ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00043253

Parties:

	Complainant	Respondent
Parties	Patricia Higgins	Cruinniu Bia Limited (Previously Heaney Meats Catering Company Limited Williams Gate

Representatives

Alastair Purdy & Co. Solicitors

IBEC

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00053724-001	15/11/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00053724-002	15/11/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001	CA-00053724-003	15/11/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00053724-004	15/11/2022

Date of Adjudication Hearing: 20/10/2023, 15/01/2024

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 - 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. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Where submissions were received, they were exchanged. The complainant gave evidence under affirmation and for the respondent, Mr Allan Morris MD, Ms Geraldine Gantly HR Manager and Mr Michael McDermot Operations Manager gave evidence under affirmation.

Background:

The complainant submits that she was penalised by dismissal for complying with or making a complaint under the Safety, Health and Welfare at Work Act, treated less favourably than a comparable full-time employee and discriminated against in conditions of employment on family status grounds.

Summary of Complainant’s Case: CA-00053724-001

The complainant submits she was penalised by dismissal for complying with or making a complaint under the Safety, Health and Welfare at Work Act. The complainant commenced employment on 01/12/2008, employment ended on 13/09/2022 and her complaints were received by the WRC on 15/11/2022.

The complainant submitted that she worked in the capacity of telesales in 2008 and there was an up-dated Contract of Employment from 2014 that also detailed her role as telesales. She submitted that due to her long tenure she had much experience and in a letter of 26/06/2022 the Complainant outlined to the Respondent her level of knowledge in all areas within the business.

Following the Complainant’s return from maternity leave in 2017, she agreed with the then Directors of Heaney Meats Limited, that her role would change to that of 2 days per week in order to factor in her child rearing duties and the fact that she was also assisting with the care of her father at that time who had advanced dementia. Her rate of pay was agreed and has risen to €350.00 per week for 2 days per week being Monday and Tuesday. The Complainant had no issues throughout her history of employment and Heaney Meats Limited was subsequently “bought out” by the Respondent. She continued working in her role for the new entity and, her terms and conditions of employment remained the same. The Complainant had no issues within her role or employment until approximately mid-April of 2022 when she was approached one morning by the General Manager of the Respondent who enquired as to whether she would consider becoming a full-time employee. At that informal meeting, she informed Mr. Morris that she could not commit to a five-day week due to her responsibilities as a Carer for her father and her childcare commitments. She did, however, highlight that she felt she could commit to 4 days per week but that this would depend on her looking into additional childcare facilities. He instructed her at this time to liaise with Geraldine Gantly, the new HR Manager for the Respondent.

In addition to the discussion on her role, the Complainant also spoke to Mr. Morris about overtime she had worked up. Mr. Morris indicated that he did not believe the company was in a position to discharge same by way of payment however agreed to allow her to take same as time in lieu. The Complainant, on the instruction of Mr. Morris, e-mailed Ms. Gantly and set out what in her opinion this fuller position would entail and confirmed that her availability for work would be on a 4-day week between the hours of 9am – 4.30pm. She further discussed the possibility of increasing this to 5pm on Monday and Tuesday’s and stated that any uplift in salary could be discussed subsequently. The following day, although not a working day for the Complainant, she duly checked her e-mails and noted that Ms. Gantly had e-mailed through a copy of a job role and specification. The role was something that the Complainant would have been interested in however the salary figure was €15,700.00 less per year (on a pro rata basis) than the rate of pay the Complainant was receiving at that point in time. Additionally, the role was 5 days per week as opposed to 4 days. The Complainant responded declining the position on the basis of the salary and highlighted that not only was the salary not pro-rata but she would also be expending more monies by way of additional childcare and further travel costs.

On 03/05/2022 Ms. Geraldine Gantly requested the Complainant’s attendance at a meeting which was to include both Ms. Gantly and the General Manager, Mr. Allen Morris and there was no agenda and Mr. Morris informed her that they were considering changing her role to one of a full-time position. He stated that her wages at their current level were “lunacy” and she could not continue to be paid at that same rate. On the 16/05/2022, on arriving at work, she was informed by Mr. Morris that she would need to move and take up a position at her colleague’s desk in a different office as that colleague was on annual leave. The Complainant was informed that her original permanent desk was being moved from the Accounts Department and that she would now be placed at some juncture, in the telesales office permanently. This transfer of desk space was carried out without any discussion with the Complainant. The Complainant followed the instruction she was furnished with. The following day, the 17/05/2022, as the Complainant was arranging her taking off time in lieu with the HR Manager, she was asked if she was aware of the overtime policy and asked who had approved the overtime she was claiming. The Complainant responded Mr. Morris was aware and had agreed to grant her time in lieu. In relation to the overtime policy, she stated that she was not aware of same and asked for a copy.

The next day, 18/05/2022 Ms. Gantly e-mailed the Complainant seeking for her to attend a meeting on site the following Thursday or Friday which were not the complainant’s working days. She replied that she would be happy to meet on either a Monday or a Tuesday and a meeting was duly agreed for 24/05/2022. The Complainant sought what the meeting was in relation to and was told that they wished to discuss her role further. Additionally, the Complainant once again asked for a copy of the overtime policy however was instructed that Mr. Morris was reviewing same and she would receive it once the review was complete. It was necessary for the company to cancel the agreed meeting of 24/05/2022 and it was agreed that it would be rescheduled to another day when the Complainant was at work. It was at this point in time that the Complainant was furnished with a copy of the overtime policy.

