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Case Law - Reviewed

Case Law - Reviewed

Date published on: 07/04/2021

Complainant’s appeal fails as court finds their grounds for appeal does not meet the criteria of legislation

A complainant has appealed to the court after submitted that they were discriminated against for their family status with a promotion.


Background

The complainant submitted that she had been discriminated against by the respondent by reason of not promoting her because of her family status.

The complainant submitted she commenced employment with respondent on the 4th of February 2019. She worked 37.5 hours per week, and she was paid €2247.50 gross per month.


Summary of complainant’s position

The complainant submitted. That she had some sick leave incidents during first six months for which she was disciplined even though (she) the complainant had appropriate doctor certificates. That she was promoted on the same day, she was given verbal warning, to the position Site Support Specialist in August 2019 on a Temporary Contract for 6 months duration to expire on the 31st of December 2019.That she became pregnant on the 18th of October and had no absences up to this point She informed work on the 26th of November of her pregnancy. This Site Support Specialist position was advertised again as a temporary on the 23rd of January ‘20 with a lifting requirement of ten pounds which was never a requirement before, and this became a further bar for the complainant fulfilling the role. That she applied for this position on the 24th of January that on the 24th of January she received a disciplinary warning for leaving work early due to pregnancy related illness on six occasions. Complainant appealed the written warning on the 27th of January by email. On the same day she passed the assessment to apply for the Site Support Specialist that was advertised. She went out on sick leave for 3 weeks due to the stress of the situation on her doctor’s instructions on the 27th of January and the position was filled during her time out.


Summary of Respondents position

The respondent submitted that the complainant did not meet with the “family Status” requirement as she had no children at this stage. The respondent rejects the complainant’s assertions that she was treated less favourably than someone with different family and the complainant has not put forward any evidence to support her argument. The respondent stated that while the complainant was issued with a written warning and the fact that she (complainant) had appealed it, the written warning had no status, and it did not prevent her (complainant) passing the assessment to apply for the Site Support Specialist position that had been advertised. In response to the lifting of ten pounds, the respondent submitted that this was requirement for all positions including the position the complainant had received a temporary contract for previously.


Findings

Section 85 A (1) of the Employment Equality Acts 1998-2011 provides, where in any proceeding’s 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.

Family Status definition
Section 2 of the Employment Equality Act, 1998 defines 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 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. This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. I find that Section 6(1) of the Employment Equality Acts, 1998 -2015 provides as follows; - (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any grounds specified in subsection (2) in this Act referred to as the ’discriminatory ground’ Prima facie evidence has been described as “evidence which in the absence of any credible contradictory evidence by the respondent would lead any reasonable person to conclude that discrimination has probably occurred. The discriminatory grounds in this case were the failure by the respondent to promote her (complainant) because of her family status. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Act.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.  I find based on the evidence that 10 lbs weight is a factor in all position of the respondent including the position the complainant held on a temporary basis from August to 31st to December 2019. I have concluded my investigation of the complaint and I find that the complainant does not meet the criteria as set out in the Act for family status. I find that complainant was provided with the opportunity to make additional applications at the hearing but failed to do so.


Decision

Section 79 of the Employment Equality Acts 1998-2015 requires that I decide in relation to the complaint. I find, pursuant to section 79(6) of the Act, that the complaint is not well founded and falls. Dated: 03-03-2021


Our Commentary

The promotion of dignity in the workplace recognises the right of all Employees to be treated with dignity and respect and ensuring that all Employees are provided with a safe working environment which is free from all forms of bullying, sexual harassment and harassment.  The employment equality acts set out a statutory framework to uphold equality in Irish Workplaces.


Overview

Managing workplace grievances can be a contentious area for both the Employer and Employee. However, mechanisms do exist to address grievance matters concerning formal expressions of dissatisfaction with workplace relationships, the work environment or a term or condition of employment. Paramount to the consideration of any Employer in dealing with these matters is that policies and procedures must in the first instance exist, are applied fairly and consistently and that the basis for any decision in terms of a grievance resolution is clear and congruent to the Codes of Practice on Grievance and Disciplinary Procedures as outlined below.


 

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The Adjudicator recommends a payment of €2,500 for the mishandling of communication and failure to properly handle a dispute

The Complainant alleged that she was being bullied, harassed and victimised after being assigned a new position at work


Background

The Complainant is employed as an Administrator since 19th May 2014. Under the Industrial Relations Act she had claimed that she was given enhanced duties on a permanent basis with an increase in hours to 35 hours per week and an increase in her hourly rate of €5 per hour. She claimed that the Employer removed this position from her after six months. The Employer had rejected this claim and stated that this was a short-term project. Under the Payment of Wages Act she had claimed for the reduction in pay when her enhanced position was removed.


Summary of Employee’s Case

This is a summary to support the claim of unfair termination of appointed position of Clerical Manager. On 7th September 2019, the Director of Nursing (DON) and the Assistant Director of Nursing (ADON) advised the complainant that the ADON had resigned her position and was reverting back to previous role as R.G.N.

The DON asked if she would take over all of the ADON’s administration duties which included overseeing the staffing of the Nursing Home, she requested a €5 hourly pay rise and 5 hours extra to accommodate the extra work, the DON then said subject to the Board of Trustees approval the position/ promotion would be appointed to her. At no time during these two meetings was the position titled a 6-month project.

This came to light when her Administration Colleague employed in Payroll/Accounts began interfering in her work. She wrote a letter to the Employer’s Representative asking that she have a word with the colleague, but she received no response to this letter and the issues continued.

Over the course of the first month, it was a daily occurrence - she had been bullied, humiliated, threatened, harassed and cursed at by that colleague. She sent all her letters to the Employer’s Representative but got no reply. The Employer’s Representative who resides in Dublin came to the Nursing Home late October and informed her that her position has now become a 6-month project and all duties would be given to a new Director of Care who was due to commence employment on 1st April.

