18/08/2022 interspersed by a brief return to the workplace from 22/05/2022 until such time as a further medical certificate was submitted on 02/06/2022. 

I note the Complainant claims he suffers from what he describes as mental health issues namely PTSD, depression and anxiety.  I note the Complainant averred at hearing that his mental health deteriorated rapidly after the accident; he suffered from flashbacks and had difficulty sleeping. 

I am satisfied the case advanced by the Complainant is that he is suffering mental health issues arising out of the road traffic accident on 08/04/2022.  However, an assertion by the Complainant unsupported by credible evidence is insufficient to establish facts from which a disability can be inferred so as to shift the burden of proof to the Respondent.  In the within case the written evidence provided was the medical certificates provided by the Complainant to the Respondent.  The Labour Court in A Retail Company v. A Worker [EDA 2012]described the medical certificates in that case as “scant on detail.” 

I find the medical certificates in the within case are not merely “scant on detail.”  I note the Complainant’s medical certs contain absolutely no detail whatsoever.  There has been no evidence of any substance opened before me in support of the claimed disability.  The medical certificates are of no evidential value in this regard as they merely provide the dates they cover and no narrative whatsoever in respect of the nature of the reason the Complainant is being declared unfit for work apart from one medical certificate dated 16/04/2022 which provides the narrative “medical illness.”

I am of the view the medical certificates provided by the Complainant cannot be read as an indication that Complainant was suffering from a disability.  I note there were no medical doctors or psychiatrists presented at hearing to support the claim that the Complainant had a disability.  It is significant that no medical evidence was submitted by or on behalf of the Complainant.   

Therefore, no direct medical evidence was presented that the Complainant suffered from PTSD, depression and anxiety.  It may well be asserted by the Complainant that he suffers from PTSD, depression and anxiety but such an assertion unsupported by credible evidence is insufficient to establish facts from which a disability can be inferred so as to shift the burden of proof to the Respondent. 

Victimisation

Turning now to whether or not the Complainant was subjected to victimisation contrary to section 74(2) of the Act.  The Complainant claims that while on certified sick leave he was removed from his role as General Manager and demoted to Reservation Agent.  The Respondent disputes the claim of victimisation in its entirety and states the appointment of the new COO to whom he would report was discussed with the Complainant on 20/04/2022 during an informal meeting with the Respondent while he was on sick leave.  The Respondent submits the Complainant was not removed from his role and his position was confirmed to him on multiple occasions. 

The Relevant Law:

Section 74(2) of the Acts is set out in its entirety above.  The Labour Court has held that the definition of victimisation contained in that section contains essentially three ingredients and in the case Department of Defence v Barrett [EDA 1017] the Court held that in order to make out a claim of victimisation under the Act it requires that: -

“(a) the Complainant had taken action of a type referred to at section 74(2) of the Acts (a protected act),

(b) the Complainant was subjected to adverse treatment by the Respondent, and,

(c) the adverse treatment was in relation to the protected act having been taken by the Complainant.” 

In identifying a protected Act for the purpose of advancing his claim of victimisation the Complainant claims that while on certified sick leave he was removed from his from his role as General Manager and demoted to Reservation Agent.  The Labour Court in Department of Defence v Barrettheld “the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected referred to in section 74(2) of the Acts”.  

Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts it is necessary that the Complainant demonstrates the connection between his actions in relation to defending his rights under the Acts and the adverse treatment complained of. 

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of section 74(2). 

Having carefully considered the three components that must be present for a claim of victimisation as set out by the Labour Court, I am unable to find that the Complainant took any action which could be construed as a protected act, even by imputing the most expansive meaning possible to the subsection, prior to the date on which the alleged detriment occurred. 

I am not satisfied the alleged detriment arose from any act of the Complainant – protected or otherwise.  I am not satisfied there was a detriment.  It was not disputed at hearing the Respondent’s business had undergone an exponential increase with the awarding of a government contract for an additional 26 rooms to accommodate 78 Ukrainians in January / February followed by which was a further dramatic increase to 240 rooms.  I am satisfied there was a reasonable requirement on the part of the Respondent to put measures in place to manage this increase in business over a relatively short time period and it was reasonable for the Respondent to do so. 

