Complainant

Respondent

Parties

Killian Howard

Dunne's Stores (George's Street) Ulc

Complainant

Respondent

Anonymised Parties

Representatives

Jade Wright,  Sean Ormonde & Co. Solicitors

Owen Keany, B.L. instructed by Elaine Kelly Byrne Wallace 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-00061020-001

16/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00061020-002

16/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00061020-003

16/01/2024

The Complainant works as a sales assistant with the Respondent.  He has been employed in this role since 11/11/2006 and is currently paid €750 per week and works a 36-hour week.  Arising from various issues in his employment the Complainant has submitted three complaints to the Workplace Relations Commission on 16/01/2004.  He has submitted a complaint of discrimination seeking adjudication under Section 77 of the Employment Equality Act, a complaint seeking adjudication under Section 7 of the Terms of Employment (Information) Act, 1994 and a complaint of penalisation seeking adjudication under Section 28 of the Safety, Health and Welfare at Work Act, 2005.

The Respondent submits that the Complainant has submitted a general narrative in relation to various grievances and has not provided sufficient details.  The Respondent strongly refutes that the Complainant was discriminated against or was penalised.  The Complainant is in possession of his terms of employment and that complaint is also refuted.

[Adjudicators note: In the submissions made by both parties and during the hearing public holidays were consistently referred to as “Bank Holidays”.  In this decision such days are referred to as “Public Holidays” to ensure consistency with the wording of the Organisation of Working Time Act, 1977].

Evidence of the Complainant:

The Complainant gave evidence on affirmation.  He confirmed that he commenced employment with the Respondent in November 2006, initially on a seasonal contract which ended on 31/12/2006.  He has continued in employment with the respondent since that time.  The Complainant gave evidence that his difficulties with the Respondent began in April 2012 after his wife gave birth to their child.  His wife was in critical care in ICU and his child was in a special care unit. The Complainant stated that he contacted Ms Ciara Hogan, HR Manager to inform her that he had been certified as unfit for work and he had to attend the hospital where his wife and child were.  The Complainant felt that he received an unsympathetic response.  The Complainant stated that he did not receive any sick leave pay and the following week he noticed that his hours of work were reduced from 5 days to 4 days.  The Complainant did not receive any support from HR in relation to these matters.  The Complainant stated that he was told he was not entitled to sick leave pay for looking after his wife and child.

The Complainant gave evidence that since he returned to work on 04/05/2021 he believes that the Respondent commenced a targeted campaign of penalisation against him.  He outlined the following examples:

·        He had difficulty in getting paid sick leave.

·        His hours were changed in such a manner that he now had more unsociable hours. He was now rostered on late shifts some of which were up to midnight.

·        His public holiday hours increased tenfold.

·        His holiday requests were denied.

·        He had to work 10 days in a row including Christmas Eve.

The Complainant contacted Mr Colm Hayes, who was then the Grocery Manager, about his sick leave.  Mr Hayes stated that he would sort it out for the Complainant.  He did not receive any sick pay until the first week of June 2021.  At this time the Complainant was changed from delivery driver to grocery tills.  When the Complainant raised a query about some of these changes, he gave evidence that he was told that he was contractually obliged to work two public holidays and also to work flexible hours.  This in turn led the Complainant to seek a copy of his contract of employment.

At the beginning of 2022 the Complainant noticed that his hours were being cut. At one stage a person who was undertaking his driving role was sick and the hours were given to another employee.  The Complainant outlined that he requested that his banded hours be reassessed, and he asked that his banded hours are increased.  It is the Complainant’s position that the cut in his hours was designed to place him in a lower band (31 hours).  He was told on 13/02/22 that he could not apply for the band of 36 hours, and he was then moved to the drapery section of the store.  The Complainant gave evidence that he contacted the WRC advisory services and was told that he could apply for the band of 36 hours and the Respondent’s HR manager told him that he could only do so on the anniversary of his existing band.    His request was granted on 26/03/22.  He later requested a copy of his current contract and the copy he was given was of the temporary contract which expired on 31/12/2021.  His follow up request resulted in him receiving a statement of employment which the Complainant submits does not state his working hours or conditions.

The Complainant gave evidence that in September 2022 he submitted a request to work his 36 hours over a four-day week due to his family circumstances.  This request was declined.  The Complainant subsequently asked if he could be rostered on the same day off every week to assist with his childcare arrangements.   He was then rostered off most Mondays and this changed in February 2023 when Ms Dunne became his new manager.    The Complainant gave further evidence that he requested a copy of his contract of employment again in September 2022 but did not receive it.

The Complainant gave evidence that in February 2023 his working pattern changed to a roster which included more late nights and late starts.  The Complainant submits that this was different to that of a female colleague who works a 31 plus roster but received at least 36 hours plus.  The Complainant outlined that he never gets asked to work additional hours, but his female comparator (Ms A) gets at least 5 plus hours per week.

The Complainant outlined that he submitted a request to have the August public holiday off as he was on annual leave and would not be flying home until the Monday.  He was advised by Ms Dune that he had to work three public holidays and he was advised that his contract said two public holidays.  It is the Complainant’s evidence that he was informed that he could be rostered to work any number of flexible nights and public holidays due to the flexible nature of his contract.  The Complainant submits that he never saw this contract.

The Complainant raised a query with the Respondent in relation to how parental leave worked and he was advised that it had to be taken in blocks of six weeks.  The Complainant submits that female members of staff can avail of parental leave of one day per week and the HR person who advised him also avails of one day per week parental leave.  The Complainant believes that this is a further example of less favourable treatment and discrimination.

