Worker

Employer

Anonymised Parties

A worker

An employer

Representatives

  In person.

Aleksandra Tiiliakainen IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00048337 - 001

24/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA – 00048337 – 002

24/01/2022

The worker was employed by the employer as a machine operator.

As per complaint form the worker has stated that he commenced employment with the company on 28th February 2020 on a fixed term contract. The workers fixed term contract was extended on 7th August 2020, again on 26th February 2021, again on 9th August 2021 and the last extension on 16th December 2021. Employment ended on 13th January 2022.

The complaint was received by the Workplace Relations Commission on 24th January 2022.

As per complaint form the worker has stated that he commenced employment with the company on 28th February 2020 on a fixed term contract. The workers fixed term contract was extended on 7th August 2020, again on 26th February 2021, again on 9th August 2021 and the last extension on 16th December 2021.

The worker contends that he was a diligent worker, always punctual and never absent. He was never in trouble regarding the quality of his work.

In early December 2021 the worker was asked to attend a meeting with management at which he was accused of being asleep at his machine during working time. The worker strongly objected to this allegation.

The worker was informed the matter would be investigated and he would be called to another meeting the following week. On 10th December the worker was invited to attend another meeting with the investigators. At this meeting the worker was shown a statement taken from a production manager. This statement stated that he had witnessed the worker asleep in early or mid-November.

The worker has stated that the production manager has chosen the wrong time as the machine he normally worked on was down from the end of October until early in December. The worker feels this proves this was a false allegation on the part of the manager. The worker was working on another machine until his normal machine re-started in early December and therefore it was impossible for the manager to witness him asleep at his usual machine.

The HR manager told the worker that she had no reason not to believe the version of events provided by the manager.

One week later (16th December 2021) the worker met again with a member of HR management and asserts that no one was willing to listen to him and that his future in the company had already been decided.

The last meeting attended by the worker took place on 13th January 2022 where the HR Manager presented the final conclusions of her investigation. In said conclusions the HR Manager clearly stated that the worker was asleep during his working time and that she had no reason not to believe the production manager.

The worker has stated that this caused him stress and depression and he felt that he could no longer take this type of treatment, he left the meeting and quit his job.

The worker contends that this was a conspiracy between the HR Manager and the product manager and further contends that he was not afforded a fair investigation.

Background to the Respondent

The Respondent specializes in the design, development, and commercial scale up of complex and innovative healthcare products, serving the world’s leading pharmaceutical, medical device and diagnostic companies. The Respondent currently employs approximately 450 employees in the Bray based manufacturing site and approximately 900 employees across the island of Ireland.

Background to the Claimant

The Complainant commenced his employment on 2nd March 2020 on a fixed term contract in the capacity of Operator. The Complainant’s fixed term employment was extended on 7th August 2020, 26th February 2021, 9th August 2021 and 16th December 2021. The Complainant worked 42 hours per week and earned €12.20per hour. The Complainant resigned from his employment on 13th January 2022.

Background to the claim

In December 2021 it was brought up to management attention that the Complainant was observed asleep while at work. On the 3rd December 2021 the Complainant met with Ruth Lloyd HR Manager and Alan Fogarty, Production Manager to discuss the matter. The Complainant stated that he never fell asleep at work and denied the allegation. When asked if he was ever awakened by anyone at work, the Complainant explained that once his colleague placed a hand on his arm to alert him that the line is moving. The Complainant was offered to attend the meeting with a colleague, but he declined it.

On the 10th December the Complainant again met with the investigators. The Complainant attended this meeting with his colleague. He was provided with statement from Paschal Harte, a witness. He then was afforded to meet and question the witness. The witness explained that he observed the complainant asleep at work on two occasions, in October and November 2021. The Complainant threatened legal action.

On the 16th December 2021 the Complainant met with Aoife Doyle, HR Business Partner. As his fixed term contract was expiring, he was issued with a 3 months contract extension.

The investigations findings were completed on the 10th January 2022. The Complainant was issued with an invite letter to attend a disciplinary meeting on the 13th January 2022. During the meeting the Complainant stated that he made a covert recording of Ms Lloyd and a manager at the site which supports his case and he also threaten legal action. The Complainant further stated, “you are letting me go”. The meeting was adjourned. The Complainant collected his belongings and left the site. On the same day the Complainant sent his letter of resignation and did not return to the workplace.

Respondent’s arguments: Industrial Relations Claim: disciplinary sanction up to and including dismissal

The Respondent refutes the allegation of any unfair process taking place.

The Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Complainant was aware at all times of the nature of the allegation against him. He was afforded the right to representation. He was further provided with several fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. The Complainant was also allowed to cross-examine a witness, the main witness.

The Respondent has a legal obligation under the Safety, Health and Welfare at Work Act 2005 to ensure the safety, health and welfare at work of their employees. The Respondent’s disciplinary procedure clearly explains that sleeping at work is considered a gross misconduct. The Respondent had no other option but to initiate disciplinary procedure to investigate the alleged misconduct.

In light of all of the above, the Respondent believes it to be clear that process was procedurally fair in all respects. Without prejudice to this statement, the Respondent submits that any such alleged flaw is minor in nature and that the severity of the substantive issue in this case outweighs any alleged procedural flaws. In this regard the Respondent refers to Walls Leisure Ltd v Said Belarbi – EAT UD492/2008 in which the tribunal stated:

“The respondent had a right to be notified of the disciplinary meeting, and he should have been told about the appeal process. These were clear deficiencies in the company’s procedures. However simply because there was a flaw in procedures does not automatically mean that a dismissal was unfair. When the Tribunal weighs the procedural deficiencies against the substantive issue i.e., theft of tips intended for employees under his supervision, the Tribunal considers that this matter outweighs the procedural defects.”

