ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050256
| Complainant | Respondent |
Anonymised Parties | Accounts Technician | Automotive Industry supplier |
Representatives |
| Peter McInnes McInnes Dunne Murphy LLP |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00061714-001 | 21/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00061714-002 | 21/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00061720-001 | 22/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00061723-001 | 22/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00061800-001 | 27/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00061723-002 | 05/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00061723-003 | 05/04/2024 |
Date of Adjudication Hearing: 25/06/2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.
The matter was heard by way of remote hearing on 25 June 2024, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
Given the nature of the evidence in this case I have deemed it appropriate that the parties should be anonymised in this Decision.
Background:
The Complainant commenced employment with the Respondent on 12 June 2023. Her employment ended on 4 October 2024. Her weekly gross pay was €2,750 and she worked 40 hours per week. |
Preliminary Issue
Summary of Respondent’s Case
The Respondent submits that the complaints made under the Protected disclosures Act, 2014 (CA-00061723-002) and the Protection of Employees (Fixed-Term Work) Act, 2003 (CA-00061723-003) are statute barred. The Complainant’s employment was terminated on 4 October 2023 and she was paid in lieu of notice period. For these complaints to have been instituted in the required 6-month period, the Complainant would have to had to institute same on or before 3 April 2024. The Complainant was required to submit the complaint forms on 3 April 2024. She did not do so.
Summary of Complainant’s Case
At the hearing the Complainant stated that she is on medication, and she was late in submitting her complaint forms due to her ill-health. In addition, the Complainant stated that she had been in contact with the WRC about these complaints and she had to re-send her documents several times a there was a “problem at their end”. She also stated that it was her belief that the six-month limit means six months and a day.
Findings on Preliminary Issue
Section 41(7) of the Workplace relations Act, 2015 states:
“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”
Section 41(8) of the Workplace Relations Act, 2015 does allow for an extension of time – an additional six months- where the Adjudicator “is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. As to what constitutes reasonable cause, the Labour Court in Cementation Skanska Ltd. V Tom Carroll, DWT 0388 stated “It is for the claimant to show that there are reasons which both explain the delay and afford an excuse from the delay. The explanation must be reasonable, that it is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and the circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must be due to the reasonable cause relied upon.”.
The Complainant did not produce any medical evidence to support her claim that the forms were late due to her ill health. No evidence was adduced to support her claim that the problem lay with the WRC. She is wrong in her interpretation of the time limits. She could have sought an extension of the time limit for “reasonable cause”, but she did not. The Complainant was aware of the procedures for submitting a complaint form as she had submitted several complaint forms to the WRC previously.
Decision on Preliminary Issue
Complaints CA-00061723-002 and CA-00061723-003 are statue barred and I do not have jurisdiction to hear them.
CA-00061714-001 Complaint under the Employment Equality Act, 1998
Summary of Complainant’s Case:
The Complainant submits that she was dismissed for a discriminatory reason or opposing discrimination. The Complainant submits that she was being micromanaged and derogatory jokes were made about her in the office. To hide this horrible behaviour her manager invented her poor performance and misconduct and dismissed her. The Complainant gave evidence on Affirmation at the hearing. The Complainant stated that she had been dismissed for opposing discrimination and sexual harassment. She was dismissed without use of proper procedures. Even though she was on probation she was still entitled to a fair process if she was being dismissed for conduct reasons. The review meeting referred to by the Respondent was “faked”, she was not given instruction on how to improve. She was told she would not be able grow in the role. The person who decided her fate, Mr S, knew nothing about her role so how could he decide on her performance. The appeal process did not address the real issues. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant claims she “was dismissed for a discriminatory reason or for opposing discrimination” in this complaint but the substance of her complaint as set out in her complaint form is that she was dismissed for misconduct reasons. The Respondent submits that she has brought the wrong complaint. Her complaint of discriminatory dismissal is denied. The Respondent submits that the Complainant herself alleges, in her complaint form, that she was dismissed for performance or misconduct reasons. The Respondent’s firm position is that the Complainant was dismissed for performance issues, the Complainant does not once in her complaint form articulate that she was dismissed as a result of a protected ground. Accordingly, her complaint must fail. Mr S gave evidence on Affirmation at the hearing. Mr S stated that he had interviewed the Complainant for the role on a Fixed Term contract basis. Mr S stated that initially things went ok, but there were some issues about the Complainant’s work. He spoke to her about this and although she was working slowly, he did accept this was due to her newness to the job. However, his concerns escalated towards the end of July 2023. He was on leave for three weeks in August and on his return several members of staff explained that things were difficult in the office due to the Complainant’s manner. Mr S also had concerns about the Complainant’s ability to learn from her mistakes. A performance review meeting between Mr S and the Complainant took place in September but the Complainant did not agree that improvement was needed by her in four specific categories of work as outlined by Mr S. Mr S stated that the reason to dismiss the Complainant was the Complainant did not seem capable of doing her work and he saw problems with the team dynamic |
Findings and Conclusions:
Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.” This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In this instant case no primary facts have been adduced to ground a claim for discrimination. Therefore, the complaint must fail. |
Decision:
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 Act.