The Complainant was rostered for four nights in the same week, and it was around 8 years previously when this happened before. The Complainant believes that this arose from his query with the HR manager about his contract of employment.  The Respondent was aware of his family circumstances when they organised this roster.  The Complainant gave evidence that this impacted on his family time and put a strain on his family.  The Complainant provided the names of two female employees who are facilitated with early start and finish times to suit their family circumstances. 

As a result of all these difficulties the Complainant wrote to the Respondent’s head office to request assistance with this situation.  He was advised to follow company procedures and make a complaint to Mr Colm Hayes, Grocery Manager.  The Complainant gave evidence that he met with Mr Hayes on 08/08/2023 and he could see Ms Dunne’s footwear passing by on a few occasions.   Mr Hayes received around six text messages during the meeting and the Complainant stated that he felt that Mr Hayes was being advised by someone outside the meeting.  The Complainant gave evidence that he received a copy of the notes compiled by Mr Hayes in relation to this meeting.  He did not think that these were accurate, but he did not contact Mr Hayes as he felt that there was no point in doing so.

Mr Hayes gave the Complainant a document on 29/08/2023 stating that he was now on a 36-hour band and a list of his public holidays.  The Complainant stated that the Respondent placed a sheet on the notice board in September 2023 seeking holiday preferences for the January to June 2024 period.  He put his name down for a particular week when his children were on holidays but was then informed that the Respondent did not allow two staff on a 36-hour band to take holidays at the same time.  He contacted the head office in relation to this, but the store HR manager confirmed that the decision in  relation to his holiday allocation was final. 

In relation to his complaint of penalisation the Complainant gave evidence that this occurred when he returned from sick leave.   The issues he had in fighting for his band of hours was also connected with this.  The sick leave issue arose when he did not accept that he would not be paid while on sick leave and then the  long time it took the Respondent to sort it out.  The Complainant confirmed that he had no issues with the Respondent prior to this time and the sick leave was the turning point.  He stated that he was also penalised when his 39 hours per week were cut down to four days.  The week he was due back from sick leave he was actually rostered for four days. The Complainant stated that he believed he was penalised when he questioned why he was given four days and other employees  given five days.  He outlined that there were other issues associated with the penalisation complaint.  He was rostered for 12pm finishes and he had to work 10 days in a row.  This meant that by the time he got home his children were in bed.  Another issue was when he was taken off the delivery van.

[The Respondent’s representative noted that in relation to his complaint of penalisation the Complainant does not have a right to sick leave pay under the Safety, Health and Welfare at Work Act and not providing terms and conditions and a contract of employment is not a protected act.]

The Complainant was asked about the impact of the penalisation on him.  He gave evidence that it affected his mental health, and he was afraid of what he would face in work when he went in.  He outlined that he wanted to stay in bed and the WRC was the last place he wanted to be.

He was asked what would make him happy at work and he gave evidence that not feeling that he was a target and treated more fairly.  He also stated that he wanted to have a contract which would clarify matters and which the Respondent would follow.

The Complainant was asked if he wanted more flexibility and more favourable terms in a contract and stated that this was not correct, he wanted to be treated in line with what was in his contract.

The Complainant was asked about his views on working a four-day week and he stated that he would be happy with a move within the store if this was possible.

The Complainant was asked if he liked his job and he stated that he did and he had a lot of friends there.  He just wants what is fair and he wants to continue to work.

Cross examination of the Complainant:

The Complainant was cross examined by Mr Keany, B.L. on behalf of the Respondent.  The Complainant confirmed his employment dates and roles with the Respondent.  He confirmed that he had a copy of the Respondent’s Employee Handbook.  The Complainant was asked if he had read the part in relation to Time Off/Holidays and he confirmed that he had.  The Complainant agreed that the allocation of holidays was based on seniority, and this was the agreed process.  The Complainant also agreed that this applied to all staff regardless of their gender or whether or not they had children.  It was put to the Complainant that the length of an employees’ service was the criteria for seniority, and he agreed. 

The Complainant was asked when he submitted his medical certificate and he confirmed that it was on 18/4/2021.  The Complainant stated that he met an assistant manager and gave him the certificate.  The Complainant agreed that it was his position that his alleged campaign against him started at that time.

The Complainant was asked if the submission on his behalf was made as a result of his conversations with his solicitor and he confirmed that it was. The Complainant was asked to review the Respondent’s submission in which the total number of Public Holidays, Lates and evening shifts worked by him from 2015 to date in 2024 were outlined.  The Complainant stated that he was given midnight shifts in 2001 and in 2002 he was moved back to the textile department.  The Complainant was also asked if he had details of the midnight shifts, he was referring to and any comparison with others.  The Complainant stated that he was given these shifts after his sick leave.  It was put to the Complainant that it was his evidence that he was given the midnight shifts after he had been on sick leave, and he confirmed that was his position.

The Complainant was then asked to explain his contention that there was a dramatic increase in his public holiday scheduling and to review this in the context of the Respondent’s record of the public holiday’s he worked from 2015 to 2024.  It was put to the Complainant that the record showed that he worked 3 public holidays in 2023; 2 in 2022; 3 in 2012; 2 in 2020; 4 in 2019 and 5 in 2018.  He was asked if he accepted that his submission that the public holiday working hours “increased tenfold” was false and he accepted that it was.  The Complainant also agreed that the report showed that he worked fewer public holidays since 2021.

The Complainant was asked if he stood over his contention that the was subjected to a targeted campaign and he confirmed that he believed he was.  The Complainant was asked if he did receive payment for the period he was on sick leave and he confirmed that he did “eventually”.  The Complainant was asked if he accepted that he was not entitled to sick leave pay if his sick leave was not due to his own illness and he accepted that.  It was put to the Complainant that when he was initially on sick leave, he indicated that this was due to his child being sick and that it was only later that the Respondent received a sick certificate in relation to him.  The Complainant stated that he told a manager about his sick leave initially.

