Complainant

Respondent

Parties

Stephen Tuite

Fostervale Limited t/a  Tank And Drain Services

Representatives

  Self

Thomas Ryan,  Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055505-001

11/03/2023

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

CA-00055505-002

11/03/2023

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

CA-00055505-003

11/03/2023

The Complainant was employed as a Contract Manager with the Respondent.  He commenced employment on 20/07/2020 and was paid €476.00 per week.  He was dismissed due to issues in relation to timekeeping on 29/09/2022.  The Complainant has submitted three complaints.  He is claiming that he is owed outstanding commission and that he was discriminated against on the ground of disability and that the Respondent failed to provide reasonable accommodation in relation to his disability.  The Respondent denies these claims in their entirety and submits that the Complainant has failed to particularise and failed to substantiate his complaints in relation to discrimination.  The Complainant submitted his complaints to the WRC on 11/03/2023. 

The Complainant was provided with an opportunity to reply to the Respondent’s two preliminary points.  The Complainant stated that when he was dismissed by the Respondent, he was assured that he would be given all monies due to him.  He has made many attempts to get this resolved but without success.  The Complainant stated that he based his figure for the amount owing in commission on the basis of the sales document which he obtained from the Respondent’s system.  He provided a copy of this to the Respondent at the hearing.

In relation to the prima facie case of discrimination the Complainant submits that he made the Respondent aware of this disability when he submitted his medical certificates.  He also stated that he had a notional comparator.

The Complainant gave evidence on oath. 

CA-00055505-01: He outlined that he commenced employment with the Respondent on 20/7/2020.   When he was dismissed on 27/09/2022 he was owed commission.  He outlined that when a sale was made, he would receive 2.5% commission and when the contract was completed a further 2.5% was paid.  The Complainant submitted that based on his calculations and the limitations on the material available to him he was owed the sum of €3,500.  He explained that this commission arose from the June to July 2022 period.  The Complainant gave evidence in relation to the various requests he made to obtain this, but the Respondent did not pay.  The Complainant outlined that he submitted his complaint to the WRC after the Respondent continued to refuse to pay his outstanding commission.

CA-00055505-02 and CA-00055505-03:  In April 2022 he has some personal issues, and this resulted in him diagnosed with stress and depression.  He submitted the relevant medical certificates to his employer and on his return to work he requested that reasonable accommodation to enable him to continue in employment.  The Complainant gave evidence that he specifically requested that he would be given assistance with the day-to-day tasks associated with site work as he found this to be stressful.  He also requested assistance in relation to his credit control duties as he found that the Respondent was requesting that he double his efforts in relation to debt collection.  The Complainant also stated that a personal plan which was agreed on 28/08/2022 did not happen and he found his working environment more pressurised.

The Complainant was cross examined on behalf of the Respondent.   He was asked if he ever provided medical evidence to the Respondent that he had a disability.  The Complainant stated that he had done so on two occasions.  In 20/07/2022 he submitted a medical certificate from his GP and on 29/7/2022 he submitted a further medical certificate from a HSE psychiatrist.  The Complainant stated that he believed that the diagnosis of “stress/anxiety” on the medical certificate was sufficient to notify his employer that he had a disability.

It was put to the Complainant that he had a relapse in March/April 2022, and he agreed that he had gone missing for a number of days.  It was also put to the Complainant that he took annual leave without authorisation.  He denied that this was the case and outlined that he had booked his annual leave on the HR system and the holidays taken were deducted from his annual leave allocation.

It was put to the Complainant that in March 2022 he was absent, and that the Respondent could not support him if he was not able to do his job.  The Complainant agreed but submitted that he could not afford to take time off.  It was his position that the Respondent did not put anything in place that could support him or provide reasonable accommodation to enable him to do his job.

The Complainant was asked if he had provided any medical evidence that he could do the job and he confirmed that he provided this in April 2022.  The Complainant accepted that he was missing for a while without leave but he noted that he had no issues in May, June or July 2022.

