Complainant

Respondent

Parties

Nomin  Ulzii-Orshikh

Cmm Food Production Limited Coconut & Moo Moo

Representatives

  Self

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063709-002

24/05/2024

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

CA-00063709-004

24/05/2024

The Complainant alleges that she was discriminated against by the Respondent on grounds of disability and as a result she lost her job. She also alleges that she did not receive her terms and conditions of employment. The Respondent contests the allegations.

Nomin Ulzii-Orshikh, took the affirmation and gave her evidence as follows:

CA-00063709-004 -  

The Complainant started in March 2023. She was a baker. She was never given a contract of employment. She also did not get a letter with her terms and conditions of employment. She was informed verbally what her terms were, but she never received anything formally. She did get an email dated 21st October 2023, setting out her start date and salary but nothing else.

CA- 00063709-002

The Complainant alleges that after she got sick the Respondent began to treat her differently. In December 2023 she inured her hand. Carpal tunnel syndrome. She went to A&E. She was advised to have physiotherapy. She started that in January.  She did submit sick certificates. The Respondent paid for half of her physiotherapy. She went back to work in end of February 2024. The Complainant’s hand was still causing her problems.  She was carrying heavy items as part of her role and that caused the injured. She got a sick certificate 2nd April – 1st May. She got a third sick certificate up to 30th May 2024. She was having physiotherapy during that time also. She felt that they were treatment her differently. The Complainant says in March when she went back to work, they treated her unfairly. After she returned, they had a “return to work” meeting. She was told that her work was not up to standard. She disagreed and said that she was doing the same work as everybody else. On two occasions they sent her home from work. The first time was because her nails were false nails and they asked her to remove them. The Complainant cannot remember why she was sent home the second time. They said they would put her on a Performance Improvement Plan. They did assess her work during the month of March. They had a meeting about her performance two weeks into the plan. She was informed her work had improved. She then went out on sick leave again from the 2nd May to 30th May.  However, on the 1st May the Respondent cancelled her work permit. They had said to her at some point prior to that, that they would cancel her permit if she wasn’t going to continue working with them. She was shocked. She felt that she was discriminated on grounds of disability. They never spoke about making reasonable accommodations for her. They just cancelled her permit. She never returned after that. She has not worked since then because she does not have a visa. She has applied for Visa, Stamp 4. That process is ongoing. She applied for that at the end of May 2024.

Simon Black – took the Affirmation and gave his evidence as follows:

On 28th November 2023 the Complainant signed her contract of employment. It was required for her to get her work permit. She was given a copy of that. Without it she would not have been able to get her work permit.

Discrimination:

The Complainant’s contract of employment was terminated not because she on sick leave but because she was not suitable for the role. She worked casually in 2023. She was studying at the time. She worked part time around her college hours. At the start of December, she fell in the shower, she hurt her leg and her hand. On 11th December she submitted a medical report. There was no start or end date on that.  She was off for the entirety of December and January. During this time the Respondent was trying to get her a work permit. The permit came into effect at the end of January,  around the 30t. The permit cost €3,700.00. She was off for the next three weeks. She did not have a sick certificate for that period. However, she did do online training during that time. The Respondent said that they would pay for 50% of her physiotherapy. After six sessions the Respondent was told she was fit to return to work but that she should continue her exercises. She returned to work on 20th February. The Respondent had a meeting with her and explained that she had her permit for three weeks at that stage, but she hadn’t turned up. She was asked for an explanation. She didn’t have one. Then she turned up for work with gel nails. That is against health and safety regulations. She was asked to remove the nails. She left the nails on for the rest of the week. On the Monday she was asked again why her artificial nails were still on. She said her boyfriend’s sisters wasn’t in the mood to remove them. Mrs. Black told her that she wasn’t taking this job seriously and she couldn’t work with fake nails, so she sent her home.

Summer Black – took the Affirmation and gave evidence as follows:

There was a company outing to Longford in late December. The Complainant was invited along with her boyfriend. She did attend the outing. It was a team building event. During that time, Mr Black had a conversation with her about how she was and if she wanted to come back to work. She said she didn’t have enough money to pay for physiotherapy and she wasn’t happy with her GP. The Respondent was worried about her. Mrs. Black spoke to her physiotherapist, and she told the Complainant that she would pay for her physiotherapy. The physiotherapist did update the Respondent regularly on her progress. He informed the Respondent that she was fit to return to work. That was early February. The Respondent tried to reach out to the Complainant to find out when she would be returning. She wasn’t getting any information from her at all so she told her that if she wasn’t going to come back, they would have to find someone to take her permission.

