Complainant

Respondent

Parties

Susan  Darcy

Tribli CLG

Complainant

Respondent

Anonymised Parties

Representatives

Tiernan Lowey B.L. instructed by Alexandra Lowry of McGrath Mullan 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-00060696-001

22/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00060696-002

22/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00060696-003

22/12/2023

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

CA-00060696-004

22/12/2023

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

CA-00060696-005

22/12/2023

The complainant referred as number of complaints to the WRC on 22 December 2023. At this time she was represented by a solicitor. No details of her complaints were included in the referral form. At the time of the first day of hearing on 2 May 2023 she was no longer represented and no written submission had been made. At the beginning of the hearing the respondent’s representative made a submission that, as no submission had made which set out the complaints, they should be struck out for want of prosecution.

In the circumstances where the complainant was at the time of the hearing a lay litigant, I explained to her that I would give her an opportunity to make a written submission which should set out details of each of her complaints under each piece of legislation.  The respondent would have the opportunity to make a responding submission before the next hearing day.

The complainant made a written submission dated 14 May 2024. The respondent submitted they did not consider this submission set out each of the complaints and chose not to make a written submission.

The complainant started working for the respondent on 13 June 2022 as an Access Worker. She made the following submissions in written and oral evidence:

CA-00060696-001 - Employment Equality Act: the complainant submits she had cataract surgery in October 2022. When she went back to work she found the lights were bright. She said this to the Service Manager who told her the lights would have to be left on. She says she did not bring it up again, as there was no point.

CA-00060696-002 – Protection of Employees (Part-Time Work) Act: the complainant submits she was working 21 hours per week and was treated differently than full-time colleagues. In April 2023 she asked if she could work from home and was told that was not possible if someone lived more than 1 hour from the office but other employees working from home lived 2 hours away.

She was also treated differently because she was not registered on the HR Locker system and was told this was because she only worked part-time. This meant her annual leave was not recorded on the system. This caused her problems when questions were raised over the number of days she had taken. She was bombarded with emails and made to feel dishonest.

CA-00060696-003 – Protection of Employees (Fixed-Term Work) Act: the complainant submits she was initially employed on a one year contract. She was verbally told she would get a further six month contract. She found this unsettling.

CA-00060696-004 – Terms of Employment (Information) Act: the complainant submits she got her initial contract but was not issued with another contract when her employment was extended for a further six months.

CA-00060696-005 – Protected Disclosure Act: the complainant submits she made a protected disclosure when she sent a registered letter to the then CEO in October/November 2023. This advised him that at a meeting with another agency, they were not told that staff had not been given training. She was contacted by the Service Manager about the letter but chose not to respond. She wanted to deal with the CEO. This was denied her and this is the alleged penalisation.

The complainant made the following submission in oral evidence:

CA-00060696-001 - Employment Equality Act: the respondent’s Service Manager gave evidence that she was not aware of the complainant’s cataract operation and nothing was brought to her attention. There was no medical evidence on the complainant’s file.

The former CEO gave evidence that he was not aware of the complainant’s cataract operation or any request for reasonable accommodation. If a request had been received then it would have been considered.

The respondent submits this complaint is out of time as it refers to events in October 2022 and the complaint was submitted on 22 December 2023.

CA-00060696-002 – Protection of Employees (Part-Time Work) Act: the Service Manager gave evidence that working from home is allowed at management’s discretion and operated on a hybrid basis. From April 2023 the complainant worked from home. It was an informal, week-to-week arrangement.

The issue about the complainant’s leave arose because she had booked leave without permission. This led to a meeting when it was confirmed what leave had been taken and the complainant was set up on the HR Locker.

The former CEO gave evidence that at the time referred to by the complainant the respondent had a draft working from home policy. The right to work from home was at the manager’s discretion and in accordance with the organisation’s needs. He was aware that the complainant worked from home under both of her line managers.

He also gave evidence that the respondent tried to formalise the situation when they became aware she was not registered on the HR Locker.

The respondent submits the complainant was not registered on the HR Locker during a transitional period but this did not mean she was treated any differently than a full-time employee.

CA-00060696-003 – Protection of Employees (Fixed-Term Work) Act: the respondent submits the complainant was not disadvantaged as a result of being on a fixed-term contract.

CA-00060696-004 – Terms of Employment (Information) Act: : the respondent submits the complainant was given her terms and conditions of employment.

CA-00060696-004 – Protected Disclosure Act: the Service Manager gave evidence that at the meeting with the agency the respondent confirmed they provided the training referred to. It was not said that the complainant had that training. The letter to the CEO was referred to the complainant’s manager. Under the respondent’s grievance procedure the complainant was invited to a meeting several times.

The former CEO gave evidence that the respondent attempted to initiate a formal procedure through their normal grievance procedure, via the complainant’s line manager. In one of the letters he offered to meet the complainant but she did not engage.

The respondent submits the complainant did receive the training referred to and was not subject to any penalisation.

CA-00060696-001 - Employment Equality Act: The complainant gave evidence that, following a cataract operation in October 2022, she was not afforded reasonable accommodation. Section 77 of the Employment Equality Act states:

“(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.

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

This complaint was referred on 22 December 2023, this is more than 12 months from the date of occurrence of the alleged discrimination in October 2022. Therefore, this complaint is out of time and I have no jurisdiction to investigate.

CA-00060696-002 – Protection of Employees (Part-Time Work) Act: section 9 (1) of this Act states “A part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee”. From the evidence given by the complainant I conclude that she may have been treated differently in relation to not being registered on the HR Locker but I find the consequences do not amount to being treated in a less favourable manner.

CA-00060696-003 – Protection of Employees (Fixed-Term Work) Act: section 6 (1) of this Act states “A fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee”. From the evidence given by the complainant I conclude that she may have been treated differently in relation to not being registered on the HR Locker but I find the consequences do not amount to being treated in a less favourable manner.

CA-00060696-004 – Terms of Employment (Information) Act: the complainant was given an initial 12 month contract. Her employment was extended for a further six months but she was not provided with her terms of employment for this extension in writing.

Effectively, her employment ended at the end of the initial one year contract and she should have been provided with written terms for the following six month period. The respondent has contravened this requirement and I award the complainant four weeks pay: €1,464.14.

CA-00060696-005 – Protected Disclosure Act: Section 5 of the Act states:

“(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other    public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

In the allegation made by the complainant I conclude that she has shown that her comments to the CEO amount to a Protected Disclosure, within the meaning of section 5 of the Act. However, I find that she was not penalised within the meaning of the Act. Therefore, the complaint is not well founded and accordingly fails.

CA-00060696-001 - Employment Equality Act: for the reasons set out above I find this complaint is out of time and I have no jurisdiction to investigate.

CA-00060696-002 – Protection of Employees (Part-Time Work) Act: for the reasons set out above I find the complaint is not well founded.

CA-00060696-001 – Protection of Employees (Fixed-Term Work) Act: for the reasons set out above I find the complaint is not well founded.

CA-00060696-001 – Terms of Employment (Information) Act: for the reasons set out above I find the complaint is well founded and I award compensation of €1,464.14.

CA-00060696-001 – Protected Disclosure Act: for the reasons set out above I find the complaint is not well founded.

Not penalise in relation to a protected disclosure