Complainant

Respondent

Parties

Philip  Fagan

Dolmen Insurance Brokers Limited

Representatives

  Self

 Company management

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-00027726-001

15/04/2019

The Complainant was employed by the Respondent from 25th June 2018 until 27th September 2018. He was employed as an Insurance Broker.

This complaint was received by the Workplace Relations Commission on 15th April 2019.

Overview of the Case

1. The Complainant commenced employment with the Respondent on 25thJune 2018. The Complainant came to the company with 10 years of insurance sales experience and enjoyed working in the sector. He contends that he was unfairly dismissed from the Company on the 27th of September 2018 upon which he was escorted from the premises by the Managing Director Paul Clements in the middle of the working day, in front of the entire team.

2. The Complainant met with Wendy Doyle on the 11th Oct 2018 and asked her to submit an unfair dismissal’s case on his behalf to the WRC. Wendy then left on maternity leave and passed the case to Barry Crushell. The Complainant followed up with the solicitor on 30th April 2019 and Barry said there was no update. The Complainant continued to contact Barry for updates afterwards but without response. When he finally got through to Tully Rinckey in April 2020, he was informed that the solicitor had left the company and that unfortunately the case was now not in a position to be heard by the WRC.

3. At all times the Complainant remained unaware that the WRC were originally contacted to issue complaint proceedings against Dolmen Insurance in 2019 until I received a registered letter on 08 November 2023. Since then, the Complainant has communicated with the WRC as appropriate for the hearing on the 10th  of January.

4. Given the nature of the complaint, the impact of same on his overall wellbeing and future career prospects and the failure by Tully Rinckey solicitors to inform him of the submission to the WRC or further correspondence received by them on his behalf, the Complainant trusts that this case will be heard in full and fairly adjudicated on the 10th  of January 2024 by the WRC.

5. As noted above, the Complainant came into this role with an extensive amount of experience in the insurance industry. During the interview he had informed both Joy Devine my entire experience in insurance was in sales which he excelled in. Upon commencement of employment, it became evident that a high degree of administration was required. The Complainant’s Team Leader in this role was Joy Devine. Ms Devine began a training programme with him as part of his induction, in particular to focus on the administration duties. Sadly for Ms. Devine, her father passed away and she took extended bereavement leave. Throughout this time, the Complainant was not assigned another Line Manager and using his initiative, he consulted with colleagues on how to complete the administration required.

6. Jean Jackson was employed as Joy Devine’s Manager and throughout the time the Complainant worked in the company, she sat in close proximity to his desk. Ms. Jackson did not offer any extra supports in Ms. Devine’s absence. Given that no support was offered by Ms. Jackson, the Complainant did not feel confident in asking her to help him with the training needed and instead he turned to his peers. Her main interaction with the Complainant and his and my colleagues during this time, in the opinion of the Complainant, was to ask employees to refrain from speaking to each other regardless of the content of the communication.

7. When Joy Devine returned from bereavement leave, a review meeting was organised to look at the Complainant’s progress to date When he attended the meeting in person as agreed, Jean Jackson was present for the meeting. It was not made clear the purpose of her presence at the meeting at the outset. Throughout this meeting, Joy and the Complainant spoke about his progress to date, and it was remarked on that he was progressing well. Throughout this meeting, Joy realised that the Complainant had missed significant training opportunities in her absence and apologised for same. It was agreed together that we would continue the administrative training now that she had returned. At the end of the meeting, Jean Jackson asked to speak with the Complainant. This took place in front of Joy Devine. It was here that Jean Jackson commented on the Complainant’s excessive use of the bathroom. The Complainant reminded her that he had Crohn’s Disease, which is recognised as a disability in Ireland. The Complainant also reminded her that he had informed HR of same when he commenced employment with Dolmen Insurance and provided them with a letter from his GP. Jean Jackson informed the Complainant at this meeting that he must now clock out for toilet breaks moving forward. The Complainant was deeply humiliated by this request and informed Jean Jackson that he did not believe it was legal to ask him to do so. This request caused the Complainant serious mental distress and a high degree of stress. Stress is a key trigger for Crohn’s disease and directly impacted on him following this clear discrimination by Jean Jackson and Dolmen Insurance of a disability he had no control over.

8. Under the Employment Equality Act, it is the responsibility of the employer to ensure reasonable accommodation of disclosed disabilities are provided to employees. Given that he gave proof of his Crohn’s Disease diagnosis, he assumed that the company would support him in his need to attend the bathroom more frequently than others. At no point did he expect reasonable accommodations to be under the guise of chastisement of his actions to facilitate his disability, in front of his Team Leader with a further request to be docked pay by clocking out. The Complainant also knew that if he clocked out for breaks his peers would see him do so and this would cause him further humiliation.

