ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016152
Medical Technology Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 09/04/2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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.
The complainant commenced employment with the respondent as a Sales Representative on 12 February 2018. The complainant alleges that from the beginning she was subjected to discriminatory remarks and treatment by a company Director. The complainant further states that she suffered bullying / harassment by the same person, that she did not get her breaks and that her employment was terminated on 4 May 2018 after she raised concerns about incorrect information being given to customers in relation to the marketing of medical devices.
Summary of Complainant’s Case:
The complainant was asked inappropriate and discriminatory questions at interview by the company Director.
The same type of questioning occurred whilst the complainant was on duty at a trade show in Dubai.
The Director did not permit the complainant to take any breaks during the trade show.
After the complainant raised these issues with the Director he dismissed her concerns and again made an offensive, discriminatory remark.
The Director ordered the complainant to misrepresent the certification and manufacturing origin of the medical devices that she was selling. The complainant told the Director of her concerns in this regard and shortly afterwards her employment terminated under the cloak of redundancy.
Summary of Respondent’s Case:
The respondent has a number of business ventures in the Middle East and was invited to set up a business in Ireland with the intention of manufacturing medical devices for international supply.
The complainant was not subjected to discriminatory treatment. A general conversation took place at the trade show with the complainant which included questions about her family life. Other employees, both male and female, would also have been subjected to similar conversations.
The respondent’s Director met with the complainant to discuss the issues raised by her following the trade show.
No member of staff was instructed to mislead customers in relation to certification or manufacturing origin as the machines on display were prototypes of machines that would eventually be made in Ireland.
It was necessary for the respondent to effect redundancies due to the elongated timeframe required to secure regulatory approval for the products and the ongoing drain on the respondent’s cash flow. Two employees resigned prior to that decision and three employees (including the complainant) were made redundant.
Findings and Conclusions:
The Managing Director of the respondent company operates a number of business ventures in the Middle East. Through business contacts the Director was invited to set up a business in Ireland to manufacture medical devices which were to be marketed internationally. The respondent company was incorporated in Ireland in February 2015. The Director had no previous experience of conducting business in Ireland.
The machines for manufacture could not be sold until they received the necessary EU certification. While there had been difficulties in finding a location during the start-up stage the major delay was with the certification process which took far longer than anticipated. The respondent had applied for funding under a government scheme which required the respondent to reach certain targets as regards employment, turnover and export sales. The delay in achieving certification meant that these targets could not be reached and that all funding came from the Director and associate companies.
The complainant first attended for interview in December 2016 and attended a second interview conducted by the Director in February 2017. The complainant stated that at this interview the Director asked her if she was married, did she have children, how many children she had and if she planned to have more children. The complainant after the interview remarked on the “weird” questions that she had been asked to the respondent’s Office Manager. I note that in her CV form the complainant volunteered the information that she had children.
The complainant was not actually employed by the respondent until February 2018. Under the heading of “Contract Type” is stated “Training & Induction Probationary”. The position was that of Sales Representative. In March 2018 the respondent was requested to attend an important trade show / conference in Dubai departing on 14 March and returning on 24 March. Prior to this event the Director asked that a photograph of the complainant be sent to him. This was not required of a male colleague who also went to the show. The Director said in evidence that he requested the photograph as it was required for identification purposes.
A number of issues arose at the trade show. The complainant stated that the Director engaged in a conversation with her during which she was questioned about personal issues including her husband’s job and whether she owned her house and car. The complainant also said that the Director pressurised her as regards selling the medical devices and advising customers that they were manufactured in Ireland when in fact they were not. The complainant further stated that she was not allowed take breaks during the show and was informed by the Director in this regard that they were not in Ireland now. The complainant also had issues about the manner in which the Director addressed her in front of other people referring to her simply as “Irish”.
The respondent’s Director said that during the course of the show he had a general conversation with the complainant during which he had enquired about her family and she had enquired about his family. This he considered to be a normal conversation. As regards breaks, he said that staff at the show could take breaks when able to do so and that everyone had got a lunch break. He said that the reference to the complainant by the title “Irish” was because he had an Irish team and a Dubai team at the show. In relation to the medical devices the Director stated that his company had got prototype machines made in Korea similar to the machines that they hoped to manufacture in Ireland. There were two types of certification required in order to sell the machines in Europe. One was electrical, which the Korean machines had, but the other was the medical certification which was a process that could take two years and when that was procured the manufacture of the machines would take place in Ireland.
