Complainant

Respondent

Parties

Kristine  Viksna

Cardinal Health Ireland Manufacturing Ltd

Representatives

Judy McNamara, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040173-001

30/09/2020

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

CA-00040173-002

30/09/2020

The Complainant commenced employment as a General Operative, working full-time with the Respondent in November 2005.  She raised two complaints in relation to her employment with the Respondent as follows:

·       CA- 00040173-001

Complaint under Section 7 of the Terms of Employment (Information) Act, 1994 alleging that the Respondent failed to provide her with a written statement of her terms of employment.  She further alleged that, in the context that the company’s name had changed 4 times and her shift arrangements had changed during the course of her employment she had never received an update to her contract and that policies and procedures relating to her employment, the safety statement and the staff handbook were not available to employees.

·       CA -00040173-002

Complaint under Section 77 of the Employment Equality Act, 1998alleging discrimination on the prohibited grounds of age, disability and race, victimisation, failure to provide reasonable accommodation for a disability, discrimination in conditions of employment, harassment and other.

The Complainant noted in her complaint form that the most recent date of alleged discrimination occurred on 13th July 2020 and her compliant was submitted to the Workplace Relations Commission on 30th September 2020.

The Respondent is a company manufacturing and distributing pharmaceutical, medical and laboratory products, and providing performance and data solutions for healthcare facilities.  The Respondent employs approximately 48,000 employees worldwide, with a total of 370 employees in this specific Irish facility.  The original company that employed the Complainant changed its’ name in 2007 and merged with another company in early 2015.  The current Respondent acquired the business in the summer of 2017.  The Respondent position was that the business was established for over 40 years, and that whilst the name had changed over time, the site continued to manufacture the same products, employees retained continuity of service and the CRO and registered name remained unchanged over that period of time.  The Respondent contended that employees continued on the same terms and conditions of employment over the years and that no changes were implemented.  Furthermore, the Respondent refuted that it ever acted in a discriminatory manner, but rather had acted, at all times, in the best interests of the Complainant in the context of business needs and its duty of care to all employees, including the Complainant.

CA- 00040173-001

In her complaint form, the Complainants’ specific complaint stated that she did not receive a statement in writing of her terms of employment.  In setting out the details of that allegation on the complaint form she stated that she had been working for the company for 15 years and that during the course of that time the company name had changed four times, that she had also changed her shift arrangements but that she had never received an amended contract.  She also alleged that policies and procedures, safety statement and the employee handbook were not available to employees.

In her submission the Complainant stated that her original contract contained the following provisions:

Under the heading ‘Responsibilities’: “the normal company rules and regulations in force now or introduced in the future will form part of the conditions of this offer of employment”

Under the heading ‘Other Information’: “other terms and conditions not specified in the above are covered by local policies and procedures, which are in existence at the location.”

The Complainant submitted that according to the ‘Business Conduct’ company policies should be available on the website but that they have not been available there for approximately 3 years and that it takes weeks to get to see them.  She submitted that even after her repeated requests for copies of policies and procedures she still, at the time of her submission, had not received all those requested.  She submitted that she felt like her contract was not complete and that after many transfers of undertaking and other changes to her conditions, such as shift changes, salary changes, working hour changes these changes should have been confirmed in writing.  She noted further that she had not received confirmation of shift allowance rates, and that while she was paying into a pension scheme, she had not received a policy in relation to same.

In her submission she confirmed that by 16th October 2020 she had received copies of the Disciplinary Policy, Business Conduct, Annual Leave, Sick leave, Bully and Harassment Policy, EHS, Employee Privacy, Stress Management and Prevention, Absence Management Procedure she still had not received the following documents requested: Pensions, Carer’s leave, Holidays (update), Equal Opportunities, Performance Counselling, Parental and Maternity Leave, Shift rate, Compensation and Benefits, Overtime, Occupational Health and Safety, MSD Prevention and Management.

Further Issues post the date of submission

The Complainant submitted that she had searched the website for the company safety statement and that she found one from 2015.  She submitted that she sought an up-to-date statement by email of 19.09.20 from HR and by email of 15.10.20 to the Health & Safety Dept. but to no avail.  She stated that she believed the safety statement formed part of her contract. 

The Complainant further submitted that upon examination of the 2015 Safety Statement she noted that Section 3.22 stated that “Induction training includes health and safety elements, as well as other key organisation and job specific information, details of which contained in the Employee Handbook, which is issued to all employees.”  She submitted that upon enquiring with HR she was assured that the Staff Handbook does not exist, only policies and procedures. 

Complainant evidence under oath

The Complainant verified the details of her written submission and she re-iterated that she had some difficulty in obtaining all relevant documents requested of the Respondent prior to submission of her claim.  She again pointed out that her contract clearly stated that all policies “are available” and yet these could not easily be produced or were not produced at all. 

She stated that she noted that the union agreement referred to by the Respondent was not signed and that she had never received a handbook until now and that she understood that none of her colleagues had received this either.  She stated that there was an email etiquette that mails would be responded to within 24 hours and yet she experienced huge delays when requesting information.  She stated that she found this to be very disrespectful. 

The Complainant also gave evidence that the Respondent had failed to provide a safe place to work and hadn’t clarified in their submission the fact that the safety statement was dated back to 2015.  She indicated that the safety statement should be reviewed each year and that not even the names of individuals no longer working there had been changed.  She confirmed that the last training she received had taken place in 2015 and the last Hazard Awareness training had taken place in 2011. The Complainant also stated that she did not have written confirmation of remuneration arrangements relating to overtime, specifically in relation to the calculation of paid and banked hours; and that she did not have details in relation to break times.

Cross-examination of Complainant

In response to questions from the Respondent representative the Complainant confirmed that it was her signature at the end of the Terms and Conditions appended to the Respondent submission and that she hadn’t previously asked for copies of the policies; but she stated that there is no location where policies are held as provided for in her contract.  She stated that she didn’t seek policies before because she didn’t need them and she confirmed that she had a conversation with Ms. P where she asked for the policies and where Ms. P asked her which one she wanted, as there were more than 600 policies.  She stated that this was a difficult conversation.

The Complainant also confirmed that she does receive training but that she needed the policies relating to employment.  She stated that she had to specifically name the policies required.  She confirmed that she requested the policies on 30th August and that when she received no response to her request, she sent a reminder a week later.  She stated that the policies are meant to be available at any time and that it took 6 weeks to get those policies.  She also provided instances where the provision of other policies took even longer and cited the examples of the maternity policy which she said took 6 months to obtain, and the education policy, where she said it took almost a year to obtain.

The Complainant also confirmed the content of her letter of 3rd July, the content of the document she presented at the meeting of 6th July, as well as the content of Mr. K’s letters of 13th and 24th July and 2nd and 9th September.

The Complainant confirmed that on 28th September she did receive copies of 6 policies but that she had requested others that were still not received at that time.  She further confirmed that she did receive a large number of policies on 12th October.

It was put to the Complainant that she “must understand that it is not unreasonable to ask you to determine which policies you were seeking” to which the Complainant responded that it was unreasonable, that her contract stated that the policies were available in a location and that they should have been available without her having to name each policy required.  It was then put to the Complainant that there were a lot of policies to which she replied that the policies should be available in a location.

It was put to the Complainant that she would have been trained on the policies at induction.  The Complainant responded that it was a long time ago (16 years), that she had forgotten most of the information, that she hadn’t needed the information until now, and that was the reason, she was looking for the documents.

The Complainant was asked why she had not gone to SIPTU if she wanted a policy.  She replied that she had first looked for a policy from her supervisor in 2018 and that she had still not received that policy.  She stated that it is the employer who should provide the policy, not the union. 

The Complainant referred to the Education Policy, which she stated she found out about in 2020 through a colleague.  She stated that the policy was kept hidden.

CA- 00040173-002

The Complainant submitted a complaint that she had been discriminated againston the prohibited grounds of age, disability and race, victimisation, failure to provide reasonable accommodation for a disability, discrimination in conditions of employment, harassment and other.

In her Complainant form she stated that the Complainant related to disability, discrimination, refusing to take holidays, reasonable accommodation, intimidating and provoking behaviour, refusing support, working conditions under stress etc.