The Complainant confirmed that he was aware of the Respondent’s grievance process as outlined in the Employee Handbook.  He confirmed that he did not utilise this process in relation to his sick leave.  It was put to the Complainant that in his letter to HR he made no reference to his sick leave issue and he agreed.

The Complainant was asked about his assertion that “most of my holiday requests are refused”. He was asked to review the Respondent’s record of his holidays from 2021 to date.  This showed that there was one request refused.  The Complainant stated that there may have been weeks where he had to change, and this would not be reflected in the Respondent’s record.  It was put to the Complainant that the only record of a refusal was the request for 01/04/2024 and he agreed.  The Complainant was asked if he accepted the seniority  principle for the allocation of annual leave and he confirmed that he did.  The Complainant was asked if there was anyone else refused on that day and he confirmed that there was, and he confirmed that this was a female employee who also had children.

The Complainant confirmed that he sent a letter to the Respondent’s HR department on 20/07/2023 and that he was aware of all the issues outlined in that  letter.  The Complainant was asked if it was his view that he was subjected to a targeted campaign and he confirmed that he was.  He was asked if it was his view that this was because he was a man and a father, and he confirmed that was the case.  He was asked why he made no mention of this in the letter of 20/07/2023 and he stated that after that time things got worse.  The Complainant confirmed that he explained all the issues to Mr Colm Hayes,  and the issues included the fact that he had small children and the hours.  The Complainant was asked if he made Mr Hayes aware that he felt discriminated against because he was a man and because of his family status.  The Complainant stated that he mentioned his family and children to Mr Hayes.

The Complainant confirmed that he disagreed with Mr Hayes notes of the meeting and stated that he did not contact Mr Hayes as he didn’t feel he would get anywhere.  It was put to the Complainant that this statement lacked credibility.

The Complainant was asked if it was his position that he requested one day per week parental leave, and this as refused, and he submitted that another employee was given one day per week parental leave.  The Complainant agreed that was his submission.  It was put to the Complainant that the reality is that the person referred to by the Complainant was not given one day per week parental leave but that he had reduced her working week to four days and had her salary adjusted accordingly.  The Complainant stated that he was not given that option. 

In response to a question from the Adjudication Officer the Complainant stated that he wanted to work his five days over four days and retain his 36 hours.

It was put to the Complainant that if he changed his working hours to four days over five, he would be working a much longer day.  He confirmed that would be the case.  It was also put to the Complainant that in the textiles department there is a greater demand for staff to be rostered in the afternoons and evenings and he confirmed that could be the case, but he was also open to a move to the grocery department.

The Complainant confirmed that he mentioned two people his evidence and it was put to him that they work in grocery while he works in textiles.  He confirmed that was correct and agreed that the needs of the business can vary from department to department. It was also put to the Complainant that one of those mentioned is responsible for date checking on stock and this is a duty that needs to be done early morning.  The Complainant stated that this person told him that she does this duty when the store opens.  It was also put to the Complainant that the other person he mentioned also works in the grocery department and is on a different band of hours to him and works fewer hours.  The Complainant stated that he did not know.

The Complainant was asked about his meeting with Mr Colm Hayes in August 2023 and the assertions that he made about Ms Dunne.  The Complainant stated that he felt the meeting was being listened to and that Mr Hayes was being given instructions.  The Complainant confirmed that Mr Hayes was the store manager, and that Ms Dunne was the manager of the textile department.  The Complainant agreed that it he felt that Mr Hayes was following Ms Dunne’s lead at the meeting.  It was put to the Complainant that if Ms Dunne felt so strongly about things, she would have attended the meeting.  The Complainant stated that he did not think she could as there could be a conflict of interest.   It was put to the Complainant that his assertion that Ms Dunne was assisting Mr Hayes was a complete fantasy and he had no basis to state that there was covert messaging from Ms Dunne.  The Complainant stated that he was at the meeting but confirmed that he did not see any messages.

The Complainant was asked about the statements he made in relation to his contract of employment, and he stated that the “employer refused to give me my contract”.   The Complainant confirmed that he commenced employment in 2006 and that he was issued with a temporary/seasonal contract, he confirmed that this expired on Christmas Eve 2006.  The Complainant confirmed that when he raised an issue in relation to his contract in 2021, he was given a copy of his initial contract.  The Complainant agreed that he continued to raise issues in relation to his contract. 

It was put to the complaint that his evidence was that he was not given a contract, but he was given one on 13/10/2022.  The Complainant stated that he did not see this as a contract.  It was put to the Complainant that the document stated that this document outlined his terms and conditions as requested and that the Employee Handbook contained further details and that this also formed part of his terms and conditions.  The Complainant stated that this document did not specify the correct hours.  The Complainant was asked if he accepted that the document reflected the terms and conditions of the role of sales assistant, and he agreed.  It was put to the Complainant that he was not disputing that the was given the terms and conditions but as he did not agree with the hours, he viewed the contract as void, and he agreed.   It was put to the Complainant that the law required that the terms and conditions are issued to an employee.  The law does not specify that a contract is issued.  The Complainant stated that the Respondent did not state his hours.  It was put to the Complainant that he was issued with a document on 20/02/2022 which confirmed what his banded hours were, and he confirmed that he was.  It was put to the Complainant that further clarity was provided to him in relation to his hours in August 2023 and he confirmed that was correct.

Under redirection the Complainant was asked to outline the specific issued he had due to not having a contract and he stated that there were (a) having to work Public Holidays, (b) being told that he had to work as many public holidays as the Respondent wanted, (c) having to work late nights and (d) working whatever the Respondent decided.