I am satisfied it was reasonable to hire somebody with the relevant experience as a senior corporate accounts manager with a revenue administration background.  I am satisfied these were skills the Complainant did not possess based on the fact there was no evidence put forward at hearing that the Complainant was in possession of those specific skill sets now required by a business that had undergone such a seismic change.  The Complainant described himself as a “peoples person” and he made no reference whatsoever to his qualifications or his experience of revenue administration.   When the Complainant refers to his experience in oral evidence he states he worked in the Red Cow but does not elaborate any further apart from repeating his description of himself as a “peoples person.”  

I am satisfied the evidence of the Respondent that the Complainant would look after the day-to-day operations while the responsibility of the COO would be revenue administration and corporate accounts is reasonable and cannot be construed as a detriment in the same way as I cannot interpret a period of time on sick leave as a protected act under the Acts. 

Furthermore, I note the Complainant was notified time and time again by the Respondent that he had not been demoted and that his position, job title and salary remained the same.     

Thus, the Complainant has failed to establish a prima facie case of victimisation contrary to section 74(2) of the Acts. 

Applying the law and the authorities to the facts of this case, I find that the Complainant to establish facts from which victimisation within the meaning of section 74(2) of the Acts can be inferred.  Accordingly, I find that the Complainant is not entitled to succeed in respect of this element of his complaint under the acts. 

Reasonable Accommodation

The Complainant asserts that the Respondent failed to provide him with reasonable accommodation for his disability.  I note in the case of A Worker v. An Employer [EDA 1927] the Labour Court held that the Respondent was “not provided with any medical evidence that the Complainant had a disability” and that the Respondent “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence.”   It is an undeniable fact there is no mention of a disability or of any accommodation required by the Complainant in any of his medical certificates.  As there was no medical evidence presented by the Complainant to show either that he had a disability or that he required reasonable accommodation, I find the Complainant has not established a prima facie case of discrimination in respect of this element of his complaint. 

Discriminated against in conditions of employment

The Complainant submits the Respondent has demoted the Complainant as a result of his disability rather than accommodated in its written submission under the heading “conditions of employment.”

The Respondent submits the Complainant was not demoted as was articulated to him by the Respondent on multiple occasions.  The Respondent submits it was agreed between the parties the Complainant was struggling in his role for some months prior to April 2022.  The Respondent submits the role of COO was created and a person employed to fill the role.  The Respondent submits this did not constitute a demotion of the Complainant and his role and job title remained the same.

I am satisfied on the basis of the evidence presented at hearing the Complainant was finding the role challenging and this was ever before the business underwent such a significant period of growth.  The Complainant averred at hearing the job was a “massive change for him” and there were “issues getting staff” and that it was “quite a difficult journey going from being friends with people to managing them.”  I am satisfied it was reasonable for the Respondent to upskill in terms of resources to meet the challenges of a business that had increased its revenue by 4X.  I am satisfied the Respondent was entitled to add a management layer to meet the increasing demands of the business by adding a commensurate layer of increased accountability and responsibility in the organisational structure to oversee same.   I cannot find this constituted a demotion for the Complainant whether as a result of a claimed disability or otherwise in light of the fact the Complainant was not demoted despite his allegations of same.   

Dismissed for discriminatory reasons

The Complainant submits he was dismissed by reason of his disability.  The Respondent submits the Complainant was not dismissed as he resigned. 

The final element of the Complainant’s complaint under the Employment Equality Acts that I must consider relates to the claim that he was discriminatorily constructively dismissed from his employment.  The Complainant did little to advance or to engage with this element of his complaint at hearing.  Notwithstanding, I have carefully considered the written submissions and the oral evidence adduced at hearing.  There is a significant overlap in the evidence introduced regarding all five elements of this complaint under the Employment Equality Acts and I am satisfied this is the appropriate backdrop against which I will base my conclusions albeit what remained at front and centre of hearing was the matter of the email thread photographed by the Complainant.   

Section 2(1) of the Acts defines dismissal as including:

“the termination of a contract of employment an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it would have been reasonable for the employee to do so…”.

The Labour Court comprehensively addressed the issue of constructive dismissal under Employment Equality legislation in the case ofAn Employer v. A Worker (Mr O) (No 2) [EED410] wherein the Court noted the definition was practically the same as the definition of dismissal contained in the Unfair Dismissals Acts.  The Court held that the tests for constructive dismissal developed under that legislation i.e., the “contract” test and the “reasonableness” test were applicable tests under the Employment Equality legislation. 

The Labour Court held in reference to the “reasonableness” test as follows:

“There is, however, the additional reasonableness test which may be relied upon either as an alternative to the contract test or in combination with that test.  This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer.  Thus, an employer’s conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving.  Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee resigning there and then.”

