Complainant

Respondent

Parties

Aidan  Swaine

Health Service Executive

Representatives

  Self-Represented

David Beegan Human Resources Department

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-00059196-001

02/10/2023

The Complainant was employed by the Respondent as a Porter since 2008. He referred a complaint to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 2nd October 2023 wherein he claimed that he was victimised on the grounds of disability. The Respondent denies that the Complainant was subjected to victimisation on the grounds of disability and asserts that the complaint was referred to the WRC outside of the statutory time frame.

The Complainant stated that he had a grievance in relation to the loss of overtime. He commenced employment with the Respondent in 2008 as a Porter in Mary Mercy Health Centre. A Porter’s position became available in Old County Road Health Centre in 2012 and the Complainant was the successful applicant and was appointed to the role. According to the Complainant the role of Porter in Old County Road Health Centre involved working mandatory overtime which he did for thirteen years opening and closing the steel shutters at Brickfield House. The Complainant’s normal hours of work were 8:30 am to 5:30 pm. Working overtime involved opening at 8:00 am and closing at 6:00 pm. The Complainant had to manually lift open and pull closed steel shutters every day and over time his thumbs became injured. He was transferred to another Health Centre for a short period of time until he recovered and was fit to return to Old County Road Health Centre.

On the 3rd February 2021 the Complainant had a work place accident as a result of which he suffered an injury to his shoulder. Following the accident the Complainant met with a health and safety representative and his line manager and he outlined the difficulties he had manually lifting 19kgs water coolers onto water units. By agreement he was transferred to the Armagh Road Health Centre and was given lighter duties. The Complainant stated that the move allowed him to keep working in a less physically demanding capacity and that a Porter took over his role in Old County Road on a temporary position. When he moved to Armagh Road Health Centre he ceased working overtime.

It was the Complainant’s understanding that the Porter that relieved him at Old County Road Health Centre was not happy with management’s proposals regarding over time and that the Porter wanted to work the hours he worked in his previous Health Centre, being 9am to 5pm Monday to Friday and that he was not interested in working the overtime hours. It was the Complainant’s understanding that the Respondent acceded to the request and that a third party security company was engaged to open and close the Health Centre.

When the Complainant’s shoulder healed he sought to return to his previous role as Porter in Old County Road Health Centre which included overtime however the Respondent refused to take him back in his role as a Porter citing that the role had changed and that the Complainant would not be able for the work. The Complainant stated that the Respondent’s doctor passed him as fit to work as did his own doctor.

According to the Complainant, his complaint was that he had financially lost out on overtime that came with the job of Porter at Old County Road Health Centre. The Complainant stated that he expected to be permitted to return his previous role as Porter in Old County Road Health Centre which attracted overtime as he had done when his thumb injury healed but the Respondent would not permit him to do so. He raised his grievance regarding the failure of the Respondent to return him to his old position in Old County Road Health Centre on the 30th January 2023 however he was not satisfied with the response he received.

In response to questions from the Adjudication Officer the Complainant stated that when he worked in Old County Road Health Centre overtime was mandatory and that he could not recall ever signing a contract of employment with the Respondent. The Complainant stated that he did not dispute that when he was moved to lighter duties he was not paid overtime because he was not opening and closing the Health Centre. He stated that overtime hours were linked to the opening and closing of the Health Centre and that working the overtime hours afforded him the opportunity to earn extra wages. 

Under cross examination the Complainant stated that he was not told at the meeting on the 30th January 2023 that he could apply for compensation for loss of overtime. He was not aware that the Respondent had a mechanism to seek compensation for loss of overtime until he read the Respondent’s submissions.

The Complainant is employed as a Porter in HSE Primary Care services based on the Armagh Road, Crumlin, Dublin which is in the geographical area of the HSE Dublin South, Kildare & West Wicklow Community Healthcare (CHO).

The Respondent noted that on the page 29 of the complaint form received by the WRC dated 2nd October 2023 the Complainant alleges, inter alia, that he was victimised by having a disability when he was transferred to Armagh Road Health Centre following a workplace injury, that his employer refused a return to previous work location citing the role had changed, that he was passed fit by the Respondent’s doctor as well his own general practitioner and is losing out on overtime.

The Respondent submitted that the Complainant has not to meet the threshold of a prima facie case and is outside the required six-month timeframe to submit a claim for redress.

The Respondent referred to 77(5)(a) of the Employment Equality Act 1998 (as amended) and stated that the matter of not returning to Old County Road Health Centre was raised by Complainant at a meeting on the 30th January 2023. The complaint to the WRC was made outside the six-month timeframe, some nine months after the meeting in January 2023.

The Respondent submitted that the complaint does not meet the criteria for victimisation as per section 74(2) of the Employment Equality Act 1998 (as amended) given the action taken by the Respondent was not a reaction to items listed within section 74(2) therefore the complaint is outside the scope of the Employment Equality Act 1998 (as amended).

According to the Respondent the action taken by the employer to assign the Complainant to lighter duties in another location was on foot of occupational health advice and was agreed to by the Complainant.