In relation to his complaint of penalisation the Complainant was asked if he was suggesting that all this started when the sick leave issue arose, and he confirmed that was.  The Complainant was asked if he felt that the issue about his sick pay amounted to a complaint about health and safety.  The Complainant stated that he felt that the actions which arose from the sick leave arose when he did not accept the answers he was given by the Respondent.  It was put to the Complainant that he stated that he did not receive a contract, and he stated that he was trying to sort it, but the issues arose after this.  The Complainant was asked if he accepted that issues in relation to sick pay are not health and safety related and that his complaint is grounded on an assertion that his working days were reduced to four days.  The Complainant stated that his issues were related to what happened after he raised issues about not getting paid while on sick leave.

It was put to the Complainant that there were a number of factual inaccuracies in his evidence. It was put to the Complainant that the reduction from 5 days to 4 days occurred when he was only rostered for four days.  The Complainant stated that was the case until he was moved to the other section. The Complainant stated that he was previously rostered for 5 days and he was unsure how long he was rostered for four days.

The Complainant was asked if being rostered for 10 days at Christmas 2021 was related to his sick leave issue and he stated that it was. He was on driving duties at that time, and it was not safe to drive for 10 consecutive days.  It was put to the Complainant that the Respondent records show that he worked 2 days with a 6pm finish; 4 days with a 7pm finish; 2 days with an 8pm finish and 2 days with a 10pm finish.  The Complainant stated that he could not remember the times and confirmed that he did not have any records.  It was put to the Complainant that four other colleagues also worked for 10 consecutive days over the same period, and he was asked if he felt that these colleagues were also singled out.  The Complainant stated that he was not saying that.

It was put to the Complainant that his position was that he was treated less favourable, and this could not be the case as he was treated the same as any other employee.

Closing submission, Ms Jade Wright:

In a closing submission on behalf of the Complainant Ms Wright stated that in relation to the discrimination complaint the Complainant has met the bar for a prima facia case and satisfies the bar outlined in the case of Rotunda Hospital v Gleeson [DDE003/2000] which stated that a prima facie case was “Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.   It was submitted that the Respondent has not provided any contradictory evidence.   In relation to the discrimination on the gender and family status grounds the Complainant was rostered for night shifts unlike his female comparator.  His hours were cut, and he was not facilitated with parental leave.  The Complainant was not facilitated with a four-day week request while others were.  In addition to this his annual leave requests to align with his children’s holiday times were not facilitated.

The Complainant was penalised for making a complaint under the Safety, Health and Welfare at Work Act, 2005.  He was not paid sick leave and his contract of employment was withheld to his detriment.  He was also subjected to less favourable treatment in relation to public holidays and a refusal to consider a 4-day working week was also part of this treatment.

The Complainant raised his concerns to the Respondent’s headquarters and there were not taken seriously or not at all considered.  The Complainant lost faith in the Respondent as a result of this.

It was submitted on behalf of the Complainant that the terms and conditions provided to the Complainant constitute very general terms and conditions.  The document also contained incorrect information and the terms were vague and general in nature.

In summary the Complainant wants to be acknowledged on the same basis as any other full-time employee, treated fairly and he is not seeking any preferential treatment.  He raised  various issues and in doing so he became a target for the Respondent.  Other colleagues did not receive the same treatment.  The Complainant is seeking a contract of employment which will set out his hours and is also seeking compensation for the unfavourable treatment he received. 

In the written submission of behalf of the Complainant references were made to a number of case law and in particular the case of Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 which held that there is a requirement for a sanction to be “effective, dissuasive and proportionate”.  The case of DR Jacqueline Elliott v Flexiteam Ltd ADJ-00045346 which stated, “The other factor that must be taken into account in deciding the quantum of an award is the embarrassing and distressful situation the Complainant was put in”. 

The other cases referred to were Lee t/a/ Peking House v Fox, EED036; Ms Z v A Transport Company, DEC-2009-105, Barbara Geraghty v the Office of the Revenue Commissioners, ADJ-000031 and the Labour Court Cross case and the Ahern case.

It was submitted on behalf of the Respondent that the Complainant has submitted a number of complaints in a general summary format which contains a number of grievances and other issues in relation to his employment since 2021 but he has not clearly identified which of these relate to the various employment acts under which he is seeking adjudication. It is the Respondent’s position that the Complainant has made “broad sweeping statements, and generalised assertions” without identifying specific dates in relation to the alleged incidents and issues.

Evidence of  Ms Ciara Hogan, former HR Manager:

Ms Ciara Hogan, former HR manager, gave evidence on affirmation on behalf of the Respondent.  Ms Hogan outlined that she was the HR manager in the branch where the Complainant worked for a period of 5 years and she left that branch in late 2005.  Ms Hogan outlined the role of a sales assistant with the Respondent and explained that this requires an employee to carry out multiple tasks and these can be located in the textile, grocery or any area across the store.  Ms Hogan gave evidence that during her time in the store there was a standard contract issued to all sales assistants.  This was a flexible contract.  Ms Hogan confirmed that she was familiar with the Respondent’s Employee Handbook.  She gave evidence that this contains guidelines on the duty of flexibility and all Complainants are given this Handbook.  There is also an induction process in place.  The Handbook also contains details of procedures, hours, holidays and the Respondent’s disciplinary and grievance procedure.  Ms Hogan stated a flexible employee, such as a sales assistant, is required to work public holidays and late shifts.  The schedule is done by means of a four-week roster.

Ms Hogan was asked to review the Complainant’s contact of employment dated 13/10/2022 and she confirmed that the terms of employment are set out.  This is the same across the board for all sales assistants.  Ms Hogan clarified that if an Complainant has a concern or a complaint then they raise this through the Respondent’s grievance procedure.