When referring to the “contract” test the Labour Court held as follows:

“It is not suggested that the respondent breached any express term in the complainant’s contract of employment.  It is, however, settled law that ever contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.”

The reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

In Berber v. Dunnes Stores [2009] 20 ELR the Supreme Court held as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

It is well established and a generally accepted proposition that an employee is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal.  This is clearly set out in Reid v. Oracle EMEA Ltd [UD1350/2014] where the EAT stated:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

I note the seminal EAT case Conway v. Ulster Bank Ltd.  [UD474/1981] where it was held as follows:

“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.  An elaborate grievance procedure existed but the Appellant did not use it.  It is not possible for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

The Labour Court in Ranchin v. Allianz Care S.A.[UDD 1636] held as follows:

“In constructive dismissal cases, the Court must examine the conduct of both parties.  In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” 

The question I must decide in the instant case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.  The burden of proof rests with a complainant to set out the facts that show, because of the actions of his employer, he had no alternative but to resign. 

The entirety of the case relied upon by the Complainant in the within case is based on an email thread which the Complainant read and photographed when he logged on to the Desktop in the office and he states, on oath, the email account was open.  This is the email account of JD and the contributors to the email thread are the other two Respondent witnesses.       

Almost the entirety of the hearing focused on the aforesaid emails and their content and each Respondent witness was cross-questioned by the Complainant’s representative in relation to what they had written in said emails and why they had written it.  The entire case as presented by the Complainant was constructed around this email thread.    

However, the inexorable fact is the matters before me for adjudication in CA-00053318-001 are complaints under the Employment Equality Acts which I am bound to consider in line with the relevant legislation and legal precedent.  In so doing, I have reviewed the submissions made, the authorities relied upon by the parties and the evidence of the witnesses at hearing. 

It is a fact that the Complainant was not dismissed.  The Complainant resigned and in order for him to succeed in a claim for discriminatory constructive dismissal he must establish he had no reasonable alternative but to resign. 

The “contract” test:

The breach of employment contact being alleged must be either a significant breach going to the root of the employment contract or one which indicates that the Respondent no longer intends to be bound by one or more of the essential terms of the employment contract.

I find that the Complainant has not pointed to any action on the part of the Respondent that demonstrates that there was a significant, or for that matter, a minor breach of his contract.  I note the Respondent continued to engage with the Complainant throughout, since his accident and during his subsequent sick leave.  The Complainant emailed the Respondent on or around 06/05/2022 (narrative of email set out above under summary of direct evidence of Complainant) seeking clarification on several matters which was duly provided. 

The Complainant in the aforesaid email raises the issue of getting treated in a less favourable way and states his belief he has been subjected to bad treatment by the management.  The Complainant does not identify the person or persons to whom he is treated less favourably.  I note the Complainant requests in the aforesaid email of 06/05/2022 that if the Respondent has any further questions to please contact him by email and I note from 26/07/2022 onwards communication to the Respondent from the Complainant occurred solely through his legal representative. 

The Respondent continues to engage with the Complainant through his legal representative right up until the end of August and following the Complainant’s resignation on or about 18/08/2022.   The Respondent wrote to the Complainant’s legal representative asking that the Complainant reconsider his decision to resign and stating their willingness to appoint an independent investigator if the Complainant wished to utilise the grievance process.  I cannot find this level of engagement is indicative of an employer who no longer intends to be bound by one or more of the essential terms of the contract of employment.    

The “reasonableness” test:

I can find no evidence of any action on the part of the Respondent that the Complainant can identify that was so unfair and unreasonable that he had to resign.  The Complainant accepted at hearing that the Respondent was entitled to review its staffing and management structure in light of the dramatic increase in business and accepted it was reasonable that someone would need to do his job while he was on sick leave.  I note the Complainant remains firmly entrenched in his view that he has been demoted due to the fact there was a layer of management added by the recruitment of someone with skills the Complainant did not appear to have to whom he would now report.      

I note the content of the email thread ventilated at length at hearing and I have no doubt the Complainant was offended by what he read.  Having considered the content of the aforesaid emails and having noted the confusion and misperception evident among the three contributors thereto, it appears to me the Respondent had no idea how to manage the Complainant’s absence on sick leave by this stage or indeed how to manage the Complainant and deal effectively with the Complainant’s immutable belief he had been demoted and his persistent insistence in this regard despite all their assurances to the contrary. 