On 30/05/2022 the Complainant found that she had nowhere to work and had to wait up to 20 minutes to be informed that there was a space available for her in the new telesales office. After setting herself up in that location, approximately 1 hour into working day a tradesman arrived and informed her that they were going to be cutting a hole in the roof to put in a skylight. As there was no other workspace available, and as the Complainant had not been instructed by the General Manager to move anywhere she continued to carry on with her work, however, found herself working under the roof where a tradesman was using an angle grinder to cut through the roof above her desk. When Mr. Michael McDermott (Operations Manager) came upon this, he removed her from the position due to the serious health and safety risks. Mr. Allen Morris then requested a meeting with the Complainant on 31/05/2022 with himself and Ms. Gantly which was again, without agenda the Complainant was informed that this was to discuss options available to the company. Mr. Morris informed the Complainant that in relation to her wages she had obtained a “great deal” from the previous owner and “fair play to you”. He then went on to offer her a position as Factory Shop Manager which would be on a full-time basis and that her salary would be “ring fenced”. The Complainant was aware that she was being offered a role that the company knew she could not accept as this was a 4 ½ day week on site however the Complainant agreed to consider same and subsequently e-mailed Ms. Gantly asking for confirmation of the working hours and the salary attached to the retail position together with the job specification. On 08/06/2022 the Complainant e-mailed Mr. Morris to inform him that she was declining the position due to the full-time hours. Within this e-mail she also sought that going forward parties would not continually raise her rate of pay as she was finding it somewhat embarrassing.

Subsequent to this, every morning on arriving at work the Complainant would have to wait for a desk to be assigned to her. She would find that she could not commence work until after 9.20am after the operations meeting had concluded each morning and if she was asked to move desks, she would have to transport two display screens, computer terminal, keyboard mouse and all cables needed. This situation continued up until the 19/07/2022. On the 27/06/2022 the Complainant sent detailed 5-page letter to Mr. Morris and copied in Ms. Gantly of the HR Department setting out all the issues that she had encountered to-date and highlighted she would like to resolve matters amicably. This letter outlined that the complainant “(felt her) health and safet (sic) was put at risk” and she refers to a number of incidents with regards to reference to her pay and hours worked and that she felts harassed and borderline bullied” and that she was “being bullied and harassed”. Mr. Morris responded they would discuss the detail of the letter the following day and Ms. Gantly stated as the letter contained serious allegations there would be a further investigation.

The Complainant perhaps naively stated that she had not deemed it a formal grievance however merely wanted the issues sorted amicably. She felt this could be done if all parties sat down and went through the letter. The following day, 29/06/2022 the Complainant e-mailed Ms. Gantly that she had not deemed this a formal grievance but wanted to bring all issues to the company’s attention so that they could be resolved amicably. She also stated that she was remaining in her current work pattern of 2 days per week on her same terms and conditions. A meeting took place on 12/07/2022 and Ms. Gantly stated the Complainant would now be “hot desking” as she only worked 2 days per week. Ms. Gantly also asked if she had she any witnesses to the allegation she had made regarding the health and safety complaints, however at that juncture, Mr. Michael McDermott noted that he himself had witnessed the situation involving the cutting of the sky light. While going through all matters, Ms. Gantly informed the Complainant that there may be “possible redundancies in the future” however, stated that “we have not gone that road yet, Trish”.

The Complainant was then furnished with two options. Option 1 – withdraw the letter that she had lodged. Option 2 – agree that it was a formal grievance and the matter would be fully investigated. At the meeting the Complainant was presented with a pre-typed letter of her withdrawing the complaints. The Complainant refused to sign same and e-mailed the HR Manager to state that as she was not withdrawing the complaints, she agreed that that matter should be dealt with as a formal grievance. She did, however, include in that document options that she believed would assist. These options were as follows: i. be treated in the same manner as full-time staff. ii. Her rate of pay not brought up again. iii. assigned designated workspace. iv. given work compatible to her rate of pay on those 2 days. A meeting duly took place on 19/07/ 2022 and it was agreed that that Complainant would have a desk space designated to her in the old HR office. Geraldine Gantly agreed that the rate of pay should not be brought up and that going forward. Mr. Michael McDermott, Operations Manager would assign the Complainant her duties on a weekly basis. Ms. Gantly at this juncture asked the Complainant to furnish a copy of her CV as she did not have one on file.

The Complainant e-mailed setting out all the tasks she had carried out throughout her tenure dated 26/07/2022 and heard nothing further until Ms. Geraldine Gantly on 08/08/2022 requested a meeting that day. The Complainant with her work representative believed the meeting was to discuss the work situation going forward as the meeting on 19/07/2022, had been very helpful. However, at the meeting Ms. Gantly stated the Company was now making her redundant. The Complainant was extremely shocked and was handed a letter with a notice of redundancy which stated that she had a six week notice period and termination would be 13/09/2022. Despite the Complainant stunned Ms. Gantly stated that if she did not wish to work her notice, the Company would allow her to work from home. Ms. Gantly then stated that she presumed that the Complainant had noted this was coming. The Complainant highlighted that this was not at all on her radar as she had been very successful in obtaining extremely valuable tenders for the Company in the last few months. On leaving the meeting, the Complainant sought out and spoke with Mr. Michael McDermott, who said he was wholly unaware of the redundancy and that he was under the clear impression there was going to be a job role and description furnished to her.

The following day, the Complainant e-mailed the respondent stating, they had made a position which she did not hold (that is P.A for previous Directors) redundant and attached all the correspondence between herself, Mr. Allen Morris and Ms. Gantly. She sought a copy of the selection process and appeals process attaching to the purported termination and a mere 15 minutes later, she was approached by Mr. Allen Morris, who stated that he had been furnished a copy of the e-mail that she had supplied to Ms. Gantly and Mr. Donoghue. He stated that there was no appeals process and it was preferred by the company if she would not attend work in the building during her notice period.

The following day, the Complainant found herself locked out of e-mails and contacted Mr. Morris and Ms. Gantly from her personal e-mail address asking why she could not access her work e-mail address. She also enquired as to who she would report to and work within the building on Monday 15/08/2022 and Ms. Gantly responded with an amended notice of redundancy letter stating that due to sensitive and commercial reasons, it was now noted that she was to complete her notice period outside of the office. However, her rights as an employee would remain (excluding return to work) until the 13/09/2022 and there was no avenue of appeal. The Complainant, under email dated 24/08/2022 sought some information on this extraordinary turn of events and received a letter from Ms. Gantly indicting another set of circumstances as to the redundancy of the role. It is to be noted that no such issues had been put to the Complainant, she had not been offered the right to reply and all industrial relations norms had been entirely breached.

Case law cited included Anne Morris v Limerick Chamber of Commerce Adj-00036284, O’Neil v Toni and Guy Blackrock Ltd (2010) 21 ELRI, Long v Hanley Group DEC-E2010- 015, Inoue v NBK Designs Ltd [2003] E.E.R. 98, St Ledger v Frontline Distributors Ireland Ltd UD 56/1994.

