Complainant

Respondent

Parties

Michael Quinn

National Deaf Village Sports and Leisure Centre Limited

Representatives

Self-represented

The Operations Manager

Act

Complaint 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-00048668-001

16/02/2022

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

CA-00048668-003

16/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00048668-004

16/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00048668-005

16/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00048668-006

16/02/2022

The complainant is a professional fitness instructor and he commenced employment with the respondent on September 2nd 2019.  He was paid €12.00 per hour.  His last day at work was in February 2022.  He said that he didn’t go back to work after he was falsely accused of using his phone on the pool deck in the leisure centre.  He submitted a medical certificate on February 18th 2022 indicating that he was absent due to work-related stress.  He argues that he was not given a written statement of a change in his hours of work, he was treated unfairly as a part-time employee and he was discriminated against on the grounds of his mental health. 

CA-00048668-001:  Complaint under the Terms of Employment (Information) Act 1994

The complainant said that when he commenced employment in September 2019, he was given a contract which provided that he worked 25 hours per week.  Shortly afterwards, he began to work 39 hours a week and his complaint is that he was not given a new contract indicating the change in his weekly hours.

CA-00048668-003:  Complaint under the Employment Equality Act 1998

The complainant claims that he was discriminated against when he suffered from stress as a result of difficulties he experienced with late finish and early start times.  He said that, when he had to work until 10.00pm and return to work less than 12 hours later at 6.00am, he didn’t get an opportunity for proper rest.  He said that he had no mental health problems when he started working with the respondent, and that, since he left, he has had no further health concerns.  He attributes all his mental health problems to how he was treated by his former employer.

In the documents he submitted in advance of the hearing, the complainant included copies of the leisure centre roster for several weeks.  The centre was closed due to Covid-19 for a considerable period from March 2020 and it was closed again during 2021.  In the rosters he submitted in evidence, it is apparent that the complainant worked from 10.00am until 6.00pm on Thursday, December 5th 2019, and that he came to work the following day at 6.15am, 8.25 hours later.  He repeated this shift again on January 30th 2020, March 19th 2020 and September 16th 2020.  The roster shows that the complainant worked this late and early shift on another date, but the roster doesn’t indicate the month or the year.  The complainant said that this roster interfered with this family life and was unsustainable.  He also said that a roster was not produced fortnightly, causing additional stress.

The complainant produced a letter from his doctor dated November 16th 2021, in which his doctor recommended a change to the pattern of late evenings and early morning starts.

The complainant said that he suffered from stress because he didn’t get an opportunity to be upgraded to the role of duty manager. 

Finally, the complainant said that he suffered from stress was because he was not qualified to work as a lifeguard.

CA-00048668-004:  Complaint under the Protection of Employees (Part-time Work) Act 2001

At the hearing, the complainant said that he was not a part-time employee.

CA-00048668-005:  Complaint under the Protection of Employees (Fixed-term Work) Act 2003

In his evidence, the complainant said that he had a contract of permanent duration and that he was not employed on a fixed-term basis.  He said that he did not fully understand the legislation when he completed the form for the WRC.

CA-00048668-006:  Complaint under the Protection of Employees (Fixed-term Work) Act 2003

Similar to the complaint above with reference number CA_00048668-006, complainant said that he was not employed on a fixed-term contract of employment.

CA-00048668-001:  Complaint under the Terms of Employment (Information) Act 1994

At the hearing, the Operations Manager, Mr Herron, said that the complainant was due to start his job in July 2019, on a full-time basis, working 39 hours a week.  He delayed his start because his wife was ill.  When he was ready to start, he asked if he could work less hours and Mr Herron agreed that he could work 25 hours a week and he was issued with a contract to this effect.

Three weeks after he started in his job, there was a fire at the fitness centre, and all the employees were laid off.  The complainant was paid for 25 hours a week during the closure, and, when the centre opened on October 1st 2019, at his request, he started working 39 hours a week.

Before the government-imposed lock-down on March 16th 2020, the leisure centre closed due to concerns about Covid-19.  On March 26th, the complainant wrote to Mr Herron enquiring about how much he would be paid.  In his email he said,

“I am full-time with you but my contract is 25 hours and don’t know where I stand on this would I still be paid as a 40 hours basis if it’s part-time I would have to apply for covid payment to make up the moneys, just not sure how all this is gonna pan out like everyone else I suppose. (sic)”

Mr Herron provided a copy of an email he sent to the complainant the following day:

“Hi Michael

You have been working 39 hours per week over several weeks and I advised you you were effectively full-time.  While we may not have got around to doing up new paperwork, we will be treating you as 39 hours per week on our pay run. 

