ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028698
Parties:
| Complainant | Respondent |
Anonymised Parties | An I.T. Project Manager | A Health care provider |
Representatives | In person | Corporate Employee Relations Services |
Complaints:
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-00038571-001 | 07/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038571-002 | 07/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00038571-003 | 07/07/2020 |
Date of Adjudication Hearing: 28/03/2023
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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.
Background:
The within complaints were submitted to the Workplace Relations Commission on 7th July 2020 and concern the alleged discriminatory treatment of the complainant by her former employer. The complainant was employed by the respondent from 1st October 2019 until 12th January 2020. A further complaint submitted under the Terms of Employment (Information) Act, 1994 (CA-00038571-002) relates to an allegation that the complainant’s contract deliberately contained false or misleading information with regard to the complainant’s work location.
The complaint alleges discrimination on the grounds of gender, family status, discrimination in respect of “conditions of employment” vis a vis the complainant’s work location, discriminatory dismissal and discrimination in respect of “Other”. The discrimination complaint in respect of “other” related to an underpayment which had been rectified by the employer. This complaint was withdrawn at adjudication. The complainant also asserts she was victimized in the employment. Further allegations of discrimination relate to discrimination on the disability ground in respect of the complainant’s son and also in relation to the complainant’s own disability which was diagnosed post the referral of the complaints.
The matter first came on for hearing on 21st October 2021 and was heard virtually using the Webex platform. The complainant was unrepresented.
The hearing of 21st October 2021 was adjourned to enable the complainant to consider the cognizable period of the complaints. It was clarified to the complainant that the cognizable period of her complaints was the six months immediately prior to the referral. (8th January 2020 – 7th July 2020) and that she would need to discharge the initial burden of proof establishing facts from which an inference of discrimination could be drawn within that period of time. As the complainant had not been at work since 19th December 2019 which was outside of the cognizable period of the complaint, the complaint was given a period of time to consider this and to consider whether she wished to make an application for an extension of time and the reasons she wished to put forward if making that application.
A further hearing took place on 2nd June 2022 to consider the timing of the complaints and to hear from the complainant in respect of her application to extend time back a further six months to 8th July 2019 or in reality to the 1st October 2019 when the complainant commenced her employment with the respondent.
The Termination Date It is not disputed that the complainant did not work after the 19th December 2019. The parties had agreed that the complainant was on annual and public holiday leave from 19th December 2019 until 12th January 2020 and that her end date of employment would be 12th January 2020. It is also the case that the complainant commenced a new position in another organisation on or about 16th January 2020 in a south Dublin location that was more suitable to her. On the basis of a termination date of 12th January 2020, the complaint relating to constructive discriminatory dismissal which formed part of the complaints lodged on 7th July 2020 is within time and will be addressed separately in this decision. Anonymization The complaints contained in the within referral relate to a child’s disability and also the recent diagnosis of the complainant’s disability. The complainant sought that the adjudication decision be anonymized and the respondent did not object to this request. Having considered the complainant’s request, I am using my discretion and consider it appropriate to anonymize both parties in this decision. |
Summary of Complainant’s Case:
Extension of Time application In respect of her application to extend time, the complainant stated that she had intended to submit her complaint much earlier than the 7th July 2020 but a number of reasons had prevented her from doing so. The reasons the complainant put forward for the delay in submitting her complaints were that the covid pandemic had caused great disruption to her efforts to purchase a new home and that her mortgage approval had been withdrawn which required additional mortgage applications. The complainant also stated that she had a new baby and a 12-year-old child to look after which left her with little time to do anything else. The complainant further cited issues with seeking advice from citizens information as well as advice from her Trade Union and also in obtaining legal advice, all of which added to her delay in submitting her referral to the WRC. In addition, the complainant stated that she was focused on her new employment which she had commenced in January 2020.