1.     Discrimination and Harassment on Race Ground

In her submission the Complainant stated that English was not her mother tongue and that sometimes she found it hard to express her concerns or her feeling.  She stated that in conversations with Ms. G things went badly, that Ms. G would constantly interrupt her, not letting her finish her sentences, distorting her words and provoking her (the Complainant) to call Ms. G a liar.  She stated that it is not possible to communicate with a person who refuses to listen or who continually pushes you to make mistakes with your words, and knowing it is not your language, to make notes only for herself.  She submitted that Ms. G did not give her the chance to find the right words to express her feelings. She stated that she could not protect herself from such a situation other than to start to communicate in written form.  She also stated that this was easier for her and that no witness was then necessary. 

The Complainant submitted that the HR Department reaction to the situation was also very stressful for her, that they let the situation continue when she was on sick leave (from 3rd July to 20th July) without investigating her complaints, or without any explanation of the delay.

The Complainant submitted that the informal meeting of 6th July also went badly in a similar way, as her direct translation from her own language was interpreted as misconduct.  She submitted that she asked how long an employee with a medical condition would have to remain in the same job, before someone would review the situation? She submitted that she asked, “until I die or kill myself working?”  She submitted that the meeting ended due to her having a panic attack.

2(i)       Discrimination on the Ground of Disability

The Complainant submitted that she first reported to Ms. G in March 200 that she was suffering from anxiety and that she had to take medication.  She stated that it was hard for her to cope with the pandemic but that after she found a tissue covered in blood, she had a panic attack.  She stated that she was stressed every time she had to come to work to find a “dirty place”.  She submitted that Ms. G “pushed everyone to reduce or skip cleaning the work area” that her anxiety became worse.  She submitted that Ms. G told her to “mind your own business” when she raised concerns about cleaning and that this did not help her to cope with the situation.  She submitted that the Respondent’s “Stress Management and Prevention Policy” was ignored.  She submitted that the policy states “the Company investigates all reported incidents of work-related stress and, where necessary, will provide reasonable accommodation.” She submitted that she didn’t need accommodation, just support and understanding.  She submitted that her health issues were not reported and that there was no follow up in accordance with the provisions of the policy.  She further submitted that Section 3.14 of the Safety Statements states “ensure that employees are instructed to raise any issues of stress as soon as possible.” She stated that she was left with a question: “to who and who cares?”

The Complainant also submitted that she hurt her back when she was working in the packing room on 2nd July 2020.  She submitted that she reported the incident to her supervisor on the day and that she reported to HR the following day.  She also reported the matter a few days later to the company nurse.  She submitted that nobody took this matter seriously, that the accident wasn’t reported in the “Accident Book” even after she attended her GP, was prescribed medication and was referred to a Physiotherapist.  She submitted that section 2.2 and 3.40 of the Business Conduct and Safety Statement states that “all accidents and incidents, near-misses must be reported and investigated.  The Accident report Form must be completed and given to HR within 24 hours.

2(ii)      Reasonable Accommodation

The Complainant submitted that after she reported about back pain and requested to be given a day away from physical work, she was left with a choice to keep working or to go home.  She submitted that just a few hours before another employee was replaced on the same job, with the same health issues.  She stated that the situation resulted in her attending a physiotherapist and in her anxiety progressing.

2(iii)     Discrimination against her ability to work /Conditions of Employment

The Complainant submitted that her grievances were put on hold and were not considered within 5 working days in accordance with the Respondent’s Grievance Procedure.  She submitted that the investigations into those grievances in relation to Ms. G and in relation to health and safety concerns were delayed without valid reasons.

The Complainant submitted that she had never refused to work and was always willing to be trained.  However, she submitted that that didn’t mean that she should deserve just physical work for 4 hours every day while at the same time many operators enjoy 8 hours of light work every day.  She stated that “Some operators are accommodated, but I’m the one who saves the day.”

She submitted that some operators had the opportunity to choose where they want to work on a daily basis while she was refused lighter work for even one day.  She submitted that she was working in this area for a period of 6 months and was trained in all but one task, while staff who were there for years were only trained on a few positions.

She further submitted that the Business Conduct and Safety Statement states that “the Company has a duty of care for all employees and to take appropriate and timely action”.  However, she submitted that in her case the Company had failed, and she posed the question “why was I ignored when other employees have been treated differently in similar situations?”

4.         Bullying and Harassment

The Complainant submitted that it is not ok, when you are afraid to rise your personal concerns or work-related issues to your supervisor, not knowing what to expect, being shouted at and humiliated in front of others, having your requests refused without good reason and being intimidated or treated differently to others.  She submitted that sometimes the supervisor is not on the floor and that operators are afraid to disturb her from the canteen with work concerns, because of her reactions.  She submitted that, if however, you make a decision without her approval, you get in trouble, but if you disturb her, she asks “don’t you know how to do it?”.

5.         Victimisation

The Complainant submitted that she advised Ms. G a number of times that she had symptoms of OCD and that she also mentioned it to the company nurse.  She submitted that after the conflict between her and Ms. G and after she didn’t receive “any reasonable accommodation offer” she felt more pressure in relation to her workload.  She submitted that Ms. G would change the work schedule many times during the day without proper time to get the workstation ready.  She cited an example where after coming back from her break the trainer told her that she would have to cover for a colleague, in circumstances where she hadn’t full training for the role and without time to clean or even get gloves.  She submitted that until she went on sick leave, she had not had a day away from physical work, even when it was known to the Respondent that she was suffering from back pain and that she was struggling with anxiety in relation to a clean place of work and cleaning issues generally.

6.         Complainant evidence under oath

At hearing the Complainant confirmed that she was suffering from pack pain while working in the “pact room” and that she went to Ms. G and asked to be taken off that job for the day.  She stated that Ms. G refused to change her work and told her that she was to go home.  The Complainant stated that earlier the same day another employee had asked to change job and that she had been accommodated and replaced for the day.  She stated that she felt it was very unfair, that there were 16 other staff trained to do the job and that there was plenty of cover available.  She felt it was unfair that one employee was accommodated, while she was not.  She stated that she had been discriminated against, as the other employee had been moved at her request.

She stated that the next day she raised concerns with Ms. G that she had not had specific training for handling “at heights”. She stated that in the meeting Ms. G was continually correcting her English and was taking notes of what she said.  She stated that as a result, she set down her issues in writing on 3rd July.  She stated that at the meeting on 6th July she advised Mr. K about what had happened and that the meeting ended up in shouting.

The Complainant stated that she was treated badly by both Ms. G and Mr. K at the meeting, that they had told her that she was behaving badly and that she had a poor attitude.  She confirmed that she furnished them with a formal complaint and that Mr. K had confirmed that he would deal with the issues involved in 2 parts:

·       Her concerns regarding training for manual handling at heights

·       Her complaints in relation to Ms. G

She stated that following the meeting HR had made assumptions about her health, that they assumed she was not Okay and so they did not start the grievance process.  The Complainant stated that these assumptions were made, although it was okay for her to work every day, that she was told to not lift boxes above shoulder height.  She advised that she could not communicate with Ms. G because she was having panic attacks, that HR didn’t address the issues, that she had nobody to talk to and that as a result she ended up on sick leave for 4 months.

The Complainant advised that after 30th September she had difficulties as her medical issues were not reviewed and taken into account by the Respondent.  She stated that the doctors’ recommendations were not taken into account, that her role and tasks were not reviewed.  She stated that HR had advised her that they would not commence an investigation into her complaints until she returned from sick leave.  She advised that she had applied for payments under the health insurance scheme because she sustained the injury at work, and she confirmed that she required orthopaedic consultation to address those issues but that there was a 3-year waiting list.  She confirmed that this caused difficulty with processing the insurance claim and that as a result, there were discrepancies relating to payments.

The Complainant advised that HR had told her that they would cover her medical bills arising from the injury but that they had never paid those bills.   The Complainant further advised that the company has a doctor in Tullamore but that they had referred her to a doctor in Naas.  She stated that the Respondent did pay for the taxi but that when she asked Mr. K how the time was going to be covered he confirmed that 4 hours would be given as “bank hours”.

The Complainant advised that when she was fit to return to work, she needed to agree a plan for that return and that she notified of her intention to take 2 weeks annual leave.  She stated that her GP was agreeable to her return but that HR wanted a medical report.  She stated that she sent an email seeking clarity on what was happening but got no reply.  She stated that by the time return arrangements were clarified she had to cancel the illness benefit and return monies paid.