I’m having a board conference video at 12 to confirm but you should be paid your full 39 hours going forward.

Enda.”

It is the respondent’s case that the complainant was always considered to be a full-time employee, apart from the first four weeks of his employment when he asked to work shorter hours.  The email of March 27th 2020 is confirmation of the requirement for him to work 39 hours each week.

CA-00048668-003:  Complaint under the Employment Equality Act 1998

In response to the allegation of discrimination, Mr Herron said that the complainant asked to finish early on Fridays, and this necessitated an early start, following from a late night on Thursdays.  Mr Herron accepted that the complainant did not get 11 hours’ rest when he worked until 10.00pm and came to work the next day at 6.15am, but he said that he had the benefit of compensatory rest at other times of the week.  Mr Herron said that the complainant asked not to be rostered for work before 10.00am, and that he was facilitated in this regard.  He did not want to come to work early on Thursdays and he wanted Friday afternoons off to spend time with his son.  For this reason, he was rostered for a late shift on Thursday and an early shift on Friday. 

Mr Herron said that, during the time when the centre was opened when the Covid-19 restrictions were lifted, it was impossible to provide a roster a fortnight in advance.  When staff were out sick, rosters were done almost daily.

Mr Herron said that the complainant did not give him a copy of the letter from his doctor that he produced at the hearing.

Mr Herron provided a copy of a training certificate which confirmed that the complainant completed water safety training in September 2019.  He said that there is no legal requirement for the complainant to be a qualified lifeguard and that the training in water safety is adequate for his job.   Mr Herron also submitted evidence that the complainant did training in first aid.

With regard to the complainant’s application for promotion to the job of duty manager, Mr Herron outlined the background to the recruitment for this role.  He said that the complainant applied for a job as a duty manager in September 2019.  His application was not successful.  Two of the applicants were appointed as duty managers in December 2019 and January 2020, based on their qualifications and experience.  No discrimination occurred when the complainant was not appointed and the fact that he was not appointed was not connected to his complaint that he was suffering from a mental health condition.

Mr Herron said that the complainant was open with him from the commencement of his employment regarding the fact that he suffered from mental health difficulties.  He said that they discussed ways of providing support and that the centre has access to an employee assistance programme and counselling.  Mr Herron said that he suggested that the complainant avail of the counselling, but that he decided not to seek that support.

CA-00048668-001:  Complaint under the Terms of Employment (Information) Act 1994

Section 5 of the Terms of Employment (Information) Act 1994 addresses the requirement for an employer to provide a written notification to an employee if there are changes in a statement previously issued:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, 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, or

Subsection (b) and subsection (2) are not relevant to the complaint under consideration here.

The complainant was offered a full-time job for 39 hours a week, but, because his wife was sick, he asked to start working for 25 hours a week and his contract provided that he was required to work 25 hours a week.  On October 1st, he said that he was ready to work full-time and from then on, he worked 39 hours a week.  His employer did not issue him with a revised contract of employment.  In March 2020, at the onset of the Covid-19 pandemic, all the employees were paid their full wages during the initial lock-down and the complainant received confirmation in writing that he was employed to work for 39 hours a week.

Having considered this complaint, I am certain that no disadvantage arose for the complainant from the failure of the respondent to issue a letter confirming the increase in his hours of work in October 2020.  However, the fact that no detriment occurred does not ameliorate the fact that there was a breach of section 5(a) of the Terms of Employment (information) Act, because the change in the complainant’s role is a change in the “particulars” included in the Statement issued to him in September 2019.

CA-00048668-003:  Complaint under the Employment Equality Act 1998

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015 (“the Act”).

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred.  In the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than his colleagues because he has a disability.

Section 2(1) of the Act sets out the definition of disability:

“disability” means—

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

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

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

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

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

In the decision of the Labour Court in A Government Department v a Worker[1], the Government Department appealed against the decision of an equality officer to award the Worker a sum of €8,000 in compensation for discrimination.  The appeal was not successful; however, considering the evidence of the Worker’s general practitioner and her consultant psychiatrist and, summarising its task, the Court held that,

“…the only issue which the Court must decide is whether the condition from which the complainant suffered is a disability within the statutory meaning of that term.  That is a mixed question of law and fact which turns on the true construction of paragraph (e) of the definition of disability as contained at s.2 of the Act and the application of that definition to the facts as admitted or found by the Court.”