9. The impact of this treatment by Jean Jackson as a representative of Dolmen Insurance left the Complainant in turmoil. In order to rectify the situation, he proactively looked for a meeting with the Managing Director David Dillane. This meeting was held on the 18th of September, and the Complainant informed him of what had happened at his progress meeting, the request by Jean Jackson and the distress caused by same for him. This meeting was a positive experience where Mr. Dillane informed him to forget about the request to clock out for toilet breaks by Jean Jackson and to continue as he had been doing. As well as this meeting with Mr. Dillane, the Complainant had continued to inform his Line Manager Joy Devine that he was deeply distressed by what he had been requested to do, the impact it had had and was having on him and as he did not see this as a legal request, he would not be clocking out for breaks.

10. A week later the Complainant was called to a meeting ad hoc in the middle of a standard working day with David Dillane and Jean Jackson present. He was informed that he was being dismissed from his employment by Dolmen Insurance and was immediately escorted from the premises by Paul Clements. As mentioned above, this took place in front of a full office of his peers. In closing during his short period at Dolmen insurance his Team leader was absent during a large part of it due to the passing of her father. This fact he was largely dealing with Jean Jackson a company director highlights this. Jeans behaviour towards the Complainant was discriminatory. No one else had to take unpaid leave while using the bathroom. There were no attempts to facilitate his needs. Following on from this incident the Complainant has been forced to seek a new career outside the insurance industry.

Background

1.       Mr Fagan commenced employment with Dolmen Insurance on 25th June 2018.  His employment terminated after 3 months on 27th September 2018 when he was dismissed by the Company.

2.       Mr. Fagan submitted a complaint form to the WRC on 15th April 2019.  The complaint form indicated that the complaint fell under Discrimination / Equality / Equal Status and alleged that he had been discriminated against by his employer.  The complaint form also indicated that Mr. Fagan would be represented by Tully Rinckey Solicitors.

3.       As the complaint was received outside of the required 6 month period, the WRC wrote to Mr. Fagan on 1st May 2019 advising him of this and advising that it would consider a submission from him if he wished to claim that failure to present the complaint was due to reasonable cause. 

4.       It would appear that no submission on reasonable cause for the delay was made by Mr. Fagan and the matter seems to have remained dormant until the WRC contacted Mr. Fagan on 28th July 2023.

5.       Mr Fagan then submitted two documents dated 9th and 24th August 2023 in which he offered 3 reasons for the delay in meeting the 6 month required time limit:

a.       A failure by his legal advisors to attend to matters or to keep him informed

b.       Health reasons

c.       Lack of knowledge by him of the existence of a time limit

Dolmen Insurance position in relation to Mr Fagan’s failure to submit his complaint within the 6 month time limit

1.       The time limit for submitting a complaint is set out in Section 41 (15) of the Workplace Relations Act 2015

“Subject to subsection (8) an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint refers”.  

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. 

The company submits that the 3 reasons offered by Mr. Fagan do not constitute reasonable cause.

2.       The primary reason submitted by Mr Fagan as reasonable cause in his submissions dated 9th and 24th August 2023 is a failure by his legal representative.  This issue has previously been the subject of a WRC adjudication.  In case ADJ- 00001568 the claimant’s legal advisor failed to submit the claim within the 6 month time limit and this was offered as reasonable cause by the claimant.  The Adjudication Officer concluded that the claim could not proceed and the reasons for this conclusion are as follows:

The circumstances explained by counsel for the complainant are, of course, very unfortunate. The solicitors instructed by the complainant played an active role in and around the time of the complainant’s dismissal, where they engaged with the respondent on her behalf. It is through inadvertence that the claim was not submitted within six months of the complainant’s dismissal. It is fair to say that this is the nightmare scenario for any person, including professional lawyers, engaged in advocacy on another’s behalf. The issue to be determined here is whether it can amount to reasonable cause to allow a late claim to proceed.

Having considered the Labour Court authorities, I am obliged to find that the claim of unfair dismissal cannot proceed. While not making any finding as to whether her case would succeed, I fully appreciate the position of the complainant, who has a case that should be ventilated. Applying the Skanska authority, while the reason proffered on the complainant’s behalf certainly explains the reason for the late submission of the complaint, it does not excuse it. While the reason makes sense as in one understands how it can occur, it does not go so far as to excuse the nature and extent of the delay.

3.       In his submission dated 24th August 2023 Mr. Fagan also states health reasons as a reason for the delayed claim notification.  The company has not seen any evidence of ill health which would provide reasonable cause for missing the 6 month requirement or indeed which would provide reasonable cause for taking no action for until August 2023.

4.       In his submission dated 24th August 2023, Mr. Fagan also cites his lack of knowledge of the time limit as reasonable cause for the delay.  The company does not believe that ignorance of the requirement can be deemed as a reasonable cause.

5.       The failure of Mr. Fagan to meet the 6 month requirement or to make a submission in relation to reasonable cause has led to an extraordinary delay in this complaint.  The latest date for Mr. Fagan to have submitted his claim was 26th March 2019. If Mr. Fagan had availed of the offer from the Adjudication Officer to make a submission to seek an extension from 6 to 12 months, this would have afforded him a revised date of 26th September 2019.  Mr. Fagan’s submission offering reasonable cause for the delay was not received until 9th August 2023 which is some 4 years and 5 months beyond the required date.