The Complainant stated she believed she had been victimised when she was suspended without pay in 2021.  She stated that she had returned to work part-time, working 4 hours per day, gradually increasing over a period of 6 weeks.  She advised that on her first day back she met with Ms. G and another member of management to discuss what work she would do.  She advised that she was to work on the conveyor belt but that there was only one slot available, and that this meant she had to work with her injured arm.  She stated that as a result she could not meet the required targets and that the trainer approached her to ask her why this was the case.  She advised that she explained her injury and that another employee offered to swap wither.  She stated that no assessment was carried out as a result of this issue being highlighted.

She stated that when the 6 weeks were up and she was due to return to work full time she remained concerned and queried job rotation.  She advised that she was worried about her own health and so she sent a message to HR.  she stated that HR decided they had a duty of care to her and so she was sent home on sick leave.  She stated that there was no assessment carried out, no other jobs considered and no discussion about possible job rotation.  She stated that HR simply made an assumption that she was sick, that she then had difficulty getting a GP appointment and that this resulted in her loosing 2 days’ pay because she had no further sick pay entitlement.

In relation to her claim of racial discrimination the Complainant stated that from the beginning there were challenges with Ms. G.  She stated that when she asked her to accommodate a temporary 1-day move from manual work she was subjected to Ms. G shouting at her and taking notes of everything that the Complainant said.  She stated that when she was nervous or emotional, she found it difficult to find the right words and that Ms. G constantly put her under pressure, provoking her into making mistakes.  She cited as an example where she said to Ms. G “I’m warning you…” and Ms. Responded “are you warning me now?”.  She referred to the conversation where she asked “How long must I wait……..until I die” and how Ms. G had reprimanded her and told her it was not appropriate to say such a thing.   She also cited an example where she alleged Ms. G stated that “Ok, I’m going to talk your language”.

The Complainant also referred to notes of conversations and emails exchanged with Mr. K and advised that all the notes and her answers were “without sense”.  She stated that the written account of their discussions made her sound childish, that they made no sense and that there should be some meaning to the notes of the meeting.  She stated that she asked Mr. K to fix the notes but that he refused to amend them and that as a result the notes made little sense.  She stated that as a result of this some employees don’t talk to her now.

7.         Documentation Submitted by the Complainant Post Submission of Claim

The Complainant submitted her complaint on 30th September 2020 and thereafter she submitted a significant volume of documentation which she considered relevant to her position.  The documentation provided is listed below, together with the applicable dates of the associated event(s):

7.1  Emails dated between 27th October 2020 and 26th November 2020 between the Complainant and Ms. P in relation to the Complainant’s return to work, her concerns regarding potential future injuries, her concerns regarding non-adherence to the grievance policy, queries regarding the investigation process and regarding her entitlements.

7.2  Email of 7th December 2020 to Mr. K and Ms. P raising concerns about the delay in establishing an investigation into her complaints and alleging failure to respond to emails and queries and the creation of a hostile working environment. In the email the Complainant also raised on-going and new medical problems since her return to work.

7.3  Email of 17th December 2020 to Ms. P outlining the Complainants concerns regarding a conversation of the previous day.

7.4  Email of 11th January 2021 re the Complainants use of steps – parties to the email redacted

7.5  Document received 16th March 2021 headed “To Who it May Concern” setting out details of her complaint regarding “Terms and Conditions” and regarding “Discrimination/Equality/Equal Status”

7.6  Email of 5th April 2021 from the Complainant to the WRC advising of a serious injury which she stated she acquired in work in April 2021, together with medical certificate from an accident & Emergency Department confirming that she would be unable to attend work from 2nd April 2021 to 11th December 2021 and raising concerns about the Respondents inaction following injury at work.

7.7  Emails of 9th April (3) exchanged between the Complainant and Ms. P in relation to clarification regarding payments during absences as a result of injury at work

7.8  Letter of 9th April from Ms. P to the Complainant regarding the Complainants’ injury at work and the consequent actions by the Respondent.

7.9  Email of 12th April from Ms. P to the Complainant clarifying arrangements and conditions attaching to “accident leave pay”

7.10        Email of 21st April from the Complainant to Ms. P regarding delays in relation to an MRI scan

7.11        Email of 22nd June 2021 to the WRC submitting an additional complaint in relation to Ms. P.

7.12        Email of 17th August 2021 from the Complainant to the WRC adding additional issues for her case

7.13        Copy of email re the Complainants’ accidents at work – parties to the email redacted

7.14        HAS notification form rec’d by WRC 18th August 2021

7.15        Email to WRC 18th August 2021 with attached accident report

7.16        Undated handwritten note of incident leading to injury at work

7.17        Email of 8th September 2021from the Complainant to the WRC querying her entitlements regarding annual leave post sick leave.

7.18        Email of 29th September from the Complainant to Ms. P regarding her return to work, raising concerns about her challenges with interpretation of information, suggesting the use of a translator and raising concerns about Ms. P’s interactions with her.

7.19        Email of 19th October 2021 to the WRC outlining complaints made against Ms. P to the company Director and raising concerns that those complaints were being ignored.

7.20        Email of 28th October to the WRC regarding a number of queries which she described as related to her claim regarding Terms & Conditions.

7.21        Email of 8th November to Mr. B regarding the grievance meeting /procedure

7.22        Email of 12th November to Mr. K regarding the accuracy of the notes of the grievance meeting

7.23        Email of 2nd December 2021 to Mr. K regarding pay entitlements

7.24        Email of 17th December 2021 to the WRC with attached copy of Investigation Report

7.25        Email of 20th December 2021 to the WRC with final submission

CA- 00040173-001

The Respondent submitted that, in the first instance, the Complainant alleged that she did not receive aa statement in writing of her terms of employment but that she later alleged that she only received an initial contract but that no updated contract was provided.  The Respondent pointed out that the Complainant further complained that she did not receive updated contracts of employment showing her shift changes and that no policies and procedures related to her employment were or are available to employees. 

The Respondent submitted that their position was that the Complainant was provided with her initial contract of employment at the commencement of employment and that this document complied fully with the requirements of the Terms of Employment (Information) Act 1994.  The Respondent submitted that the initial contract of employment, provided to the Complainant in 2005, contained a specific undertaking by the company that “any changes in the terms and conditions of employment will be specified in writing, within one month of the date of the change in compliance with the provisions of Section 5(1) of the Terms of Employment (Information) act 1994”.  (A copy of the relevant page of the contract was appended to the submission.)

The Respondent brought to attention a number of documents included at Appendix 1 of the submission which they stated support the Respondents’ position regarding the provision of required information relating to terms and conditions of employment, together with notification of changes as follows:

·       Statement of terms and Conditions of Employment, bearing the Complainant’s signature and dated by her on 1st November 2005

·       Union Agreement Handbook, provided to the Complainant at the commencement of her employment

·       New Employee Safety Induction Checklist, signed by the Complainant and dated 1st November 2005, outlining substantial training provided at the commencement of employment

·       Company requirements and policy regarding sickness absence, confirmed as received by the Complainants’ signature, dated 1st November 2005

·       Letters to the Complainant dated 12th February 2007, confirming the permanent nature of her role

·       27th August 2008, confirming agreement to her request for a temporary change to evening shift

·       11th November 2008, confirming extension of the move to evening shift until February 2009

·       22nd April 2009 confirming her request to remain on evening shift had been granted

·       4th September 2009, regarding successful interview and consequent change to temporary part-time (fixed-term) contract of employment, with weekly working hours change from 39hours per week to 39 hours per fortnight. – Part-time Working Policy appended to the letter

·       Letter to the Complainant dated 12th May 2011, confirming reversion to full-time General Operative position, effective from January 2011

·       Confirmation of the Complainants attendance at Bullying and Harassment training in February 2018

·       Certificate of completion by the Complainant of Bullying and Harassment Training dated 15th September 2021

·       Manual Handling Training attendance confirmation sheet dated 20th March 2019

·       Training modules attended by the Complainant covering the period from 6th October 2010 to 20th March 2019, including Hazzard awareness and Manual Handling training

·       Email to the Complainant dated 28th September 202, enclosing the following policies: Absence Management, Employment Privacy, Environmental Health & Safety, Stress Prevention, Information Use, Standards of Business

·       Email to the Complainant dated 12th October 2020 enclosing further policies, together with contract of employment and MedWise report.

The Respondent also submitted that a number of relevant documents had been circulated on a company-wide basis to all employees in relation to company name changes as follows:

·       Cover document of explanation of company name change dated 29th January 2007. 