Ms Hogan was asked about the Complainant’s sick leave in April 2021. Ms Hogan gave evidence that she did not receive a telephone call from the Complainant.  She received a message from a manager which stated that the Complainant’s child was sick and that he would not be in.  Ms Hogan’s evidence was that the Complainant was not paid for this sick leave and that decision was made based on the information relayed to her.  Ms Hogan was asked if she was aware that the Complainant had raised an issue in relation to this sick pay.  She stated she was aware of this when Mr Hayes asked her to pay the Complainant for the period he was sick.

Ms Hogan was asked what her response was to the Complainant’s evidence that he was the subject of a campaign and that because of this he was dropped from five days to four days.  Ms Hogan stated that she was responsible for the roster at that time  and there was no decision made to drop the Complainant’s days down to four.  Ms Hogan was asked if the Complainant was rostered for more public holidays, and she stated that she completed the rosters very fairly. Ms Hogan was asked what she thought of the Complainant’s evidence that he was rostered amounted to penalisation which was due to the issue he had about his sick leave.  Ms Hogan stated that she would not have been aware of the details of his sick leave.  Ms Hogan confirmed that the Complainant never raised a health and safety issue with her.  She also gave evidence that the Complainant never raised an issue with her in relation to his gender and family status.  Ms Hogan stated that if such an issue was raised it would have been brought to her attention.

Cross examination Ms Ciara Hogan, former HR Manger:

Ms Hogan was cross examined by  Ms Jade Wright, Solicitor,  on behalf of the Complainant.  Ms Hogan confirmed that she was aware of the Complainant’s contract and contractual details.  She also confirmed that the document dated 13/10/2022 contained the Complainant’s terms of employment.  Ms Hogan was asked how many times the Complainant approached her for this document.  Ms Hogan stated that she was not aware of this.  Ms Hogan was asked why the Complainant was not paid for his sick leave in April 2021.  Ms Hogan stated that she was told that the Complainant would not be in work as his child was sick.  Ms Hogan also confirmed that the first time she heard about the Complainant’s sick leave in was April 2021 was when she was told by Mr Hayes to pay him.  Ms Hogan was asked if she was denying that the Complainant called into her to tell her he was on sick leave.  Ms Hogan stated that she had no recollection of that happening.  Ms Hogan confirmed that the Respondent does not pay sick leave when a child is sick and stated that sick leave in only paid when the employee is sick.  It was put to Ms Hogan that the Complainant sent in a sick certificate.  Ms Hogan stated that the certificate was sent in after the event.  Ms Hogan was asked why it took so long to pay the Complainant once the medical certificate was submitted and she stated that she did to know as she was not the decision maker.  It was put to Ms Hogan that she was in charge of HR at that time and was asked if there was a return-to-work meeting with the Complainant when he returned.  Ms Hogan stated that return to work meetings are done by the line manager.

It was put to Ms Hogan that she was doing the rosters and she was asked if it was a coincidence that the Complainant was rostered for more nights.  Ms Hogan stated that the roster is done with fairness in mind.   It was put to Ms Hogan that the Complainant’s evidence was that he was put on a midnight shift and Ms Hogan stated that the latest he was rostered for was 10.00p.  Ms Hogan stated that she had no recollection of putting him on a midnight shift.

Ms Hogan was asked if he told the Complainant that he would have to work two public holidays.  Ms Hogan stated that there was no mention of a contractual requirement and she explained why this was to him.

In relation to the August public holiday in 2023 it was put to Ms Hogan that the Complainant was on annual leave and would be due back on the Monday which was a public holiday. Ms Hogan was asked why the Complainant was refused the Monday off.  Ms Hogan stated that any requests for days off are subject to being granted or not granted.

Evidence of Ms Bridget Dunne, Textile Store Manager:

Ms Bridget Dunne, Textile Store Manager gave evidence on affirmation on behalf of the Respondent.  Ms Dunne outlined that she was also an assistant manager and from February 2024 she was a store manager.  Ms Dunne gave evidence that she was involved with the Complainant since the store opened in 2006.  She was working with him from 2006 to date. Ms Dunne said that she was responsible for rostering from March 2022.

Ms Dunne gave evidence in relation to how the rostering system works.  There are 22 Complainants (full and part time) and 85 hours of trading.  Ms Dunne stated that the roster has to cover 7 late nights with 16 individuals, and she has a limited number of staff available due to constraints on those attending school/college.  Ms Dunne stated that her deliveries come to the store around 12 noon and the morning period from 8am to 12 noon involves hygiene and customer related work.  From 12 noon the emphasis is on having staff on the shop floor.  Ms Dunne gave evidence that the Respondent uses a rigid template for this roster and the roster is based on the sales trends for the store.  Ms Dunne was asked if she singled out the Complainant for additional public holidays and late shifts.  Ms Dunne stated that when public holidays are allocated, she looks at the entire year and the Complainant had three allocated.  The employees who are college based are usually more available.  Ms Dunne stated that she always responds to any requests for a change and tries to see if this could be arranged.

Ms Dunne was asked if she treated the Complainant differently and she stated that she absolutely did not.  She does the roster as fairly as possible.

Ms Dunne was asked if she had rostered the Complainant for more late shifts.  She disagreed and noted that the Complainant is on 36-hour band which would usually mean two late nights per week while staff who have only weekend availability do more.  Ms Dunne stated that there could be occasions when she needed to get an additional person, but this would never be the same person.  Ms Dunne also refuted that there was any campaign of penalisation against the Complainant and that the 16 colleagues on the floor are treated with the same fairness.

Ms Dunne also gave evidence that she had no knowledge of the Complainant’s sick leave issue as he was allocated to the grocery area at that time, and she was responsible for the textile area and therefore she was not his direct line manager.

Ms Dunne was asked if she was involved in assisting Mr Hayes when he had the meeting with the Complainant.  Ms Dunne stated that Mr Hayes is an experienced senior manager and well able to conduct meetings.  Ms Dunne gave evidence that she did not coach Mr Hayes or she did not text him or have any involvement with him in relation to that meeting.

