ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00050955

Parties:

	Complainant	Respondent
Parties	Deirdre Wallace	Mulligans Pharmacy

Representatives

Patrick Wallace

Shaun Boylan BL

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00062326-001	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022	CA-00062326-002	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00062326-003	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001	CA-00062326-004	21/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062326-005	21/03/2024

Date of Adjudication Hearing: 27/08/2024

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant submitted 5 complaints under the Terms of Employment (Information) Act 1994 as amended, the Sick Leave Act 2022, the Employment Equality Act 1998, the Protection of Employees (Part time work) Act 2001 and the Organisation of Working Time Act 1997.

Summary of Complainant’s Case:

The Complainant provided a written statement summarised in her own words as follows:

Firstly, I would like to express my regret that I have felt the need to engage your services after 30 years’ service with my employer and that my complaint results from several years frustration with how my terms and conditions of employment have deteriorated as the company grew from a small family run business to a multi-store chain of Pharmacies. The accompanying documents are arranged with each of the complaints contained in my original complaint to your offices. Namely:

Terms and Conditions of Employment – My Employer has not provided me with a reasoned request for employment with more predictable and secure working conditions within one month of my request
Pay – My employer has not paid me my sick leave
Discrimination/Equality/Equal Status – I have been discriminated against by my employer, prospective employer, employment agency, vocational or other bodies (Age, Disability)
Fixed Term and Part Time Work – I am a part-time employee and have, in respect of my conditions of employment, been treated less favourably than a comparative full-time employee
Hours of Work – My employer treated me adversely for refusing work where I was given less than 24 hours’ notice of the work. I set out context and evidence under each complaint as follows;

Terms and Conditions of Employment –

My Employer has not provided me with a reasoned request for employment with more predictable and secure working conditions within one month of my request In this part of my complaint, I mentioned that frequent and sudden changes in my rostered hours are not uncommon, and I provide a sample of communications between myself and the company to corroborate. I also include a copy of the grievance I sent to my employer on 21st November 2023, in which I raised these issues and which, to date, they have not provided any satisfactory resolution. I also include sample text communications with Human Resources, demonstrating how I regularly have to “chase” hours and rotas, often on a Sunday evening, along with payslips showing how my pay is reduced and irregular. Furthermore, on foot of my complaint of 21st November I received from my employer the enclosed contract of employment, which stated a starting date of14/01/2029, and whilst this may seem a simple typing error it should be noted that it came to me at a time when I was already under stress, and I had to revert to the company to correct it. To me, it exemplifies the lack of attention to detail in dealing with my employment rights. Pay –

My employer has not paid me my sick leave.

Under this part of my complaint, I include an excerpt from my Staff handbook in which it states that I, as an employee of 10+ years’ service, am entitled to 12 weeks sick pay per annum. My employer communicated a change to these terms and conditions in recent years and I did not agree to this change. Under this section of my complaint, I contend that my employer has unilaterally changed my terms without my agreement. Specifically, I raise the period September to December 2023 (with accompanying medical certs) during which I was not paid. An internal email dated 16th October 2023, obtained through a subject access request, is included in which the instruction not to pay me is evident.

Discrimination/Equality/Equal Status –

I have been discriminated against by my employer, prospective employer, employment agency, vocational or other bodies (Age, Disability) In this part of my grievance, I set out the timeline in which I asked for accommodation to return to work with light duties, resulting from a sudden and acute attack of high blood pressure. Accompanying email evidence shows how I originally raised the request on 18th October 2023 and again on 9th November 2023 and received nothing only an acknowledgement of my request (on 18th October 2023). It was only after I raised the issue again on 21st November 2023, in the form of a complaint to my employer, that they responded. 5 Weeks after first requesting it! My employer responded, in the email attached, to my concerns and claimed that the issues raised are easy to resolve. They were not resolved. My employer offered to meet with me in relation to the accommodation for my return to work but due to the fact I had raised complaints and was now in dispute with them I did not feel comfortable to meet with them alone. I am not a union member and did not know where to turn to seek representation.

Fixed Term and Part Time Work –

I am a part-time employee and have, in respect of my conditions of employment, been treated less favourably than a comparative full-time employee In this part of my complaint, I set out documentary evidence that I have regularly (unlike comparative full-time employees) had to request information about my hours, rota, and regularly have to chase payroll department to correct my hours and pay, and that I have had to find cover for my annual leave myself, again, unlike comparative full-time employees. In the enclosed email dated 23rd November 2023, my HR manager conceded that I “should not have to chase this up yourself with payroll”. Another example of how I had to continually correct payroll for my hours and pay occurred in January 2024 when I had to inform payroll that they had overpaid me for bank holidays occurring over Christmas holidays.