The Complainant was asked if he was given a written warning in relation to his absenteeism.  He stated that he did not.  It was put to him that there was a letter of file which confirmed that he was issued with such a warning.  The Complainant explained that when he saw this in the Respondent’s submission, he noted that it was sent to an incorrect address, and he did not know anything about it. 

It was put to the Complainant that he was advised by e mail on 27/4/2022 that the Respondent was concerned about his job and the effects his absenteeism was having on the company.  He was also advised about the effects that his pattern of behaviour was having on the company.  The Complainant stated that he was but the was experiencing stress and anxiety as noted on his medical certificate.

It was also put to the Complainant that the Respondent was concerned about his ability to perform his role, and this manifested itself when customers disputed payments and delayed payments.  This resulted in the Respondent having to issue credit notes for significant amounts to a number of customers.   The Complainant disputed this assertion and noted that his level of activity was second in terms of the sales personnel.

The Complainant agreed that he had an issue with alcohol and submitted that he advised the Respondent of this in February 2022.  It was put to the Complainant that he was uncontactable for a period of time, and he said that this happened when he was on certified sick leave from 20/07/2022 to 10/08/2022.  The Complainant also submitted that he could not have been expected to complete any jobs when he was on sick leave.

In a closing submission the Complainant submitted that he accepted that the Respondent made some effort to assist him at the beginning of 2022, but this ran dry in July/August 2022.  At that time, he was aware that he was surplus to the Respondent’s requirements.  It is clear that the issues in relation to how the Respondent dealt with his dismissal clearly indicate that there was a bias towards him.  He was not paid when he was on sick leave from 20/07/2022 to 10/08/2022.  When he returned from sick leave, he was not afforded the opportunity to go back to his previous role and was told that this was due to his mental health issues.  The role he was given was not supportive and was stressful.

In response to a question from the Adjudication Officer the Complainant confirmed that he was satisfied that he presented the hearing with all his evidence and that he was afforded time to respond to the Respondent’s submissions.

The Respondent raised two preliminary issues in relation to these complaints.  The first was that the Complainant failed to exhaust internal procedures.  It was submitted on behalf of the Respondent that there is an obligation on the part of the Complainant to utilise the Respondent’s grievance procedure.  The Respondent referred to the Labour Court case of Geoghegan t/a Taps v A Worker INT 1044 which stated: “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed”.  It was also submitted that the Complainant has failed to provide details of the breakdown in relation to this claim under the Payment Of Wages Act.  The evidential burden is on the Complainant and the Respondent should have been provided with details of the amount claimed and how this was calculated.

In relation to the complaints under the Employment Equality Act the Respondent submits that the Complainant has not made a prima facie case of discrimination.  The Respondent refers to the case of Melbury Developments v Arthurs Valaperers [2010] ELR 64 which outlined the onerous nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Mr Jeremy Doyle gave evidence on oath on behalf of the Respondent.  He outlined that they employed the Complainant in July 2022 and there were no issues until January 2022 when he became impossible to contact.  He displayed sporadic attendance, and such was the concern for his well-being that Mr Kilcawley called to the Complainant’s house to check that he was ok. 

Mr Doyle met the Complainant who outlined that he had problems of a domestic nature, and he offered his support and some advice in relation to these matters.

In March and April 2022, the Complainant’s attendance was becoming a problem for the Respondent and trying to deal with the Complainant was very difficult.  Mr Doyle gave evidence that the was never told by the Complainant that he had issues with alcohol or that he had ADHD.  Mr Doyle clarified that the internal memo which noted a concern about alcohol was merely an opinion and nothing else.  Mr Doyle stated that he was aware that there were issues in relation to customers not paying and stating that the work was not done.  The Complainant agreed to a plan in order to improve things, but this did not result in any changes by the Complainant.

