Complainant

Respondent

Parties

Naomi  Lynch

Three Ireland (Hutchinson) Limited

Representatives

 Ellen Walsh B.L. instructed by Sean Ormonde & Co. Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00060325-001

30/11/2023

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

CA-00060325-002

30/11/2023

The within complaints were lodged to the Workplace Relations Commission (WRC) on 30th November 2023. The complaints relate to allegations of penalisation in contravention of the Protected Disclosure Act, 2014 and allegations of discrimination in contravention of the Employment Equality Act, 1998. The complainant alleges that she was discriminated against on the disability ground as the employer failed to provide reasonable accommodation to her.

The complainant commenced employment with the respondent on 6th September 2022 on a temporary contract to replace a member of management who was absent at the time. The complainant encountered a number of difficulties in the role and was absent on sick leave from 6th March 2023 and did not return to the employment. The complainant resigned with effect from 28th February 2024.

Other complaints

The complainant submitted other complaints to the WRC and Labour Court in respect of her employment with the respondent as follows:

ADJ – 00045358. – This complaint was submitted to the WRC on 19th April 2023 and alleges penalisation within the meaning of the Safety, Health and Welfare at Work Act, 2005. The complainant was unsuccessful in her complaint and appealed the Adjudication Officer’s decision to the Labour Court. The complainant was unsuccessful in her appeal to the Labour Court (Labour Court Determination No: HSD245)

The within penalisation complaint relates to the same period but brought under different legislation. There was no previous complaint of discrimination lodged by the complainant.

The respondent raised a number of preliminary points in relation to the complainants as submitted.

Time Limits

The respondent contends that the complaint alleging penalisation under the Protected Disclosures Act, 2014 is out of time. The respondent contends that the alleged protected disclosure was brought to its attention on 21st December 2022 and was investigated fully. The complainant alleges that she was penalised as a result of raising this issue yet has not identified any detriment within the six-month period prior to bringing her complaint to the WRC. On that basis, the respondent contends that the complaint is out of time and the Adjudication Officer does not have jurisdiction to hear the matter.

Res Judicata (Penalisation complaint)

The respondent contends that the complainant has already pursued penalisation complaints at the WRC and on appeal to the Labour Court which are based on the same or similar facts. The respondent noted that the complainant was unsuccessful in her complaints at both first instance and on appeal. The respondent stated that as the complaints have already been adjudicated on by a court or tribunal, between the same parties, on the same subject matter and a final and conclusive decision has been made, the matter is “res judicata” and cannot be re-litigated by either party. The respondent cited the case of O’Driscoll v Dunne [2015] IEHC 100 in support of its position in that regard.

Disability Definition/Burden of proof  (Employment Equality Acts, 1998-2015.)

In respect of the complainant’s assertion that she was discriminated against on the disability ground and was not provided with reasonable accommodation, the respondent stated that the complainant has not satisfied the burden of proof she bears in respect of her complaint that she was subject to less favourable treatment as a result of a disability. The respondent stated that it was not on notice at any time during the complainant’s employment (September 2022 – February 2024) that she was suffering from a disability. The respondent concluded by stating that the discrimination complaint is without merit and should be dismissed.

In respect of the respondent’s preliminary points, the complainant’s representative contends that the penalisation complaint is within time as the penalisation is ongoing and is not based on the same facts as previously raised. The detriment being suffered by the complainant is the loss of income and management’s failure to address the issues raised by her as well as the injury and damage she suffered due to the deterioration in her health.

In respect of the complainant’s disability, the complainant’s representative stated that there was medical evidence of a disability on the basis of the respondent’s occupational health review as well as the complainant’s own efforts to put the respondent on notice that she had a disability. The complainant’s representative argued that the respondent’s failed to carry out a risk assessment in respect of providing reasonable accommodation to her and accordingly she was subject to less favourable treatment in the employment.

Timing of complaints

In respect of any employment rights complaint submitted to the WRC, there are statutory time limits that apply.

The complaints were submitted by the complainant on 30th November 2023. The cognisable period of the complaints is therefore, the 31st May 2023 – 30th November 2023.

I note that the complainant has been on sick leave since 6th March 2023 and remained on certified sick leave until resigning in February 2024.

Penalisation complaint – CA-00060325-001.

For this complaint to succeed, the complainant must show that she was penalised within the meaning of the Protected Disclosures Act, 2014 within the cognisable period of the complaint.

Section 41(6) of the Workplace Relations Act, 2015 provides as follows:

(6) 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 relates.

As the complainant was absent on sick leave since March 2023, and  had exhausted her entitlements to sick pay in line with the company sick pay policy, I do not find the loss of income to be a detriment within the meaning of the legislation. In addition, I have reviewed the documentation and am satisfied that the respondent made every effort to engage with the complainant with a view to beginning a process of engagement that would assist in her return to work. In my view, the complainant has not identified an act of penalisation within the cognisable period of the complaint. Accordingly, I find that the complaint is out of time.

Discrimination complaint – CA-00060325-002.

For this complaint to succeed, the complainant must show that she was discriminated against on the disability ground in contravention of the Employment Equality Acts, 1998-2015 within the cognisable period of the complaint.

Section 77(5) of the Employment Equality Act, 1998 provides as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

The complainant asserts that within the cognisable period of the complaint, she was discriminated against on the disability ground on 24th November 2023. The respondent’s view is that it was not on notice of a disability as the majority of the medical certs submitted stated “medical illness” and the occupational health review stated that the complainant was suffering from “perceived workplace stress” but was fit to engage with the employer. The respondent subsequently wrote to the complainant on or about 16th November 2023 in respect of its attempts to have the complainant engage in a process following the Occupational Health review. At that time, the respondent was repeatedly seeking to engage with the complainant and set a deadline of 24th November 2023 for her to respond in respect of her intentions. I do not accept the contention that this was a discriminatory act to be relied upon by the complainant for the purposes of meeting a statutory time limit for the referral of a complaint. From my review of the documentation, the respondent made every effort to engage with the complainant, to commence a process that would assist in the complainants return to work, but these efforts were ultimately unsuccessful.

In conclusion, I find that no act of discrimination has been identified within the cognisable period of the complaint, and therefore the discrimination complaint submitted on 30th November 2023 is out of time.

For the reasons stated above, I find that the complaint is out of time.

For the reasons stated above, I find that the complaint is out of time.

Penalisation, Discrimination, complaints out of time.