Hours of Work –

My employer treated me adversely for refusing work where I was given less than 24 hours’ notice of the work I have raised a sample case where my rota was changed at short notice. On checking my rota on Sunday 10th September 2024 I noticed that I was directed to an out-of-town store. Unfortunately, as my car was in a garage for maintenance, I could not travel to Clonmel that day. I spent all of that Monday morning engaging with HR to arrange my hours locally. It took until 11.15 that day to resolve my location and as a result I was not paid for that morning. Payslip dated 22/09/2023 attached shows 30 hours pay for that week. Other sample text messages attached in this section are evidence that I regularly had to chase hours and rotas. When this happened, I regularly lost hours and pay, or had to chase payroll to adjust. It is important to note that in November 2023, I sought legal counsel regarding these matters, and my solicitor corresponded with the company. Regrettably, due to financial constraints, I was unable to pursue any further action at that time.

Conclusion

In bringing this complaint forward to the Workplace Relations Commission, it is with a sense of disappointment and regret that I find myself in this position. Over the course of my three decades of service to the company, I have always strived to be a committed and loyal employee, dedicated to the success and prosperity of the organisation. I know that my employer will attest to this fact. However, recent events and a series of concerning incidents have compelled me to take this necessary action. It is not a decision I have made lightly, but rather one borne out of a sincere belief in the importance of upholding fairness, respect, and proper workplace conduct. Throughout my tenure, I have consistently demonstrated flexibility and a willingness to go above and beyond in my role. I have adapted to changes, embraced challenges, and consistently delivered results to the best of my ability. My loyalty to the company has been unwavering, and my commitment to its success has never wavered.

It is my hope that by raising these issues, we can address them in a constructive and positive manner, ultimately leading to a workplace that is fair, inclusive, and fully compliant with equality and employment laws. I remain committed to resolving these concerns amicably and in a manner that upholds the well-being and rights of all employees.

Summary of Respondent’s Case:

The Complainant was initially employed with the Respondent as a relief OTC advisor from in or around 24th February 1993. From in or around 14th January 2019 this role encompassed 4 days per week. As a relief position this role, by its nature, required flexibility in terms of location and hours.

The Complainant’s role required her to be available to provide cover to various Mulligan’s Pharmacies and this was usually if another employee was sick or on leave. Her role is flexible in nature and the Complainant would be notified as soon as the Respondent was aware that an OTC Advisor was ill or on leave. As a consequence of this the hours for the role were highly variable.

In response to her complaints, the Respondent’s position is summarised as follows:

Terms and Conditions of Employment – “My Employer has not provided me with a reasoned reply to my request for employment with more predictable and secure working conditions within one month of my request”.

The Complainant has at all times been guaranteed and given a minimum number of hours. By its nature the Complainant’s role being a relief one has at all times required flexibility to work in different locations and with variations in rota as required. This has been the case since the Complainant commenced her employment.

An e-mail from the Complainant dated 21st November 2023 did not request a different form of employment but raised issues of concern to the Complainant. By way of written response sent the same day the Respondent explained the position regarding relief work and offered to meet the Complainant.

In all of the circumstances, if the Complainant did lodge a valid request pursuant to section 6F of the Terms of Employment (Information) Act 1994 (“the 1994”), then the Respondent submits that it met its corresponding obligations by way of reply dated 21st November 2023. Further the Respondent repeated its offer of a position in one store and this was acknowledged by the Complainant in an e-mail dated 22nd October 2023.

Pay – My employer has not paid me my sick leave.

The Complainant submits that she is entitled to 12 weeks sick leave. The Respondent submits that this is not correct. The sick leave policy that the Complainant refers to was significantly changed in 2010 (“the 2010 scheme”). This was communicated to all employees on or about 25th March 2010. The Complainant was a store manager at this time and therefore aware of the change.

A further minor change to the benefit of employees was introduced from 1 January 2023 to allow for the payment of statutory sick leave for the initial three days of sick leave (“the 2023 scheme”).

By way of e-mail dated 14th January 2024 to the Respondent, the Complainant acknowledged that the sick pay scheme had changed but claimed that she never accepted it. The Respondent never received any complaint or query from the Complainant relating to the sick pay scheme before it was raised by her solicitors in a letter dated 8th December 2023.

When the Complainant queried the sick pay scheme by way of e-mail dated 11th December 2023 the Respondent replied the same day noting that the Complainant had been paid on at least three occasions under the 2010 scheme. This e-mail also set out details of payments to the Complainant under the 2023 scheme since she went on sick leave in September 2023.

In light of the foregoing the Respondent submits that it has fully paid the Complainant all sick pay due and ongoing for the reckonable period.

Discrimination / Equality /Equal Status – I have been discriminated against by my employer, for failing to give me reasonable accommodation for a disability.

Since being absent on sick leave the Complainant has furnished a number of sick certificates. The majority of these state that the reason as suffering from “Medical Condition”. The certificate dated 26th October 2023 states that the Complainant “is / was suffering from illness”. The certificate dated 24th November 2023 does not state any condition or illness. At no point has the Respondent received a medical certificate specifying what condition or illness has resulted in the Complainant’s absence.