·       Message from Chairman and CEO following the completion of the acquisition of the original company I 2015, communicated to all staff, posted on the company notice boards and circulated to SIPTU

·       Letter furnished to all staff outlining the details of the acquisition in 2017, following the company’s announcement and town hall meetings.  This communication of 18th April 2017 confirmed that no changes would occur to employees’ terms and conditions of employment and provided a dedicated information site to all employees in relation to the transition.

The Respondent noted that the Complainant was a member of SIPTU at all times throughout her employment.

The Respondent submitted that on the basis of the above communications and documentation, it is clear that the Complainant was provided at all times with relevant information in relation to her terms and conditions of employment. 

Additional representations on behalf of the Respondent

At hearing the Respondent representative outlined that the staff handbook is given to all employees at induction, together with their statement of employment.  She also pointed out that at every change of relevant conditions of employment a written statement is also provided by the Respondent.  On behalf of the Respondent, she also drew attention to the fact that the Complainant was at all times a member of SIPTU and that at no time up to end of June 2020 did she ever raise any concerns regarding a lack of information. 

The Respondent representative also stated that the Complainant had been banking hours and/or working overtime since the commencement of her employment 15 years ago and that she was well aware of the arrangements in that regard.  She stated that most of the issues raised by the Complainant related to health and safety and not to a case under the Terms of Employment (Information) Act.  She pointed out that the documents requested had been supplied to the best of the ability of the company management, in the context that the Complainant was not specific in naming the policies required.  She stated that the Complainant was a valued member of the workforce, that the Respondent was taken aback when they were notified of the case, as there had not been any concerns raised internally prior to July 2020 and she pointed out that if there were any minor omissions on the part of the Respondent it was clear that the Complainant had not suffered a detriment as a result.

Respondent Witness Evidence – Ms. P

Ms. P confirmed that at induction Day 1 covers company overview, terms and conditions, pay arrangements etc., quality procedures, safety and safety representatives.  She also outlined that Day 2 includes meeting with Production Trainer, Coach/Mentor, and covers the learning management system and compliance.  She confirmed that this module is now on line and that a training record is kept of all attendances and completion of training.  She outlined that consultation takes place with SIPTU on all policies and as such, all company policies are agreed policies and that each staff member has a training requirement and receives training each year.  She advised that training is provided on key policies on a regular basis and that all policies are available in HR, but not readily available in printed format.

In response to questions put by the Respondent representative she further confirmed that the Education Policy was not “hidden”, that the details of that policy were advertised on an annual basis linked to the academic year, that the details were sent out by email, placed on notice boards and advertised through screen savers.

Respondent Witness Evidence – Ms. G

Ms. G confirmed that she was present at the meeting in July to confirm what policies were required by the Complainant and she confirmed that the Complainant did not seek a copy of the Education Policy.  In response to questions put by the Respondent representative she further confirmed that she was not aware that the Education Policy was “hidden”.

CA- 00040173-002

In their submission the Respondent outlined that this Complainant related to allegations that the Complainant was discriminated against by the Respondent by reason of her age, disability and race; that she was victimised by her employer, that her employer failed to provide reasonable accommodation for a disability, that the employer discriminated against her in conditions of employment and discriminated against her by harassing her. The Respondent noted that in the section provided on the complaint form for ‘Complaint Specific Details or Statement’ the Complainant noted ‘disability, discrimination, refusing to take holiday, reasonable accommodation, intimidating and provoking behaviour, refusing support, work conditions under stress’.

Preliminary Issue

The Respondent further noted that in the complaint form, the Complainant asserted that the date of 13th July 2020 was the most recent date of alleged discrimination and the Respondent further noted that since the complaint was submitted on 30th September 2020, the Complainant had furnished “substantial further documentation’ which postdate the date on which the claims were filed. The Respondent submitted that the relevant period for investigation of these complaints is 31st March 2020 to 30th September 2020 and that any complaints and allegations made after 30th September 2020 fall outside the relevant time period.

The Case

The Respondent submitted that on 3rd July 2020, the Complainant furnished a letter to her Evening Shift Supervisor, MG.  The letter outlined the Complainant’s concerns regarding lifting, refusing to lift, consequent possible health, risk and manual handling concerns.  The letter also referred to potential necessity for help to lift boxes higher that her shoulder.

The Respondent submitted that following receipt of that correspondence, particularly given the Complainant’s reference to pain in her hand, Mr. RK, Hr Generalist, arranged a meeting for the purpose of discussing the Complainant’s concerns. The meeting was held on 6th July 2020, 3 days after receipt of the letter and was attend by the Complainant, Ms. G and Mr. K.  In their submission the Respondent outlined that at the commencement of the meeting the Complainant furnished a detailed typed document, containing a number of complaints, comprised of operational issues, but also comprised of a number of grievances against Ms. G.  In addition, the typed complaints raised a substantial number of allegations of unsafe practices within the company and further referenced ‘slight health problems’ related to stress (anxiety) since the commencement of the pandemic.   The Respondent submitted that, contrary to the Complainant’s contention in relation to ‘slight health problems’ referenced in her grievance document of 6th July, the Respondent was not on notice of any health problems whatsoever, until the initial reference to not being able to lift boxes as set out in the letter of 3rd July to Ms. G.

The Respondent submitted that the document provided at the meeting of 6th July noted that the Complainant was on medication since the start of the pandemic, related to stress (anxiety) and she referred to “one day” in particular at work when she found a tissue ‘covered in blood’, as a result of which she suffered a panic attack for the first time in her life.  The Respondent submitted that it is not the case, as claimed, that the Respondent was aware of the Complainant being on medication for stress, or indeed for any other health issues, prior to that time.

The Respondent submitted that the meeting of 6th July had been convened for the express purpose of addressing the matters raised in the Complainant’s letter of 3rd July, but that in light of the grievances outlined within the grievance document, and further details provided of health matters, Mr. K advised the Complainant that it was not appropriate to continue the meeting. The Respondent further confirmed that a written explanation for that decision was furnished to the Complainant by letter of 13th July 2020 and this letter also outlined the Respondents’ concerns for the Complainant’s health. The letter clearly set out the Respondents’ concern for the Complainant’s wellbeing, in light of the health issues that had been disclosed and sought either confirmation from her doctor as to her fitness to work or in the alternative, advised that arrangements would be made to have her assessed by the company doctor.  The letter also acknowledged receipt of her grievance document and confirmed that the matters contained therein would be addressed in line with the Respondent Grievance procedure.

In their submission, the Respondent outlined that in the interim, on 10th July, Ms. G advised the Complainant to leave the boxes she was concerned about lifting to one side, given the concerns that the Complainant had raised.

The Respondent submitted that on 20th July 2020, the Respondent received a certificate from the Complainant’s GP, advising that she was unfit for work from 20th July 2020 to 27th July 2020 and that ultimately, she remained on sick leave up until 2nd November 2020 with relevant medical certification.

On 24th July 2020, Mr. K wrote again to the Complainant re-iterating the content of his previous letter of 13th July 2020.The Respondent submitted that circa 31st August 2020, while still on sick leave, the Complainant approached Mr. K seeking copies of company policies, which were duly provided to her.  The Respondent further submitted that at that time, the Complainant requested that the allegations made by her against Ms. G be addressed prior to her return to work, that Mr. K confirmed to her that it would not be possible to pursue grievances raised until the Complainant returned from sick leave, and he confirmed that position by letter of 9th September 2020.

In addition, the Respondent confirmed that by letter of 2nd September advised that the Respondent had made initial arrangements for assessment of the Complainant by the Occupational Health Physician for 9th September, and that this was re-scheduled, at the Complainant’s request to 17th September 2020.  The Respondent advised that details of the company EAP were also provided to the Complainant at that time.

The Respondent submitted that the Occupational health report noted that the Complainant had been referred because of concerns for her wellbeing and confirmed that the Complainant had advised that she was suffering from symptoms of anxiety and panic attacks, as well as symptoms of OCD and anxiety about hygiene.  The Complainant had also advised that she was finding the Covid situation difficult and was unhappy with the infection prevention and control measures in the workplace and that she did not believe that all her colleagues were adhering to strict hygiene measures.

The Respondent advised that the Occupational Health Physician suggested that the Complainant’s medical issues were associated with distressing symptoms relating to Covid and noted that she (the doctor) was optimistic that those symptoms would improve over the next 4 – 6 weeks with appropriate treatment from her GP.  The Occupational Health Physician also recommended that return to work, once fit, should be managed on a phased basis.