Evidence of Complainant

The complainant gave evidence that she commenced employment in 2008 till 2017 and then reduced hours and worked 2 days generating sales. Her role included pricing, purchasing, delivery dockets and reconciliation and in 2021 she took over tendering and pricing. She denied she was ever a PA and said she may have done work very occasionally for the previous owners and that her role was not redundant. She said she was called in and told there was a full-time sales or purchasing role and she advised she could not commit to 5 days and spoke to Ms Gantly and emailed how she thought the role might look and the complainant advised she could work 4 days per week. She was never told her part-time role was at risk and her job description does not reflect the work of a PA, but they took one piece of it and decided she was a PA. The complainant said she always loved the job and asked about the overtime policy and that she only got the overtime policy on 20/05/2023. She said she was invited to a meeting but was never told her role was at risk. She was advised on 16/05/2022 that her desk was to be moved and the respondent constantly moved her. She was placed in the tele sales office but that was full, and she was told that a tradesman was putting in a sky light and then she was told she needed to be moved again.

She said she was 14 years with the company, and this had never happened before. A meeting took place on 12/07/2022 which referenced her letter of 29/06/2022 and the complainant said she did not want drama and she felt she had to tip toe around the respondent, and she felt the tone of Ms Gantly was very aggressive and felt targeted and Ms Gantly said she did not know the complainant was asthmatic and asked if she smoked which the complainant felt was none of her business. She was told there might be redundancies and Ms Gantly said that she was surprised that the complainant would not sign the letter she was given if she did not want drama and the complainant felt under pressure to sign it but did not sign it

The complainant never received minutes of meetings until after she was made redundant and did feel that the meeting of 19/07/2022 was productive and that everything was sorted. Her expectations were that the meeting of 08/08/2022 was to give the complainant details of her job role but instead she was told she was redundant as there was no need for a PA. She was handed a letter and was told she could work her notice. She said she was told twice that her job was at risk but then nothing was said until she was handed this letter and was blindsided. Mr McDermott asked if she was going to work her notice and she was told there was no appeals process and received amended notice of redundancy and was told she was PA to two people who are no longer with the company.

She emailed on 24/8/2022 saying she did not accept it and that the PA was in fact another lady and not the complainant and then she received, a 3rd letter explaining the redundancy. She said there was no selection process, no appeals and that the day she was made redundant she had secured a tender for a large public sector organization. She believed her employment was terminated because she was well paid, she was working part-time, and she had lodged a complaint of health and safety and said she was treated completely different to everyone with no accommodation to her family status as her dad has advanced dementia. She said in her evidence that she never asked anyone to work full time and that she wanted to feel she was earning her money.

Under cross examination she said she did some work as a PA, but it was not her core role and that everyone in the company did work for other people. She said that she knew just one person was not replaced who but there was recruitment of other people. She said that at her meeting with one manager he crossed out the work PA and she said she met to discuss her role and on 21//02/2022 she emailed Ms Gantly about a new role and was discussing a new role. She gave evidence that if she stayed on late, she got someone to look after her child.

She confirmed that she was in discussions with Ms Gantly on 21/02/2022 about a new role and that she advised that she could not work 5 days per week in this office-based role. She said she declined it on 08/06/2022 because of childcare and that she sent a longer email on 27/06/2022 and that she was at the time the only one moving desk and when she arrived at the desk, she had to move things and felt she had to tip toe around the new owners. She said she would be assigned a desk by either Mr Allan or Michael and worked at the desk while the workmen were there as there was no other place and felt she was being targeted and was the only one brought into meetings and was told she was on lunacy money. She said that she worked in the area after she raised health and safety matters as she felt she had no choice and was distressed, and she was moved by Mr McDermott. She said she felt she should be given a senior role with high deliverables and they discussed what that role might be and she had secured important tenders for the company.

She confirmed she had emailed on 29/06/20222 that she was not raising a formal grievance and there had been about 4 meetings up to the end of June 2022 and she asked about a designated role. She said she was not given a job role or a job description and felt singled out because she was part-time and it was the only part-time work and this was only happening to her. She said she was asked to do overtime by being asked to send pricing to customers and raised four issues in a letter of 27/06/2022 and the respondent wanted her to withdraw that letter. She said she was told there was going to be external investigator and did not turn down the investigation. Her evidence was she did not receive a grievance policy or a bullying and harassment policy and never got a handbook but did get a contract. She said she asked for a selection process but was not given an opportunity to appeal.

Evidence of Ms Sheerin

Ms Sheerin said she was telesales management and that the complainant had reported to her for years. She said she attended a meeting with the complainant and met Ms Gantly and that Ms Gantly was very aggressive and talked about the complainant’s job and laughed when the complainant mentioned her childcare issues and was very aggressive. The complainant was told because she was part-time, she had to hot desk and that Ms Sheerin had never heard of anyone asked to hot desk and that she was not aware of any other redundancies. She recalled saying to the complainant you should not sign a letter that is forced on you and that she needed to read it. She said Ms Gantly said I thought you did not want drama and Mr Morris said that the complainant was not doing pricing anymore and he said there were others who would be doing the pricing and this was June 2022.

Under cross examination she said she was the complainant’s boss and friends with everyone she worked with at the organisation and that there were others full time doing pricing. She said the tone and mood around the place and after the meeting was so different and Mike apologised for it. She said she left two months later.

Summary of Respondent’s Case: CA-00053724-001

It was submitted that her claim under safety, health and welfare at work act is misconceived and it was denied by the respondent that there was any penalization and it was outlined that the complainant never made a complaint of safety health and welfare at work. It was also outlined by the complainant to Ms Gantly that she was not making a formal grievance on 29/06/2022 in a follow up email and there is no mention of a health and safety issue and it is clear that there was no health and safety issue raised and no protected act was raised. It was submitted that prior to 30/05/2022 the complainant had been advised that redundancy was a consideration. The complainant albeit on 27/06/2022 refers to a purported health and safety incident does not disclose an actual health and safety complaint. If she believed there was a health and safety complaint she continued to remain at her desk while works progressed in contravention of her health and safety requirements. As soon as the matter of the desk came to the respondent’s attention they rectified the matter.

