Complainant

Respondent

Anonymised Parties

Community Employment Scheme Worker

A Charity Shop.

Representatives

  Self-Represented

Joe O'Loughlin Adare HR Management

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00049097-001

04/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00049097-003

04/03/2022

The Complainant was  a Community Employment (CE) worker on a Community Employment scheme (“the Scheme”) and began work on placement at the Respondent’s retail premises on 21 July 2020 until the last day of her employment/placement on 24 September 2021. The Respondent Company is a Registered Charity and carries out substantial fundraising activities through its network of charity retail stores when goods are donated by the public for resale. ln order to minimise costs and maximise returns for charitable purposes the Respondent utilises the services of volunteers and participants on CE Schemes, sourced through various Partnership Schemes throughout the country where CE participants  gain the knowledge, skills and experience needed for  future employments.  

The Complainant submits she was unfairly dismissed  but the Respondent asserts a preliminary point in  that the CE scheme, and not the Respondent, was the Employer. The Respondent asserts without prejudice to the preliminary issue,  that her contract of employment had come to its natural end therefore no action lies under the Unfair Dismissals Act 1977 (“the 1977 Act).

The Complainant further submits that she was discriminated against  under the Employment Equality Acts 1998-2015, (“the Acts”) regarding her conditions of employment, access to training and, furthermore, that she was subject to harassment and victimisation  on the grounds of disability, which was fibromyalgia. She was not diagnosed as neuro-divergent until after her employment ended.

The Respondent further rejects any claim of discrimination and raises a preliminary issue with regard to the notification to the Respondent  of the actual grounds upon which the Complainant lays her claim of discrimination.

Preliminary Issue: CA-00049097-001 Unfair Dismissal

As a preliminary matter, the Respondent submits that it is not the correct Respondent in this matter, The Complainant was employed under a Contract of Employment as a CE Worker by the CE scheme and merely  assigned to work at the Respondent's location. The CE scheme paid the Complainant’s salary, their CE Scheme Advisor was the Complainant's active manager, and the Respondent argues  that this case is erroneously being brought against them. The Respondent further contends  that all matters referred to in the employment relationship are governed by the Community Employment Procedures Manual, as revised in April 2021,  and that at  all times the Sponsor was in fact the CE scheme. The manual, which was exhibited, states that the legal employer of the CE participants for the purposes of employment legislation and compliance are the scheme, and that placements are designed  to provide workplace experience and training with the aspiration of helping participants to secure long term employment.

CA-00049097-001 Unfair Dismissal: Substantive Case

The Respondent cites Section 2(2)(b) of the Unfair Dismissals Acts (1977-2001) where it states  that a dismissal cannot be deemed to be unfair where:-

 "…where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid."

The Respondent points to  Clause 4 of the employment contract entered into by the Complainant and the  CE Scheme where  it specifically refers to the above and at all times the Complainant would have been aware that there was no guarantee that she would be granted a further extension of her Fixed-Term contract.

 ln light of all matters deal with in the above, the Respondent argues that Complainant's assertion that she was  unfairly dismissed  is not well founded.

CA-00049097-003: Discrimination Under the Employment Equality Acts.

Preliminary Issue:

The Respondent points to the fact that whereas the complaint was submitted to the Workplace Relations Commission (WRC) on 4 March 2022, the Complainant never inserted the grounds upon which she was claiming discrimination, in this case disability, until 30 June 2022 which was over six months since the alleged  last act  of discrimination in September 2021. The Respondent is arguing   that there is no jurisdiction to hear the  complaint because it is out of time.

Substantive Issue:

The Respondent submits it has difficulty in  discerning as to  what constitutes the Complainant’s claim of discrimination. The Respondent submits that she would  appear to have ticked erroneously many of the boxes on her complaint form, most of which are irrelevant to the Section 77 claim. However, the Complainant's main issue appears to stem from several comments made to her by the store manager, Ms. M. The Complainant describes the store manager as "her workplace bully”, therefore it is assumed that her complaint is directed towards the store manager. The Respondent contends that the issues raised with the Complainant were referencing issues with the Complainant's performance and could not in any way be construed as bullying or harassment.

The Complainant also refers to random comments made by the store manager, purporting to construct some form of allegation of workplace bullying/harassment. The Respondent refers to the Respondent’s  retail handbook where  bullying is defined as follows: "Workplace Bullying is defined as repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and / or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying." This would be consistent with any definition of workplace bullying. The Respondent argues that the Complainant never raised any issues of workplace bullying with the Respondent who has very well-articulated policies and procedures in place to deal with any such issues. The Respondent's issues with the Complainant related to her performance, and were not related to discrimination in any form.