I am of the view these were matters that the Respondent should have involved its HR function in from the outset because it is apparent a robust HR intervention was required.  I note the contents of the emails demonstrate the contributors thereto were out of their depth in their attempts to manage the Complainant’s sick leave and indeed in attempting to manage the Complainant and I do not intend any disrespect here by this observation.   I note the word “redundant” was bandied about by both parties and it is clear either party had no idea that this was a situation that was never going to fall within the parameters of a redundancy.  I note the Complainant insists he was demoted despite all the assurances to the contrary from the Respondent. 

The word demotion in everyday parlance is synonymous with a reduction in pay and with a diminution in title.  This clearly was not the case here despite the Complainant’s insistence that he was demoted.  I am satisfied the Complainant’s claims of demotion are simply not substantiated or borne out by the facts.  There was no financial detriment incurred by the Complainant.  The Complainant retained his GM title.     

I am of the view it would have been prudent for the Respondent to enlist the assistance of HR prior to even embarking on the conversation with the Complainant regarding the appointment of a COO.   What should have been a very straight forward conversation morphed into such a contentious issue for both parties which could and should have been avoided.   I am of the view it would have sufficed to notify the Complainant there would be a change in reporting lines as the rapid expansion of the business required the appointment of someone with skills he simply did not have or if he did this was not canvassed at hearing. 

I am of the view organisational structure is a matter for the director or the executive team of a company.  Managerial structures are not generally agreed or negotiated with those within those structures.  This would be consistent across public and private sector organisations.  I am satisfied the appointment of a COO was crucial for the development of the Respondent company and it may have changed the scope of the Complainant’s role or certain elements of his role but to what extent, if any, remains undetermined.  I note the Complainant only returned to work for one week.  I am satisfied that the Complainant could not have been in a position to determine if his role had changed and to what degree as he had only been in work for one week.  I am of the view this is a very short period of time for someone to assess what has changed in their role, if anything, that might support his allegations that his “job position had been lowered and taken from him.”

I am satisfied the Complainant knew or ought to have known in his role as GM that the significant increase in business necessitated the appointment of someone with skills he did not have.  Clearly if the role of COO was one for which the Complainant had the necessary skills and experience then fairness would dictate that he should have been provided with an opportunity to apply for the position.  In the event the Complainant did have the necessary skills and experience for the role of COO, and it was a case he was passed over for interview by the Respondent, then this could certainly be viewed as unreasonable behaviour on the part of the Respondent but on the basis of the evidence as presented, I do not find this to be the case. 

I cannot find the conduct of the Respondent meets the standard of being “an arbitrary, capricious or abusive exercise of managerial power” as described in Gogay v. Hertfordshire County Council [2000]IRLR 7030, so that it made it reasonable for the Complainant to resign.  Based on my observations at hearing the Respondent witnesses presented as three individuals focused on the growth of the business and on how best to manage that but with little or no HR expertise.  Regardless of the frustration and impatience with the Complainant evident in the much canvassed email thread I note the three witnesses spoke highly of the Complainant in terms of “very pleasant, willing, a hard worker” and “he was a pleasure to be around” as stated by PC.  RL states he has “lots of admiration for the Complainant and his strength was front of house.”  JD referred to the Complainant as “a nice guy with good energy.”  It is regrettable the employment relationship ended in the manner in which it did.   

Having carefully reviewed all the facts as presented to me I find the Complainant has failed to satisfy the burden of proof that the Respondent engaged in conduct that made it reasonable for the Complainant to terminate his contract of employment.  Reasonableness goes both ways and it is well-established an employee is required to act reasonably by using the employer’s grievance procedure to try and resolve the issues that are threatening to lead to resignation before resigning.

In the circumstances, I find the Complainant resigned from his employment of his own volition and was not constructively dismissed within section 2 of the Acts.  Accordingly, I find that his complaint of discriminatory constructive dismissal must fail. 

 CA-00053318-003

The Complainant asserts he was penalised or threatened with penalisation by the Respondent for having made a protected disclosure under the Protected Disclosures Act, 2014.  The Complainant alleges the Respondent conspired to remove him from his role on his agreed return to work.  The Complainant submits his email of on or around 06 May (set out hereunder) constitutes a protected disclosure pursuant to section 5 of the Act. 

The Respondent submits it remains unaware of any purported protected disclosure and does not accept that any protected disclosure was made.

The Relevant Law:

The definition of “protected disclosure” is set out at section 5(1) of the Protected Disclosures Act, 2014, “the Act.”

