Complainant

Respondent

Parties

Susan  O Neill

Limerick City Community Development Project Ltd

Representatives

Peter Glynn SIPTU

Thomas Wallace O Donnell BL instructed by  Dundon Callanan LLP

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-00051238-001

20/06/2022

The Complainant was employed as a Team Leader and applied for leave of absence or redundancy/severance payment when she received an offer of employment from another organisation. The Complainants requests were refused and she complained that the refusal of leave of absence was discriminatory based on her disability and other (gender) ground as two male colleagues had previously been granted the leave of absence.

The Complainant alleged that her employer victimised her on the grounds of disability in not affording her equal treatment following her application to take a year leave of absence. The Complainant contended that the employer in affording two members of staff more favourable outcomes in their application, that she was treated discriminatory. The Complainant is partially sighted.

Limerick City Community Development Project (LCCDP) is an amalgamation of 5 Community Development Projects (CDPs). These were set up in the late 1990s. The Complainant served with two of these CDPs before the amalgamation in 2010. From 1996 to 1998, she worked with Southill CDP, and from 1998 to 2010 she worked with St Munchin's CDP, firstly as Community Development worker, and from 2002 to 2010 as CDP coordinator.

During the amalgamation process, agreement was reached with staff to transfer with TUPE to protect terms and conditions. Around this time all team leaders were asked to consider taking up the position as LCCDP Manager, but it was the Complainants preferred option not to do this. The Complainant went on to become team leader for LCCDP, from January 2010 until March 2022. The role involved supporting the Manager, Line Manage staff, implement government programmes, secure funding and work with local community groups and individuals to identify and respond to issues within the most disadvantaged communities across the City.

On May 31 2021, the Complainant raised the issue of pay disparity between her and a work colleague with her employer. Some considerable time elapsed before the organisation would deal with the issues raised with them in a constructive manner. The Complainant contended that following the time that she raised her initial grievance the organisation behaviour towards her changed. The Complainant began to experience punitive behaviours towards her, until her departure in March 2022. The issue on pay disparity was finally addressed in December 2021.

The employer began a campaign of micro managing the Complainant and made the workplace atmosphere fought with difficulties.

The complaint before the WRC stems from an application by the Complainant for Leave of Absence. In Jan 2022, the Complainant secured a fixed term specific purpose contract för nine months with Technological University of Shannon.

The Complainant made a request to the Board that they consider affording her with a Leave of absence or redundancy or mutually agreed severance.

The salary associated with the new role was less than the Complainant salary with the Respondent, albeit the Complainant contended that the workplace environment would be friendlier

In February 2022, a special Board meeting was held and the request to consider the application was rejected. The organisation cited that an evaluation of the service stemming from the Nexis Report to which was underway shortly which would encompass a review of the required staffing levels for the business.

The Board in making their decision did so without hearing the case or providing the Complainant the opportunity to have a personal hearing. In declining the request, the organisation failed to provide objective justification for their decision. The organisation had treated other staff members more favourably than the Complainant in that with one individual was afforded the Leave of Absence on two occasions while a second work colleague was also afforded Leave of Absence. A in 2013, and B in 2018, and A again in 2021.

The Complainant appealed the decision on several grounds. The Board of Limerick City CDP Ltd engaged Mr Terence O'Sullivan of TJOS solicitors to hear the appeal. Although the Complainant had taken up her new role, she continued to engage in the process with an expectation that the Board may consider her request.

Following the Complainant departure, the workload was divided was assigned to other staff members within existing resources. There was no requirement to backfill the position.

The appeal meeting was held and Mr O'Sullivan conducted the appeal and issued his finding on the 11 th March 2022. Mr O'Sullivan in upholding Ms O'Neill highlighted the lack of consideration given by the Board in her application. The Appeal Chair further highlighted no transparency about the application. In his finding the Chair supported her appeal and recommended that she be afforded the opportunity to present her case as to why she would be entitled to Leave of Absence.