The Respondent submitted that the nature and extent of an employer’s obligations as per section 16 of the Employment Equality Act 1998 (as amended) have been adhered to by retaining the Complainant and securing a position whereby appropriate measures were effective and practically adapted at the employer’s place of business to the enable to Complainant remain in employment at a different but nearby location. The Respondent demonstrated an appropriate level of reasonableness by accommodating the Complainant in a nearby location. The estimated distance from Armagh Road to Old County Road is less than 1500 metres. The Respondent also ensured that the Complainant maintained his terms and conditions of employment, annual leave, salary and it also facilitated a shorter working week as requested by the Complainant. The reasonable adaptations applied by the Respondent were based upon occupational health advice and consultation with the Complainant.

In response to the Complainant’s evidence that he was passed fit by the Respondent’s doctor, the Respondent submitted that it was for the Complainant’s current role with lighter duties which the Occupational Health Physician stated as “…primarily administrative in nature.” and not for an alternative role of Porter that requires additional manual handling tasks. 

According to the Respondent the Complainant did not have an automatic or contractual entitlement to overtime. In relation to the loss of overtime there are established mechanisms via national agreements to calculate a potential loss of overtime, where an employee is reassigned to another location; the rate is 1.5 times the actual loss after a year, paid in two equal instalments 6 months apart. The Complainant could have and should have availed of the internal mechanism to claim any compensation due and owing to him for loss of overtime however he failed to do so.

According to the Respondent it adhered to the occupational health advice and supported the Complainant in his accommodated role. The Respondent acted in a reasonable manner to accommodate the Complainant so as to enable him to remain in the workplace while retaining his terms and conditions of employment and salary. The Complainant was not victimised by the Respondent.

In summary the Respondent submitted that the complaint does not meet the threshold required under Employment Equality Act 1998 and is outside the statutory time frame and therefore the complaint is not well founded.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Section 77(5) of the Employment Equality Act 1998 (as amended) (hereinafter referred to as “the 1998 Act”) states:

(a) Subject to paragraph (b), 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.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Victimisation is defined by section 74(2) of the 1998 Act as follows: -

“74(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In the case of Tom Barrett v. The Department of Defence EDA1017 the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the 1998 Act to be made out. It stated that (i) the complainant must have taken action of the type referred to in paragraphs (a) to (g) of section 74(2) of the 1998 Act – what the Labour Court terms “a protected act”, (ii) the complainant must be subjected to adverse treatment by his or her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

It is apparent from the above that there must be a detrimental effect on the Complainant which is caused by him having undertaken a protected act of a type referred to above.

Section 85A of the 1998 Act refers to the burden of proof that rests upon a complainant. It is incumbent upon a complainant to establish facts from which discrimination, and in the instance case victimisation, may be inferred and only then does the burden shift to the respondent.

The burden of proof was considered in the case of A Female Employee v. A Candle Production Company DEC-E2006-035 wherein the Equality Officer stated that:

“The first issue for consideration… is whether the complainant in the present case has established a prima facia case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the pensalisation was solely or mainly occasioned by the complainant having in good faith opposed lawful means an act which is unlawful under the Employment Equality Act.”

The Complainant claimed that he was victimised on the ground of disability, that he was transferred to Armagh Road Health Centre from Old County Road Health Centre  following a workplace injury, that the Respondent refused to return him to his previous work location citing that the role had changed despite being passed fit to work by the Respondent’s doctor as well his own general practitioner and that in failing to return him to his previous work location he was losing out on overtime.

The Respondent disputed the Complainant’s claim of victimisation and submitted that he did not undertake any of the “protected acts” within the meaning of section 74(2) of the 1998 Act.

In the instant case I must decide, in the first instance, whether or not the Complainant took an action that could be regarded as a “protected act” within the meaning of section 74(2) of the 1998 Act.

It is clear from the wording of “victimisation” in the 1998 Act that a complaint for victimisation must relate to a complaint under the 1998 Act and not a general complaint of victimisation.

The complaint of victimisation was referred to the WRC on the 2nd October 2023 wherein the Complainant stated that the most recent date of victimisation was the 20th June 2023.

At the hearing the Complainant stated that he referred a complaint to the WRC because he was not happy with the manner in which his request to move back to Old County Road Health Centre and his grievance regarding overtime was dealt with by the Respondent at a meeting on the 30th January 2023. Whilst I found the Complainant to be an honest and credible witness I am satisfied that on the Complainant’s own evidence no incident of alleged victimisation took place on the 20th June 2023 and that the Complainant referred his complaint to the WRC as a result of his dissatisfaction with the response he received on the 30th January 2023.

I accept the Complainant’s evidence that he was not told at the meeting on the 30th January 2023 that he could apply for compensation for loss of overtime and that he did not become aware that the Respondent had a mechanism to seek compensation for loss of overtime until he read the Respondent’s submissions however, on the Complainant’s own evidence, I am satisfied that no incident of alleged victimisation took place on the 30th January 2023.

While it is apparent that the Complainant has a grievance in relation to the loss of overtime, as the Complainant in the instant case failed to present any evidence of a protected action he had taken, prior to the referral of the instant complaint, I find that he was not victimised pursuant to section 74(2) of the 1998 Act.

I note that the Respondent’s representative indicated at the hearing before the WRC that following the said hearing he would furnish the Complainant with the relevant documentation and assistance, if necessary, to enable the Complainant to apply to the Respondent for compensation for loss of overtime.

For the reasons set out above I find that this complaint is not well founded.