The Respondent set out that the Complainant was due to return to work on 24th November 2020, having been deemed fit to return to work on 9th November.  The Complainant had availed of some annual leave in the intervening period.  Following her annual leave, the Complainant met with Ms. P, HR Manager, to make arrangements for her phased return to work and ultimately, she did return from 26th November on a gradual basis.

The Respondent submitted that the following actions were taken by the Respondent up to the issue of the outcome of the grievance appeal on 4th February 2021:

5th November 2020     Second occupational health assessment

26th November 2020   Complainant returned to work on an agreed phased basis

27th November 2020   Investigation into Complainant’s grievances commenced (all witnesses interviewed 27th November and 16th December 2020)

7th December 2020     Written complaint received from the Complainant alleging that she was being disrespected and her complaints were not being taken seriously

7th December 2020 Reply to above complaint furnished by Ms. P, HR Manager, confirming that the investigation was in process, and acknowledging her GP letter containing a request re lifting boxes

8th December 2020     Follow up email from Ms. P, advising that Ms. G was aware of the Complainant’s concerns regarding lifting boxes and that she and the Evening Shift Trainer had advised the Complainant on her return to work to only lift when she was comfortable to do so and to leave aside any boxes that she wasn’t comfortable to move.

15th December 2020   Complainant email to Ms. P, enquiring who assesses medical issues in the absence of the company occupational health nurse

16th December 2020   Response to above email advising that any medical concerns should be addressed to her (Ms. P)

16th December 2020   Email from Complainant to Ms. P enquiring how to report if she suffered a panic attack at work

16th December 2020   A meeting took place between Ms. P and the Complainant in relation to the above query and the Complainant was advised that a meeting should be arranged with the EHS Officer to discuss her concerns with lifting particular boxes

17th December 2020   Email from the Complainant to Ms. P questioning Ms. P’s conduct at the meeting of the previous day.

17th December 2020   Ms. P notified Mr. O’G Operations Manager about the above email and requested that he respond to the Complainant.

18th December 2020   Grievance regarding Complainants raised on 6th July completed.

22nd December 2020   Investigation outcome report issued to the Complainant and Ms. G

4th January 2021         Investigation Appeal request received from the Complainant

14th January 2021       Appeal hearing conducted, chaired by Mr. O’G

4th February 2021       Appeal outcome issued to the Complainant

The Respondent submitted that while the claim form submitted by the Complainant on 30thSeptember 2020, specified the grounds of race, age, disability, failure to provide reasonable accommodation and victimisation and harassment as the grounds on which the Complainant suffered discrimination, no clear details supporting the claims of discrimination were supplied.

The Respondent further submitted that additional details submitted to the Workplace relations Commission by email of 20th December 2021, contained numerous further allegations and accusations against the Respondent including, punishment for being ill, unsafe work practices, deliberate misrepresentation of various issues by management, punishment for raising health and safety issues, “intimidation in general” and general company dishonesty.  The Respondent drew attention to the fact that many of the allegations contained in that document refer to dates post-dating the filing of the within claims.

The Respondent submitted that neither the claim form nor the document submitted to the Workplace relations Commission on 20th December 2021, provided any details which support the Complainant’s contentions that she suffered discrimination of the grounds of age, disability, race, victimisation, failure to provide reasonable accommodation for a disability, discrimination in conditions of employment and harassment.

The Law

In their submission the Respondent set out the definition of discrimination as set out at Section 6(1) of the Employment Equality Acts, 1998-2015 as follows:

“For the purpose of this Act, 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 6(2) of the Act expands:

“As between any 2 persons, the discriminatory grounds (and the discretion of those grounds for the purpose of this Act) are –

(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”)

The Respondent submitted that the complaints submitted on the grounds of age did not identify a suitable comparator with whom the Complainant had been treated less favourably.  The Respondent reference the case of Toker Developments Ltd and Edgars Grods EDA105 where the issue of a hypothetical comparator was considered and where the Labour Court determined: “It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case.  No such evidence was adduced and, it would clearly be impermissible for the Court to reach conclusions of fact based upon merely supposition or speculation.”

In the context of the above the Respondent submitted that the Complainant could not establish discrimination as defined by the Act in relation to her claims of discrimination on age or race grounds.

The Respondent noted, in their submission, that the facility referred to in the instant case, employees a workforce of 370 employees, with 47 of those employees being non-nationals.  The Respondent further noted that the Complainant is Latvian.

In relation to the complaint submitted on the grounds of disability the Respondent submitted that safety is the number one priority for the company and that the health and safety of employees is paramount.  The Respondent submitted that, as a manufacturing site the employees were operating as front-line employees since the start of the pandemic, were required to come on site each day and were not in roles that could work from home.  The Respondent also outlined that the products manufactured by the Respondent at this particular site were in use, by hospitals, throughout the pandemic.  The Respondent submitted that they complied with all relevant HSE and Government protocols and were audited by the HSE for compliance.

The Respondent drew attention to the question as to whether illness suffered by the Complainant met the definition of a disability as set out in the act and case law.  The Respondent contended that a distinction must be made between what constitutes a disability from general illness or condition and argued that for the Complainant to demonstrate that she had a disability she must provide substantive and relevant medical evidence.   The Respondent submitted that in the instant case, it was not aware of any health issues regarding the Complainant until receipt of the letter of 3rd July 2020, raising, in the main operational matters, but stating at the end of the letter ‘but if I have to work all by myself, I might need some help to lift boxes too high, because I can’t raise my hand over the shoulder without pain with box in my hand.’

The Respondent further submitted that as a result of issues raised by the Complainant in her document present on 6th July 2020she was requested to obtain confirmation of her fitness to work from her GP, and that she remained out on sick leave until November 2020. The Respondent noted that the medical certificates provided cited stress/anxiety, “not even work-related stress” as the reason for her absence.   

The Respondent also noted the two occupational health reports received and confirmed that neither report referred to a disability and further noted that all recommendations made by occupational health were implemented by the Respondent.

The Respondent stated that it exercised its duty of care to the Complainant at all times and did everything reasonably practicable and made every effort to accommodate the Complainants eventual return to work.  On the basis of the foregoing the Respondent submitted that the Complainant could not establish primary facts on which she could rely in seeking to raise a presumption of unlawful discrimination on the disability ground.

 Victimisation and Harassment Claims

In its submission the Respondent refuted any allegation that the Complainant was either victimised or harassed.  The Respondent submitted that the matters at issue were addressed at all times by the Respondent in the appropriate manner and in accordance with fair procedures and natural justice.  The Respondent pointed out that the Complainant was not specific as to her claimed victimisation or harassment but stated that, in accordance with the documentary evidence provided by the Respondent it was clear that the Respondent exercised its duty of care and no victimisation or harassment occurred.

The Respondent referred to the case of Melbury Developments Ltd v Valpetrs (EDA09/17) where the Labour Court noted that:

“Section 85A of the Act provided for the allocation of the probative burden of cases within its ambit.  This requires that the Complainant must first establish facts from which discrimination may be inferred.  While those facts 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 speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exception to that evidential rule.”

In light of the foregoing the Respondent submitted that the Complainant had not established facts from which discrimination could be inferred.  The Respondent submitted that the onus of proof rested with the Complainant to show that she was discriminated against on the grounds claimed and that she had provided no evidence to substantiate any of her allegations.  In these circumstances, the Respondent contended that the Complainant had not established a prima facie case of discrimination and requested that the Adjudication Officer reject her allegations under the Employment Equality legislation.

The Respondent submitted that, without prejudice to the foregoing argument, should the Adjudication Officer find that the Complainant had discharged the evidential burden required to raise a presumption of discrimination, the Complainant had failed to demonstrate that she had been treated less favourably than another employee is, has been or would be treated in a comparable situation on the ground of family status, and that consequently, her claim must fail.

The Respondent outlined in its submission, that direct discrimination is defined as occurring where one person is treated less favourably than another is, has been or would be treated and that person is of a different race, gender, marital status, family status, sexual orientation, religious belief, age, disability, or membership of the travelling community.  The Respondent also outlined that direct discrimination consists of two elements: i.e. (1) less favourable treatment of the individual making the complaint and (2) the existence of discriminatory grounds for that treatment.  The Respondent noted that both elements must be satisfied for a claim of discrimination to succeed.

The Respondent submitted that in the instant case, the Complainant had not clearly identified another person or persons who in comparison she could argue she had been treated less favourably than, or would be treated less favourably than. The Respondent noted that the Complainant had provided no evidence that she had been treated less favourably than another person is, has been or would be treated; and the Respondent further noted that the Complainant had also failed to establish a causal link between any alleged discriminatory treatment and her age, race or disability.

