Complainant

Respondent

Anonymised Parties

Community Health Worker

Community Support Organisation

Representatives

Mr. Michael Kerrigan, Fórsa Trade Union

No Appearance

Act

Complaint Reference No.

Date of Receipt

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

CA-00052032-001

01/08/2022

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

CA-00052032-002

01/08/2022

The Complainant is a longstanding employee of the Respondent, with in excess of ten’s year service. At all relevant times, the Complainant was engaged as a “Community Welfare Officer”. The Complainant was a part-time employee, in receipt of a weekly payment of €84.00.

On 1st August 2022, the Complainant referred the present complaints to the Commission. Herein, she alleged that she had been penalised for having made a protected disclosure and that she had been discriminated against on the grounds of her membership of the travelling community. In particular, the Complainant alleged that she had been unlawfully suspended following her raising significant concerns regarding the management of the organisation. Regarding the employment equality complaint, the Complainant alleged that she had been treated less favourably than some of her colleagues in the manner in which her former employers communicated with her and in the provision of the services required to carry out her duties. The Respondent provided no rebutting submission in relation to any of the foregoing points.

A hearing in relation to these matters was convened for, and finlised on, 8th June 2023. There was no appearance by or on behalf of the Respondent at the hearing as scheduled. In addition to the same, no submission or documentary evidence of any description was received from the Respondent at any stage of the proceedings. In this regard, the representative for the Complainant noted that the Respondent organization had ceased trading and no longer maintained a managerial structure. In circumstances whereby the Respondent’s status remains listed as “normal” on the Companies Registration Office, and no liquidator had been appointed to the same, the matter proceeded in their absence.

Prior to the substantive hearing, the Complainant made an application to have the matter heard in camera and for this decision to be anonymized in its published form. In this regard, the Complainant submitted that she wished to maintain her privacy as a person that made a protected disclosure. In this regard, Section 4(b) of the Workplace Relations (Miscellaneous Provisions) Act, 2021 provides that, an Adjudication Officer may, following an application from a party to the proceedings or otherwise, due to the existence of ‘special circumstances’, direct that proceedings be conducted in private.  Having regard to the application made by the Complainant, I exercise my discretion to hold the hearing in private and duly anonymise the present decision.

This matter was heard in parallel with file reference ADJ-00040849. In circumstances whereby the matters involve an identical set of facts, one common submission was presented for both parties, and this decision should be read in conjunction with the same. The Complainant gave evidence in support of her complaint, with the Adjudicator making enquiries as appropriate. The Complainant called one witness, the Complainant in the matter heard in parallel to the present complaint, to give evidence in support of her allegations.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings.

The Complainant was engaged as a Community Healthcare Worker by the Respondent. The Complainant, and another of her colleagues, experienced ongoing difficulties regarding their conditions of work. These issues cumulated with the Complainant and her colleague issuing a formal letter of complaint regarding her former line manger to the Board of Directors on 30th June 2021. This correspondence particularly related to a false accusation in relation to an alleged GDPR breach on the part of the Complainant. This correspondence was not acknowledged by the Board, and to the Complainant’s knowledge, no investigation was undertaken on foot of the same.

Some three weeks later, on July 20th the Complainant was successful in applying for an internal promotion. However, on the day following the offer, the Complainant was informed that the offer was withdrawn and the original postholder was returning, The Complainant submitted that this represented the first occasion of penalisation on foot of her issuing protected disclosures to the Board of Directors.

At various occasions throughout January and May 2021, the Complainant raised concerns directly to the Respondent’s funding body in respect of the Respondent’s failure to provide adequate support to the community it severed in relation to adherence to Covid-19 safety protocols. Thereafter, on September 27th, the Complainant was removed from a remote call by the Respondent and was not admitted to further meetings thereafter. On September 28th, the Complainant, and her colleague, were informed that they would not be provided with work until such as time as they confirmed in writing that they would “agree to work to their contract”. The Complainant expressed puzzlement as to the meaning of this phrase and submitted that the actual reason for her exclusion from work was her continued raised of issues regarding the Respondent’s failure to provide support to the community.

On foot of the above, the Complainant and her colleague again issued correspondence to the Respondent Board of Directors complaining of the adverse treatment they had been receiving from their line manager. This correspondence alleged that the Complainant, and her colleague, had not been provided with broadband access or a mobile phone for work related activities. In circumstances whereby they were in receipt of the minimum wage, they submitted that this served to reduce their pay bellow that legal threshold. The correspondence further outlined the exclusion from work experience by the Complainant and her colleague.  Again, this correspondence went unanswered and unacknowledged.  Following an intervention on the part of their newly appointed trade union representative, including a specific query regarding the legal basis for the Complainant’s exclusion from employment and the policy used to facilitate the same the Complainant, her colleague and her union representative attended a “return to work meeting” on 6th December 2021. During the meeting, the parties agreed to put their past differences behind them and to proceed on a mutually cooperative basis. On this basis, the Complainant and her colleague returned to work on 6th December 2021.

