Complainant

Respondent

Anonymised Parties

A Support Worker

A Health Care Provider

Representatives

National Advocacy Service for People with Disabilities

Niamh McGowan B.L. instructed by A&L Goodbody LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039210-001

17/08/2020

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

CA-00039210-002

17/08/2020

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

CA-00039210-003

17/08/2020

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

CA-00039210-006

17/08/2020

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

CA-00039210-008

17/08/2020

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

CA-00039210-009

17/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00039210-010

17/08/2020

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

CA-00044013-001

07/05/2021

As will be seen below the complainant’s disability was a significant contributory factor in the background to the making of her complaints, and it featured strongly prior to, and at the hearing itself.

I consider that her right to privacy in respect of these very sensitive health issues, especially as it might impact on her future employment prospects far outweighs the necessity for publication of her (and by extension the respondent’s) identity. This is especially the case as no point of public interest arises in respect of the specific decisions below.

For that reason, in this case I have taken the exceptional step of anonymising the parties’ names.

In respect of complaint CA-00039210-001 the complainant did not offer any evidence.

In respect of complaints CA-00039210-002 and 03 she said that there was only one complaint which related to her assignment to a specific location.

In respect of complaint CA-00039210-006 this related to a change in her contract specifically related to the use of a vehicle. 

In respect of complaint CA-00039210-007 she said that this arose from a referral to her GP in January 2017 but offered no further details.

The complainant addressed complaints CA-00039210-008 and 009 by referring to an agreement in March 2017 and a subsequent failure by the respondent to permit her to undertake specific training in 2018.

There was also a previous incident in 2016 in relation to holistic training. She also referred to an issue related to a promotion.

Complaint CA-00039210-010 related to the failure to apply the terms of a pension scheme to her. She applied for this but despite a commitment to consider it she said nothing further happened and she was excluded from it.

(The respondent made a detailed written submission on the background to the case and on the individual complaints. In the circumstances this summary of its response is sufficient to address the specific complaints).

re CA-00039210-001, the respondent submits that the complainant lacks locus standi in respect of her claim seeking adjudication under section 27 of the Organisation of the Working Time Act, 1997, alleging that she was not compensated for working on a Sunday. The reason is that she did not work a Sunday during the cognisable period. Further her claim is not well founded as her salary and working hours took Sunday working into account.

In relation to the complainant’s claims under section 6 of the Payment of Wages Act, 1991, alleging that the respondent made an unlawful deduction from her wages (CA-00039210-002) and had not paid her or paid her less than the amount due to her (CA-00039210-003), these are not well founded given that there were no wages properly payable to her during the cognisable period, and therefore no deductions were made.

She was not at work and was not engaging with the respondent to facilitate her return to work after a period of over one year on discretionary paid leave.

Regarding the complaint under section 7 of the Terms of Employment (Information) Act, 1994, alleging that she was not notified in writing of a change to her terms of employment (CA-00039210-006) it is not well founded as she received a full written statement of her terms of employment after commencement of her employment in 2016, any claim in relation the belated provision of this statement is statute barred and there were no changes to those terms during the course of her employment.

The respondent says that the WRC may not investigate an alleged trade dispute under section 13 of the Industrial Relations Act, 1969, in respect of the respondent’s bullying and harassment procedures (CA-00039210-007) given that the employment relationship has ended, and the complainant did not make proper use of (never mind exhaust) the internal workplace procedures before making the referral under the IR Act.

The complaint under section 77 of the Employment Equality Act, 1998, is not well founded.

Specifically, the respondent denies that the complainant was discriminated against on grounds of disability in any way (CA-00039210-008) and can show that it provided any reasonable accommodation that was identified. The respondent was thwarted by her in its efforts to identify and implement further accommodations when she refused to engage with either the respondent or occupational health for an extended period.

No basis for an equal pay claim has been established by the complainant to a prima facie standard and on that basis her complaint must fail (CA-00039210-009).

Likewise, she has not adduced any evidence that she had been discriminated by way of an occupational pension (CA-00039210-010) and on that basis the respondent submits that the complainant has not discharged her burden of establishing a prima facie case of discrimination on disability grounds.

The second complaint under the Employment Equality Acts alleging discriminatory dismissal; dismissal because she opposed discrimination; and victimising her (CA- 00044013-001) is not well founded as she was not dismissed on grounds of disability or any other grounds.

In conclusion, the respondent's very purpose is to provide services to users with disabilities including those on the autistic spectrum. It would be entirely contradictory to its ethos and principles to engage in discriminatory treatment of its own employees. At no time did the respondent discriminate against the complainant on disability grounds as alleged or at all.

Every effort was made to provide her with the reasonable accommodations sought and/or recommended by occupational health specialists and these were all implemented. Each time the complainant raised an issue and sought further accommodations; they were provided.