The Respondent pointed out that it had been the well-established practice of the Equality Tribunal and the labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited.  The Respondent pointed out that it is only when he/she has discharged this burden to the satisfaction of the Adjudication Officer that the burden of proof shifts to the Respondent to rebut the inference of discrimination raised.  The Respondent submitted that the Complainant had failed to discharge this evidential burden and that consequently, her Complainant under the Employment Equality Acts, 1198 to 2015 must fail.

In conclusion, the Respondent refuted that it had ever acted in a discriminatory manner, but rather, had acted at all times in the best interests of the Complainant in the context of business needs and its duty of care to all employees, including the Complainant. The Respondent submitted that it had been fair and reasonable to the Complainant at all times and that it is satisfied that no breach of the Employment Equality Acts, 1998-2015 had occurred.  In these circumstances the Respondent requested that the Adjudication Officer find in favour of the Respondent.

Additional representations on behalf of the Respondent

At hearing the Respondent representative outlined that there were no issues in the workplace and no knowledge of any medical issues in relation to the Complainant prior to the day on which she came across the tissue with blood on it – this she stated was in June 2020.  She stated that there was a conversation between the Complainant, Ms. G and another member of the management and that subsequently the Complainant wrote to Ms. G on 3rd July setting out medical issues.  She advised that a result an informal meeting was set up for 6th July for the Complainant to meet with Ms. G and Mr. K from HR to discuss those medical issues.  She stated that at the meeting the Complainant handed Mr. K a 2-page typed document which raised a number of operational issues and other grievances.  She further advised that Mr. K stopped the meeting because of the extent of the medical issues raised and as he felt medical evidence was necessary before proceeding further.

The Respondent representative pointed out that the last date of discrimination occurring was noted on the claim form as 13th July.

She stated that subsequent to the submission of the claim the Complainant had raised a “scathing set of complaints against Ms. P, HR Representative that had been dealt with by the CEO and that the complaint against Ms. G had not been upheld.

Respondent Witness Evidence – Ms. G

Ms. G confirmed that on 30th June the Complainant approached her while she was on her break in the canteen and advised her that she wouldn’t be able to continue doing the job due to a sore back.  She advised that this was circa 6.30/7 pm.  She advised that she told the Complainant she would discuss it with her upon her return after break. 

She confirmed that when they spoke, she told the Complainant that if she had an issue with her back, she should go home.  It was put to the witness had she considered any alternatives and she advised that most jobs involve lifting and that, in her opinion, if there is an issue with someone’s back, it is best to go home. 

It was also put to the witness that she had dealt with a colleague of the Complainant differently and, in response, she advised that the other employee had an on-going issue that was being worked through in discussion and was awaiting medical verification.  She confirmed that on that day the Complainant decided to continue working.

It was put to Ms. G that the Complainants’ letter of 3rd July referred to her shouting during that discussion and Ms. G responded that this was not the case, that in fact, it was the Complainant who was “aggressive.”  Ms. G confirmed that on 3rd July she raised the safety concerns identified, and that she contacted Mr. K, in HR.

Ms. G confirmed the meeting that took place on 6th July “to discuss how to go forward.” She advised that at the time of the incident with the tissue the Complainant had been upset and that she had gotten her a cup of tea.  She also confirmed that she had not been aware that the Complainant had a panic attack and she confirmed that the first time she became aware of the Complainant having a panic attack was when she received a copy of the Complainants document on 6th July.  She confirmed that the meeting did not proceed due to concerns in relation to the medical issues raised by the Complainant.

Respondent Witness Evidence – Mr. K

Mr. K confirmed that when he read the letter of 3rd July from the Complainant he was concerned as it raised a number of concerns regarding operational issues and that, as a result, he had made arrangements to meet with Ms. G and the Complainant on 6th July.

 He stated that at the meeting on 6th July, about 5/10 minutes into the meeting the Complainant furnished him with a very detailed letter.  He stated that he was very concerned that he and Ms. G were conducting the meeting as the letter contained specific complaints in relation to Ms. G.

He stated that at one stage he did call the Complainant’s behaviour into question, that he and Ms. G remained polite and courteous and that he expected the same behaviour in return.  He advised that the Complainant had to take medication because she felt she couldn’t “control herself”. 

He stated that, in the context of the complaints documented about Ms. G and in the context of the medical issues documented and presenting in the meeting he decided to end the meeting and refer the Complainant for medical advice.

In response to a query from the Respondent representative in relation to the comment “want to die” Mr. K advised that he did not remember the full details of that comment.

Mr. K also confirmed that the Respondent uses 2 medical practices, one is a more general practice, where it can be harder to get an appointment and the other tends to be used for pre-recruitment assessments.  He advised that the referral is usually dependent on availability. 

Respondent Witness Evidence – Ms. P

Ms. P confirmed that the Complainant had been absent from work in 2020 as a result of back, wrist and shoulder problems.  She confirmed that the Respondent was on notice of the issue with lifting boxes in the packing room and that she had issued clear advice that no employee was to lift boxes above head height.

She also confirmed that the Complainant had been sent for assessment to occupational health and that when she was deemed fit to return to work, she took some annual leave ahead of her return.  She advised that after her return there were no issues of concern raised in relation to lifting boxes.

She advised that the Complainants GP had written re lifting boxes and that the Occupational Health Physician had requested restrictions and she confirmed that these restrictions were put in place for a period of time.

She advised that the Complainant was out sick again in 2021 and that since then the Complainant no longer works in the packing room.  She confirmed that a medical report confirmed that the Complainant was fit for work but that the Complainant and the Respondent had agreed not to.  She confirmed that the new arrangement will continue.

Ms. P outlined the issues with the Complainant seeking to join the health insurance scheme, she confirmed the issues with direct debit while not on payroll etc and she confirmed that the Complainant ultimately joined the scheme in December 2021.

The Respondent representative asked the witness to explain about the suspension referred to by the Complainant and Ms. P advised that the Complainant had returned to work after sick leave on a part-time basis.  She advised that coming up to the time where she was due to resume full-time work, she was still having difficulty with her shoulder and was still attending a physiotherapist. Ms. P advised that she was concerned about the Complainant, that full-time work might exacerbate the situation. She stated that she asked the Complainant if she could get a review done by her GP and she confirmed that she sought an assessment from the company doctor.  She confirmed that the following Tuesday she gave the Complainant time back in lieu.

In response to a question from the Respondent representative as to whether she had intimated to the Complainant that she was on suspension, Ms. P said, “absolutely not.”

CA- 00040173-001

In considering this matter I took into account the information supplied by both parties in their written submissions and the appendices provided by the Respondent. I also considered carefully the evidence given by both parties at the hearing. 

The Law

Section 3 of the Terms of Employment (Information) Act sets out the obligation of the employer to furnish each employee a written statement of their terms and conditions of employment “not later than 2 months after the commencement of employment”, and sets out the particulars to be included in such a statement as follows:

“Section 3(1)

(a)   the full name of the employer and employee,

(b)   the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963)

(c)   the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d)   the title of the job or nature of the work for which the employee is employed,

(e)   the date of commencement of the employee’s contract of employment,

(f)    in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g)   the rate or method of calculation of the employee’s remuneration,

(h)   the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i)     any terms and conditions relating to hours of work (including overtime)

(j)     any terms or conditions relating to paid leave (other than paid sick leave),

(k)   any terms and conditions relating to

                     I.          incapacity for work due to sickness or injury and paid sick leave, and

                   II.          pensions and pension schemes,

(l)     the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particular of the bodies or institutions by whom they were made.”

It is clear from the evidence adduced at hearing that much of this information was contained in the statement of terms provided to the Complainant and was signed by her at the commencement of her employment.  I noted also, that the Respondent sickness policy was issued to the Complainant at the same time and was signed by her. However, I noted that the statement did not contain details of the applicable pension scheme nor did it contain details of overtime remuneration arrangements.  I find that the absence of those provisions from the statement of terms of employment means that the statement does not meet the standard as set out in the Act.  I noted that these omissions date back to 2005 and that the Complainant did not suffer any loss or detriment as a result.

Section 5(1) of the Act sets out the obligation for the employer “whenever a change is made or occurs in any of the particulars of the statement furnished by the employer…. The employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than – (a) 1 month after the change takes effect.”