Mr Doyle stated that he wished to strongly refute that the Complainant was discriminated against.  Mr Doyle gave evidence that he took “a personal interest in the Complainant as he was a good guy”.  He tried to support and protect the Complainant and he gave him every opportunity to respond to that support and guidance.

In relation the payment of commission Mr Doyle stated that while he was not familiar with the specific details, he was aware that employees were responsible for their projects from beginning to end and the Complainant could not state that having to follow up on debtors was not part of his role.

Mr Doyle was cross examined by the Complainant.  It was put to Mr Doyle that the Complainant’s performance in January and February 2022 was the highest in the group.  Mr Doyle stated that he would dispute that.  It was also put to Mr Doyle that his assertion that the Complainant’s performance in July and August 2022 was not up to standard was wrong as the Complainant was out sick.  Mr Doyle stated that for the year 2022 his performance and attendance was not as good as in the previous year.

It was also put to Mr Doyle that the Complainant was on unpaid sick leave and did not have an opportunity to put the performance plan into action.  Mr Doyle stated it was part of the Complainant’s job to ensure that the company was servicing the contracts.

In response to a question from the Adjudication Officer Mr Doyle confirmed that he met the Complainant on 20/09/2022 and during this meeting he was dismissed.  Mr Doyle stated that the Complainant was told that if he sorted his affairs out, he would have a job with the Respondent.  Mr Doyle stated that this was an amicable arrangement and the Complainant understood that the Respondent had done its best to assist him.  Mr Doyle agreed that the disciplinary procedure was not strictly adhered to as the Complainant understood that the company had serious issues to deal with and he accepted that.

Mr Matthew Kilcawley gave evidence on oath on behalf of the Respondent.    He outlined that he is the Sales Director with the Respondent.  The Complainant reported to him, and he was part of their sales team.  The Complainant’s role could be described as that of Contracts Manager/Sales.

Mr Kilcawley gave evidence that the Complainant had no issues and did his job.  In February 2022 issues began to emerge when the Complainant was not doing the work, was not contactable and would then turn up only to then not attend again.    Mr Kilcawley stated that the Complainant’s sporadic attendance was problematic, and he had a number of meetings with him.  The Complainant divulged some of the background issues which were affecting him.  Mr Kilcawley stated that the company could not be described as ruthless as they were supportive to the Complainant.  However, his absence was also putting the company under pressure, and he did offer the Complainant time off so that he could return to his job when he sorted things out.  Mr Kilcawley stated that the Complainant stated that he could not afford to take time off.

Mr Kilcawley gave evidence that the months of July and August 2022 were very difficult for the company as a result of the Complainant’s behaviour.  He had to tidy a lot of things up because of this and the company had to issue a significant amount of credit notes to customers, and they also lost significant customers due to these issues.  Customers highlighted that the lack of communication from the Complainant was an issue and they lost faith in the company.

Mr Kilcawley stated that the performance plan  worked out with the Complainant was intended to bring some control to the situation.  He had facilitated the Complainant with a 9.00am start from Monday to Friday while the rest of the employees had an earlier start.  The performance plan did not work out as the Complainant continued to be late and his attendance was irregular.

Mr Kilcawley stated that the company was under a lot of pressure to get money in as the debtors’ days were increasing due to the Complainant’s absence.  This was the reason that he wanted the Complainant to concentrate on this aspect of his role when he returned from sick leave.  There was no discrimination involved in this or any other of his interactions with the Complainant. 

Mr Kilcawley was cross examined by the Complainant.  He was asked if he agreed that if he (the Complainant) was off sick it was not his remit to talk with the Respondent’s customers.  Mr Kilcawley agreed that was the position.  Mr Kilcawley was asked if he consider it fair to assess the Complainant’s performance when he was out on sick leave.  Mr Kilcawley stated that he could only assess the Complainant’s performance when he was present at work.  Mr Kilcawley was asked if he agreed with, the Complainant’s commission figures for the months of June and July 2022, and he confirmed that he did.   Mr Kilcawley was asked if his percentage of debtors was higher than other colleagues.  Mr Kilcawley outlined that there was not a simple straightforward answer to that question as his colleagues operated in different markets and it would not be a like-for-like situation.