Other than the reasonable accommodations identified by occupational health specialists, the complainant was unclear and inconsistent in terms of the accommodations she was seeking and raised numerous grievances in respect of her engagement with any managers or members of HR who sought to assist her, but did she not actually follow through on those grievances by meaningfully engaging in grievance processes.

None of the other statutory claims submitted by the complainant have any basis in law.

The respondent requests that the WRC find that all the complaints are without merit.

There are nine separate complaints to which I return in detail below. (They are as set out above in the respondent‘s submission.)

First a comment on aspects of the conduct of the case which may be helpful to understanding the requirements of attending a WRC hearing.

There were some difficulties in managing this case due to the complainant’s disability. She had put all parties on notice of this and certain ‘accommodation’ was sought to take account of it.

Regrettably, the complainant still had some difficulty coping with the requirements of the hearing and was able to engage in a limited way with the process. 

In the event, the complaints fell to be dealt with by way of preliminary matters related to time limits and whether a prima facie case had been made out and did not require a full hearing of the issues.

The complainant’s failure to arrange suitable representation did not help in this regard. It is not necessary to be professionally represented (or at all) at a WRC hearing but this will obviously depend on circumstances. In general, it will be helpful and in these specific circumstances it would definitely have been.

For many months before the hearing the WRC had been receiving communications from a person confusingly styling herself as ‘an advocate’. (and who also attended the hearing) but who was not, as it turned out, an advocate for the purposes of the hearing.

She worked for a support organisation for people with a disability and while the word ‘advocate’ is also used by people working in that capacity it gives rise to very obvious confusion when applied in the context of WRC processes where it means something quite different.

She eventually did clarify in the lead up to the hearing that she would not play any part in the presentation of the complainant’s case, despite having acted in this role in dealings with the respondent at the level of the workplace.

While she made helpful submissions on the nature of the complainant’s disability, and the accommodation that might be required, she too appeared to be unaware of even the basic requirements of a WRC hearing, specifically in respect of its obligations to conduct a fair process and the obligations this imposes on a party preparing for a hearing, and her failure to provide advice to her client in that regard is surprising and regrettable.

There was a great deal of medical information submitted on the complainant’s disability and some other argument in respect of detail in the respondent’s submission but very little in the nature of submissions to ground her complaints.

A submission was received in August 2020, running to almost 13,000 words which, while it set out a detailed narrative and account of the complainant grievances, did not address the basis of the statutory complaints. Nothing in the nature of a normal pre-hearing submission was received from the complainant or her representative.

A shorter submission in October 2020 was in a similar vein but focussed in detail on a range of grievances against the respondent and concluded by requesting that the WRC, in some generalised way, ‘look into this matter further on her behalf’. 

Expressed in such vague terms, this is not the function of the Adjudication service, except insofar as it applies to the individual complaints of breaches of specific statutes.

Some of the ‘accommodation’ sought by the complainant before the hearing would have resulted in such disproportionate and disruptive requirements as to make the conduct of a hearing virtually impossible and probably would not have met the requirements of a fair process.

The general position regarding the application of reasonable accommodation is that it should be facilitative of a person who is otherwise competent to carry out (for example) the relevant tasks but whose disability prevents them from doing so, but who may be enabled to do so by the provision of measures that are reasonable and proportionate.

In my view, some of the measures sought by the complainant would have rendered the level of interaction and communication necessary for a hearing practically impossible. A great deal of informality and flexibility is possible at a WRC hearing, and commonly practised by all Adjudicators, so the requirements are not demanding. However, some obligations also fall on a party to prepare for a hearing, which in this case the complainant failed to do.

It is a core value of the WRC that its services should be accessible to all, and every effort will be made to ensure ease of access to justice. However, a capacity to engage with the process is required, having regard to whatever accommodation is made available and which is consistent with the requirements of a fair process.

The complainant was facilitated with a series of brief adjournments on the day of the hearing to allow her to compose herself, and some general guidance was given to her on the requirements necessary to get the process underway, but to little avail.

As noted above, the complaints fell to be dealt with by way of preliminary matters mainly related to time limits and whether a prima facie case had been made out, and therefore any disadvantage attributable to the complainant‘s disability or lack of representation was diminished.

In any case, there was no request for an adjournment, either by the complainant or her advocate nor any indication that a delay in hearing the matter would improve the complainant’s ability to present her complaints, or for how long such a delay might be necessary.

But overriding those considerations, I take into account also that in respect of eight of the nine complaints the respondent submitted that they have not been made within the statutory time limits, and, in respect of three of those, that no prima facie case has been made out.

The ninth complaint, under the Industrial Relations Act also failed a jurisdictional test (explained below).