It was submitted that the complainant did not have reasonable belief of a relevant wrongdoing and in any event there was no penalization. Where there is a protected act there must be a detriment and if so it has to be established if there is a causal link. It was submitted that where there is more than one causal link the making of the protected act must be an operative cause and that but for the complainant committing the protected act the complainant would not have suffered the detriment. Discussions regarding the complainant’s role had commenced around February 2022 and the complainant had indicated that she wanted to be allocated a role with higher responsibilities and when asked to propose such roles she was unable to do so. It was submitted that should it be found there was a protected act, there was no causal link between it and the reasons for redundancy. It was also submitted that should it be found that the procedures for redundancy were in adequate it was unrelated to health and safety.

It was submitted that the respondent is a leading food, retail and wholesale company and took over the respondent in 2019. The complainant commenced employment 2008 and her employment ended 13/09/2022. Following an inspection of the respondent in August 2020 there were threats to shut down the organisation for breaches of food, health and safety practices unless the respondent undertook to make significant changes within and a new management team was put in place with this task including cost cutting measures and implementation of efficiencies. Mr Allen Morris, MD met with employees including the complainant on 15/02/2022 and the complainant emailed Mr Morris regarding a possible new role on 21/04/2022 and a job description was emailed to the complainant the following day regarding the role of Purchasing and Sales Support Role based in the office four days per week and working home one day. The complainant declined this role on the basis of the money she was earning and Mr Morris met her again on 03/05/2022 with Ms Gantly HR to discuss this further and the complainant was advised that this was the salary for the role.

Parties met again on 31/05/202 and the complainant was advised that he was struggling to find her a role that could match her hourly rate. The complainant was then offered the role of Factory Shop Manager with a ringfenced salary and the complainant declined this offer. On 27/06/2022 the complainant outlined to Mr Morris the work that she had performed prior to the takeover and outlined that on 23/05/2022 there had been an incident while she was hot desking when she was assigned a desk in an office area where there was building work and alleged that she was being harassed and border-lined bullied for being a part-time worker. She outlined that she would continue working her usual working pattern and sought a suitable senior role.

On 29/06/2022 the complainant emailed Ms Gantly stating her letter of 27/06/2022 was not a formal grievance and stated she was asking to be treated same as full-time staff, that there would be no further mention of her pay, that she receive a designated workplace and that she receive a role comparable with her rate of pay. The complainant attended a meeting on 12/07/2022 with Mr McDermott and Ms Gantly regarding her 27/06/2022 correspondence where the complainant outlined she felt bullied and intimidated. The complainant was advised that as she had declined offers of redeployment she might be subject to redundancy. On 14/07/2022 the complainant emailed her response and outlined she felt she was offered two options, withdraw her letter of 27/06/2022 or there would an external investigation regarding matter and the complainant felt there was a third option whereby the respondent rectify matters she had raised or go to a formal investigation and outlined threats to her working full time and her rate of pay.

The respondent denied that there were any threats to the complainant to work full time and it was outlined that the complainant was offered options to avoid redundancy. A follow up meeting took place 19/07/2022 when the complainant outlined that she be treated same as full time staff, that her rate of pay would not be brought up which was agreed, that she wished to be allocated a work area which was agreed to and given a role compatible with her rate of pay and the complainant was asked for a cv. On 27/07/2022 the complainant outlined details of her tasks performed over previous 14 years. It appeared that while she had extensive experience her role of PA was no longer available and with no other role available she was made redundant and was advised on 08/08/2022 and her employment ended on 13/09/2022.

It was submitted that this was not an unfair dismissal case and was not a case of discrimination and denied that the complainant suffered a detriment. It was submitted that the company was in difficulties and there had to be changes and roles were identified for each person and the complainant did not mention child minding responsibility. The complainant had mentioned flexibility but then turned down the role because of pay.

Case law cited included Cavendish Munro Professional Risks Management Ltd v Geduld [2010] ICR 325, Aldi Stores (Ireland) Ltd v Kayani (Det No PDDD222), Irish Prison Services v McGree Det No PDD21, Paula O’Neill v Toni & Guy Blackrock [2010], David Stone & Carol Stone t/a Ashton Dog Pound and Warden Services and Conor Williamson PD 22/6.

Respondents witness:

Evidence of Mr McDermott was that he was familiar with issues around desks and that he needed an office for meetings and asked the complainant to move to accommodate him and other people were affected by desk changes. He thought the meeting of 12/07/2022 was a reasonable positive meeting and he did not feel there was a move to push her out and that it was a regular meeting. His understanding was she might take a role where he would delegate work to the complainant and that the complainant had plenty of experience and she had a flair for finance. He attended the meeting on 08/08/2022 but did not make any contribution to that meeting.

Cross Examination of Mr McDermott

Under cross examination he said that he had worked with the complainant for over 10 years and she had a good working knowledge and she covered many areas. The purchasing officer was with him for three months and was closely aligned to what he was doing. Mr Morris operated out of his office and also out of the board rooms and others were also impacted by the hot desking. He moved the complainant after the incident regarding the angle grinder. The meeting of 12/07/2022 was an uncomfortable meeting and he said that the complainant was upset and it was a very clinical meeting and he consoled the complainant as he had worked with her for maybe 10 or 11 years. He said that he thought the role of purchasing or shop factory manager would suit the complainant and did not know the complainant’s hours were the problem. He had been on annual leave and did not know that redundancy was on the cards and was surprised that she was made redundant on 08/08/2022. He did not recall any discussions regarding ways to avoid the redundancy.