The Respondent cites  ADJ-00027980  Ziona Ozdoba V Franfield Supermarkets Limited Ryan's Supervalu Grange, where the Adjudication Officer ruled that  the complainant's Equality case was not well-founded on the basis of her claim of discrimination on the grounds of her religion. The only cause for the behaviour of the employer was that the complainant’s  performance fell short of any comparator. This is also the contention of the Respondent in this case. The Complainant was only spoken to about her performance, and this in itself cannot be construed as bullying or harassment.

In conclusion the Respondent submits  the Complainant  never brought any concerns of workplace bullying or harassment to the Respondent's attention. The Respondent asserts, that had she done so, they would have been managed in accordance with the Respondent's articulated and documented policies and procedures. Accordingly, the Respondent  contends that there is no substance to the Complainant’s claim of discrimination.

Preliminary Issue: CA-00049097-001 Unfair Dismissal

The Complainant asserts that at all times she considered the retail premises of the Respondent to be her place her work. The fact that the Respondent could determine whether her contract could be extended or not, showed that the Respondent was her employer. She accepted when questioned, that the CE supervisor was in regular contract with her during her period of employment.

CA-00049097-001 Unfair Dismissal: Substantive Issue.

The Complainant gave evidence of a review meeting on her work where the Respondent Area Manager   said that they  wanted to a put her  on a months’ probation and training, to which she agreed.  However, this training never really  took place and she was verbally dismissed by Ms M who cited the reason to her that she (the Complainant) was not involved in “teamwork”. She accepted that 24 September 2022 was her last day in the building and that it stated on her contract that the last day was 30 October 2022. She agreed that she had been allocated a new contract, with a new sponsor from 1 November 2022. It was put to the Complainant that the Respondent had put her on “garden leave” but she said she  did not understand this concept.

CA-00049097-003: Discrimination Under the Employment Equality Acts.

Preliminary Issue:

The Complainant said that she gave greater detail regarding the grounds upon which she was submitting her complaint to the WRC, when requested to do so by the WRC in June 2022 and believed that the Respondent fully understood those grounds.

Substantive Issue:

On her first day at work after the Covid lockdown in April 2021, the Complainant said she encountered the new shop manager, Ms M, and tried to tell her about her disability but that Ms M was dismissive on the day. However, the Complainant said it was her clear recollection that she eventually  told Ms M about her fibromyalgia and the restrictions she had with regard to her mobility. (The Complainant referred to a diary of her days at work which was exhibited). She stated that she found Ms M to be abrupt towards her.  She recorded  the days where Ms M found fault with everything she did and changed the design of a backroom where clothes were pressed. This made life difficult for the Complainant because of her lack of mobility. She described how Ms M excluded her from the shop online chat  group and allocated demeaning tasks to her like washing cups and other domestic duties  at the cost of not  allowing her adequate training on the till, or other frontline duties at the shop. She felt demeaned and continually embarrassed by Ms. M, whose behaviour the Complainant asserted had a lasting impact on her mental well-being.

The Complainant accepted in cross examination that she may have been unconvincing about telling Ms M about her disability but was certain she told her on the first day of work after the Covid lockdown. The Complainant agreed that she had not sought reasonable accommodation, nor did she request  her CE supervisor to seek such accommodation. The Complainant also accepted that she worked the till at lunchtime when other staff were not available.

CA-00049097-001 Unfair Dismissal.

The Respondent argues that  the CE Scheme  is the correct employer for any action under the 1977 Act. The Complainant contends that the retail shop was the place of her employment, and that the Respondent was a “co-sponsor”.

Section 1 of the 1977 Act states:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014) shall be deemed to be employed by the local authority;

Having considered all evidence and  documentation, including the contract of employment and the handbook for CE schemes generally, I am satisfied that the CE scheme is clearly the employer in this case. The Respondent’s place of work was where the Complainant worked but this is never  the sole determining factor for identifying the correct employer. The Complainant was engaged under a contract of employment by the CE Scheme, she was supervised by a member of the CE Scheme and her wages were paid by the Department of Social Protection.   The Respondent is not the correct employer for the purposes of the 1977 Act and I therefore find that she was not unfairly dismissed by the Respondent.

CA-00049097-003: Discrimination Under the Employment Equality Acts.

Preliminary Point – Notification of the Grounds of Disability.

The Respondent raised the  preliminary issue, in passing,  that the Complainant was out of time when she submitted the actual grounds of disability upon which she was relying on 30 June 2022, which was more than six months from the alleged last date of discrimination. The Complainant’s position was that she was answering a query at that time from the WRC and believed she had given all the information when she submitted her complaint in March 2022.