After the issue with her nails, she turned up for work and said that she felt that she had been forced to come back to work and her hand was still very sore. The Respondent sent her home to rest. She then took from 29th Feb to 2nd March off, uncertified. On Tuesday 5th March the Respondent had a performance meeting with her and decided to put her on a Performance Improvement Plan. She was not required to lift anything heavy. The heaviest was a small jug of cheesecake batter. She was also told that if she felt she wasn’t capable of doing something she should ask her colleague to help her out and maybe swap tasks. She did get some feedback. She was told that her communication was getting better and she was working better with the team. Then on the 9th March she disappeared with no notice.  That was the day she was due to get her performance review. The Respondent decided that there was no more that they could do for her and decided to terminate her employment. On the 12th March she was given three weeks’ notice. She did work 12th to 30th March. At the end of March, she asked the Respondent to give her a change. They emailed her to offer her a position on the market team. The Respondent was trying to help her stay in Ireland. However, she handed the Respondent a sick certificate for the period 2nd April to 1st May 2024. The Respondent sought advice from their accountant about her permit. They decided to cancel it. It was cancelled on 1st May 2024.

Much, but not all of this evidence was in conflict between the parties. I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective positions of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute.  I can confirm I have fulfilled my obligation to make all relevant inquiries into these complaints."

CA-0063709-002

The Complainant alleges that she was discriminated by her employment when they terminated her contract due to an injury she sustained to her hand. She alleged that the Respondent’s attitude towards her changed, for the worse, after she injured her hand in December. The Respondent argued that her contract was terminated for reasons of her poor performance and attendance. The Complainant, after she injured her hand in December 2023 went out on sick leave from 11th December 2023 until the end of January. She did not submit a sick certificate but instead furnished the Respondent with a medical report. The report was silent on the issue of a “return to work” date. Whilst the Complainant was off on sick leave the Respondent secured her work permit. It cost them €3,700.00. She was having physiotherapy at that time, half of which was paid by the Respondent. The physiotherapist deemed the Complainant fit to return to work at the start of February but she, without explanation did not return until 20th February. She was off again on unauthorised leave on the 29th February, 1st and 2nd March. No certificate was produced. Again, on the 9th March she did not turn up for work and no medical certificate was furnished. At that point the Respondent had had enough and decided they couldn’t keep employing her as they were running a small business and needed reliable staff. They gave her three weeks’ notice on 12th March 2024. She worked out her notice until the 30th March. The Complainant did ask for a second chance, so the Respondent decided to give her that chance and to move her to the Market department. However, on the 2nd April she produced another sick certificate for the month of April. It was then that the Respondent changed its mind about giving her a second chance and cancelled her permit. The Complainant did submit two certificates after that date for the period 01.04.2024 to 01.05.2024 and 02.05.2024 – 30.05.2024.

I note that during this time there were issues with the Complainant’s performance and on one occasion she had to be sent home for breach of health and safety rules for wearing long gel nails to work.  The Respondent put her on a Performance Improvement Plan (PIP) but there was no improvement.

The Complainant alleges that the Respondent’s attitude towards her changed when she hurt her hand. To the contrary I find that the Respondent was more than fair to the Complainant during that time. They secured her a visa costing € 3,700.00, they paid for half of her physiotherapy, they personally funded a loan for her when she didn’t have any to buy food or pay for her rent. The Complainant on the other hand had three periods of unauthorised leave during that period.

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows: 

“The first requirement is that the Complainant 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 Complainant must prove, on the balance of probabilities, the primary fact from 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 provide that there was no infringement of the principle of equal treatment”.

The Complainant did not produce any medical evidence during the hearing to show that she was suffering from a disability. There was one medical report submitted however that report does not confirm a diagnosis, nor does it state whether or not the issue the Complainant was having was temporary or permanent. On that basis I am not satisfied that the Complainant has establish a prima facia case of discrimination on grounds of disability. Furthermore, and in the interest of completeness I find that the Complainant was dismissed due to her very poor attendance record and her lack of performance. In that regard I note that the Complainant was on uncertified sick leave on the following dates:

11.12.23- 20.02.2024.

29.02.2024 – 03.03.2024

09.03.2024.

I also note that whilst on a PIP, the Complainant turned up for work with artificial nails in breach of Health and Safety regulations. When asked to remove the nails she waited for a week before doing so. In those circumstances I am satisfied that the Complainant’s dismissal had nothing to do with her alleged disability and everything to do with her extremely poor attendance record and poor performance.

The complaint fails.

CA- 00063709 -004

The Complainant alleges that she was never given a contract of employment. However, I note that she did sign a contract upon commencement of her employment and that contract was used to secure her working permit.

In those circumstances I find that the complaint is not well founded and accordingly fails.

CA – 0063709 – 002 The complaint fails

CA- 0063709 – 004 The complaint fails.

Discrimination. Disability. Performance. Unauthorised leave.