The Complainant was not discriminated against. |
CA-00061714-002 Complaint under the Employment Equality Act, 1998
Summary of Complainant’s Case:
The Complainant submits that she was discriminated against in that she did not receive equal pay. In her complaint form she names Mr M as the person with whom she is claiming equal pay. In her evidence the Complainant stated that she was doing the same work as a named colleague, Mr M. She believes their salaries were not equal, the named colleague is a man and this is a case of gender discrimination. Her supervisor confirmed that Mr M was performing the same role as she was. |
Summary of Respondent’s Case:
The Respondent submits that the complaint made by the Complainant that she did not receive equal pay on the grounds of gender and civil status is denied. The Respondent submits that the Complainant was actually paid more than her colleague Mr M, the incumbent. Mr X had an annual salary of €32,101 while the Complainant had an annual salary of €33,000. In his evidence Mr S stated that the Complainant came in on a higher salary than Mr M and that her claim was invalid. |
Findings and Conclusions:
Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.” This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In this instant case no primary facts have been adduced to ground a claim for discrimination. Therefore, the complaint must fail. |
Decision:
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 Act.
The Complainant was not discriminated against. |
CA-00061720-001 Complaint under the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The Complainant submits that her contract clearly stated that she reported to the Financial Controller but de facto her supervisor was her colleague who gave her training as he was the only one in the Department who knew how to complete the tasks. She was never notified on the change of Supervisor. In her evidence the Complainant stated that a Mr S was to be her supervisor but that never happened, instead Mr M did everything a supervisor should do. The Complainant had to do other tasks for which she was never notified. She was given unreasonable tasks to complete. Mr M trained her in his role and when he left it she had to take his role over. She raised this with Mr S but he did not listen. Her role changed but she did not get anything in writing to reflect this change. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant considers additional tasks to be an additional role. The Respondent submits that the Complainant was not notified of any changes to her terms and conditions of employment because there were no such changes. Mr S gave evidence stating that the Complainant’s tasks changed but not her role. |
Findings and Conclusions:
I find that any changes in the Complainant’s working routine were minor changes to her tasks not changes in her terms and conditions of employment. In the circumstances there was no requirement for the Respondent to notify the Complainant of these changes in writing. Therefore, this complaint cannot succeed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Complaint is not well founded.
|
CA-00061723-001 Complaint under the Payment of Wages Act, 1991.
