Complainant

Respondent

Anonymised Parties

An Office Worker

An Engineering Company

Representatives

Maurice Osborne BL instructed by Aidan Duggan O'Reilly Doherty & Co.

Setanta Landers Setanta Solicitors

Act

Complaint/Dispute 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-00053937-001

30/11/2022

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

CA-00053937-002

30/11/2022

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

CA-00053937-004

30/11/2022

The Complainant stated that she was dismissed from her employment on 31 August 2022 because of leave she had taken as a result of her disability. She also stated that the Respondent provided her with a written statement of her terms and conditions of employment that was not fully compliant with the law. She further asserted the accrued annual leave, that the Respondent was required by law to give her when they terminated her employment, was offset from the 1 week notice period that she was due.

The Complainant commenced employment with the Respondent as a part – time accounts administrator on 16 November 2021. On 28 March 2022, she stated that she received an appointment from the Colonoscopy Unit in the Rotunda Hospital. On 25 May 2022, after biopsies were taken, the Complainant was informed that further testing would be required. On 21 June 2022, she received the results of the biopsy along with an appointment for 3 August 2022 to have pre-cancerous cells removed. This appointment was subsequently changed to 17 August 2022 and the Complainant was also required to attend a follow up appointment on 22 August 2022.

She stated that she gave advance notification to the Respondent on 22 July 2022 and again on 27 July 2022 that she was required to attend these medical appointments. Two days after her follow up appointment, out of the blue, and while she still on sick leave because of the procedure on 17 August 2022, she was given one weeks’ notice that her employment would terminate on 31 August 2022.

The Complainant commenced employment with the Respondent as a receptionist/office Administrator on 16 November 2021. Her employment terminated on 31 August 2022. She was contracted to work 27 hours per week and her hours were tailored to facilitate her family life.  The Complainant received a copy of her contract on 8 November 2021 and signed it on 9 November 2021. The Complainant was engaged under a probation period of 11 months.

The Complainant booked annual leave for medical appointments on both 17 August 2022 and on 22 August 2022.

On Thursday 18 August 2022, the Complainant’s mother called in sick on her behalf and later that morning the Complainant herself telephoned to say that she would be out until the following Tuesday and would call on Monday. It was communicated to her that she would need to evidence those absences with sick certificates. Two medical certificates, both citing “medical condition” were subsequently received from her GP.

The Complainant’s employment was terminated on 24 August 2022 because an experienced accounts technician was required on a full-time basis and as such her part-time role was no longer needed. Her notice period was 1 week, and she received notice of termination on 24 August 2023. She was paid in lieu of one week’s notice.

The Respondent stated that at the time of her termination they were not on notice of her disability because the only medical knowledge available to them was the two GP certificates mentioned above and the two consultant appointments.

CA-00053937-001:

Section 3 of the Act provides:

3.— (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Complainant stated in the first instance that the reference to the minimum wage was omitted from the terms and conditions of employment that she received from the Respondent in November 2021. She further asserted that there was no reference to access to a PRSA nor to any terms or conditions relating to incapacity for work due to sickness or injury and paid sick leave, or the period of notice which the employee is required to give and entitled to receive.

Considering all of the foregoing points, and having reviewed the contract of employment that she received, I find that the complaint is well founded.

CA-00053937-002:

The matter for decision is whether the Complainant was dismissed for reasons connected with her disability. 

Disability is defined in Section 2 of the Acts:

‘‘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;

I am satisfied that the Complainant’s disability, namely the presence of pre-cancerous cells within her cervix, comes within the definition of a disability outlined above at 2(b).

Section 6(1) of the Employment Equality Acts provide:

“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 on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’)”

 Section 6(2) provides:

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

…….

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

The Burden of Proof

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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 case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"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.”

The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The LC stated that the Complainant 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 was no infringement of the principle of equal treatment.”

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was discriminated against on the disability ground.  It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the Respondent to rebut the prima facie case raised.

The Complainant stated in her evidence that she had made the Respondent’s Operations Manager aware in April 2022 of the initial colonoscopy and that she had subsequently informed her of the reasons for her numerous medical appointments over the course of the summer in 2022. She also stated that she had received appointment letters for 17 and 22 August, when she was scheduled to have pre-cancerous cells removed and a follow up appointment. She further alleged that she took these letters from her handbag and presented them to the Operations Manager on or around 3 August 2022, when the manager resumed work following a period of annual leave.

The Operations Manager disputed the Complainant’s version of events, denied that she was aware of her alleged disability and stated that she was of the understanding that the Complainant was attending medical appointments because of period pains.  

In considering whose evidence to prefer, I must examine all of the testimony presented by both witnesses and decide which, on the balance of probabilities, is more credible.

I note firstly the Complainant’s assertion that the only reason she was given by the Operations Manager behind the termination of her employment was that they wanted somebody full time. The Operations Manager in her evidence accepted that she had told the Complainant this but also stated, in her evidence at the hearing, that as well as wanting someone full time, the Complainant was making too many mistakes and they wanted an experienced accountancy technician.