Ms Dunne was asked about the Complainant’s holiday request on 01/04/2024 which was refused.  She explained that she was responsible for that.  This was the week after Easter, and it was a busy time due to “heavy reductions and increased demand”.  Three employees had put their names down for the that holiday and she stated that she granted the day based on seniority.  Ms Dunne explained that of the three people involved two employees had more seniority that the Complainant and the person with the most seniority was given the day.  The other person who was not given the day had more seniority than the Complainant and was female.

Cross examination of Ms Bridget Dunne, Textile Store Manager:

Ms Dunne was cross examined on behalf of the Complainant by Ms Jade Wright, Solicitor.  Ms Dunne was asked to explain how she compiled the roster for students working in the store. Ms Dunne stated that students have a total of 15 hours available, and some have flexibility in relation to weekends and late shifts while other do not.  She must utilise the 15 hours to suit the needs of the business.

Ms Dunne was asked to outline what happened when the Complainant approached her in relation to his hours.  Ms Dunne stated that the Complainant never approached her about his hours.  Ms Dunne was asked if she was aware that the Complainant had young children and she confirmed that she was aware.  Ms Dunne was asked if a named female colleague got more favourable treatment than the Complainant and Ms Dunne denied that this was the case.  It was put to Ms Dunne that the female colleague gets additional hours and Ms Dunne explained that this employee is on a 31–36-hour band and while she would not be rostered for additional hours, she could be given more hours due to absenteeism.  Ms Dunne was asked how the night shifts were allocated fairly.  She explained that staff are rostered for two initially and some may have four nights.  Ms Dunne explained that the four nights can occur if an employee is on the 15-hour band or on the 21–26-hour band.  Ms Dunne explained that staff on the lower bands do more lates. 

Ms Dunne was asked why the Complainant was rostered for more lates.  Ms Dunne stated that the Complainant has not worked four lates nights and if he was rostered for a third night it would be down to some operational reason such as an ad hoc event due to some life event with another employee.

Ms Dunne was asked to explain the public holiday roster.  She explained that she has a yearly template, and the days are allocated at the start of the year.  This is done fairly and if someone wants it off, they can change with a colleague.   Ms Dunne was asked if she was aware of any contractual obligations in the Complainant’s contract such as a limit.  Ms Dunne stated that she was not aware of any such obligation.  Ms Dunne was asked if there was distinction between contracts and the allocation of nights and public holidays.  She explained that there were some legacy issues involving some employees and that was the only thing she was aware of.

It was put to Ms Dunne that she was in communication with Mr Hayes during the meeting he had with the Complainant.  Ms Dunne stated that she absolutely denied that, and she would have no issues in having her phone records examined to verify that.  Ms Dunne stated that it would not be possible for her to coach a very senior manager in relation to a meeting.  Ms Dunne stated that she was not near the area where the meeting took place.

Evidence of Mr Colm Hayes, General Manger:

Mr Colm Hayes gave evidence on affirmation on behalf of the Respondent.  Mr Hayes explained that he is currently a General Manager in one of the Respondent’s stores and was previously the General Manager in the store where the Complainant works.

Mr Hayes stated that in April 2021 that he was approached by a manager who told him that the Complainant was suffering from stress, and he advised her to pay sick to him.

Mr Hayes stated that the Complainant did not raise any health and safety concerns with him.  If an employee had any such concern the grievance procedure should be used.  Mr Hayes stated that the Complainant did not raise any grievance in relation to his gender or being a father.  Mr Hayes gave evidence that he held the meeting with the Complainant on 08/08/2023 and this was held because of the Complainant’s letter which he sent to the Respondent’s head office.  At that meeting Mr Hayes stated that he talked though the letter and the Complainant had two issues of concern.  The first was that he did not have a contract of employment and he had a seasonal contract initially but none since that ended.  Mr Hayes stated that there was no contract on file, and he asked him to see if he had a copy at home.  The Complainant stated that he never received a contract and Mr Hayes gave evidence that it would be highly unlikely that a contract was not issued.

Mr Hayes was asked to review the document dated 13/10/2022.  He stated that this is a contract, and it had the Complainant’s terms outlined in it.  Mr Hayes confirmed that he compiled the notes of the meeting with the Complainant, and he was satisfied with the contents.  The Complainant’s primary issue was a contract and the number of late nights he could be rostered for.  Mr Hayes explained that a late night is any night where you have to work after 8.00pm.  Mr Hayes stated that the Complainant raised no issues in relation to health and safety, discrimination of being male.

Mr Hayes was asked to explain the document dated 29/08/2023.  He explained that this is the Complainant’s banded hours contract, and it is for the 36–39-hour band.  Mr Hayes stated that the Complainant’s main issue was a contract, and this was reissued to him along with these banded hours confirmation.

Mr Hayes was asked about the Complainant’s evidence that his body language was an issue for him during the meeting.  Mr Hayes confirmed that he did ask the Complainant to use the space in the office, but he had no agenda in doing so.  Mr Hayes gave evidence that he would describe the Complainant’s assertion that he was in text contact with Ms Dunne as “utter nonsense” and he outlined that he is working for the Respondent for 40 years and he does not need coaching or direction.   The meeting was held in relation to a letter the Complainant had written to head office, and he wanted to get an understanding of this.

Cross examination of Mr Colm Hayes, General Manger:

Mr Hayes was cross examined by Ms Jade Wright, Solicitor,  on behalf of the Complainant.  Mr Hayes confirmed that he met with the Complainant as a result of the letter he sent to the head office.  Mr Hayes also confirmed that he stood over his evidence that he was not aware of any health and safety complaint made by the Complainant. Mr Hayes stated that if a complaint is brought to him, he will deal with it.  Mr Hayes was asked if he aware of the Complainant’s issue re discrimination and he stated that he sat with the Complainant and he was given every opportunity to respond.  The Complainant’s primary issue was about a contract and working hours.  Mr Hayes was asked if he asked the Complainant about the other issues which were in the letter. Mr Hayes stated that he asked him about the protected disclosures and the Complainant said that this was about his working hours. 