Summary of Complainant’s Case:
The Complainant submits that she is owed €3,000. The Complainant submits that she was given additional tasks to those she was employed to complete and, in those circumstances, she should have been paid accordingly. In her evidence the Complainant stated that the figure of €3,000 mentioned in her complaint form was a rough assessment. She had worked 3 or 4 hours in excess of her normal working day in the month of September to try and clear a backlog due to her having an additional role. This overtime was needed even though her manager says he did not ask her to do it. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant has not particularised the complaint or provided details for the figure of €3,000 which she submits in her complaint form that she should have been paid. Rather, the Respondent submits that her complaint is a re-iteration of her dissatisfaction with the Respondent for being terminated on the grounds of performance. Following the termination of her employment the Complainant queried the amount of annual leave she had been paid. After discussion it was decided that one additional day was due to the Complainant. This was paid to her in November 2023. No further amounts are due and/or owing to the Complainant. Regarding the payment of overtime, Mr S stated that overtime is not normally paid to indirect staff. It is only paid if sanctioned and the Complainant never came to him about overtime. |
Findings and Conclusions:
No evidence was adduced by the Complainant to support her case. Therefore, this complaint cannot succeed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Complaint is not well founded. |
CA-00061800-001 Complaint under the Employment Equality Act, 1998
Summary of Complainant’s Case:
The Complainant submits that she was discriminated against by her employer by reason of her Gender, Civil Status and Disability. She submits that her employer treated her unlawfully by discriminating against her in giving her training, victimising her and in her Conditions of Employment., harassing her and sexually harassing her. The Complainant submits that she was subject to false stories being told about her by colleagues, she was given much stricter deadlines to complete her work than her male counterpart, she was subject of gossip about her romantic interests. The Complainant submits that she was yelled at in the office by a colleague for no reason. She did not receive appropriate training in aspects of her work. In her evidence, regarding her disability, the Complainant accepted that she had not revealed the existence of a particular medical condition in the Respondent’s entrance form which she had completed. However, due to increased stress outside of work, she had to increase her medication for this condition. The medication can affect her appearance and increase her anxiety. A female colleague was nasty towards her about her appearance, which increased her anxiety. The Complainant told her manager, Mr S, that she had this medical condition, verbally only. She stated that this manager had lied about this at a meeting; “he knew I had a disability. He knew I would die”. Regarding the allegation that she had been discriminated against on the grounds of Civil Status and Gender, the Complainant stated that there were comments made about her romantic interests. Regarding training, the Complainant stated that that her male colleague Mr M ignored ideas she had on training. Regarding sexual harassment, the Complainant stated that people in the office said she was romantically involved with her colleague Mr M. The Complainant also overheard conversations about sexual positions. The Complainant stated she had been locked into the office one evening, deliberately, when she stayed late to complete work. |
Summary of Respondent’s Case:
The Respondent denies all the allegations contained in this complaint The Respondent submits that whereas the Complainant contends, Mr S, “lied in the form from the informal meeting on 19.9 about my learning difficulties”. Mr S at no point whatsoever said that the Complainant had learning difficulties. This is the Complainant’s own language, not that used by Mr S. The Respondent submits that contrary to the Complainant’s assertion made in her complaint form that she had told her manager about an illness, the Respondent was never made aware of any such illness. The Complainant completed a standard medical questionnaire that all new starts complete once the formal offer has been made and confirmed that she had no medical conditions of which the employer should be aware. In his evidence, Mr S denied the Complainant had been deliberately locked in the office building, rather that this was an accident. Mr S stated that the Complainant had never made a formal complaint to him on any matter until 4 October 2023. Regarding the meeting of 4 October 2023, Mr S stated that it was called to address concerns about the Complainant’s work, the team relations, and the dynamics within the team. When he gave a letter to the Complainant inviting her to the meeting of 4 October 2023, the Complainant responded by raising several issues which he had never heard about before. Because of the nature of the matters raised by the Complainant the meeting on 4 October was halted to allow for an impromptu investigation. No basis was found to lend credence to the matters raised by the Complainant. Mr S stated that he was unaware of the Complainant’s marital status. Mr S stated that the Complainant had not made him aware of her disability at any time during her employment with the Respondent. |
Findings and Conclusions:
Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states: “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.” This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In this instant case no primary facts have been adduced to ground a claim for discrimination. Therefore, the complaint must fail. |
Decision:
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 Act.
The Complainant was not discriminated against. |
Dated: 23rd of August 2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Equality, discrimination, evidence, |