For all of the above reasons the company requests the Adjudication Officer to not to allow Mr. Fagan’s claim to proceed. 

Company’s position in relation to Mr. Fagan’s complaint in the event that the Adjudicator allows his complaint to proceed

1.       The company does not accept that Mr. Fagan was victimised in any way. Mr. Fagan was dismissed for failing to meet the required performance standards despite being afforded reasonable opportunities to improve.

2.        Mr. Fagan came to Dolmen as an experienced and qualified insurance agent.  However, within a short space of time it was clear that there were significant performance issues. After some 2 months in his role his team leader met him on 29th August to highlight the high number of errors in his work.  At that meeting it was deemed that he needed to recommence from scratch the training which he had already been given and revert to training appropriate for a new entrant.

3.       Mr. Fagan had to be spoken to on a number of occasions about the need to remain productive and cut back on casual chat with his colleagues as it was affecting his and their productivity.

4.       The company does not accept that it discriminated against Mr. Fagan in relation to his Crohn’s disease health condition.  While Mr. Fagan advised the company on a routine HR form that he had Crohn’s disease, he never made the company aware of any particular accommodation required.  The first instance when Mr. Fagan made the company aware of needing special breaks was when the company took issue with him regarding his productivity and the level of chat with his colleagues.  Once Mr. Fagan advised the company that he needed more frequent and longer breaks, this was accommodated but in line with company practice he was asked to key out for the longer absence breaks.

5.       Mr. Fagan indicated his dissatisfaction with the requirement to clock out for the extended toilet breaks and he sought a meeting with the Managing Director. At that meeting on 18th September, the MD reiterated the requirement to clock out for longer breaks but indicated his support for Mr. Fagan and his condition.  At this meeting Mr. Fagan also raised a grievance in relation to his commission levels and the MD agreed to consider it.

6.       Mr. Fagan frequently did not adhere to the requirement to clock out for toilet breaks and the company did not make an issue of this. However, the fact that it had been requested was an ongoing source of grievance for Mr. Fagan.  At a meeting with his team leader on 25th September he raised it as a grievance. He also raised grievances in relation to his relationship with colleagues and requested to be moved.  At this meeting he indicated that he was seeking employment elsewhere. At this stage it was felt that Mr. Fagan was not performing to the level expected and was having a disruptive and negative influence on the team.  The company then took the decision to terminate his employment within the probationary period as provided for within the terms of his employment contract.

7.       Mr. Fagan’s employment was terminated for performance reasons alone and his ongoing illness had no bearing on this decision.

Time Limits.

The Respondent has raised the following points in relation to the legal time limits for making a complaint to the Workplace Relations Commission under the Employment Equality Act, 1998.

1.       Mr. Fagan submitted a complaint form to the WRC on 15th April 2019.  The complaint form indicated that the complaint fell under Discrimination / Equality / Equal Status and alleged that he had been discriminated against by his employer.  The complaint form also indicated that Mr. Fagan would be represented by Tully Rinckey Solicitors.

2.       As the complaint was received outside of the required 6 month period, the WRC wrote to Mr. Fagan on 1st May 2019 advising him of this and advising that it would consider a submission from him if he wished to claim that failure to present the complaint was due to reasonable cause. 

3.       It would appear that no submission on reasonable cause for the delay was made by Mr. Fagan and the matter seems to have remained dormant until the WRC contacted Mr. Fagan on 28th July 2023.

Mr. Fagan’s employment with the Respondent ended on 27th September 2018. On 11th October 2018 Mr. Fagan consulted with a solicitor and requested said solicitor to lodge a complaint to the Workplace Relations Commission. Mr Fagan then contacted the solicitor again on 30th April 2019 (some six and a half months after his last contact) and was informed there was no update. It is then Mr Fagan’s opinion that he made other attempts to contact the solicitor but failed to receive a response. In April 2020 he was informed that the solicitor had left the practice and that unfortunately the case was not now in a position to be heard by the WRC.

4.       It would appear that no submission on reasonable cause for the delay was made by Mr. Fagan and the matter seems to have remained dormant until the WRC contacted Mr. Fagan on 28th July 2023.

5.       Mr Fagan then submitted two documents dated 9th and 24th August 2023 in which he offered 3 reasons for the delay in meeting the 6 month required time limit:

a.       A failure by his legal advisors to attend to matters or to keep him informed

b.       Health reasons

c.       Lack of knowledge by him of the existence of a time limit

The Respondent has correctly pointed out that the time limit for submitting a complaint is set out in Section 41 (15) of the Workplace Relations Act 2015

“Subject to subsection (8) an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint refers”.  

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. 

Having considered this matter in some detail I have to agree that the 3 reasons offered by Mr. Fagan do not constitute reasonable cause.

I therefore conclude that the complaint as presented under the Employment Equality Act. 1998 is out of time and therefore fails.

I therefore conclude that the complaint as presented under the Employment Equality Act. 1998 is out of time and therefore fails.

Employment Equality Act, 1998.