Complainant

Respondent

Parties

Daniel  Morris

Hollilander Ltd

Representatives

Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

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

CA-00058759-004

06/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00058759-005

06/09/2023

There were two complaints referred to the WRC in this reference: one under the Employment Equality Act and one under the Protection of Employees (Temporary Agency Workers) Act.

The complainant Daniel Morris commenced his employment with the respondent, Hollilander Ltd on August 4th, 2023, as Operations Manager/ Business Development Manager.

The complainant gave his evidence on oath and set out his case as follows.

Shortly after he commenced, he was asked to request a departing colleague to leave before the expiry of her notice period. He did so. He says that he was also asked to make an application for work permits that would have been in breach of the relevant regulations. When he refused to do this a colleague did it.

He became aware that his private telephone conversations were being listened to and he also was told that a disparaging reference had been made about him related to his sexuality. This included a suggestion that he was married which was not true. It is this incident which gives rise to the complaint under the Equality Act.

He confirmed in evidence that he did not hear the alleged comments, but they were reported to him by a third party.

He had also made various requests for improvements in health and safety facilities and raised the issue of his phone calls being listened to as a GDPR issue.

He decided to raise this with the respondent Director. He says that in the course of this conversation the Director tole him ‘to leave’ or go to the WRC’. Following this exchange he resigned later that same day. He confirmed that he did not raise a formal grievance other than by means of the conversation with the respondent on September 29th.

The complaint under the Temporary Agency Work legislation was made arising from the request to make an application in breach of the regulations. He confirmed that he (the complainant) was not an agency worker.

The respondent Director stated that at no stage did he terminate the complainant‘s employment at their meeting on September 29th and also denies that he used abusive language.

In respect of the application for the work permit he stated that he had twenty years’ experience in submitting work permit applications and understood the requirements. He dd not ask the complainant to break the rules not did he listen to the complainant’s telephone conversations.

The respondent submitted that, as a matter of law, no prima facie complaint had been established and no comparator identified.

The complainant has not identified how he was harassed as an employee of the respondent, within the definition of the term “harassment” under the Act. The respondent cannot therefore put forward a defence to this claim in circumstances where the claim has not been stated.

The Respondent refers to the matter of Able Security Ltd. and Hardjis Lang- steins (DWT1319) where the Labour Court stated

“The Court has consistently held that a Complainant carries an evidential burdentoputinissuethefactsuponwhichhisorherclaimisgrounded andmustoutlinetheclaimwithenoughparticularitytoallowaRespondentknowwhatitistheyarebeingaccusedof.”

The complainant has failed to put the facts upon which his claim for harassment under Section 14 of the Employment Equality is grounded in issue, it is not clear what the Respondent has been accused of.

Regarding CA-000-58759- 005 Penalisation - Section 25 of the Protection of Employees (Temporary Agency) Act 2012 the respondent is a stranger to this complaint. And cannot not defend itself against this allegation, which has not been properly particularised by the complainant.

There is a very stark conflict in the evidence in this case.  The respondent basically contradicts everything asserted by the complainant.

He denied listening to the complainant’s calls, although there was no satisfactory explanation as to how he came to be aware of the specific contents of a call made by the complainant.

He flatly denies asking the complainant to make the application in breach of the regulations, and he denies using language to the complainant the import of which was that he was terminating his employment.

Regarding the allegation regarding disparaging comments about the complainant‘s sexuality, and it appears to cover all the headings raised by the complainant of bullying, intimidation and harassment, the complainant was at the very conspicuous disadvantage of not having heard the remarks himself nor of offering any evidence from anyone who did.

The respondent denies having made them.

This falls so far short of any evidential standard that it is misconceived.

The standard criterion is set out in the commonly cited case of  In Melbury Developments Ltd v Valpeters (2010) 21 ELR 64where the Labour Court set out that:

"mere speculation or assertions, unsupported by evidence, cannot beelevatedtoafactualbasisuponwhichaninferenceof discriminationcanbedrawn".

To this might be added, hearsay unsupported by evidence.  No evidence was offered in relation to the alleged comments of the respondent and he denies having made them.

The complainant has not made out a prima facie case and it is not well-founded.

His misconception of the application of the Protections of Employment (Temporary Agency Workers) was worse.

It appears he considered the fact that his employer’s business involved the recruitment of workers in that category meant it had some application to him, which of course it does not.

That act extends certain protections to those who are actually temporary agency workers themselves and has no relevance to those who may be interacting with the in some other capacity.

For these reasons the complaints are not well founded.

For the reasons set out above complaint CA-00058759-004 and 005 are not well founded.

Discrimination, Prima Facie case