The Respondent in this case submitted that it was an organisation catering  for people with a specific disability  and that inclusivity and tolerance are virtues that are at the core of their operations. The narrative of the Complainant’s  form suggests, on the balance of probabilities,  that disability was the grounds upon which she was alleging discrimination. It has long been held that the original WRC form is not legally binding per se and that all circumstances must be taken into account. The question then arises was the Respondent taken by surprise  or otherwise prejudiced by the clarification of the Complainant to the WRC on June 2022. I note that the Respondent gave no evidence of such prejudice, nor was such alluded to specifically in the prior written submission.  Having taken all of the above into account, I am satisfied that the Complainant had satisfactorily submitted her complaint under the  Acts, within the time limit allowed.

The Applicable Law:

Section 2(1) of the Acts, describes the contract of employment as follows:

“contract of employment” means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby—

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), whether the contract is express or implied and, if express, whether oral or written;

The extent of protection extends beyond the conventional boundaries of employment law which typically safeguards only those under an employment contract, to also include people carrying out a service for a respondent. In the case of Walls and others t/a Moyne Veterinary Clinic v NowackiEDA 198 Ms. Walls was determined to be working under an employment contract and thus had the right to file a claim under the Acts. This conclusion considered the overall relationship between the parties, especially since she was engaged by the respondent over an extended period and personally carried out work for them. In this instance, the Complainant provided a service for the Respondent over a period therefore, and even though the Respondent was not a party to the contract, I am satisfied that the scope by way of definition of a contract of employment under the Acts covers the Complainant.

Section 6, of the Acts, in its relevant Parts,  describes discrimination on the grounds of disability:-

(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—

…(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”)…”

Section 2 of the Acts defines disability as follows:

“disability” means—

(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person's body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Section 8 of the with regard to discrimination by employers provides: 

8. Discrimination by employers etc.

(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably on the grounds of disability. Section 85A of the Act states as follows:

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Harassment:

Section 14(A)(7) of the Acts provides:

(a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(c) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Victimisation:

Section 74(2) of the Acts provides:

 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 or 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.

The Complainant must first establish (1)  that she had a disability as defined  within the Acts’ parameters and (2) show  primary facts upon which the behaviour she attributed to  the Respondent  created an inference of discrimination against her.  She described this discrimination in submission as being generally discriminatory in terms of her  conditions of employment with specific emphasis on an alleged denial of  training and  harassment. Though the Complainant ticked the “victimisation” box in the complaint form, she  gave no evidence of the very much nuanced interpretation of the term under the Acts whereby the adverse treatment she alleged was in reaction to the protected action taken by the Complainant, therefore I will not be considering this allegation in my decision.

The Complainant gave sworn evidence that on the first day back at the shop after the Covid lockdown  she told Ms M, the shop manager, that she suffered from fibromyalgia and therefore would be that bit slower in her mobility  about the premises. She described Ms M’s behaviour as being off hand subsequently and described a pattern  of unacceptable behaviour directed towards her. This included not being provided with proper training on the till, being excluded in the workplace generally and being treated differently to other members of staff. She gave evidence that she was not invited to the staff online chat group and was allocated to general domestic duties. The layout of the backroom was changed, without reason, and this made working difficult for her. She said that though present at a review meeting to discuss her performance, she was not allowed to contribute . I found the witness gave very plausible evidence of discrimination. I put particular emphasis  with regard to her conditions of employment, particularly with regard to the limited access to training and what seemed like generally a hostile environment where she was treated differently to other staff . Harassment  is described at 14A(7)(b) as” being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” The witness gave evidence of unacceptable behaviour by Ms M towards her. I am satisfied that the Complainant satisfactorily established a prima facie case of discrimination against her that she was harassed and denied access to proper training on the grounds  of her disability. The Respondent brought no witnesses forward at the hearing to disprove this case, or give evidence as to why she was treated less favourably than other members of staff,  other than on disability grounds,  therefore I find that the Complainant was discriminated against on the grounds of her disability.

Redress

The Complainant gave plausible evidence of the effects of the discrimination, which led her to seek counselling and support, leading to an outlay of monies on her behalf. She took up a new placement under the CE scheme  after the completion  of her contract.  I find that  the appropriate redress is an award of compensation. I direct the Respondent to pay the Complainant compensation in the amount of €5,000 for the effects of the discrimination that she has suffered.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00049097-001 Unfair Dismissal.

For the reasons outlined above, I find that the Respondent is not the employer as defined under the Act, therefore I find the Respondent did not unfairly dismiss the Complainant.   

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00049097-003: Discrimination Under the Employment Equality Acts.

For the reasons outlined above, I find that the Respondent discriminated against the Complainant on the grounds of her disability, and I direct the Respondent to pay the Complainant compensation in the amount of €5,000 for the effects of the discrimination that she has suffered.

Unfair Dismissals Act 1977,  Incorrect Respondent , Employment Equality Acts, Harassment, Disability, Access to Training.