On January 13th 2022, the Complainant was provided with a complaint in respect of alleged misconduct on her part. At all times the Complainant strenuously denied the allegations as produced and submitted that they simply represented the latest form of penalisation arising from her continued raising of protected disclosures. Despite her protestations in this regard, the Complainant was informed that, yet again, she would not be permitted to return to work until such a time as these complaints were resolved. Following further intervention on the part of Complainant’s trade union representative, a meeting was arranged on 15th February, with the Respondent again permitting the Complainant to return to work on the basis that she adhere to the terms of her contract of employment.  Whilst the Complainant remained unsure as to what this actually meant, she agreed to the same in an effort to return to work. The Complainant’s representative noted that this meeting did not occur under the auspices of the Respondent’s disciplinary procedure and no resolution was achieved regarding the alleged complaints received earlier in the year.

In April of 2022, a formal investigation of the Respondent was undertaken by an external body. The report that subsequently issued from this investigator was opened to the Adjudicator, with the relevant section referred to by the representative for the Complainant. In this regard, it was noted that the report echoed many of the issues raised by the Complainant, including a Respondent’s failure to adhere to internal employment polies, their failure to provide a written protected disclosures policy and the inappropriate use of the disciplinary procedure. It was submitted that this report outlined a deeply dysfunctional organisation, and one that corroborated the Complainant’s own evidence in this regard.

In evidence the Complainant further outlined that she did not receive a phone or phone credit. She stated that these were essential to complete her role and as she was in receipt of the national minimum wage she should have been provided with the same. In addition to the foregoing, she submitted that both herself and her witness are both members of the travelling community while others employees, that were not member of the community, were provided with a phone and broadband access. Finally, the Complainant referred to an occasion whereby herself and her witness were both removed from a conference call without cause. She submitted that this was again on the grounds of her membership of the travelling community. In this regard the Complainant referred as other persons, that were raising similar points, that were not removed.  Again, the Complainant outlined that these persons were not members of the travelling community.

By submission, the Complainant’s representative submitted that a clear pattern emerged towards the end of the Complainant’s employment with the Respondent. In particular, he submitted that the Complainant, and her colleague, experienced ongoing issues with the conditions of their employment. In the absence of any express policy in relation to the same, the Complainant raised these issues directly to the Board with no response received. In addition to the same, the Complainant raised issues regarding the provision of the service to the community it was charged with serving. In response to these disclosures, the Complainant and her colleague suffered ongoing penalisation, most notably their ongoing exclusion from employment. Finally, the representative for the Complainant submitted that the Respondent’s ongoing failure to provide the minimum essentials required for the Complainant and her colleague to complete her role constituted discrimination on the grounds of membership of the travelling community.

There was no attendance by or on behalf of the Respondent at the hearing as scheduled. In addition to the same, no application for adjournment was received prior to the hearing, nor was any explanation for the Respondent’s non-attendance received following the same. Having reviewed the file, I am satisfied that the Respondent was on notice of the time, date and venue of the hearing.

In these circumstances, the matter proceeded in the absence of the Respondent.

CA-00052032-001 – Complaint under the Protected Disclosures Act

The present case involved an allegation by the Complainant that the Respondent continually penalised her issuing protected disclosures. In particular, she alleged that following a complaint on her behalf, she was excluded from the workplace and, along with her colleague, isolated from the rest of the workforce. Unfortunately, the Respondent did not provide any form of defence to these serious allegations, and the Complainant’s evidence in this regard was essentially uncontested.

Notwithstanding the same, it falls to the Complainant to establish the primary facts upon which she seeks to ground her complaint. In this regard, the Complainant must firstly establish that she made a protected disclosure within the meaning of the impleaded Act. She must then demonstrate that she suffered a detriment thereafter. Finally, the Complainant must demonstrate a causal connection between the alleged protected disclosure and the detriment suffered.

Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as a “disclosure of relevant information made by a worker in the manner specified”.

Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing”.