Evidence of Mr Allan Morris

Mr Morris said he is a qualified butcher and was MD of another company before he joined the respondent in 04/01/2022. The respondent had gone through some serious issues and it was the last roll of the dice for the business and there was very little structure. He wanted to assess what the organization was, the teams and people and brought a finance director and interviewed everyone to establish their roles and what they enjoyed and what they did not enjoy. He tried to understand if people had contracts or job descriptions and there was confusion by some over who their employer was and what terms and conditions existed. There did not seem to be consistency. When Mr Morris asked the complainant about her role, she said she was PA did sales and had done 9 years of telesales and that she never had formal training and was working 2 days per week doing pricing and admin for tenders. The he first thing she said to him was that she was the PA for the then MDs and did sales and tendering. They needed someone to tackle invoices and felt she was suited to this role and she was unhappy with the pay for that role. It was not feasible to let her continue and even though another employee had left, they did not need someone to do that person’s role. She was offered the role of Factory Shop Manager on 31/05/2022 and it was hoped to push that business as he thought this would be a role she could get her teeth stuck into and could ring fence her role as shop manager and her childcare issues were discussed. They were moving the telesales office and as the MD he did not have an office and the dept of agriculture also needed an office and he spoke to the complainant as it was all hands-on decks. The purchasing role was a role she could have grown into and there was resistance from some employees and that everyone was impacted by the changes. He was not aware of anything in writing about part-time work and she did not furnish anything to him regarding part-time working and there were two roles and she declined them. He denied that he made her position redundant because of the email of 27/06/2022 and said that no one else was made redundant as people left and people moved around and she was offered two roles and declined them and a PA was no longer necessary.

Cross Examination of Mr Morris

Under cross examination he outlined that he could recall no reason why he crossed out the word PA in his notes when he met with the complainant regarding her roles and he said there were no mention of pay at the initial discussion meeting with her. She was part-time and offered her a full-time role at less pay and would look at it again if the need arose. He did not discuss her concerns as she refused it outright. It was not a unique situation to clarify job descriptions with people and he told Ms Gantly that he could not overpay for a role but did not have that conversation with the complainant He said he was not at all the meetings as she had some with Ms Gantly. His role was varied and others in HR looked at other parts of this case and said he did not put her at risk of redundancy. He said he had to move her desk because there was a new finance person and the office was confidential and the finance person needed to be there and that he was also hot desking as well as the technical manager. When she turned down offers of other roles her role was no longer there and he received a 5-page letter on 27/06/2022 and she was offered 2 roles and he made the decision to make the complainant redundant. He could not answer why there was no process followed and left it to his team to manage and could not explain why there was no appeal and that she had been offered roles and confirmed she had turned down those roles. He did not dispute that if he had checked pay roll he would have known how long the complainant was working part-time and he did not know why the complainant did not get offered the same hours and salary and days and said that he was hot desking.

Evidence of Ms Geraldine Gantly

The evidence of Ms Gantly was that she started in August 2021 and there were threats to close the business and her role was to set up management and there was going to be a clear out and there were many job descriptions and Mr Morris came on board. She was designated to make an offer and the complainant was keen to discuss issues and she declined offers because of the salary. Other roles were looked at and an unfair system was in place and they were looking at matching her salary requirements to the needs of the organisation and there had been an unfair system in place. The complainant declined a full-time role because of pay and she never had a conversation about salary with the complainant and that Mr Morris told her that “fair play you got a great deal” and the complainant told her that Mr Morris had mentioned it on more than one occasions. There was no mention of childcare commitment and it appeared that because there was no resolution the complainant was offered redundancy.

Cross Examination of Ms Geraldine Gantly

Under cross examination Ms Gantly said that it was her understanding that the complainant’s first role was in purchasing and prior to an offer from the respondent, the complainant had outlined her availability and she was not offered a position aligned with her normal working hour and the job description that was offered was for the available job. Ms Gantly said the respondent was not moulding the hours for the complainant and told the complainant the positions available and there were not jobs drawn up with the complainant in mind. In response to whether the respondent sat down with the complainant to see could they work around her hours the witness said that the complainant rejected the purchasing role because of the wages. She accepted that the complainant said she could not work the job because of her constraints on her hours but said the complainant also had an issue with the salary offered. Ms Gantly could not explain why there was reference to the complainant as a full time worker on the minutes of 03/05/2022 and Ms Gantly said she was only party to discussions about the factory shop manager role with the complainant and said that the complainant said she could go full time for the right role as if the respondent did not think it was an option for her, they would not have put it to her.

Ms Gantly said there was one reference in the complainant’s letter to bullying and harassment and confirmed that the complainant did raise something and the complainant did not see it as a formal grievance and that Ms Gantly was to investigate. She confirmed that the respondent’s attitude was changing towards the complainant and said she prepared a prepaid letter for the August meeting. She said that an internal investigation was carried out and there were other staff moving desks and it is not correct to say it was because the complainant was part-time that the complainant was asked to move desks. The complainant had been moved because it was not suitable for her remain in the office due to confidentiality and everyone knew it was temporary. Ms Gantly said it was an exaggeration that the complainant was asked to move every day and the next meeting was positive and the complainant seemed upbeat about the meeting of 08/08/2022 and there was no agenda given in advance of that meeting. She said that when Mr Morris started, everyone got a job description and they could not find a job description for the complainant and struggles to find a role for her and there was only full-time positions and there was no choice. She never consulted with the complainant and would hold up hand for that and that at the meeting of 08/08/2022 there was no reason or rationale for the decision and that the complainant was not offered an appeal. She confirmed that she gave an amendment redundancy notice with rationale and with no appeal and with no selection process given and she then issued a third letter with another rationale dated 24/08/2022. She said others left but nobody else was made redundant. Ms Gantly said she asked the complainant for a cv on 26/07/2022 to determine her suitability for other roles and then advised her she was made redundant on 08/08/2022 and accepted that women are the majority of part-time workers. She said that Mr Morris asked Ms Gantly to make the complainant redundant and he is a very reactive and energic person and came to Ms Gantly on 08/08/2022 and said that all options were exhausted and wanted a draft letter and she asked him if he wanted to go this route.

Findings and Conclusions: CA-00053724-001

The complainant submits that she made a health and safety complaint and that she was penalised by dismissal and that but for making the health and safety complaint her employment would not have ended. The respondent denies that there were a protected health and safety act reported and that in any event denies the complainant was penalised as dismissal arose because of redundancy.

Section 27 of the Safety, Health and Welfare at Work Act, 2005, provides as follows: -

Protection against dismissal and penalisation.

