ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046244
Parties:
| Complainant | Respondent |
Parties | Alexandra Mia Ragauskas | IBM (Ireland) Product Distribution Limited |
Representatives |
| Johanne Duignan Solr Ledwith Solicitors LLP |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 35 Further Education and Training Act, 2013 | CA-00057064-002 | 09/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00057064-004 | 09/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00057064-006 | 09/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00057064-007 | 09/06/2023 |
Date of Adjudication Hearing: 08/11/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
Any complaint being made under the Employment Equality Acts concerning discrimination, victimisation, discriminatory dismissal, unequal remuneration etc., is brought before the Workplace Relations Commission following a referral to the Director General. In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has already been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).
In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.
The Complainant herein has referred two separate complaints for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated the 9th of June 2023) seeks redress from the Respondent in circumstances where she claims her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of her Race (as detailed in Section 6 of the 1998 Act (as amended)) and her Age (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…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) …...(the “discriminatory grounds”).
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(h) That they are of a different race, colour, nationality or ethnic or national origins (..”the ground of race”),
(f) That they are of different ages….(the “age ground”)
In the event that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred and/or the victimisation experienced. It is also open to me to direct that a certain course of action be taken by an appropriate party which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).
Section 85A of the Employment Equality Act states:
- (1) Where in any proceedings facts are established .. by… a complainant from which it may be presumed there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
This amounts to the Prima Facie obligation on the Complainant. 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.
In addition to the foregoing and in accordance with Section 41(4) of the Workplace Relations Act, 2015 following the presentation by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), which has been made to the Director General who has in turn referred the said complaint on to the Adjudication Services. I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred two complaints for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. There is an obligation on an Employer to notify in writing any change to the terms of the employment. This statement should be dated and signed with copies retained by both parties.
In addition to the foregoing, The Employment (Miscellaneous provisions) Act of 2018 (s.7) amended Section 3 of the Terms of Employment Act 1994 so as to oblige Employer’s to provide a new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide the core details after one month of continuous service can lead to an award of four weeks remuneration. The 2018 Act came into effect on the 4th of March 2019.
The balance of Terms outlined in the 1994 Act have to be detailed within the two-month period already specified.
This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms. The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars of the statement as provided by the Employer. The obligation does not extend to a change occurring in provision of statutes and instruments made under statute.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. The hearing was not conducted in public as it included a dispute brought under Section 13 of the Industrial Relations Act of 1969. The said dispute was not capable of being separated out from the complaints being brought under other pieces of employment legislation. Any recommendation made under the Industrial Relations Acts is anonymised. The specific details of the dispute and complaints are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 9th of June 2023. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form and she also gave additional oral evidence. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that she was discriminated against on the grounds of her age and race. The Complainant is also making the case that the circumstances of the discrimination has given rise to a constructive discriminatory dismissal. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant. It became clear from the evidence adduced that the particular complaint brought by the Complainant claiming penalisation for exercising rights under the Further Education and Training Act, 2013 is misplaced and was incorrectly issued by the Complainant |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent provided me with a written submission dated the 3rd of November 2023. I have additionally heard from a number of witnesses for the Respondent including the HR Manager and the Line Manager. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses were challenged and questioned by the Complainant as appropriate. The Respondent rejects that there has been any discrimination as set out in the Employment Equality Acts, 1998 (as amended) and rejects any allegation of contravening the Terms of Employment (Information) Act 1994. The Industrial Relations issue was dealt with separately. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. By way of preliminary application, the Respondent has asked that find that the Complainant’s complaints are out of time. |
Findings and Conclusions:
I have carefully listened to the evidence adduced in the course of hearing. The Complainant commenced her employment with the Respondent company on or about the 23rd of August 2021. Initially the Complainant came into the Respondent on a temporary basis, covering the work being carried out by an individual who was out on sick leave. The Complainant was an Account Manager in digital sales. The Complainant’s client base was situated across Germany, Austria and Switzerland. I note that the Complainant was provided with a Contract of Employment dated the 16th of August 2021. On the face of it, this Contract appears to set out the criteria laid down in the Terms of Employment (Information) Act. The Complainant believed that her Line Manager GA was overzealous in her micro-management of the Complainant. The Complainant was expected to go through a probation period of six months during which she described having intensive and copious meetings with GA to scrutinise her work, to oversee her understanding of the product and to go over