Complainant

Respondent

Parties

Alina  Farghaly

Eddie Rocket's IRL Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00052459-002

29/08/2022

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

CA-00052459-003

29/08/2022

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

CA-00052459-004

29/08/2022

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

CA-00052459-005

29/08/2022

The complainant has been on extended sick leave.

Her last day at work before her period of sick leave was May 15th, 2021, and she remains certified as unfit for work until January 2024 at the earliest.

These complaints were submitted to the WRC on August 29th, 2022, some fifteen months she last attended for work, and some preliminary issues arise relating to whether the complaints have been correctly made and within the specified time-limits.

The complainant has stated that the breaches of the Equality legislation she complains of took place between April 4th, 2021, and May 5th, 2021. There was some confusion about this complaint having been submitted as an Equal Status Act complaint, but this was clarified as a complaint under the Employment Equality Acts.

She explained the delay as being due to her illness.

Regarding complaints CA-00052459-003 and 005 made under the Organisation of Working Time Act the complainant accepted that the claim for public holidays had been resolved (005) and was withdrawn.

The complainant said that she had misunderstood the nature of a penalisation complaint.

Complaint CA-00052459-004 was made in error and withdrawn.

In 2007, the complainant commenced work with the company on February 7th, 2018 she was provided with an updated Employee Handbook, including the current Grievance Procedure and Bullying & Harassment Policy (extract and acknowledgement submitted).

On May 16th, 2021, the complainant  made a complaint in respect of interpersonal issues with colleagues and this was acknowledged on May 20th. A meeting was set up, but the complainant did not attend.

Then on May 17th 2021, the complainant  is certified as unfit to work and remains certified unfit up to January 2024.  On May 24th, 2023 the respondent was first notified of this (and a related) WRC complaint.

In relation to the complaint under the Equality Act the company has in excess of four hundred employees and a robust Grievance Procedure and Bullying & Harassment Policy (extract submitted) which employees know how to access whether by means of an informal or formal approach.

 The complainant is familiar with the Bullying & Harassment Policy and Grievance Procedure and has successfully participated in mediation to resolve two separate interpersonal issues in the past. Both of these previous matters were amicably resolved with employees continuing to work together afterwards.

It is accepted that the complainant has a current grievance.

She raised this with the company in 2021.

Because she was submitting medical certificates to say she was unfit for work the normal investigative procedure could not be commenced and was therefore paused until the complainant was fit to return to work or engage with the process.  Since then, she has continued to be certified medically unfit to return to work which in turn has prevented the running of any grievance procedure. 

The company has robust policies and procedures to resolve any type of workplace matter, as we have done in the past, and we look forward to investigating the complainant ’s grievance once we are aware of the details of same.

CA-00052459-002 - Discrimination -Equal Status Act.

The Equal Status Act, as set out in Section 5 of the legislation states that

 “A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”.

The complainant is an employee and so any interactions she has with the Respondent are in the context of an employment relationship and not as a customer. The scope of the Equal Status Act does not extend to employment disputes; therefore, we submit that this claim must fail.

Regarding complaint CA-00052459-003 – Penalisation, The complainant has indicated that she was penalised or threatened with penalisation for giving evidence in any proceedings or giving notice of her intention of doing so under the Organisation of Working Time, Act, 1997. 

As she has been on certified sick leave since May 2021 and the WRC received the complaint in August 2022, and the respondent was not notified of the complaint until May 2023 there can have been no opportunity to penalise the employee in this manner and so we submit that this claim must fail.

The respondent has been given no indication of how this complaint CA-00052459-004 - Protection Part Time Employee arises.  We confirm that at least half of our four hundred plus employees are part time workers and the company treats all employees, whether full time or part time, equally.

The respondent now understands that complaint CA-00052459-005 – Hours of Work related to Public Holidays and has now been dealt with in full. The complainant’s Public Holidays entitlement has been paid.

An error was made in respect of timing of an employee’s eligibility to be paid Public Holidays while on sick leave, although all public holidays were held for her along with the annual leave accrued. All public holidays owed to her have now been paid.

The complainant has been on sick leave since May 2022 to date; a period of some eighteen months. There is no indication at this stage as to when she might return to work.

At the heart of this set of complaints is a matter (which does not appear here) on which fortunately some progress has been made between the parties arising from the hearing, and which is in hand.

Unfortunately, the complainant, a lay litigant who appeared with the valuable support of a friend appears to have been badly advised in relation to the formulation of her complaints.

She accepted in the course of the hearing that her complaints had been submitted in August 2022, well outside the one-year time frame which is the maximum period within which a complaint may be entertained. Even then, there are relatively strict legal tests to enable an Adjudicator to extend the period from the generally applicable time of six months.

On that basis complaint CA-00052459-002 is not within jurisdiction on the basis that it has not been made within the time limits (and therefore the confusion with the Equal Status Act is rendered academic).

As noted above the other complaints were withdrawn. No evidence of penalisation was offered in relation to CA-00052459-003 which had been made on the same day as the referral to which it related (CA-00052459-005), and which had been resolved before the hearing.

CA-00052459-004 had been made in error and was withdrawn.

Complaint CA-00052459-002 has not been made within the required time limits and is not well founded.

Complaints CA-00052459-003, 004 and 005 were withdrawn at the hearing.

Time Limits.