When the complainant returned to Ireland she informed the Office Manager of the issues that had arisen in Dubai. Some time later when the Director was visiting the office the Office Manager asked her for the list of issues which the complainant gave to her. The Office Manager typed them out and gave them to the Director. A meeting then took place between the Director and the complainant at which the matters were gone through. The complainant stated that at one point the Director remarked that the complainant was like his wife in that “she had hormones in her head” and consequently she might need to take a day off. The Director in evidence denied making this specific remark and stated that he said that the complainant was emotional.
On 9 April the Office Manager received a phone call from the Director who instructed that she and the other employees “evacuate” the building without explanation. A number of employees attempted to contact the Director as regards the future of their employment and then sought legal advice. Their solicitors then wrote to the Director in this regard and also raised a number of other issues in respect of 6 named employees including the complainant. On 16 April all employees returned to work. The employees were paid for the time that they were absent from work.
Shortly after this the complainant lodged a formal written grievance in relation to the questions at her interview, the issues at the trade show and subsequent events in the office. According to the complainant she did not receive any response to this grievance. Other employees also lodged grievances.
On 4 May 2018 the complainant was requested to attend a meeting with a person who provided business advice to the respondent company. The complainant was informed that there was no longer a sales position in the company and that as a result she was being made redundant with immediate effect. Other staff were also called to similar individual meetings and also made redundant. The Director stated in evidence that the redundancies were due to the financial state of the company and the drain on cash flow arising from the existing payroll costs. Advice had also been received in mid-April to the effect that the CE certification process would take at least 16 months. The respondent’s accountant also gave evidence at the hearing and submitted financial information in support of this position. According to the witness the main problem was caused by the much longer process in achieving certification for the medical devices than was originally envisaged. There was therefore no income to offset the company’s outgoings. The witness said that he was not consulted with regard to the redundancies.
The complainant lodged her complaint form with the WRC on 30 July 2018.
Complaint No. CA-00020857-001:
These are complaints under the Employment Equality Acts, 1998 – 2015. In her complaint form the complainant alleges that she was discriminated against by reason of her gender and family status, that she was discriminated against by being victimised, that she was discriminated against in conditions of employment, that she was dismissed for discriminatory reasons and for opposing discrimination and that she was discriminated against by being harassed.
Section 6(1) of the Act states:
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 of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which –
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned
Section 6(2) states:
As between any 2 persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are –
(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
(b) that they are of different civil status (in this Act referred to as “the civil status ground”),
(c) that one has a family status and one does not (in this Act referred to as “the family status ground”)….
The complaint is based on the actions of the Director at the interview in February 2017, during the trade show in Dubai in April 2018 and the subsequent events in the workplace.
Section 85A of the Act states:
(1) Where in any proceedings facts are established by or on behalf of the 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.
The interpretation of this Section has been considered by the Labour Court in Southern Health Board v Mitchell (DEE011). The Court stated 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 those 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 was no infringement of the principle of equal treatment.”
The interview in February 2017 was conducted by the Director who was accompanied by his wife who is also a Director / Manager with the group of companies. No formal minutes were taken by management but informal notes were attached to the complainant’s CV and these are the only record of the interview that were produced by the respondent. The management witnesses both denied that personal questions of the type alleged were asked. The informal notes reference the age of the complainant’s children. The complainant, in her CV, volunteered the information that she had children “of school going age” but did not refer to their ages. The Office Manager in her evidence said that she had advised the Director as to the type of questions that could be asked and stated that the complainant had said to her after the interview that she had been asked “weird” questions. In evidence the complainant said these questions were in relation to the number of children that she had and if she planned to have any more. Based on the evidence before me I am satisfied that questions were asked at the interview as outlined by the complainant. I am conscious that this event took place in February 2017, in excess of 12 months prior to the complaint being lodged with the WRC in July 2018, and therefore could be considered as statute barred under the time-limits contained in Section 77(5) of the Act. There was an exceptional period of more than a year elapsing between the interview taking place and the complainant being offered employment. Section 77(6A) of the Act states:
For the purposes of this section –
(a) discrimination or victimisation occurs –
(i) If the act constituting it extends over a period, at the end of the period
In Hurley v Co. Cork VEC (EDA1124) the Labour Court stated that this section dealt with “a situation in which there are a series of separate acts or omissions which, while not forming part of the regime, rule, practice or principle, are sufficiently connected so as to form a consortium.” In the particular circumstances of the case before me where the interview led to the employment of the complainant I am treating this issue as being in time.