I noted that the Complainant received written confirmation of each of the following changes to her particulars:

·       The Complainant’s permanency in 2007,

·       Agreement to her request for a temporary change to evening shifts in 2008,

·       Extension of evening shift arrangements in February 2009

·       Agreement to her remaining on evening shift later in 2009,

·       Confirmation of successful interview and change to new part-time fixed term contract of employment in September 2009 including details of relevant changes and policies

·       Reversion to full time contract in May 2011

I further noted that the Complainant was advised in writing as part of a communication to all staff, of arrangements regarding the transfer of undertakings in 2007 and again in 2015. 

I noted that the Complainant raised concerns that policies referred to in her contract of employment were not readily available, that she was obliged to specifically request each policy by name and that this greatly hampered her in her efforts to secure relevant policies.  I noted the Respondent position that with, in excess of 600 policies in place, it is not reasonable to expect the Respondent to provide copies of all policies in short time.  In this regard I believe both parties make reasonable arguments.  It cannot be argued that the Complainant, nor indeed any employee, is not entitled to copies of policies relevant to their employment, however many policies that may be. I also accept that if an employee can be specific about their requirements, then their request can be more easily addressed.  Ideally, an employer should have policies sored and located in such a way that staff can access policies without having to direct a request to HR or any member of management.  Many employers hold their policies on a database which can be accessed by all staff.  I consider that the Respondent, at a minimum, should have a list of all policies readily available or accessible to staff and where that is the case, then it would be reasonable for staff to identify specific policies which they wish to have copied.

However, while I would encourage the Respondent to put this type of arrangement in place, I do not consider that the absence of this arrangement constitutes a breach of the Act.

I noted that the Complainant also raised a number of issues relating to the Health & Safety statement and training requirements associated.  These matters are not germane to the Terms of Employment (Information) Act and therefore I have not considered them in relation to the complaint before me.

Taking all of the above into account I find that the Respondent has fulfilled their obligations under the Act to provide written confirmation to the employee of any change to the particulars associated with their employment.  It should be noted that it is sufficient to provide written confirmation of changes, the employer is not required to issue a new contract every time a change occurs.  However, the Respondent did not provide details of pension schemes nor details of overtime remuneration arrangements with the initial statement of terms of employment, nor since that time and I find this to be a breach of the Act.  I further noted that the Complainant confirmed that she had no issue regarding payment for overtime throughout her employment, nor has she suffered any detriment as a result of these omissions.  The Respondent would be well advised to address such omissions.

CA- 00040173-002

Preliminary Issue

The Respondent had raised the matter of documentation submitted by the Complainant post submission of claim date and raised concerns that many of the allegations contained therein were new allegations, not included in the original complaint form, and which allegedly occurred after the date of submission of the complaint. 

I set out an itemised list of all such documentation received from the Complainant, together with relevant dates under the heading ‘Complainant Position’ above and I reviewed, in detail, all documentation submitted.

1.         It is settled law that an Adjudication Officer may only consider complaints made by a Complainant within the prescribed time limits of the relevant legislation and notified on the original claim form.  In that context, it is not open to me to consider new complaints made after the date of submission of the original complaint form i.e., 30th September 2020. 

On that basis I have not consider the following new complaints submitted after 30th September 2020 or events that occurred after 30th September 2020:

·       Email of 7th December 2020 to Mr. K and Ms. P raising concerns about the delay in establishing an investigation into her complaints, and alleging failure to respond to emails and queries and the creation of a hostile working environment. In the email the Complainant also raised on-going and new medical problems since her return to work.

·       Email of 17th December 2020 to Ms. P outlining the Complainants concerns regarding a conversation of the previous day.

·       Email of 11th January 2021 re the Complainants use of steps – parties to the email redacted

·       Email of 5th April 2021 from the Complainant to the WRC advising of a serious injury which she stated she acquired in work in April 2021, together with medical certificate from an accident & Emergency Department confirming that she would be unable to attend work from 2nd April 2021 to 11th December 2021 and raising concerns about the Respondents inaction following injury at work.

·       Emails of 9th April (3) exchanged between the Complainant and Ms. P in relation to clarification regarding payments during absences as a result of injury at work

·       Letter of 9th April from Ms. P to the Complainant regarding the Complainants’ injury at work and the consequent actions by the Respondent.

·       Email of 12th April from Ms. P to the Complainant clarifying arrangements and conditions attaching to “accident leave pay”

·       Email of 21st April from the Complainant to Ms. P regarding delays in relation to an MRI scan

·       Email of 22nd June 2021 to the WRC submitting an additional complaint in relation to Ms. P.

·       Email of 17th August 2021 from the Complainant to the WRC adding additional issues for her case

·       Copy of email re the Complainants’ accidents at work – parties to the email redacted

·       HSA notification form rec’d by WRC 18th August 2021

·       Email to WRC 18th August 2021 with attached accident report

·       Undated handwritten note of incident leading to injury at work

·       Email of 19th October 2021 to the WRC outlining complaints made against Ms. P to the company Director and raising concerns that those complaints were being ignored.

·       Email of 2nd December 2021 to Mr. K regarding pay entitlements

The above documentation related primarily to a further injury at work sustained by the Complainant in 2021 and her interactions relating to same.  Also contained within the documentation is a complaint in relation to Ms. P.  These matters were not submitted on the claim form of 30th September 2020 and therefore cannot be adjudicated upon as part of this process

2.           The Complainant also submitted a number of correspondences to the WRC, as part of her complaint querying various entitlements in relation to her employment.  It is not the role of the Adjudication Officer to provide advise to individuals in relation to their entitlements.  The WRC does provide an advisory service and any such queries should be directed appropriately by the Complainant.  In that context I have not considered the following documents in my deliberations on this case:

·       Email of 8th September 2021 from the Complainant to the WRC querying her entitlements regarding annual leave post sick leave.

·       Email of 28th October to the WRC regarding a number of queries which she described as related to her claim regarding Terms & Conditions.

3.     In all, the Complainant submitted 3 variations of submissions in relation to her complaints and I have reviewed and considered all of them as part of my deliberations.  I have also considered any correspondence/documentation dated after 30th September 2020 which directly related back to events that took place prior to that date and which were included in the Complainant’s complaint form.  For the purpose of clarity, I refer to the following documents:

o   Emails dated between 27th October 2020 and 26th November 2020 between the Complainant and Ms. P in relation to the Complainant’s return to work, her concerns regarding potential future injuries, her concerns regarding non-adherence to the grievance policy, queries regarding the investigation process and regarding her entitlements.

o   Document received ???? headed “To Who it May Concern” setting out details of her complaint regarding “Terms and Conditions” and regarding “Discrimination/Equality/Equal Status”

o   Email of 29th September from the Complainant to Ms. P regarding her return to work, raising concerns about her challenges with interpretation of information, suggesting the use of a translator and raising concerns about Ms. P’s interactions with her.

o   Email of 8th November to Mr. B regarding the grievance meeting /procedure

o   Email of 12th November to Mr. K regarding the accuracy of the notes of the grievance meeting

o   Email of 17th December 2021 to the WRC with attached copy of Investigation Report

o   Email of 20th December 2021 to the WRC with final submission

The Case

The Complaint cited a number of areas, in which she alleged the Respondent had discriminated against her under the Act as follows:

·       discrimination on the prohibited grounds of age

·       discrimination on the grounds of disability and failure to provide reasonable accommodation for a disability

·       discrimination on the grounds of race,

·       victimisation and harassment

The Complainant submitted that the discrimination related to her conditions of employment.

The Law

Section 85 A (1) of the act provides: -

85A. – (1) Where in any proceeding 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.

In any case involving an allegation of discrimination the Adjudication Officer must first consider the allocation of the burden of proof as between the Complainant and the Respondent

Section 85A provides that “where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed.  Once these facts are proved, and if the Adjudication Officer considers that to be of sufficient significance to raise an inference of discrimination, then the onus of proving that discrimination did not occur shifts to the Respondent.  If a Complainant does not prove the primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination, then the claim cannot succeed.”

It is for the Complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the Respondent.

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in its determination in Mitchell v Southern Health Board[2001] E.L.R. 201. That three-tier test provides: -

1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.

2) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

In this case the primary facts contended by the Complainant are: -

·       that she had put the Respondent on notice that she was suffering from anxiety and was on medication when she verbally notified Ms. G at end of March 2019

·       that her anxiety worsened as a result of finding a tissue with blood on it at the early stages of the pandemic and that when she raised her concerns with Ms. G about inadequate cleaning she was told to “mind your own business.” 