her presentation to clients (old and new). The Complainant believed that this programme for on boarding was not normal in its intensity. As I understand it, the Complainant was working from home during this period and that all the meetings as described would therefore have been taking place on a remote platform. The Complainant reached her targets and appeared to be at the top of the table for results and revenues. In her evidence she says that her work colleagues who were her comparators were placed behind her in terms of sales. Despite this, and to her own surprise, the Complainant’s probation period was extended in February of 2022. The Complainant was upset with her line manager GA who maintained that the Complainant did not fully understand everything that was required of her for the purposes of making a presentation and accurately describing a product to potential clients. As part of the ongoing coaching and mentoring programme, GA required that the Complainant prepare a written “offering” (being a description and explanation) for each product which she might have to pitch to a client. The Complainant described this as an exercise in preparing “Essays” and sought to make the case that this onerous task was not in her job description and was in fact a move away from the work she was engaged to do. The Complainant repeatedly returned to the point that GA was preventing her from progressing. The constant monitoring and managing was unproductive and that this interference was particularly incomprehensible given the results being achieved by the Complainant. To her surprise and consternation, the complainant’s probation period was extended for a further two month period from May of 2022 to July of 2022. The company’s express policy is to retain staff and to allow for inter departmental movement. In line with company policy the Complainant started to look at other positions within the Irish set up. I understand that the complainant had gone so far as to apply for alternative positions but had not been invited to take up an alternative role in-house. In the course of her evidence the Complainant asserted that she believed that GA was blocking her movement out of the department. The Complainant provided no evidence to back up this allegation. On the 14th of June 2022 the Complainant resigned her position. In her email the Complainant thanked GA for her engagement and support. The Complainant worked out her Notice period to the 18th of July 2022. It is worth noting that, after tendering her resignation, the complainant had a meeting with HR. At that meeting, the Complainant made no complaint as to how she had been treated by her Line Manager -GA- for the duration of her employment. In her evidence the Complainant confirmed that she did not raise a Grievance against her line Manager either before or after she had tendered her letter/email of resignation. Surprisingly, the Complainant said that she did not know that she could. The Complainant confirmed in the course of evidence that there was no discrimination against her on the grounds of race and/or age and that she had raised these issues randomly and, it seems, incorrectly. In her complaint form, the Complainant references an underpayment in the April of 2022 but I am satisfied that this arose at a time when the Complainant went out on unpaid sick leave and that she was at no loss. The Complainant confirmed that she moved straight into another position when she left the Respondent company. In her evidence the Complainant confirmed that her salary in the next role was greater than the salary she had been receiving with the Respondent. The Complainant was therefore at no financial loss in moving employment when she did. When she was asked about the period after her departure from the Respondent company, the Complainant confirmed that she was not immediately minded to bring a claim before the WRC. Whilst, she says she had misgivings about the way in which her line Management handled her, she did not want to bring it to the next level. It was only after two former colleagues talked to her that she re-considered her position. These colleagues did not present to give evidence. The Complainant therefore initiated a claim before the WRC on the 9th of June 2023 which was a few days shy of twelve months from the date when she tendered her resignation. As previously stated, as an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act). The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause. This also applies in cases brought under the Employment Equality Act wherein at Section 77(5) of the Employment Equality Act it states:-
“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”
In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.
As previously noted, the Respondent has argued that I do not have the jurisdiction to hear or entertain the complaints set out in the Complainant’s complaint form (dated the 9th of June 2023) as they have categorically been brought out of time. The Complainant might have salvaged this situation had she been able to demonstrate that the failure to issue the complaint form within the first six-month period was due to reasonable cause. To my mind the Complainant failed to present any evidence of reasonable cause. I am bound to follow the authorities and in particular IO reference the case of Servier Ireland Industries Limited V Juanita Wilkinson EDA 1713 wherein the Labour Court held: “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied as a matter of probability that the complainant would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, where the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.” I am therefore acceding to the Respondent argument that I do not have jurisdiction to hear the within complaints in circumstances where the complaints have been brought out of time and the Complainant has been manifestly unable to provide evidence that her failure to issue the complaint from in the first six months was due to reasonable cause. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 35 Further Education and Training Act, 2013 CA-00057064-002 - The complaint herein was misconceived and no evidence of a penalisation was presented. The complaint is not well-founded. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00057064-004 - The complaint is out of time and is therefore not well founded in circumstances where I do not have the jurisdiction to hear same. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00057064-006 - The complaint is out of time and is therefore not well founded in circumstances where I do not have the jurisdiction to hear same. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00057064-007 - The complaint is out of time and is therefore is not well founded in circumstances where I do not have the jurisdiction to hear same.
|
Dated: 02-01-2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
|