Mr Hayes stated that he scheduled the meeting after he was contacted by the head office.  Mr Hayes confirmed that he would meet with any employee if the person had an issue and he needed to investigate it.  Mr Hayes confirmed that he did not issue the Complainant with a contract but in a follow up meeting he gave the Complainant a copy of his banded hours confirmation document. 

Mr Hayes was asked if he had a back to work meeting with the Complainant when he returned in April 2021.  Mr Hayes stated that he did not recall having such a meeting.  Mr Hayes clarified that back to work meetings are usually held by an employee’s line manager.  Mr Hayes was asked what a “late shift” was, and he confirmed that anything after 8.00pm is considered a late shift.  Mr Hayes was asked if he was aware that the Complainant had young children and a late shift can be disruptive to family life.  Mr Hayes stated that they work in the retail trade and the hours can be unsocial at times.  There are various shifts in operation and people know that they will have to work those.

It was put to Mr Hayes that when he held the meeting with the Complainant, he was taking instructions from Ms Dunne.  Mr Hayes stated that he wished to deny that he took any instructions and that he did not take any instructions from Ms Dunne.  It was put to Mr Hayes that he was a senior manager and texting during a meeting was not appropriate.  Mr Hayes agreed it would have been better if it didn’t happen.

On redirection Mr Hayes was asked to review the notes he took of the meeting with the Complainant on 08/08/2023 and in particular the section where he asked the Complainant for an example of working conditions that favour other full timers and to read out the Complainant’s response.  Mr Hayes stated that the Complainant’s response was “I am not mentioning any names”. 

Mr Hayes was asked if the Complainant stated that he was making a protected disclosure and he confirmed that he did not.

Closing submission by Mr Owen Keany, B.L.

In a closing submission on behalf of the Respondent Mr Keany, B.L. stated that the confusion which he outlined at the opening of the hearing has not improved.  The facts in relation to the allegations  do not align with those outlined by the Complainant.  His assertion that there was a drastic change in his hours and that he was required to work ten times the number of public holidays has evaporated based on the facts presented.

There was no evidence that the Complainant was subjected to less favourable treatment.  What this case is about is the Complainant’s desire to have a contract that would stitch in all the things that he would like to have included.  The Complainant has a wish list, and this is unjustified. The Complainant wants a contract that no one else has.

There was no evidence to suggest that he was treated less favourably by reason of his gender or family status.  There was no evidence of a campaign of intimidation.  This entire case stems from April 2021 when there was a delay in paying the Complainant sick pay.  The Complainant’s view that there was a conspiracy simply lacks credibility.  The event – his sick pay – could not amount to a health and safety matter and it is noteworthy that the letter to the Respondent’s Headquarters was sent two years after the event.

In relation to the complaint under the terms of employment, the Act requires a statement of the terms of employment.  This does not have to be a contract.   The Complainant was provided with the statement of the terms of employment on 14/10/2022 and these are the same as any other sales assistant employed by the Respondent.

The Complainant’s issue in relation to banded hours was resolved in August 2023.  He has no stateable claim after that time.  If there was any breach it was resolved at that date and it was 14 months later that the claim was lodged.   It was suggested that the terms of employment issued to the Complainant were vague and general but, significantly,  there were no difficulties outlined.

The Complainant is seeking to rule out any flexibility that the Respondent’s retail business requires.  Such flexibility is an occupational reality, and this reality applies to all the other employees in the same role as the Complainant.

The legal submission of behalf of the Respondent noted that in the case of Toni & Guy Blackrock v Paul O’Neill [2010]  HSD095  the Labour Court held that for a claim of penalisation to succeed, there must be a causal link between the protected act and the detriment subsequently imposed on the Complainant:

“it is clear from the language of [section 27] that in order to make out a complaint of penalisation it is necessary for a Complainant to establish that the detriment of which he or she complains of was imposed “for” having committed one of the acts protected by subsection 3.  Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act.  This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause”.

 In relation to the complaint under the Employment Equality Act the following  are some of cases submitted as relevant:  Southern Health Board v Teresa Mitchell [2001] E.L.R. 201;  Melbury Developments v Arturs Valpeters,  and HSE North Eastern Area v Sheridan ED0820.

CA-00061020-001:    This is a complaint seeking adjudication by the WRC under section 77 of the Employment Equality Act, 1977.  The Complainant submits that he was discriminated against on the grounds of gender, family status and victimisation.  The Respondent refutes that the Complainant was subjected to any discrimination or victimisation.

Section 6 of the Employment Equality Act, 1998, states:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because he was male (the gender ground) and that he had a young family (the family status ground). 

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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.”

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility was on the Complainant to show that, based on the primary facts, he has been discriminated against because he was a male and had a young family and that he was victimised.

The explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is also helpful:

“This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

I note firstly that it is not disputed that the Complainant is male and that he has a young family.

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above, I must consider the totality of his evidence given at the hearing. In the first instance, I note that it was that it was disputed that his change of hours, additional public holidays, holiday requests denied and difficulties in getting sick pay were acts which constituted discrimination.  