Despite the Board engaging an Independent Chair to hear the appeal, they made no attempts to implement the Chair outcomes demonstrating another example of ill-treatment of the Complainant.

On 29th March 2022, the employer wrote to the Complainant reaffirming their refusal citing the Nexis Report.

The Representative noted the significant contributions the Complainant has made to the organisation has only been acknowledged by the communities she works in and all this despite her disability.

In employment equality claims, the initial burden of proof is on the Complainant to demonstrate that they have been unfairly penalised as a consequence of an inherent characteristic. Once a prima facie case has been presented, the burden then shifts to the Respondent to dispute the facts complained of or provide an objective justification for any supposed discrimination that occurred. The fact that the employer granted Leave of Absence to two work colleagues on 3 prior occasions suggests she had been unfairly penalised. The first requirement on a Complainant to meet the terms of s. 85 A(l) of the Acts is to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. Further in Brierton v. Calor Teoranta EDA 1510, the Labour Court noted that, in the absence of a transparent system of pay determination, the burden of proving compliance with the principle of equal treatment shifted to the employer and noted the Labour Court's earlier observations in the case of Nevins, Murphy, Flood v Portroe Stevedores Ltd (2005) 16 ELR 282 that mere denials of discriminatory motive must be approached with caution. The Complainant had over 24 years' service continuous service with the Respondent and has carried out her duties with due diligence and professionalism. The Complainant sought compensation under the Act.

The Complainant has brought a complaint under section 77 of the Employment Equality Act 1998 ('the Act") which claims that because of her disability she was discriminated against in not being permitted by the Respondent to take a leave of absence. For the avoidance of doubt, the Respondent fully accepts that the Complainant has a disability in that she is partially sighted.

The matters submitted under the heading "Background" in the Complainant's Submissions insofar as they allege punitive behaviour are entirely irrelevant to the within complaint and, in any event, are disputed. Furthermore, it is submitted by the Complainant herself that any pay disparity issue was addressed in 2021.The Respondent does not accept that the Complainant was micromanaged as alleged or at all, and in any event, such an allegation is wholly irrelevant to the within complaint.

Without prejudice to the foregoing, by email dated the 12th March, 2022, being the day after the Appeal Determination of TS O'Sullivan, the Complainant stated, inter alia, that she had been subjected to punitive treatment since making a grievance in 2021. As can be seen therefrom, while it asserts that in the past two employees had been granted a leave of absence, the thrust or gravamen of the email is that the Complainant was not granted same for reasons other than her disability.

Further to receipt of the Complainant's request, which proposed three options, the Respondent replied by email on the 3rd February, 2022 stating that the proposal had been forwarded to the Board, of which a special meeting have been convened for the 7fr February, 2022. In light of the said request advice was sought from the Respondent's independent HR consultants and the Project Manager then updated the Chairman of the Respondent regarding same by email dated the 1 st February, 2022.

As can be seen therefrom, it was advised that neither redundancies nor any leave of absence should be made or given at the time. Thereafter, the said meeting took place on the 7fr February, 2022 and a copy of the minutes were supplied.  The Complainant did not at any time request, nor was she entitled to, an in-person hearing. The Board considered that with which it had been provided, which was the said request containing the three options. The Complainant did not seek to provide any further information whatever.

On the 8fr February, 2022, being the day after the said Board meeting, the Respondent by email conveyed the outcome to the Complainant, going into detail regarding the evaluation process with an external HR consultant and the need to await the outcome of same. While it is not accepted that the Complainant was entitled to an objective justification for the said decision, the said email manifestly provided same, which concerned a process with which the Complainant, as a member of the Trade Union involved, was familiar. Furthermore, therein the Respondent said it could look at the request for leave of absence again when the said process was complete.

On the same day, there was further email correspondence between the Respondent and the Complainant wherein, inter alia, the Complainant thanked the Respondent for the update, asked the Respondent to have a reference/statement for the Complainant's new employer and copies of these exchanges were provided.