The Respondent’s representative also provided the hearing with a legal submission.  It was submitted that the Complainant never requested reasonable accommodation and he has not named a suitable comparator as required under the provisions of the Employment Equality Acts, 1998-2001.  The Respondent notes the case of Southern Health Board v Mitchell, [2001] ELR 201 where the Labour Court stated: 

“The first requirement is 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 Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.

The Respondent also referred to the case of Margetts v Graham Anthony & Company Limited, DEC-E2002-050, where the Labour Court noted:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down in 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”.

The Respondent also referred to the case of Galway Mayo Institute of Technology v Vlad Teleanca EDA 1935 where the Court outlined that the “Mitchell” test had three steps:

“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.

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.

If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus is of proving that there was no infringement of the principle of equal treatment passes to the Respondent”.

It was also submitted on behalf of the Respondent that the Complainant provided no medical evidence to the effect that he required reasonable accommodation.  What was provided was merely a single sick certificate stating that the Complainant would be on sick leave as a result of stress and anxiety.  In that respect the Respondent refers to the case of A Worker v A Food Manufacturer (DEC-E2010-187) where the Equality Tribunal rejected a claim for disability discrimination on the following basis:

”… no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the Complainant’s GP, was adduced to prove that the Complainant is disabled within the meaning of the Acts.  The only documentation the Complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay.  The only other medical-related evidence submitted came from the Respondent and consists of non-descript sickness certificates.  However, I find that these are not numerous enough to infer the existence of a disability simply from their existence”.

In a closing submission on behalf of the Respondent it was submitted that the Complainant was a good worker and there were no issues with his performance until he became uncontactable, and it was impossible for the Respondent to run its business on such a basis. 

The Respondent agreed to a performance improvement plan in order to assist the Complainant, but this did not work out due to the behaviour of the Complainant.  The Complainant was not treated differently or in a discriminatory manner when he returned from sick leave.   The Respondent does acknowledge that he had to deal with issues which caused him difficulties.  However, the support provided by the Respondent was intended to assist him, but the Complainant did not cooperate.  The Respondent submits that the Complainant has failed to outline a prima facie case of discrimination and he has not provided evidence that he was not reasonably accommodated as there was no such request made.   Such was the Respondent’s concern that they called to his house to check on him and when he was dismissed in September 2022, he was told that if he succeeded in sorting out his affairs there was a job for him with the Respondent.  He did not avail of this offer.

In response to a question from the Adjudication Officer the Respondent  confirmed that they were satisfied that they were given an opportunity to present their evidence at the hearing.

CA-00055505-01: This is a complaint seeking adjudication by the WRC under Section 6 of the Payment of Wages Act, 1991.

The first matter for the Adjudication Officer to determine is whether the complaint is in time having regard to the time limits specified under the Workplace Relations Act 2015.

The Complainant lodged this complaint to the WRC on 11 March 2023, which means that the relevant period for consideration by me is confined to the six-month period prior to that date.  This timeframe encompasses the period from 11 September 2022 to 11 March  2023. 

When considering whether a complaint is in or out of time, an Adjudication Officer must have regard to the relevant authority of Hogan J in Health Service Executive v McDermott [2014] IEHC 331. Hogan J held that:

14 ...the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January 2010 onwards, it would then have been out of time.”

Applying the law as set out by Hogan J, Section 41(6) requires a Complainant to set out a specific contravention that occurred in the six-month period before lodging a claim, in order to ground a claim under the Act.

The complaint to the WRC was presented by the Complainant  and in his WRC complaint form he specified the relevant details of the complaint in this manner:

“On what date should you have received the payment?                        31/07/2022.