“For the purposes of this Act ‘protected disclosure’ means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure or relevant information…made by a worker in a manner specified in section 6,7,8,9 or 10.”

Sub-sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.  Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.  Sections 6 to 10 set out a tiered disclosure process and provide that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person. 

For our purpose regarding this complaint therefore, a “protected disclosure” is the disclosure by an employee to his or her employer, or another person, of relevant information.  Section 5(2) of the Act provides that:

“information is ‘relevant information’ if –

(a)    In the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b)    It came to the attention of the worker in connection with the worker’s employment.”

Section 5(8) provides that in these proceedings at the WRC, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.” 

There are three components to the making out of a claim of penalisation under the Protected Disclosures Act:

1.       An employee must have a reasonable belief that a wrongdoing is occurring, has occurred or might occur;

2.       They must communicate what they know about the alleged wrongdoing to a prescribed person, their employer, a government minister, a legal advisor or another person;

3.       They must show that, because of their communication about the alleged wrongdoing, they have been penalised. 

Does the Complainant’s email to the Respondent of on or around 06/05/2022 constitute a “protected disclosure” within the meaning of the Act?

I set out hereunder the text of the aforesaid email for ease of reference:

I am writing this email to raise the issue of getting treated in a less favourable way. I believe that I have been subjected to a bad treatment by the management, Which I had never expected.

As you are both aware I was involved in a car accident on Friday the 8th of April 2022, On my way to work.  

Since then I have been signed off work by my GP due to post traumatic stress disorder/anxiety and now depression since my job position has been lowered and taken from me with no explanation as to why.  I feel I was ready to come back to work on Monday the 9th of May 2022 but as advised by Johnny on the 5th of May 2022, I would be returning as a reservations agent. I was never notified that if I was off sick and covered by GP certs that my position would be on the line or taken away from me.

In November of 2021 I brought to both of your attention that I felt like I was not up to standard and I suggested that I would maybe step down.  However as we had all agreed it was a very stressful time with the Christmas period etc and that I would remain as a General Manager.  I was told by both of you that I was more than capable for this role.  Since then everything has been running very smoothly and there has been no talk or no mention of anyone coming in that is more senior or more experienced than me. 

I feel that since my car crash the management is using my mental health as an excuse to lower my title, I feel you are using the talk we had in November against me and I feel this is really unfair to do as I have been a very loyal and committed member of staff for over a year now.  I stepped up as a general manager and committed when no one else did, Since then I have worked extremely hard to get the property and the staff to we’re it is today.

Not only have you told me that you were hiring someone more experienced, You have passed my position on to one of my reception staff members who is still in training to be a reservations agent with no management experience.

Please see attached below all of my up to date medical certificates and also my letters of employment stating my role. 

I trust that the management will take this matter very seriously and I hope you have a response by the end of the day. 

If you have any furtherquestions please contact me via email.

This claim is heard under the terms of the Protected Disclosures Act 2014 in operation at the time of the disclosures claimed which is on or around 06/05/2022 prior to the enactment of the Protected Disclosures (Amendment) Act, 2022 on 01/01/2023. 

I referred above to section 5 (8) of the Act and the provision that in this enquiry “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved that it is.” Having considered the Complainant’ evidence I am satisfied that he did not make a protected disclosure in his email to his employer on 06/05/2022. 

I cannot see any basis on which the Complainant could have formed a reasonable belief that the matters raised in the above email could conform to the definitions of a protected disclosure in the 2014 Act.  The Complainant is raising issues about himself and of concern to himself.  I find the contents of the email do not meet the test of information or relevant information of a wrongdoing for the purposes of section 5 of the 2014 Act.  The contents of the email relate exclusively to the Complainant and to his clearly manifest discontent around his duties, working procedures and broadly speaking his terms and conditions of employment together with a generalised allegation that he has been “getting treated in a less favourable way.”  I am satisfied the matters outlined in the email bear all the hallmarks of an individual grievance and do not constitute a protected disclosure.

I cannot find that the matters set out above by the Complainant disclose relevant wrongdoing within the ambit of the Act. 

As I find that the Complainant did not make a protected disclosure there is no basis for an investigation into his allegation that he was penalised.  Accordingly, this does not arise for consideration.    

It follows that the complaint of Penalisation pursuant to the Protected Disclosures Act, 2014 is not well-founded. 

Disability; reasonable accommodation; victimisation; discriminatory constructive dismissal;