27.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

I transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

I coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

I making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

I being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

The court in Department of Justice, Equality and Law Reform v Kirwan, (HSD/082) held that the burden is with the complainant.

“It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation [1942] A.C. 154, where this rule of evidence was described by Maugham V.-C. as ‘an ancient rule found on considerations of good sense and it should not be departed from without strong reasons’).”

“Penalisation” under the Act is a matter connected with safety, health and welfare at work and the act of penalisation must arise from a retaliation to an employee who has made a complaint to his employer and should be construed as widely and literally as can be fairly done as outlined in Panuta v Watters Garden World Ltd [2010] E.L.R. 86.). The Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission” Óglaigh Náisiúnta na hÉireann v McCormack (HSD/115).

It is to be determined therefore, within this complaint whether a protected act or acts has or have taken place as described in the Act at Section 27. Secondly, it must be satisfied that the Complainant suffered a detriment during the relevant period as described in the Act at Section 27. Finally, it must be decided whether the detriment was suffered because the complainant committed a protected act.

Was there a Protected Act?

The respondent disputes that the 5-page letter dated 27/06/2022 constitutes safety, health or welfare at work complaint, and is not therefore a protected act within the meaning of s.27(3)I of the Act. I note in this letter the complainant references bullying, harassment and health and safety matters including that she felt her “health and safet (sic) was put at risk” when placed working at a desk where a tradesperson cut a sky light out above her. She also references a belief that she was “…being bullied and harassed and for want of a better saying trying to be pushed out the door” and felt she was “being harassed and borderlined bullied”. Albeit the complainant advised “the letter I have lodged with you is not a formal grievance”, the respondent appears to have acknowledged her bullying complaint by their provision of a prepared withdrawal letter for her outlining she was withdrawing her letter “..in which (she) made an allegation of bullying and harassment” and the complainant confirmed that she was not withdrawing her complaint.

The Labour Court in HSE v Noel Jennings HSD222 outlines the “act of making an allegation of bullying falls within the definition of a protected act for the purposes of section 27(3)(c) of the Act”.

I find, therefore, that the complainant did make a safety, health and welfare complaint which was not withdrawn and the complainant, therefore, satisfies this first limb of the test.

Did the Complainant suffer a detriment during the relevant period?

The safety, health and welfare at work complaint was received by the respondent on 27/06/2022, and the complainant sets out that the detriment she alleges of dismissal which she was advised of on 08/08/2022 and her employment ended on 13/09/2022 and the complaint was received by the WRC on 15/11/2022. I find that the complainant suffered a detriment of dismissal during the relevant period.

Was the detriment suffered because the complainant committed a protected act?

The complainant worked 2 days per week prior to the change in management. It would appear there were never any performance issues with the complainant and indeed this would appear borne out as the respondent looked to increase her hours and also the direct evidence of Mr McDermott. I note the credible evidence of the complainant that reference was made to her monies on a number of occasions and while I note that there were others who were also hot desking it would appear that the respondent showed complete disregard to ensuring that the complainant had a safe environment in which to work as well as the manner in which they constantly made reference to her previous conditions of employment. It would appear that regardless of the respondent’s intention to explore roles for the complainant within the organisation, all bets were off when the complainant submitted her health, safety and welfare at work complaint regarding the tradesman working above her, having to constantly hot desk and the bullying and harassment claims. Ms Gantly then communicated at the meeting of 08/08/2022 that the complainant’s position was gone.

Ms Gantly’s evidence was notable that she was instructed by Mr Morris to make the complainant redundant and this came as a surprise to Ms Gantly and she asked Mr Morris if he was certain he wanted to go down this route. Mr McDermott also gave evidence that his expectation was that the next discussion with the complainant on 08/08/2022 would be around suitable roles for her. It is also noteworthy that no reference is made in the three letters of redundancy as to the status of an investigation into her health and safety complaints. I further note that albeit the complainant may have provided some PA work to the former owners, this was not her main role as was indeed noted by Mr Morris during his notetaking as he had put a line through the word PA when he met with the complainant and could not explain in oral evidence why he did this. It would appear that a more credible explanation for this would be that he was aware that the role of PA was not the complainant’s role and at the most was only tasks performed on occasion within her position and that after the letter regarding safety, health and welfare complaints he decided to terminate her employment.

As detailed in O’Neill v Toni & Guy Blackrock Ltd Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 1,

“the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

The Complainant must show that ‘but for’ having made a protected act under the subsection the detriment would not have happened. Having heard all the evidence and submissions, and but for the complainant making a complaint regarding safety health and welfare at work the complainant would not have been made redundant and the complainant has met all three limbs of the test. I find that this complaint is well founded and I require the respondent to pay to the complainant compensation of €15,000 which I find just and equitable in all the circumstances.

Summary of Complainant’s Case: CA-00053724-002

This complaint was withdrawn

Summary of Complainant’s Case: CA-00053724-003

The complainant submits that as a part-time employee she has been treated been treated less favourably than a comparable full-time employee, Ms Sherrin, in respect of her conditions of employment through the removal of her regular workspace without her prior knowledge or following any consultation. It was submitted that the complainant was required to move but that her comparable full-time employee Ms Sherrin were not required to be moved. The complainant was advised that she would be hot-desking as she was a part-time worker.

The complainant commenced employment on 01/12/2008, employment ended on 13/09/2022 and her complaints were received by the WRC on 15/11/2022.

Evidence of Complainant

The complainant gave evidence that she commenced employment in 2008 till 2017 and then reduced hours and worked 2 days generating sales. Her role included pricing, purchasing, delivery dockets and reconciliation and in 2021 she took over tendering and pricing. She denied she was ever a PA and said she may have done work very occasionally for the previous owners and that her role was not redundant. She said she was called in and told there was a full-time sales or purchasing role and she advised she could not commit to 5 days and spoke to Ms Gantly and emailed how she thought the role might look and the complainant advised she could work 4 days per week. She was never told her part-time role was at risk and her job description does not reflect the work of a PA, but they took one piece of it and decided she was a PA. The complainant said she always loved the job and asked about the overtime policy and that she only got the overtime policy on 20/05/2023. She said she was invited to a meeting but was never told her role was at risk. She was advised on 16/05/2022 that her desk was to be moved and the respondent constantly moved her. She was placed in the telesales office but that was full, and she was told that a tradesman was putting in a sky light and then she was told she needed to be moved again.