The Complainant lodged a claim in relation to a disciplinary sanction up to including dismissal, however the Complainant left the company premises and resigned after the disciplinary hearing and was never issued with a disciplinary sanction or the outcome of the disciplinary hearing. The Complainant’s resignation and nonattendance at work following the hearing in effect stopped the disciplinary process. The Complainant’s claim has no substance.

Industrial Relations Claim: Bullying and Harassment procedures:

The Complainant has a complaint about bullying and harassment procedures. The Complainant is alleging that he has been harassed, however he did not outline on which ground. The Complainant further claims that he was penalised by being threatened with disciplinary action

The Employment Equality Acts, 1998 – 2015 define what is meant by the term ‘discrimination’.

Section 6 (1) of the Employment Equality Acts 1998 to 2015 states:

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

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

                                 I.            Exists

                               II.            Existed but no longer exist

                             III.            May exist in the future, or

                            IV.            Is imputed to the person concerned.

Section 6(2) of the Employment Equality Acts 1998 to 2011 states that

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

(a) that one is a woman and the other is a man

 (b) that they are of different civil status

(c) that one has family status and the other does not

(d) that they are of different sexual orientation

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not

(f) that they are of different ages, but subject to subsection (3)

(g) that one is a person with a disability and the other either is not or is a person with a different disability

(h) that they are of different race, colour, nationality or ethnic or national origins

 (i) that one is a member of the Traveller community and the other is not

Direct discrimination is defined as occurring where one person is treated less favourably then another is, has been or would be treated and that person is of a different race, gender, civil status, family status, sexual orientation, religious belief, age, disability or member of the traveling community. Direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed.

The Complainant has not identified another person who in comparison he can argue he had been treated less favourably than or would be treated. Thus, the Complainant has provided no evidence of that he has been treated less favourably than another person is, has been or would be treated. Secondly, the Complainant has also failed to establish a causal link between any alleged discriminatory treatment and any of the discriminatory grounds.

Indirect discrimination is deemed to occur where an apparently neutral provision puts persons at a particular disadvantage compared with other employees based on one of the nine grounds covered by the Acts. There is no evidence to show that the Complainant has been indirectly discriminated against.

It has 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. It is only when he/she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

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

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

Section 15(3) of the Act states: "it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act; or (b) from doing in the course of his employment acts of that description".

Without prejudice to the above argument, the Respondent denies that that are aware of any of their staff behaving in an inappropriate way towards the Complainant. The Respondent submits that had the Complainant sought to lodge a complaint under the Bullying & Harassment procedure he would have been supported in doing so. The Complainant maintains that the fact that he went through disciplinary process is how he was harassed. The Complainant did not raise a complaint of being harassed up until he resigned from his employment and left the premises. The Complainant did not serve his full notice period and did not return to work. The Respondent does not accept that conducting investigation and disciplinary meetings with a complainant can be considered a harassment. Were it to be found that they may have, the Respondent defends vicarious liability in this regard.

While the Complainant claims he was penalised or threatened with penalisation, the Respondent strongly denies that it victimised the Respondent. Without prejudice to the aforementioned, it is clear that not only should the Complainant’s claim for victimisation regarding disciplinary process but any claim that the actual disciplinary investigation of the Complainant constituted victimisation is wholly erroneous. It is also very clear that the reason behind the investigation as explained above did not constitute any form of victimisation but was a reasonable employer’s reaction to the facts of the Complainant’s case.

The Respondent submits that the definition of bullying or penalisation would have to be stretched beyond breaking point to fit this case

The Respondent is relying on the case of Ruffley v. The Board of Management of St Anne’s School 2017] IESC 3. Charleton J held.:

“Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point out faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention.

Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary”.

Conclusion

It is the view of the Respondent that they have acted reasonably in dealing with the Complainant. Based on the detailed arguments above, the Respondent respectfully requests that those claims are dismissed in its entirety.

CA – 00048337 – 001 – dismissal / constructive dismissal.

The worker was aware at all times of the nature of the allegation against him. He was afforded the right to representation. He was further provided with several fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. The worker was also allowed to cross-examine the main company witness.

It is not disputed that the worker resigned from his employment. The contention from the worker is that he was constructively dismissed.

In Conway v Ulster Bank UD474/1981 the Employment Appeals Tribunal considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. In the instant case the worker presumed he was going to be fired and walked out of the meeting and resigned.

I note that the meeting that took place on 16th December 2021 between the worker and a member of the HR team was unrelated to the ongoing investigation. The purpose of that meeting was to offer the worker another fixed term contract.

Having considered the complaint in its entirety I cannot make a recommendation in favour of the worker and therefore the complaint fails.

CA – 00048337 – 002.  – Bullying and Harassment Procedures.

As per complaint form the worker has stated that he was harassed.

Harassment is defined as “unwanted conduct” relating to any of the nine grounds of discrimination. Harassment violates a person’s dignity and creates an intimidating, degrading, humiliating or offensive environment for the victim.

In the instant case the worker does not appear to link this alleged harassment to any of the nine grounds outlined in the Employment Equality Acts.

Equality law is based on comparisons; how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator.

A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon.

I am unable to accept that any harassment of the worker took place. The complaint of harassment is not well-founded.