I note that the Complainant’s issue with his sick leave arose in April 2021.  This issue was subsequently resolved, and I agree that it could have been sorted more promptly.  The Complainant submitted that he believed that his entitlement to sick pay arose “under the terms of his contract” notwithstanding that he subsequently submits that he never received a contract once his seasonal contract expired.  The Complainant maintains that the issues of concern were as a result of “a targeted campaign of penalisation”.  The evidence provided by the Respondent clearly shows that the Complainant’s allocation of public holidays were not “increased tenfold”.  The Respondent’s records show that the complaint was not allocated an onerous proportion of late shifts.  The Respondent applied its seniority rule in relation to holiday allocation.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

In conclusion, I prefer the clear evidence presented by the Respondent. Consequently, I find the Complainant, on the balance of probabilities, has failed to establish a prima facie case of discrimination (for the purposes of this Act) on the grounds of gender and family status, or that he was victimised or discriminated against. On the basis of the foregoing, I find that this complaint is not well founded.

CA-00061020-002: This is a complaint seeking adjudication by the WRC under section 7 of the Terms of Employment (Information) Act, 1994.  It is the Complainant’s position that he was not notified of any changes to his terms of employment, and he was not provided with a proper statement.  A statement issued to him is described as  vague and unclear.  The Respondent submits that the Complainant was at all times aware that he may be assigned different duties and that the number of hours he is rostered for may change and that days and times may change, and he continues to be notified of his roster four weeks in advance.

The Terms of Employment (Information) Act, 1994 states:

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the Complainant in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect”.

There was clearly an issue in relation to the Complainant’s contract of employment.  It is in dispute whether or not he was issued with a contract when his seasonal contract expired.  However, he was in possession of the Employee Handbook and the terms of his employment did not change from his initial contract.  When the Complainant’s sick leave issue was resolved he noticed a change in his shift patterns, and he was given conflicting information in relation to the allocation of public holidays and annual leave.  The absence of that information arguably has given rise to the dispute between the parties around the contractual obligations of both parties. The Complainant believing that the employer is abusing his position by changing shift patterns at will.  The Respondent had provided evidence that the terms of employment issued to the Complainant were consistent with all other employees in the same grade.  His bank hours were also confirmed, and the lost contract was acknowledged, and a revised document issued.  While there was an error in relation to his hours this does not invalidate the entire document.

The Complainant was provided with a contract when he commenced employment in 2006.  He has acknowledged receipt of the Employee Handbook which outlines the duties of a sales assistant and other relevant details of the terms of his employment along with relevant policies.  The Complainant was provided with a copy of his terms and conditions of employment in October 2002 and I note that this is in  accordance with Section 3 of the Terms of Employment Information Act.   

At all times the Complainant was aware that he could be rostered for public holidays and that the hours he worked could vary according to the shift patterns in the workplace.  I am satisfied that the evidence confirms that the roster is notified to the Complainant four weeks in advance.

Having carefully examined a copy of the Complainant’s terms and conditions, I find that the Complainant has not established that the Respondent has contravened the Act. In those circumstances I find that this complaint is not well founded.

CA-00061020-003: This is a complaint seeking adjudication by the WRC under section 28 of the Health, Safety and Welfare at Work Act, 2005.

Section 27 of the 2005 Act states:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the Complainant reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the Complainant within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the Complainant in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an Complainant is that specified in subsection (3)(f), the Complainant shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the Complainant to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.”

I will refer to the Labour Court case of Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095.

The Court stated:

“Thus, the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety.  It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal.  If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

The Labour Court also gave consideration to what was required in order to discharge this burden of proof stating:

“Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act.  This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered detriment.  This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

It is clear that Complainants will only be successful in a penalisation claim under the 2005 Act if they can prove that they:

a)  made a complaint to their employer in respect of a health and safety matter; and

b) suffered a detriment as a result of the actions of their employer; and

c)  It can be proven that they would not have suffered this detriment had a complaint not been made in the first place. 

I find the following:

(i)  The Complainant did make a complaint to their employer on 20/07/2023 in respect of several matters and while he did refer to “being bullied and made to feel an inconvenience, threatened about the potential outcome of my complaint (in relation to been employed on type C contract…) he did not raise this through the Respondent’s bullying procedures or specify that this was now a health and safety matter. He was advised by the HR Department on 25/7/2023 “raise these matters by using the company’s complaints procedure”.  He also did not pursue this during the meeting on 08/08/2023.

(ii)    I am required to establish if the Complainant was penalised contrary to section 27(3) of the Act for having raised concerns about his health and safety, manifested in the instant case as complaints of bullying, threatened and made to feel an inconvenience.  I find that his evidence fails by a wide margin to bear this out. Other than for a generalisation, the Complainant offered no specifics as to the number of extra Public Holidays, late shifts and failure to sanction holiday requests.  The Respondent has provided a detailed breakdown of the total number of Public Holidays, late shifts and evening shifts worked by the Complainant from 2015 to 2024.  This clearly contradicts the assertion by the Complainant that his public holiday “working hours increased tenfold”.  The Complainant confirmed in cross examination that he did not have any records to confirm his view.

Ms Dunne is currently the person responsible for drawing up the rosters, allocating Public Holidays and granting annual leave. Ms Dunne undertakes these duties in a transparent manner and is also available to assist employees in organising swops where feasible.  I am satisfied that the evidence provided by Ms Dunne confirms the Respondent’s position that the Complainant was not given an unfavourable allocation of late shifts or public holidays.   I find that the evidence provided by Ms Ciara Hogan, former HR Manager and  Ms Bridget Dunne, Textile Store Manager, to be competent and totally credible.  I find that the Complainant did not suffer a detriment as a result of the actions of his employer.

CA-00061020-001: I find that this complaint is not well founded.

CA-00061020-002: I find that the Complainant has not established that the Respondent has contravened the Act. In those circumstances I find that this complaint is not well founded.

CA-00061020-003: I find that the Complainant did not suffer a detriment as a result of the actions of his employer. In those circumstances I find that this complaint is not well founded.

Terms of employment.  Discrimination. Penalisation.