It is accepted that a conversation took place at the trade show in Dubai during which the complainant was questioned about her husband, family and ownership of her home. The Director characterised this as general conversation. The circumstances in which this conversation took place is that where the Director was meeting the complainant as a new employee.
In relation to the meeting that took place back in the workplace in Ireland between the Director and the complainant to discuss the issues raised by the complainant, I accept the evidence of the complainant that the Director made a reference to her hormones rather than the suggestion by him that the remark was to the effect that she was emotional.
In summary, therefore, the complainant has established that the remarks which are the subject of her complaint were made and that they give rise to a presumption of discriminatory behaviour. The onus therefore shifts to the respondent to prove the contrary. The response of the respondent as outlined above does not discharge that onus and therefore I find that the respondent engaged in discriminatory behaviour in relation to the complainant on the grounds of gender and family status on the occasions specified.
The complainant further alleges in her submission that her dismissal was as a result of her raising an official grievance in respect of the remarks made at the 2017 interview, the various issues at the show in Dubai and the remarks made at the meeting following the return to Ireland. It was argued that no response was ever received to that grievance and that the complainant’s employment was terminated shortly afterwards. The respondent’s evidence is to the effect that because of the financial pressures outlined above it was decided to reduce staffing levels to one administrative person and that consequently 3 employees, including the complainant, had been made redundant (2 other employees having resigned). In considering this complaint it is necessary for the complainant to prove facts from which it may be presumed that discrimination has occurred. It is well settled law that mere assertion cannot be elevated to the status of evidence. As noted the complainant’s termination of employment took place at the same time that of 2 other members of staff, one a male, who also had their employment terminated and for the same stated reason. I therefore find that the complainant has failed to establish a prima facie case that she was discriminatorily dismissed.
The complainant further alleges that she was suffered victimisation under the Act as she was dismissed for raising a complaint of discrimination with her employer.
Section 74(2) of the Act states:
For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employer
As previously noted the complainant had met directly with the Director regarding issues that arose in Dubai and had subsequently raised a formal grievance in writing which dealt in part with the alleged acts of discrimination. This letter was written in mid-April 2018. The complainant’s employment was terminated on 4 May 2018. There was therefore a complaint followed by a dismissal. There is an onus on the complainant to prove a causal link between these two events and show that the detriment that she suffered was in reaction to the lodging of the grievance with the employer. As noted above, however, the respondent states that the termination of employment was due to redundancy arising from the requirement to reduce payroll costs and that 2 other members of staff also had their employment terminated for the same reason at the same time. I note also that at the time of the hearing the staff of the respondent consisted of one administrator only (and no sales staff) as the certification process had not been completed. I find therefore that the complainant has failed to establish a direct link between her complaint and the termination of her employment.
Complaint No. CA-00020857-002:
This is a complaint under the Safety, Health and Welfare at Work Act, 2005, to the effect that the complainant was penalised for making a complaint under that legislation.
Section 27(3) of the Act states:
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,
(c) 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,
(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or
The complainant submits that she was penalised because she had made a complaint to her employer in relation to bullying and harassment. The complainant also made a complaint about not receiving her entitlement to breaks. As noted above the complainant submitted a formal grievance complaint in writing to the respondent in mid-April. Some of the issues raised in that letter refer to events that occurred in Dubai including allegations that the Director spoke to the complainant aggressively, referred to her as “Irish” instead of using her name, treating her dismissively in front of customers and reprimanding her for taking a break and for a lack of sales. The complainant has to prove that a causal link exists between the specific complaints made by her in regard to any matter relating to safety, health and welfare at work and the decision to terminate her employment. The respondent’s position is that the dismissal had nothing to do with the making of a complaint under the Act but that it was due to the reasons already outlined and that the complainant’s employment was terminated at the same time as other employees who had not made a complaint under the 2005 Act. I find that, on the evidence before me, the complainant has failed to show that her dismissal was due to her making a complaint under the Act.
Complaint No. CA-00020857-003:
This is a complaint that the complainant was penalised for having made a protected disclosure under the Protected Disclosures Act, 2014.