The said process referred to by the Respondent was at such a stage that its HR consultant advised that the Complainant be denied leave of absence in circumstances where redundancies may have been a feature thereof and in the circumstances it was possible she may not have had a position to which she could retum. Indeed, there have been a number of redundancies at the Respondent since the determination of the said process.

Thereafter, the Complainant resigned her employment with the Respondent on the 4th March 2022, before the said process had been completed.

Notwithstanding that the Complainant did not invoke the Respondent's Grievance Procedure (and to which she had made recourse before), a SIPTU officer on her behalf purported to appeal against the said decision of the board by email dated the 14th February, 2022, and notwithstanding the said exchanges.  As can be seen therefrom, no mention whatever is made therein of discrimination or disability.

Thereafter, an appeal was allowed to take place and, in his determination, Terence O'Sullivan states, inter alia, that there was "a dearth of documentation provided to me in advance of the hearing despite my clear pleas to that effect to the Complainant and [her Representative in advance of the hearing. The Respondent reserved

its position in respect of this issue and the findings or determination of Mr O' Sullivan.

Furthermore, in his determination Mr O'Sullivan did not recommend that the Complainant be afforded the opportunity to present her case in an unlimited fashion, as implied by her submissions; rather, Mr O'Sullivan directed as follows:

…that she be allowed, should she so choose, to make a document-based application to the Board of Management setting out clearly why she should be entitled to a leave of absence.

Even though no such application was made, the Respondent held another board meeting thereafter where all of the relevant circumstance were considered. The outcome of same was conveyed to the Complainant in correspondence.

The reason the Complainant was not granted a leave of absence by the Respondent was due to the exigencies of an internal review process. There is an abundance of evidence to demonstrate this and not a shred of evidence to gainsay it. The Respondent was especially facilitative of the Complainant in convening a board meeting to consider her request within a narrow timeframe.

In all of the circumstances, the impression is one that the Complainant simply wished to leave the company with some form of lump sum: a redundancy payment immediately; a redundancy payment in the hope that such a situation would arise during or after any leave of absence; or a termination with some form of ex gratia payment.

It is manifestly clear that the Complainant did not follow the appeal direction and furthermore only contrived to raise a vexatious discrimination issue subsequent to the publication by Mr O'Sullivan of his determination.

Without prejudice to the foregoing, from her Submissions, it appears that the Complainant submits that the Respondent discriminated against the Complainant in failing to accede to her request for a leave of absence, in circumstances where two other employees who had no disability had previously been granted same. As there is no evidence whatever of any discrimination, whether direct or indirect, on the ground of disability it is submitted that nom prima facie case has been made out by the Complainant.

Without prejudice to the foregoing, if the Adjudicator is satisfied that the Complainant has made out a prima facie case, all of the evidence of the Respondent sets out that the refusal to grant the Complainant had nothing whatever to do with her disability and/or did not constitute discrimination and/or was for another reason and/or that the said refusal was justified in all the circumstances.

Without prejudice to the foregoing, the Complainant has demonstrated that she has not been happy with the Respondent since at least 2021, well prior to her making the request for a leave of absence, which said attitude is made plain by her alternative requests that she be made redundant (when she knew that no redundancy situation had been identified at that time), or that she would leave if paid enough to so do.

The suggestion that an employer would refuse an employee a leave of absence because that employee is partially sighted is utterly fanciful.

In all of the circumstances, the impression is one that the Complainant simply wished to leave the company with some form of lump sum: a redundancy payment immediately; a redundancy payment in the hope that such a situation would arise during or after any leave of absence; or a termination with some forrn of ex gratia payment. As none of these was forthcoming either as a result of the initial board meeting or the Appeal determination, an entirely unmeritorious discrimination claim was fabricated which cannot be upheld.

The Parties primarily relied on their written submissions and Representative contributions on the complaint.

The Law

Section 6(1) of the Acts provides that discrimination shall be taken to occur where “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 case the relevant discriminatory ground is either gender and/or disability.