She said she was 14 years with the company, and this had never happened before. A meeting took place on 12/07/2022 which referenced her letter of 29/06/2022 and the complainant said she did not want drama and she felt she had to tip toe around the respondent and she felt the tone of Ms Gantly was very aggressive and felt targeted and Ms Gantly said she did not know the complainant was asthmatic and asked if she smoked which the complainant felt was none of her business. She was told there might be redundancies and Ms Gantly said that she was surprised that the complainant would not sign the letter she was given if she did not want drama and the complainant felt under pressure to sign it but did not sign it

Evidence of Ms Sheerin

Summary of Respondent’s Case: CA-00053724-003

The respondent refuted the allegation under the part-time claim and denied that the complainant had been treated differently when hot desking then a full-time employee had been treated. It was submitted that due to the reorganisation that arose the Operations manager required a private office and the space was limited for the complainant to work in. Two sales reps were also required to hot desk and it was agreed that the complainant could work in the HR office when she was in the office 2 days per week and on the other days other employees could work there. It was dismissed that the matter of hot desking came about because the complainant raised issues in the workplace or because she was a part-time worker.

Respondents witness:

Evidence of Mr Allan Morris

Cross Examination of Mr Morris

Under cross examination Ms Gantly said that it was her understanding that the complainant’s first role was in purchasing and prior to an offer from the respondent, the complainant had outlined her availability and she was not offered a position aligned with her normal working hour and the job description that was offered was for the available job. Ms Gantly said the respondent was not moulding the hours for the complainant and told the complainant the positions available and there were not jobs drawn up with the complainant in mind. In response to whether the respondent sat down with the complainant to see could they work around her hours the witness said that the complainant rejected the purchasing role because of the wages. She accepted that the complainant said she could not work the job because of her constraints on her hours but said the complainant also had an issue with the salary offered. Ms Gantly could not explain why there was reference to the complainant as a full-time worker on the minutes of 03/05/2022 and Ms Gantly said she was only party to discussions about the factory shop manager role with the complainant and said that the complainant said she could go full time for the right role as if the respondent did not think it was an option for her, they would not have put it to her.

Findings and Conclusions: CA-00053724-003

The complainant submits that she was treated less favourably than a comparable full-time employee, Ms Sherrin, in respect of her conditions of employment through the removal of her regular workspace without her prior knowledge or following any consultation. The respondent submits that other employees were required to hot desk and not just the complainant and denies the complaint.

Conditions of employment for part-time employees.

9.—(1) Subject to subsection (2) and (4) and section 11(2), 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.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.

Objective grounds for less favourable treatment.

12.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

(2) For the avoidance of doubt, a ground which does not constitute an objective ground for the purposes of section 9(2) may be capable of constituting an objective ground for the purposes of section 11(2).

Section 15 of the Act states

15.—(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part, or

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act, or

(c) for refusing to accede to a request by the employer to transfer from performing—

(i) full-time work to performing part-time work, or

(ii) part-time work to performing full-time work,

(d) for giving evidence in any proceedings under this Act or giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a), (b) or (c).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed, suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment,

but, where any such action with regard to the employee is in respect of the matter referred to in subsection (1)(c), that action shall not constitute a penalisation of the employee if both of the following conditions are complied with—

(i) having regard to all the circumstances, there were substantial grounds both to justify the employer's making the request concerned and the employer's taking that action consequent on the employee's refusal, and

(ii) the taking of that action is in accordance with the employee's contract of employment and the provisions of any other enactment of the kind to which section 20 (2) applies.

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(4) In this section—

“full-time work” means work which, if it were performed, would result in the person performing it being regarded as a full-time employee for the purposes of this Act;

“part-time work” has the same meaning as it has in section 13 .

As set out above the Act permits, at Section 9(2), an employer to treat a part-time employee in a less favourable manner than a full-time employee provided that difference in treatment can be justified on objective grounds.

It would appear from the credible evidence of the complainant, not denied by Mr Morris, that it was the expectation that the complainant would take on a full-time role and his suggested alternative roles were all offers of a fulltime role often at a lower hourly rate than the complainant’s terms and conditions. The complainant appears to have shown significant flexibility and I would also say restraint in looking to accommodate the respondent’s request to increase her hours, albeit the respondent never outlined why it was a necessity for her to be a full-time employee. It is particularly noteworthy that the respondent submitted they were going through cost-saving measures and not replacing leavers, yet the respondent insistent the complainant return to full time work. When the complainant appeared to reject the full-time hours, the complainant was advised that she needed to vacate her regular working place. It would not appear unreasonable in normal circumstances to change an employees’ seating area, however, in this case it would appear it was only enforced on the complainant and was a condition of employment that fulltime workers did not appear to have to endure or be objective grounds. When the complainant was directed to a particular spot, on one occasion there was an angle grinder operating above her and it would appear the respondent attempted to attach blame to the complainant for remaining there.

Having offered the complainant positions in which the complainant would have to significantly increase her hours, and which the complainant declined; it seems most likely from the evidence that the most credible reason for the failure to provide the complainant with a regular working space was because the complainant was a part-time worker who would not take on a fulltime position. I note that there was a conflict in evidence regarding who else may have had to hot desk but I find the complainant’s evidence and Ms Sherrin more credible. It may also have been the case that Mr Morris moved desks regularly, as he claimed in his evidence, however, this appeared to be because of his own preference rather than because any necessity with space. I note also that when the complainant once again outlined her upset at this the respondent was able to find a solution to the alleged shortage in desk space 19/07/2022.

It is clear that the respondent was going through significant change however, as set out in Bruscar Bhearna Teo t/a Barna Recycling V Carmel Leydon PTD171

“While noting those however the Court also finds that such difficulties may justify difficult decisions that affect people’s employment they cannot justify an infringement of the act.”

Having heard the submissions and evidence I must conclude the Respondent treated the Complainant differently than a comparable fulltime worker because of her status as a part-time worker and for no other reason and this decision was not objectively justified and accordingly constitutes an infringement of Section 9 of the Act. I find that the complaint is well founded and require the respondent to pay to the complainant compensation of €5,000 which I find just and equitable in all the circumstances.