Please state the monetary value of the wages/pay not received?         €3,500”.

In the accompanying text on the WRC form the Complainant stated:

“I was employed on a salary plus commission basis.  I received my salary; however, the Employer has failed to pay commission due and payable under the terms and conditions of my contract of employment.  I am currently owed €3,500 in outstanding commission payments”.

From reviewing the WRC form and in consideration of the Complainant’s evidence at the hearing  it is clear that the complaint has its origins in the June/July 2022 pay periods.

The Complainant submitted his complaint to the WRC on 11/03/2022. The time limit set out in Section 41(6) specifies that a complaint cannot be entertained unless it is presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. The claim must be submitted within six months of the contravention to which the complaint relates.

The jurisdiction of an Adjudication Officer is confined to assessing breaches of the Act that occurred within a six-month period before the complaint was submitted to the WRC (or a 12-month period where there is reasonable cause to extend the six-month time limit).

In the circumstances of this case, no specific contravention occurring in the six-month period prior to lodging a claim was identified on the WRC form or at the hearing. No evidence was adduced to support the contention that an unlawful deduction was made from the Complainant’s wages in the six-month period prior to lodging his complaint.

It is for the Complainant to set out the details of his claim. No details were provided regarding a contravention of the Act that occurred within the cognisable period for the complaint. As a result, the I find that this complaint (CA-00055505-01) was submitted outside the six-month timeframe allowed for bringing complaints under the Act.

CA-00055505-02 and CA-00055505-03:

These two complaints are seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998. 

Section 6 of the Employment Equality Act, 1998, states:

“6.— (1) 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 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 exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) 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”),

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of his disability and that the Respondent failed to provide him with reasonable accommodation. 

The Employment Equality Act, Section 85a (1) provides as follows:

“(1) 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”.

To demonstrate that the Complainant has received less favourable treatment and that the less favourable treatment arose by virtue of his disability, the Complainant must first establish a prima facie case of discrimination.  Prima facie has been held by the Labour Court in Rotunda Hospital v Gleeson [DEE003/2000] to be:

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The Respondent notes that this requires that a Complainant has to not only establish the primary facts upon which he will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.  The Labour Court in Southern Health Board v Mitchell (2001) 12 ELR 201 held:

“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 Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a Complainant can vary significantly from case to case.  The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.  The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.  This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

In Melbury Developments Ltd v Valpeters EDA0917 [2010] 21 ELR 64 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Labour Court elaborated on the interpretation of Section 85A stating:

“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”.

The Complainant contends that he has been discriminated against because of his disability. The background is clear from the evidence presented at the hearing but in summary he was dismissed from this employment due to persistent unauthorised absence.  The Respondent has outlined the serious effects this had on its business and in particular its cash flow.   The Complainant believes that he had a disability and that his dismissal was due to his disability. 

The Complainant did not provide the Respondent or the hearing with any medical or other evidence that he had a disability. If he required the Respondent to provide reasonable accommodation in order to maintain his job it was imperative that such evidence was provided. 

On the facts of this case, I must determine whether a prima facie case has been established and if so, has the rebuttal been sufficient.  In applying the test in Melbury above I am satisfied that the Complainant has not demonstrated sufficient facts that he was discriminated against because of his disability.

I am satisfied that the Complainant has failed to make out a prima facie case of discrimination.  I cannot find in favour of the Complainant and the claim cannot succeed.

CA-00055505-01: I find that this complaint was submitted outside the six-month timeframe allowed for bringing complaints under the Act and I do not have jurisdiction to hear this complaint.

CA-00055505-02:

I find that the Respondent has not discriminated against the Complainant on the grounds of disability contrary to the Acts and his complaint fails.

CA-00055505-03:

I find that the Respondent has not discriminated against the Complainant by not providing him with reasonable accommodation.

Disability.  Discrimination.  Commission payment.