Later, in its determination on the same case, the Court addressed the challenge of determining whether certain psychiatric illnesses come within the definition of a disability:

“The Court must take the definition of disability as it finds it.  Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327).  Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.  That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005.  It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

The complainant said that he did not have a mental health condition when he commenced employment with the respondent.  He said that his mental health difficulties were caused by issues related to his job and that, when he left his job, he recovered.

In his evidence, Mr Herron said that, when the complainant joined the centre, he was open with him regarding his mental health challenges, and that they discussed ways providing support.  Mr Herron said that the complainant was often absent from work due to his mental health, but that he did not give him a copy of the correspondence from his doctor which he provided at the hearing.

In the letter from the complainant’s consultant psychiatrist dated November 16th 2021, the psychiatrist said that the complainant had been in hospital on two occasions in the last two years due to mental health difficulties and that he is working on his recovery.  As this letter was written in November 2021 and, as the complainant commenced employment with the centre in September 2019, the complainant must have been suffering with mental health difficulties since around the time he started work.  The centre was closed for considerable periods of time in 2020 and 2021 due to Covid-19, and I find it difficult to believe that the complainant’s mental health condition was brought on by his experience at work.

Based on the complainant’s evidence, it appears that he found aspects of the job frustrating and disappointing.  He said that he found the late finishes and early starts stressful.  However, he was rostered for this schedule at his own request so that he wouldn’t have to start work early on Thursdays and so that he could finish early on Fridays.  Due to the significant length of time during which the centre was closed due to Covid-19, it is apparent that this late start / early finish for one day a week was not a consistent feature of the complainant’s working life, and he produced just five or six weeks when he was rostered for the late start and early finish.  I am satisfied that, if he had spoken with Mr Herron and if he had asked to be rostered for a different shift, that this would have been facilitated.

Another factor contributing to the complainant’s stress was the fact that he wasn’t promoted.  He produced no evidence that this was related to his mental health condition.  The letter from the complainant’s consultant psychiatrist dated November 16th 2021 states that he is “working on his recovery from mental health difficulties.”  No evidence was submitted to show that he has been diagnosed with a recognised psychiatric illness, and his own evidence is that he was well before he started working with the respondent and that, since he left, he has no mental health problems.

Conclusion

No evidence was submitted that the complainant suffers from a psychiatric illness.  It is apparent that he had mental health difficulties, and that he discussed his problems with the operations manager who suggested various ways of supporting him.  In the absence of medical evidence, the complainant’s mental health difficulties is not the kind of “illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour” which is the definition of a mental disability at section 2(e) of the Employment Equality Act.  I find therefore, that the complainant has not shown that his medical condition is consistent with the definition of a disability within the meaning the Act.

Alternatively, if I was to find that the complainant’s mental health condition is a disability, he has not set out any facts that lead me to conclude that his employer treated him less favourably than a person without such difficulties. 

CA-00048668-001:  Complaint under the Terms of Employment (Information) Act 1994

I have decided that this complaint is well-founded.  Taking all the facts into account, I decide that the respondent is to pay the complainant compensation of €468, equivalent to one week’s pay.

CA-00048668-003:  Complaint under the Employment Equality Act 1998

I am not satisfied that the primary facts put forward by the complainant are adequate to raise an inference of discrimination and, for this reason, the burden of proving that discrimination did not occur does not shift to the respondent.

CA-00048668-004:  Complaint under the Protection of Employees (Part-time Work) Act 2001

I decide that, as the complainant was employed on a full-time basis, his complaint under the Protection of Employees (Part-time Work) Act 2001 is not well-founded.

CA-00048668-005:  Complaint under the Protection of Employees (Fixed-term Work) Act 2003

I decide that, as the complainant was employed on a permanent basis, his complaint under the Protection of Employees (Part-time Work) Act 2001 is not well-founded.

CA-00048668-006:  Complaint under the Protection of Employees (Fixed-term Work) Act 2003

I decide that, as the complainant was employed on a permanent basis, his complaint under the Protection of Employees (Part-time Work) Act 2001 is not well-founded.

Written statement of change in terms of employment, discrimination, disability, stress