Summary of Complainant’s Case: CA-00053724-004

The complainant submits that she was discriminated against by her employer by reason of her family status in conditions of employment. It was submitted that the complainant had been clear with the Respondent that her part time status was based on her child-minding situation and coupled with her added need as a Carer for her father. The Complainant in this case was subjected to nefarious comments about her salary based on her part time hours together with ongoing requests to move to a full-time position. Despite her being clear on what hours were possible for her to work based on her childcare commitments, the Respondent continued to offer position in excess of these hours. Additionally, the Complainant was subjected to comments about her salary and her subsequent dismissal, referred to her conditions of employment, which relate to her part time status. We therefore contend that discrimination relating to her family status was an ongoing issue that the Complainant encountered up to her termination date.

The complainant commenced employment on 01/12/2008, employment ended on 13/09/2022 and her complaints were received by the WRC on 15/11/2022.

Evidence of Complainant

The complainant gave evidence that she commenced employment in 2008 till 2017 and then reduced hours and worked 2 days generating sales. Her role included pricing, purchasing, delivery dockets and reconciliation and in 2021 she took over tendering and pricing. She denied she was ever a PA and said she may have done work very occasionally for the previous owners and that her role was not redundant. She said she was called in and told there was a full-time sales or purchasing role and she advised she could not commit to 5 days and spoke to Ms Gantly and emailed how she thought the role might look and the complainant advised she could work 4 days per week. She was never told her part-time role was at risk and her job description does not reflect the work of a PA, but they took one piece of it and decided she was a PA. The complainant said she always loved the job and asked about the overtime policy and that she only got the overtime policy on 20/05/2023. She said she was invited to a meeting but was never told her role was at risk. She was advised on 16/05/2022 that her desk was to be moved and the respondent constantly moved her. She was placed in the telesales office but that was full, and she was told that a tradesman was putting in a sky light and then she was told she needed to be moved again.

She said she was 14 years with the company, and this had never happened before. A meeting took place on 12/07/2022 which referenced her letter of 29/06/2022 and the complainant said she did not want drama and she felt she had to tip toe around the respondent and she felt the tone of Ms Gantly was very aggressive and felt targeted and Ms Gantly said she did not know the complainant was asthmatic and asked if she smoked which the complainant felt was none of her business. She was told there might be redundancies and Ms Gantly said that she was surprised that the complainant would not sign the letter she was given if she did not want drama and the complainant felt under pressure to sign it but did not sign it

Evidence of Ms Sheerin

Summary of Respondent’s Case: CA-00053724-004

The respondent refuted the allegations that the complainant was discriminated against on the grounds of family status and it was submitted that the complaint was not dismissed because of family status.

Respondents witnesses:

Evidence of Michael McDermott:

Evidence of Mr Allan Morris

Cross Examination of Mr Morris

Evidence of Ms Geraldine Gantly

Cross Examination of Ms Gantly

Under cross examination Ms Gantly said that it was her understanding that the complainant’s first role was in purchasing and prior to an offer from the respondent, the complainant had outlined her availability and she was not offered a position aligned with her normal working hour and the job description that was offered was for the available job. Ms Gantly said the respondent was not moulding the hours for the complainant and told the complainant the positions available and there were not jobs drawn up with the complainant in mind. In response to whether the respondent sat down with the complainant to see could they work around her hours the witness said that the complainant rejected the purchasing role because of the wages. She accepted that the complainant said she could not work the job because of her constraints on her hours but said the complainant also had an issue with the salary offered. Ms Gantly could not explain why there was reference to the complainant as a full-time worker on the minutes of 03/05/2022 and Ms Gantly said she was only party to discussions about the factory shop manager role with the complainant and said that the complainant said she could go full time for the right role as if the respondent did not think it was an option for her, they would not have put it to her.

Findings and Conclusions: CA-00053724-004

The complainant submits that she was discriminated against on the grounds of her family status by the respondent which the respondent refutes.

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

It was determined the extent of the evidential burden imposed on a Complainant by section 85A by the Labour Court in Southern Health Board v Mitchell [2001] ELR that held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows, therefore, that a complainant has to establish both the primary facts upon which she relies and also that those facts are of sufficient significance to raise an inference of discrimination. As set out in Cork City Council v McCarthy EDA 21/2008, the Labour Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Section 2(1) sets out that

family status” means responsibility—

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

and Section 6(2) Discrimination for the purposes of this Act.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…..(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

The complainant sets out that the discrimination was on conditions of employment and not dismissal and I have already found that penalisation of dismissal arose because of the complainant raising a safety, health and welfare complaint. I have also already found that the complainant was in respect of conditions of employment, treated less favourably than a comparable full-time employee. It would appear that the complainant is attempting to run this instant complaint on the same set of facts and while noting that as set out in Inoue v NBK Designs Ltd[2003] 14 ELR 98 “statistics show that a significant majority of part-time workers are women…”, it is also set out in Margetts v. Graham Anthony and Co. Ltd EDA038, the mere fact that the complainant falls within a discriminatory ground is not sufficient, itself, to establish a claim of discrimination.

I note the complainant was working part time was because of childcare and elder care reasons and had been doing so for a period of time. However, I find that the Complainant’s assertion does not meet the level required to raise a presumption of discrimination on the grounds of family status and upon which an inference of discrimination can be drawn. I find, therefore, that the complainant has not established a prima facie case of discrimination and that the complainant was not discriminated against on the grounds of family status and I dismiss the complaint.

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.

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.

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-00053724-001

I find that this complaint is well founded and I require the respondent to pay to the complainant compensation of €15,000 which I find just and equitable in all the circumstances.

CA-00053724-003

I find that the complaint is well founded and require the respondent to pay to the complainant compensation of €5,000 which I find just and equitable in all the circumstances..

CA-00053724-004

I find, that the complainant has not established a prima facie case of discrimination and that the complainant was not discriminated against on the grounds of family status and I dismiss the complaint.

Dated: 20/02/2025

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Health and safety, penalisation, discrimination, part-time, dismissal, redundancy