The behaviour from her colleague continued for the next 5 months and she felt there was no point contacting the Employer’s Representative. 

She spoke to the DON on one occasion as things were getting so bad, but the DON did nothing. On the 14th February 2020 she met with and discussed her grievance with the Employer’s Representative for lack of managerial support with regards to the bullying and interference.

A couple of weeks later, the Employer’s Representative sent an email to the DON advising the complainants position was to cease as of the end of March 2020”. The complainant emailed the Employer’s Representative and asked that she would not do anything until she sought legal advice, but she got no reply, and her position and increased salary was terminated at the end of March.

It is her opinion that the Employer’s Representative recanted on decisions made from the previous meeting. There was a further issue reported by the Complainant of a serious threat of potential violence, and if not addressed, she would have no option but to involve the authorities with regard to a restraining order. The Employer’s Representative still insisted this is between the colleague and herself. Mediation was arranged and took place on 21st December 2019.

It is the Complainant’s firm belief that the position was taken from her because the Employer’s Representative’s friend, the colleague, was angry and jealous that she was awarded the role. She requested that her position be reinstated with retrospective remuneration.


Summary of Employer’s Case

The Management and Trustees of the Nursing Home contended that the above complaints were invalid and without substance. The Employee was not promoted to a new role and the position was not removed from her. The temporary role no longer exists for reasons that will be furnished and therefore there will be no re-instatement as suggested.

Employer decided as a stop gap solution to ask the Complainant if she would be willing to take on some extra tasks, like ensuring that there was adequate staff on the floor at all times.

According to the Employer’s Representative the employee did not have an interview under the recruitment and selection procedures. The Employer Representative attended a Management Meeting on 16th September 2019. At this meeting the additional hours and wages in the transfer of duties to the Employee were discussed. She was then invited to join the meeting in order to agree the terms regarding hours and new salary and that the extra duties would be for a period of six months, after which it would be reviewed.

The complainant commenced her new temporary role on Monday, 30th September 2019 and on Friday, 4th October 2019 the 5th day into her role, she sent an email to the Leader, complaining about passwords and two staff members. This was totally inappropriate for an employee to do and the matter rightly needed to be dealt with by the management.

Further meetings occurred to address misunderstandings and conflict between the Employee and another member of staff since she had taken on the temporary role.

On 2nd March 2020, the Employer’s Representative wrote to the then PIC asking her to inform the Employee that she would be expected to return to her permanent position as Medical Clerk, taking on the job description, hours and salary of that role as and from 30th March 2020. The temporary role of Clerical Manager had ceased to exist as of 28th March 2020 – which was the six-month period.

However, the Employee did not agree that the role should cease and was set on a mission to try to convince management that she had been put into a permanent role.


Findings and Conclusions

The Adjudicator noted that the Employee had introduced allegations of bullying and harassment. The claim before this hearing concerned the claim that the Employer had wrongly removed the enhanced position and remuneration without agreement. Therefore, that was the claim to be addressed here.

He found that following the stepping down of the ADON, the Employee was offered and accepted to undertake additional administrative duties with an increase in her hours of work and pay. He found that this change was not confirmed in writing. The Terms of Employment (Information) Act Sec 5 requires an employer to confirm in writing, no later than one month after the change, the details of that change. He found that had the Employer done so, then this dispute would not have arisen. He noted the conflicting positions of both sides. He found that there was an unwillingness to properly engage with each other on this matter. The Employee stated that she wrote to the Employer’s Representative on five or six times and got no response, that she requested minutes of meetings and did not get them. He noted that the Employer kept stating that the Employee knew that this enhanced position was temporary and said so conveying an attitude of why she cannot grasp that. He found that the Employee was genuine when she stated that this position was permanent. He equally found that the Employer was adamant that the position was temporary. But he found that the responsibility lay with the Employer to have confirmed this in writing but that he failed to do so and so they have created this dispute.

He found that there was reference to a meeting of the Trustees to discuss the Employee’s request for increased hours of work and increased pay. He found that had the Employer copied the Employee with meeting minutes then it may well have headed-off this dispute. He found that these minutes confirm that the Employer envisioned that this change was a temporary one to begin with. So, he found that this position was temporary, not permanent as alleged by the Employee. He found that the Employer had a right to discontinue its operation after the initial six-month.

However, he found that the Employer had contributed to this dispute by their failure to confirm it in writing and in their rather heavy-handed manner in which they dealt with the Employee, which had caused her unnecessary grief.


Recommendation

The Adjudicator recommended that the Employee would accept that the enhanced position offered was on a temporary basis only. He recommended that the Employee would accept that the Employer had a right to discontinue the arrangement after the six-month period had concluded. He recommended that the Employer pays the Employee €2,500 for the mishandling of the communication and their failure to properly handle this dispute. This should be paid to the Employee within six weeks of the date below.

The Complainant had stated that the Respondent had made an illegal deduction of €5 per hour from the 1st of April 2020 following the removal of her enhanced position and pay. However, in light of the above Recommendation, the Adjudicator found that this was a temporary arrangement and that the Respondent was entitled to discontinue it.


Our Commentary

This case highlights the importance of following best practice procedures when creating new work arrangements for Employees, and the further importance of following the right procedures when handling grievances. As stated by the Adjudicator, had the Employer stated the terms of change to employment in writing, this misunderstanding may not have arisen altogether. Furthermore, had the Employer simply copied the Employee with these minutes of the initial meeting, the grievance may have been resolved much sooner. It is also clear that the Employer could have avoided the grief caused to the Employee had they provided her with greater support during the grievance procedure, in particular as she had felt bullied, harassed, victimised and even afraid for her safety.