Section 8 of the Acts prohibits discrimination by an employer in relation to specific areas of employment, including access to employment, conditions of employment and training or experience for or in relation to employment.

Without prejudice to the general prohibition of discrimination in relation to conditions of employment, section 8(6) of the Acts provides that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee:-

“(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfer, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Section 16 of the Acts sets out an employer’s obligation to reasonably accommodate those with disabilities.  Section 16(3) provides:

“(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability –

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

Unless the measures would impose a disproportionate burden on the employer.

(c) … “

Appropriate measures in relation to a person with a disability are defined in section 16(4) of the Acts.

Burden of Proof 

Section 85A of the Acts addresses the burden of proof in cases under the Acts.  In the first instance a Complainant must establish facts from which discrimination may be inferred; thereafter the burden of proof passes to the Respondent to rebut the presumption of discrimination.  Section 85A states as follows:- 

"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."

I note in particular the following dicta on section 85A and the establishment of facts from the Labour Court’s determination in Melbury Developments Ltd v Valpeters [2010] 21 ELR 64:-

“All that is required is that they be of sufficient significant to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculation 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 establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

This complaint has all the hall marks of a traditional industrial relations dispute but that is not the Act which I have to consider the complaint under. It is also important for the Adjudicator to “rise above” the specific complaint and view the issues between the parties in the context in which they occurred. There is no question the Complainant got another job offer elsewhere and only after that she applied for leave of absence/ redundancy/severance payment and subsequently, when all three were denied, submitted the complaint for discrimination.

There was no dispute that the Complainant had a disability for the purpose of the Act.

The Complainant sought leave of absence to take up a public service job elsewhere. This is unusual but not unheard of. The Respondent does not seem to have a formal leave of absence policy or procedure for review/consideration of requests. It was not disputed in prior years two male colleagues were granted leave of absence approval and the Complainant was not when she applied for it. The summary sequence of events were the Complainant sought either Leave of Absence, Redundancy or a mutual agreed termination payment on 28/1/2022 when she informed the Respondent she was leaving to take up another position. The Board met on the 7/2/2022 specifically to consider the Complainants request and did not grant the request. An independent appeal was set up and it concluded there was no transparency in the leave of absence decision and there was no redundancy option available. The Complainant was advised she could make a further written submission regarding her leave of absence request however she did not follow this up.  The Complainant was advised of this on 11/3/2022 and wrote her termination letter on 12/3/2022 and set out her grievances. The Board met and considered these on 29/3/2022 and decided that due to the ongoing analysis of roles in the organization no employee, including the Complainant would be granted leave of absence during this internal review time. This was a coherent and justifiable decision made by the Board. There was no evidence whatsoever to suggest the Complainant was denied her leave of absence as a result of her disability or gender.

It is for the Complainant to prove, as a matter of probability, the primary facts upon which she relies in asserting that the decision to not grant her leave of absence was for discriminatory reasons.  On the documentation before me, I must conclude that there is insufficient evidence to find that the Respondent denied the leave of absence on the basis that the Complainant had a disability or on a gender ground. The application was denied because of an internal review of roles was underway. While the process of not granting the leave to the Complainant had its flaws none of the flaws could be associated with a discriminatory action. Instead the denial of the leave was due to the internal investigation of the roles required for the future in the organisation. I cannot elevate assertions that the Complainant was denied basic employment equality rights and fair procedures to the status of facts from which discrimination may be inferred especially in circumstances where the Complainant had secured another job elsewhere and was committed to taking up that role irrespective of her application for leave of absence.

The Complainant has failed to establish facts from which discrimination can be inferred so as to shift the burden of proof to the Respondent.  In such circumstances, I conclude the complaint of discrimination is not well-founded.

Various allegations raised on behalf of the Complainant, which are entirely outside of the scope of the Act, were not taken into account in my adjudication of the complaint of discrimination under the Acts.

I find the complaint not well founded and Complainant was not discriminated against.

Discrimination