In considering whether the evidence of the Operations Manager that the Complainant was making too many mistakes was credible, I note firstly that it makes little sense to me that she would receive a pay increase in May 2022, if this was true. Although the Operations Manager explained the pay increase by stating that the Complainant’s rate of pay was too low prior to this, it is quite simply not credible that she would receive a pay increase of over 13% six months after she began her employment and three months before it ended, if she was performing poorly. I also do not accept that the Operations Manager did not inform the Complainant of her poor performance when she was terminating her employment because she did not want to hurt her feelings, as she stated in evidence at the hearing. I make this finding because there was no credible evidence presented by the Operations Manager that it was ever communicated to the Complainant that she was underperforming or making mistakes at any stage during her employment. Indeed, the fact of the pay increase would suggest that the opposite was true. In addition, I noted that there were no questions put to the Complainant by the Respondent’s representative during his cross-examination to suggest that her performance was ever an issue. 

I also noted that the Complainant had highlighted to the Respondent when she started her employment that she would be available able to work full-time from late 2022 after her son settled into secondary school. I cannot therefore understand why, if her working hours were a problem for the Respondent as the Operations Manager alleged, they did not have a conversation with her to see if she could be more flexible from the end of August 2022 or why they could not have waited a few months until the Complainant’s son settled into secondary school.

I also noted that the Operations Manager stated in her evidence that they wanted an experienced accountancy technician to replace the Complainant. I am at a loss to understand why, if this was the case, it was not explained to the Complainant at the time of her dismissal and that they chose instead to tell her that the only reason behind her dismissal was they wanted someone full time. I further noted that no evidence was given at the hearing to explain what duties the accountancy technician would fulfil that the Complainant could not do. Moreover, when questioned at the hearing about the salary of the employee who replaced the Complainant, the Operations Manager stated that her pay was €27,000 per year which I note is the same salary as the Complainant. This would suggest that the Complainant’s replacement had a similar level of experience to her.

As well as stating that the Complainant did not notify her of her disability, the Operations Manager also highlighted that the two medical certificates provided by the Complainant’s doctor after 17 August 2022 stated that she was off work because of a medical condition and that there was no further clarification around what this medical condition was. I am of the view however that she must have known, following the phone call both with the Complainant as well as her mother the day after the operation on 18 August and the fact that that the Complainant was going to be out of work for a further two weeks after her appointment on 22 August, that her absence was linked to the medical appointments that she knew the Complainant was attending on 17 and 22 August rather than the period pains that she acknowledged being aware of prior to this.

Considering all of the foregoing points, I prefer the evidence of the Complainant and find on the balance of probabilities that the Respondent was on notice of her disability from May 2022, as the Complainant alleged. I also find, based on the evidence presented to me by the Complainant, and in the absence of any credible evidence to explain why her employment was terminated when she was on sick leave, that she established a prima facie case of discrimination on the disability ground, which was not rebutted.

The Complainant also asserted that she was discriminated against on the grounds of her gender and family status. Having heard the evidence in relation to these allegations, I am satisfied that there was no prima facie evidence of discrimination on either the gender or the family status grounds because the Complainant was not clear in her evidence as to whether the alleged discrimination on either of these grounds had occurred during the cognisable period.

CA-00053937-004:

The Law

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”    

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(a)   4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b)   One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)    8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)

Findings:

The Complainant stated that the Respondent offset the accrued annual leave that was due to her from the 1 week notice period that they were required by law to give her when they terminated her employment. The Respondent did not dispute this but stated that they did so on advice from their HR Advisor. As the Complainant was entitled to receive payments for both her accrued annual leave as well as her minimum notice pay, I find that this complaint is well founded.

CA-00053937-001:

I find that the complaint is well founded but consider the errors and omissions to be very minor. In all of the circumstances and recognising that the Complainant did not suffer any detriment as a result of the omissions, I make an award of €50.

CA-00053937-002:

Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to the complaint, in accordance with the relevant redress provisions under Section 82 of the Acts.  Based upon the reasoning outlined above, I find that pursuant to Section 79(6) of the Acts, the Complainant has made out a prima facie case that she was subjected to discriminatory treatment on the disability ground which was not rebutted.  

In accordance with Section 82(4) of the Acts, I order the Respondent to pay the Complainant €13,689 (namely thirty nine weeks’ pay) in compensation for breaches of the Employment Equality Acts. This award is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive as interpreted by case-law that the sanction be “effective, dissuasive and proportionate”.  Specifically, I consider this award to be effective in terms of meeting the intention of the legislature to remedy breaches of the Acts, and to be dissuasive in that it represents more than a nominal sum such that it will have a deterrent effect in the future.  I also consider this award to be proportionate in circumstances where the Respondent is a very small family business.  In addition, I have considered the effects of the discrimination on the Complainant who suffered stress as well as financial loss and has had to bear the cost of bringing these proceedings.

CA-00053937-004:

Section 27(3) of the Organisation of Working Time Act, 1997 states the following:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

This complaint is well founded for the reasons set out above.

I make an award of €500 for the unpaid annual leave, which also incorporates a compensation component in accordance with section 27(3) of the Act mentioned above.