Subsection 3 then goes on to list the following examples, amongst others, of a “relevant wrongdoing” for the purposes of the Section above,

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

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

c)       that a miscarriage of justice has occurred, is occurring or is likely to occur,

d)      that the health or safety of any individual has been, is being or is likely to be endangered,”

It is clear from the evidence presented by the Complainant that many of the complaints she issued throughout her employment may be categorised as protected disclosures in accordance with the above-mentioned provisions.  In particular, it is noted that the Complainant’s initial letter of complaint to the Board of Directors alleges that the actions of her line manager are having a detrimental effect on her health and wellbeing. This correspondence also expressly refers to the Respondent’s alleged failure to properly safeguard information in accordance with relevant GDPR requirements. In later correspondence, the Complainant further alleges that the Respondent has failed to provide her with the national minimum wage, an offence within the terms of that Act. Finally, in oral evidence the Complainant referred to various complaint to the Respondent’s funding body in respect of their alleged failures in relation to Covid-19 safeguarding. It is further noted that these disclosures were made either directly to the Board of Management or to a government body.

Following from the same Section 3(1) expressly enumerates the following as examples of penalisation,

a)      “suspension, lay-off or dismissal,

b)      demotion or loss of opportunity for promotion,

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

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

During the cognisant period for the purposes of the present complaint, the Complainant submitted that she was effectively removed from her employment and place on an unauthorised and illegal suspension. The Complainant further submitted that she was subjected to an unwarranted and fundamentally unfair disciplinary process.

Again, having regard to the provision above, and the uncontested evidence of the Complainant, it is apparent that she suffered a detriment as defined by Section 3(1) of the Act.

The final aspect of the complaint that must be proven by the Complainant is a causal connection between the protected disclosure and the detriment suffered. In the matter of Aiden & Henrietta McGrath Partnership -v- Ann Monaghan [2017] 28 ELR 8, the Labour Court held that,

“Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the complainant having committed the protected act he or she would not have suffered the determined.”

In this regard, the Complainant representative pointed to the narrative of events outlined by the Complainant. He submitted that each time the Complainant made a protected disclosure, she suffered a detriment shortly thereafter. In this regard he submitted that this proximity in time evidence a causal connection between the protected disclosure and the determent suffered.

In relation to this final element of the test, an interrogation of the Respondent’s motives for imposing a detriment is required. In many circumstances, the detriment imposed may have a causal origin in matters entirely unrelated to a protected disclosure. However, in the present case, the Respondent tendered no evidence or submission that would indicate that the detriment suffered was imposed for any reason other than penalisation. In this regard, it is noted that the Respondent did not process the complaints raised by the Complainant in accordance with any formal policy, it is further noted that the Respondent raised issues regarding the Complainant’s conduct without recourse to a disciplinary policy. The Respondent’s failures in this regard again create a situation whereby no documentary evidence exists that might demonstrate that the detriment suffered arose for any reason other than penalisation for issuing a protected disclosure.

Having regard to the foregoing, I find that the complaint is well-founded and the Complainant’s application succeeds.

CA-00052032-002 – Complaint under the Employment Equality Act

In relation to his complaint, the Complainant alleged that her and her colleague’s line manager removed her from a conference call. She submitted that in circumstances whereby other employees, who were not members of the travelling community, were making similar points and were not removed, that the same constitutes discrimination within the meaning of the impleaded Act. In addition to the same, the Complainant alleged that the Respondent failed to discharge her mobile phone and broadband expenses. Again, the Complainant submitted that these expenses were discharged for employees that were not members of the travelling community. In this regard, she submitted the same constituted a further act of discrimination on the part of the Respondent.

In this regard, Section6(1)(a) of the Act provides that,

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(i) provides that membership of the travelling community is included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps :

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 Adjudication Officer/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”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere 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 of no exceptions to that evidential rule.”

Regarding the present case, the evidence of the Complainant was uncontested by the Respondent, either by way of witness evidence that might contradict the Complainant’s position, or by written submission denying any of the allegations raised.

Having regard to the evidence presented by the Complainant, it is apparent that was purposefully excluded from an online work meeting and that she was not re-imbursed for services essential for the completion of her role. In evidence, the Complainant stated that is a member of the travelling community, and that other persons that were not members of the community did not suffer the same adverse treatment.

Having regard to the foregoing, I find that the Complainant has established the primary facts upon which a presumption of discrimination could be inferred. In circumstances whereby the Respondent failed to provide any form of evidence to rebut this presumption, I find that the Complainant was discriminated against within the meaning of the impleaded Act and as a consequence, her complaint is well-founded.

CA-00052032-001 – Complaint under the Protected Disclosures Act

I find that the complaint is well-founded.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €6,552.00, or the equivalent of 18 month’s salary, in compensation.

CA-00052032-002 – Complaint under the Employment Equality Act

I find that the Complainant was discriminated against and consequently, her complaint is well-founded.

Having regard to the totality of evidence presented, I award the Complainant the sum of €4,368.00, or the equivalent of one year’s salary, in compensation.

Non-attendence, Protected Disclosure, Discrimination