By way of e-mail dated 18th October 2023 the Complainant requested a modification in work duties to facilitate her return to work. In that e-mail the Complainant stated that her sick leave was due to high blood pressure which she feared was exacerbated by stress. This e-mail also stated that the Complainant was awaiting further tests to establish “causes and how to treat it”.

The Respondent acknowledged the Complainant’s e-mail by way of reply which noted that the matter would be discussed with Ms M, Director. A further e-mail was sent on 31st October 2023 that confirmed that a follow up was required.

By way of e-mail dated 23rd November 2023 the Complainant’s request to return to work with light duties was addressed as follows: “For us to be able to address the request for light duties, can you give me more specific details as to the recommendations your GP has made. This way we can review what accommodations are possible to facilitate you until you can return to normal duties. The more information you supply, the more we can do to help with your return”

The Complainant did not furnish any information relating to her request for light duties. However, on 8th December 2023 the Respondent received a letter from the Complainant’s solicitor seeking documents relating to a request to be facilitated for a disability.

In December 2023 and January 2024, the Respondent requested a number of times that the Complainant provide clarity on what the GP was recommending in relation to light duties. No response was forthcoming from the Complainant save that her solicitor would deal with the matter.

On foot of the foregoing and correspondence from the Complainant it is submitted that at no time has the Respondent received any medical certificate or correspondence referring to the Complainant’s blood pressure or related issue. In addition, neither has the Respondent ever received any correspondence from the Plaintiff’s treating physician confirming such a diagnosis. Furthermore, despite requesting information relating to recommendations of the Complainants GP to facilitate her request none has ever been furnished. From the 22nd of November to 14th January, despite being asked for such information to facilitate her request, the Complainant did not address the issue.

.In light of the foregoing the Respondent submits that it has met its duty and obligations in respect of the request for reasonable accommodation where the Complainant has failed, refused or neglected to engage with its attempts to facilitate the request.

Less favourable treatment than a comparable full-time employee

The Complainant has not provided a comparator in respect of this complaint. In the absence of such it is not possible for the Respondent to answer the claim made in written submissions at this time.

Without prejudice to the foregoing it is not admitted that the Complainant had to “continually” correct pay roll. In respect of the issue referred to in January 2024, by way of e-mail dated 15th January 2024, the Respondent explained the issue in question arose due to the need to manually enter bank holiday entitlements in the absence of a firm back to work date. However, it was also confirmed that such information is always checked before bank transfers are executed.

Treated adversely for refusing to work where I was given less than 24 hours notice of the work

The Complainant did not refuse to work and therefore the Respondent submits that there is no claim arising as set out by the Complainant. The Complainant notified the Respondent that she was willing to work but in a different store to that allocated.

In respect of the specific date referred to when the issue was flagged with the Respondent, alternative work was located for the Complainant at a suitable location. In the circumstances the Complainant was not treated adversely.

Conclusion

The Respondent respectfully submits that the Complainant’s claims are misconceived. As appears above, if the Complainant did make a request relating to more predictable and secure employment conditions this was replied to. In addition a post in one store was offered as a solution.

In respect of pay the Respondent submits that it paid all sick leave due to the Complainant.

The Respondent denies any allegation of discrimination. Numerous attempts were made by the Respondent to ascertain what accommodations the Complainant was seeking but to no avail. At no point did the Complainant furnish a medical diagnosis or letter from a medical practitioner outlining accommodations. Notwithstanding this the Respondent sought to facilitate accommodations but was rebuffed.

The Complainant has failed to make out any case that she was treated less favourably than a full-time employee and failed to provide any comparator. Without prejudice to this the Respondent does not accept that she was so treated.

The Complainant did not refuse to work in the scenario that seeks to rely on in respect of the Organisation of Working Time Act. She informed the Respondent she could not work at a specific location but offered to go elsewhere which was accepted. Without prejudice to this the Respondent denies any adverse treatment.

Findings and Conclusions:

The Complainant submitted detailed written evidence which was elaborated upon and clarified by her representative.

During the hearing, the Complainant’s representative stated that the Complainant was not able to give evidence. The consequence of this is that the Respondent was not in a position to hear first hand the complaints made by her against the Company. The further consequence is the Complainant was therefore not in a position to be cross examined on her evidence. The Supreme Court judgment in Zalewski v. An Adjudication Officer & Ors [2021] IESC 24, in effect declared that complaints regarding employment rights involve the administration of justice. This involves the administration of an oath or affirmation and the examination and cross examination of witnesses. The Respondent’s counsel relied upon that case and the case of re Haughey [1971 No. 58 SS] that an allegation brought must be backed by evidence and cross examination. The Respondent submitted that the case should be concluded as the case against his client was not backed by evidence.

In relation to dismissal of complaints, the limited circumstances in which dismissal of complaints can be employed (non pursuance for a period and frivolous & vexatious complaints) are not applicable in this case. In this instant case, I find that as the Complainant was not in a position to give evidence and the right of the Respondent to cross examine was not possible, the complaints are deemed to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00062326-001