·       that although the Respondents “Stress Management and Prevention Policy” provided for reasonable accommodation for work-related stress, she did not require accommodation, just “support and understanding.” 

·       that her concerns were not addressed in accordance with the policy and were not taken seriously, thus adding to her stress and anxiety.

·       that she hurt her back while working in the packing room in July 2020 and that she reported the incident to her supervisor, Ms. G and to HR and the company nurse, within a few days.

·       that the incident was not logged as required under policy, nor in accordance with the requirements of the Safety Statement and that the accident was never investigated

·       that she had difficult and challenging interactions with her supervisor where she stated that “it’s not ok when you are afraid to raise personal concerns or work-related issue to the supervisor not knowing what to expect; shouting and humiliation at you in front of others, refusing requests without good reason, being intimidated or being treated differently than others.” 

·       That she sought to move to lighter work but was told by her supervisor to go home, while the same supervisor had accommodated another employee in the exact same way earlier that day

·       That she raised grievances with the Respondent in relation to operational matters and in relation to her supervisor and that the Respondent delayed dealing with those grievances, in contradiction of their own policy

·       That she was absent from work due to sick leave for a considerable period and that she had various challenges in relation to access to the insurance scheme and in relation to sick pay

The Complainant in this case alleges that she was discriminated against on the grounds of age, disability and failure to provide reasonable accommodation for a disability, on the grounds of race, and that she was subject to victimisation and harassment.

Section 6(1) of the Employment Equality Acts, 1998-2015 states that:

“For the purpose of this Act, 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 6(2) of the Act expands:

“As between any 2 persons, the discriminatory grounds (and the discretion of those grounds for the purpose of this Act) are –

(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”)

In this case the Complainant did not provide any comparator in relation to her claim of discrimination on age or race grounds and while she referred to another employee who was treated differently to her in relation to the provision of accommodation for back pain, she did not provide any specific details in relation to that colleague.

I noted that while the Complainant re-iterated her allegations at hearing, she did not provide specific detail of those allegations, nor did she provide any evidence of same.

Section 2(1) of the 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 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 without the 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 behaviours

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 clear that in order to establish a prima facie case of discrimination on the grounds of disability it must first be established that the Complainant suffered from a disability within the meaning of the Act. 

In this case I noted that while the Complainant suffered from “back pain” and suffered from stress and anxiety, there was no medical evidence provided that such conditions were classed by her treating physician or by the Respondent medical service provider as constituting a disability.  In relation to her claim on the grounds of disability the Complainant, must provide evidence that she was suffering from a disability and no such evidence was provided. 

In circumstances where the Complainant did not name a comparator in relation to any of the grounds claimed nor provide specific evidence in relation to her allegations, nor provide medical evidence of a disability I do not find that she has met the threshold to raise an inference of discrimination on the ground of age, race or disability.

Harassment

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

In her submission I noted that the Complainant related her allegation of harassment to her complaint of discrimination on the ground of race.  I noted her submission that she had difficulty expressing herself in English to her supervisor and that she alleged that her supervisor would interrupt her, distort her words and provoke her (the Complainant) into calling the supervisor a liar.  She described the supervisor as refusing to listen or pushing her to make mistakes and only taking notes for herself of their discussions.  I noted that she further described the meeting of 6th July with her supervisor and the HR representative as being in a similar vein and that her use of language was interpreted as misconduct.

I noted that the Complainant also referred to allegations that she was afraid to raise her personal concerns or work-related issues to the supervisor, that she was shouted at and humiliated in front of others, that her requests were refused without good reason and that she was being intimidated and treated differently to others. 

The obligation clearly rests with the Complainant to provide credible evidence to raise these allegations to meet the standard of “established facts.” As set out in Melbury Developments Ltd. V Valpeters (EDA 09/17) “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  In the instant case the Complainant made a number of allegations relating to the behaviour of the Respondent and its agents but did not provide any evidence in relation to those allegations that would result in them being considered as facts in the case and I do not find that she has met the threshold to raise an inference of harassment on the discriminatory ground of race.

Victimisation

Victimisation as defined in Section 74(2) of the Employment equality Acts is set to protect employees who seek redress under the Act, supports a complaint, or gives evidence in proceedings, by prohibiting their being victimised by dismissal or other penalty for doing so.  Victimisation takes place where an employee is dismissed or suffers adverse treatment by their employer as a reaction to a protected act such as:

1.     Being involved in a claim under the Employment Equality Acts either in the Workplace Relations Commission or in the Courts

2.     Representing or supporting a Complainant

3.     The work of an employee having been compared with that of another employee for any of the purposes of the Employment Equality Acts (i.e.; the employee who was the comparator)

4.     Acting as a witness in any proceedings under the Employment Equality Acts or Equal Status Act

5.     Opposing by lawful means an act which is unlawful under the Employment Equality Acts

6.     Having given notice of intention to take any of the actions mentioned above

In order to be successful in a claim that an individual has been victimised, a Complainant must establish that they have taken one or more of the protected acts listed above in relation to discrimination and have subsequently been subjected to adverse treatment by their employer as a result.

In her complaint of victimisation, the Complainant described that she had told Ms. G a number of times that she had symptoms of OCD, and that she mentioned it to the company nurse also.  She stated that after she was in conflict with Ms. G and after she made her complaint, she did not receive any “reasonable accommodation offer,” but felt more pressure in relation to her workload.  She stated that Ms. G could change the work schedule many times a day without proper time to get the workstation ready.  She cited the example of being told to cover for a colleague, in circumstances where she hadn’t been fully trained and without sufficient time to clean or even get gloves.  She stated that until she went out sick, she hadn’t had a day off physical work in circumstances where the supervisor was aware of her back pain and aware that she had concerns about the time given for cleaning in the context of Covid.

The sequence of early events is relevant to this matter and I set them out below:

(a)   Letter of 3rd July 2020 to Ms. G raising health and safety concerns

(b)   Document furnished on 6th July 2020 at meeting with Ms. G and Mr. K, raising operational issues and complaints in relation to Ms. G

(c)   Meeting closed by Mr. K to seek medical evidence and in light of complaints re Ms. G

(d)   10th July 2020 Complainant advised to leave boxes complained of to one side and not to lift same

(e)   Letter of 13th July 2020 to the Complainant acknowledging receipt of the complaint and confirming that same would be investigated under the Grievance Procedure.

(f)    Medical certificate submitted by the Complainant stating that she was unfit for work from 20th July 2020 until 27th July 2020.

(g)   Complainant remained on sick leave from 20th July 2020 to 2nd November 2020

Having reviewed the detail of the correspondences of 3rd and 6th July 2020 I note that there is no mention of the concerns raised being under the Equality Act, nor is there any mention of discrimination.  The substantive complaint of 6th July primarily related to health and safety matters and to the behaviours of Ms. G as an operational manager.  The only reference to any of the grounds under the Employment Equality Act is where the Complainant refers to “slight health problems”.  I noted further that the Complainant alleged that the victimisation occurred between the time she submitted her complaints internally and the time when she went on sick leave and I noted that this was between 6th July 2020 and 20th July 2020, a period of less than 2 weeks.

In this context I noted that the Complainant was not engaged in any of the activities listed 1-6 above at the time that she states she was being victimised.  While she had lodged grievances, she had not lodged any grievances regarding any form of discrimination nor had she put the Respondent on notice of her intention to do so.  I therefore find that no victimisation occurred.

CA- 00040173-001

I have found thatthat the Respondent has fulfilled their obligations under the Act in relation to providing written confirmation of changes of particulars.  However, I also found that the Respondent was in breach of the Act in not providing details of pension schemes and overtime remuneration arrangements as part of the initial statement of terms of employment. Therefore, it is my decision that this complaint is well founded. 

I had also found that the Complainant suffered no demonstrable loss as a consequence of those omissions and it is established case law, that in such circumstance, the compensation awarded must reflect that fact.  On that basis, I decide that the Respondent should pay the Complainant the sum of €500 as compensation for the breach of the Act.

CA- 00040173-002

I am satisfied from the totality of the evidence adduced that the Complainant was not discriminated against on grounds of age, race or disability by the Respondent nor was she harassed on the grounds of race or victimised.     Accordingly, I declare this complaint to be not well founded.

Terms of employment; discrimination on the ground of age; discrimination on the ground of race, discrimination on the ground of disability, harassment, victimisation