Accordingly, I proceed to a decision on the complaints.

The following dates are relevant.

Complaint CA-00039210 (comprising eight complaints) was received on August 17th, 2020, and Complaint CA-000444013 on May 7th, 2021 (one complaint).

The complainant’s employment appears to have terminated on April 14th, 2021, although there is some uncertainty about this. By that time the complainant had been absent from work for almost two years (as far as I can discern from the respondent‘s submission this might be from April 11th, 2019, but nothing turns on the few days’ difference).

This means that, by the time the first complaint was submitted (on August 17th, 2020) the complainant had not been at work for fifteen months, which as will be seen has an important bearing on the time limits applicable to a number of the complaints.

In respect of complaint CA-00039210-001, the respondent has submitted that the complainant did not work any Sunday during the cognisable period and the complainant failed to adduce any evidence to the contrary in support of her complaint.  Accordingly, this complaint is not well-founded.

In relation to the complainant’s claims under section 6 of the Payment of Wages Act, 1991, alleging that the respondent made an unlawful deduction from her wages (CA-00039210-002) and had not paid her or paid her less than the amount due to her (CA-00039210-003) this cannot be well founded given that there were no wages properly payable to her during the cognisable period, (the six months back to February 2020). 

She had not been at work and no sick pay, for example, was payable.   Therefore, these complaints are not well founded.

Regarding the complaint under section 7 of the Terms of Employment (Information) Act, 1994, alleging that she was not notified in writing of a change to her terms of employment (CA-00039210-006) she has again not made out any case. She received a full written statement of her terms of employment when she was first employed in 2016, and she submitted no evidence of any material changes to those terms subsequently that required an amendment to the Statement.

The respondent says that the WRC may not investigate an alleged trade dispute under section 13 of the Industrial Relations Act, 1969, in relation to bullying and harassment procedures (CA-00039210-007) as the employment relationship had ended.

It further submits that the complainant did not fully avail of the internal procedures before making the referral under the Industrial Relations Act. Any failure to do so is fatal to any complaint under this legislation and the Labour Court, the Adjudication Service (and its predecessor tribunals) hold firmly to the position that they will not intrude in a dispute where it has not been fully processed through the relevant procedures at the level of the workplace.

There are four complaints of discrimination, three under the Employment Equality Act, 1998 and one (010) under the similar provisions in s 81 of the Pensions Act, 1990.

In respect of the first three of these (CA-00039210-008, 009 and 010) the complainant again failed to make out a prima facie case.

In addition, the incident arising in respect of the first of these, (008) took place in 2018; indeed, part of her submission related to events in 2016 and 2017 and all are well outside the time limits for making a complaint.

The respondent submitted that it provided all identified reasonable accommodations to the complainant but that any further accommodations were frustrated by her refusal to engage with either it or the occupational health service for an extended period of time.

No information to ground it, or any prima facie basis for an equal pay claim (CA-00039210-009) has been provided by the complainant and on that basis this complaint is not well founded

in respect of CA-00039210-010 she could not identify any comparator in respect of the pension scheme to which she sought access. It appears that no comparable employees in the Republic of Ireland have access to the pension scheme she complains about and has again failed to establish a prima facie case.

Therefore, she has not adduced any evidence that she had been discriminated against by way of an occupational pension and on that basis, I accept the respondent’s submission that the complainant has not discharged her burden of establishing a prima facie case of discrimination on the disability ground.

(There are some eligibility criteria for the pension scheme, but none are relevant to a complaint of less favourable treatment on any of the protected grounds).

Her final complaint under the Employment Equality Acts alleging discriminatory dismissal and related matters, CA- 00044013-001 is not well founded as she was not dismissed by the respondent on grounds of disability or any other grounds. Detailed submissions were made setting out the narrative which led to the termination of the complainant’s employment which is largely attributable to her own acts or omissions.

Indeed, the complainant made it clear that the circumstances of the termination of employment was her central concern, and of considerably more importance than the outcome of the complaints herein.

In summary, except for the complaint under the Industrial Relations Acts (where different provisions apply) none of the complaints are within jurisdiction as they have not been made within the statutory time limits.

In addition, the complainant has failed to make out a prima facie case in respect of the complaints under the Employment Equality Acts and the Pension Act.

In summary, none of the complaints are well founded.

Decision

For the reasons set out above complaints CA-00039210-001, 002, 003, 006, 008, 009, 010 and complaint CA-000444013-001 are not well founded as they have not been made within the statutory time limits. In addition, in respect of the last four referred to the complainant has failed to make out a prima facie case.

Recommendation

Complaint CA-00039210-007 under the Industrial Relations Acts fails for the reason set out above.

.

Time limits, Prima facie case, industrial relations.