Section 5 of the Act states:
(1) For the purposes of this Act “protected disclosure” means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of the Act) made by a worker in the manner specified in Section 6,7,8,9 or 10.
(2) For the purposes of this Act information is “relevant information” if –
(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
(b) it came to the attention of the worker in connection with the worker’s employment.
(3) The following matters are relevant wrongdoings for the purpose of this Act –
(a) that an offence has been, is being or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or service,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered…
The complainant submits that she had raised concerns with her employer regarding what she termed as illegal activities being carried out by the respondent. The complainant stated that the Director insisted that the respondent’s products be advertised as CE certified and manufactured in Ireland despite the fact that many of the products were imported from South Korea and were clearly not CE certified. The complainant further alleges that she was directed to represent these products as such at the trade show or else her employment would be terminated. The respondent denies this stating that the sales team were instructed to test sell the machines on the basis that the process of acquiring CE certification was underway and that the machines, when they were ultimately manufactured, would at that stage be manufactured in Ireland. The respondent further pointed out that the machines could not be manufactured in Ireland without the medical CE certification and sales could only happen when certification was granted.
In mid-April 2018 the complainant lodged an official grievance in writing in which she raised a number of issues. In relation to the subject of this complaint the complainant in her letter stated that the Director “told me if I was asked how long the CE would be I was to say 2/3 weeks after Dubai Derma and that the machines on the stand were manufactured in Ireland which I knew was a lie”. The rest of the issues regarding the machines appear to be concerning the Director’s attitude to the lack of sales.
Even if it is accepted that the above action amounted to a protected disclosure a penalisation must have arisen from the making of that disclosure. In Minister for Business, Enterprise and Innovation v McLoughlin (PDD192) the Labour Court stated:
“As this Court pointed out in O’Neill v Toni and Guy Blackrock Ltd. (2010 E.L.R.21) it is necessary for a complainant to show that the detriment of which he or she complains was imposed “for” having committed a protected act. This suggest that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the complainant having committed the protected act he or she would not have suffered the detriment.”
As already noted the complainant’s employment was terminated along with that of two other employees at the same time by reason of redundancy. The complainant in her submission classifies the redundancy as sham but the evidence of the respondent and his accountant as to the difficulties arising for the company from the prolonged procedure in obtaining CE certification are supportive of the respondent’s position that there was a redundancy situation and that that was the reason for the complainant’s dismissal. In the circumstances the complainant has failed to prove that but for her disclosure her employment would not have been terminated.
Complaint No. CA-00020857-004:
This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive her entitlement to breaks. The complainant clarified in evidence that the issue only arose at the Trade Show in Dubai and that there was no complaint in relation to breaks whilst engaged in her normal work in Ireland. She describes the Director being rude to her when she sat down at one stage remarking that the complainant was not in Ireland now and how she worked up to a 10-hour day during the show. The respondent accepts that the timing of breaks during the show did not occur in the same manner as in the Irish office but maintained that all employees got a lunch. I find therefore that the evidence is that the complainant did not receive the breaks that she was entitled to while on duty at the show.
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 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.
Complaint No. CA-00020857-001:
For the reasons outlined above I do not find that the complainant has established that her dismissal was based on discriminatory grounds or that the dismissal was due to penalisation for making a complaint of discrimination under the Employment Equality Acts, 1998 – 2015. I do find that the complainant was subjected to discriminatory remarks based on her gender and family status. I therefore order the respondent to pay to the complainant the sum of €6,000.00 as compensation in this regard.
Complaint No. CA-00020857-002:
For the reasons outlined above I find that the complainant has failed to establish that she was penalised for making a complaint under the Safety, Health and Welfare at Work Act, 2005, and that the complaint is therefore not well founded.
Complaint No. CA-00020857-003:
For the reasons outlined above I find that the complainant has failed to establish that she was penalised for making a complaint under the Protected Disclosures Act, 2014, and that the complaint is therefore not well founded.
Complaint No. CA-00020857-004:
I find this complaint under the Organisation of Working Time Act, 1997, in relation to the complainant not receiving her entitlement to breaks whilst working at the trade show to be well founded. I note that there was no issue as regards this entitlement during normal working. Having regard to all the circumstances I order the respondent to pay to the complainant the sum of €50.00 as compensation in this regard.
Workplace Relations Commission Adjudication Officer: Joe Donnelly