Constructive Discriminatory dismissal complaint The complainant very helpfully submitted extensive written submissions in relation to her complaints. The essence of the complaints is that the complainant was not supported by her employer with regard to her commencement in her new job as a breastfeeding employee and that she was also bullied and victimised at work. The complainant stated that on commencement of employment she was directed to a disabled toilet in order to express milk and was told that this would be considered her lunch break and that her time would be monitored. The complainant stated that the respondent acted at variance with the principles of the Employment Equality Acts, 1998-2015, the Maternity Protection Act, 1994 and the relevant European Directives on the issues of employment equality and maternity protection. The complainant outlined that the employer offered alternatives to her following her first day of work due to her dissatisfaction with the disabled toilet. Although the complainant acknowledges the alternative location to express, that situation involved a 15 minute walk each way which the complainant stated was too disruptive to her and would have a negative impact on her ability to do her job and attend meetings etc. The complainant stated that the lack of suitable facilities should have resulted in a reduced working day or the option to do some work remotely which she had been facilitated with in her previous employment. The complainant stated that she was treated less favourably than other colleagues who were facilitated with paid breaks and were also facilitated with flexible working arrangements for domestic reasons. The complainant contends that her requests for accommodation were ignored, and nothing was done to assist her in the personal circumstances that existed on her return to work. The complainant outlined that due to the respondent’s discriminatory actions and lack of support, both her own health and the health of her baby son suffered as a result. The complainant also stated that she was victimised in the workplace as she was the subject of gossip within the office and in relation to the arrival of a fridge which she says was described by management as being her fridge for her expressed milk. The complainant also outlined that a female colleague made inappropriate gestures to her when describing what the fridge was to be used for. A further alleged act of victimisation relates to the working hours of the complainant and the removal of flexible working hours from her. The complainant contends that she was bullied in her employment and that there was an “undeniable tone of contempt” towards her by management. The complainant further outlined that she was unsure where she would be working and had sought clarity on the work location prior to commencement and had not received any clarity on the issue. The complainant’s understanding was that there was some flexibility with regard to work location subject to agreement with the employer but that in her case she was denied any flexibility which caused significant distress to her and would have prevented her from applying for the position had she known in advance where she would be assigned. The complainant contends that due to the effects of the respondent’s discriminatory actions towards her since she commenced in employment in October 2019, she felt she had no choice but to resign from her employment. Redress By way of redress, the complainant is seeking an apology from the employer and an acknowledgement that issues could have been handled better and that the employer could have improved its communication on the issues she had raised at the time. The complainant is also seeking a reference and it was clarified at the adjudication hearing that the employer has no issue in providing same. As regards compensation, the complainant said that compensation was not something she had considered when submitting her complaints and that she was happy to leave that matter for the adjudication officer to decide. |
Summary of Respondent’s Case:
Extension of Time In respect of the timing of the complaints, the respondent’s position is that the complainant has not identified any discriminatory treatment within the cognisable period of the complaints and that the complainant has not shown reasonable cause in respect of the delay in submitting her complaints and her application to extend time. Accordingly, the respondent contends the complaints are out of time and should be dismissed. Constructive Dismissal complaint In respect of the constructive discriminatory dismissal complaint, the respondent stated that it acted in line with its statutory requirements with regard to the facilities it provided to the complainant and its management of the issues raised by the complainant with regard to her work location and hours of attendance. The respondent acknowledged that the disabled toilet was not an ideal suggestion on the complainant’s first day and that things could have been done differently but that it had quickly accommodated the complainant as best it could in the circumstances. The respondent also stated that it made every effort to support the complainant with facilitating leave prior to her commencement of employment and facilitating flexible working hours through the provision of flexi time which the complainant chose not to avail of. The respondent also stated that the location was made clear to the complainant at the job offer stage as the complainant’s role was an I.T. role which was location specific. The respondent’s position was that it always acted in good faith towards the complainant, tried to support her in her requirements on commencement of employment and did not behave in a discriminatory manner towards her. The respondent contends that the constructive discriminatory dismissal complaint is without merit and should be dismissed. |
Findings and Conclusions:
The Applicable Law Discrimination Section 6(1) of the Employment Equality Act, 1998 provides as follows: 6.(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 of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. Burden of Proof Section 85A of the Employment Equality Act, 1998 provides as follows: 85A (1) 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. Time Limits (Equality complaints) Section 77(5) of the Employment Equality Act, 1998 states as follows: (5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence. (b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly. (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term. Time Limits (Terms of Employment complaint) Section 41(6) of the Workplace Relations Act, 2015 provides as follows in relation to time limits: (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Extension of Time application. The complaint sought an extension of time in relation to her complaints as she had not identified acts of discrimination during the cognisable period of the complaint (8th January 2020 – 7th July 2020). In respect of her application to extend time, the complainant gave a number of reasons why her complainants were not submitted until 7th July 2020. Reasonable cause The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: - “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”. Throughout the adjudication process, I have found the complainant to be an articulate and capable employee who addressed issues of dissatisfaction to her in the form of grievances she raised with her employer. I fully accept that the complainant had a number of competing pressures in her personal life after her employment with the respondent ended. However, the relevant legal test on seeking an extension of time for the late referral of a complaint states that the reasons given for the delay must both explain and excuse the delay. In my view, the complainant was subject to a statutory timeframe for submitting her complaints and did not adhere to same. I find that the reasons put forward for the delay do not meet the test as set out in Cementation Skanska and Carroll. The complaints could have been lodged at any time by the complainant using the WRC’S online complaint form which the complainant used when she submitted her complaint on 7th July 2020. In all of the circumstances of the application, I do not grant the extension of time and find that the complaints are out of time and are therefore statute barred. Constructive Discriminatory dismissal This complaint is within time on the basis of a termination date of 12th January 2020. I have reviewed the documents submitted in relation to the within complaints. The complainant stated that was unsure as to her work location and sought clarity on the issue prior to her commencement of employment. The request for special facilities to express milk during the working day appears to have been raised only a short number of days prior to the complainant’s commencement on 1st October 2019. The option of using the disabled toilet, albeit unsuitable and ill-advised was offered in the context of the complainant’s first day at work while a more suitable arrangement was put in place. The employer quickly arranged a suitable room for the complainant to use, albeit it a short walk away (approximately 10 minutes) from the complainant’s work location, in another building. This arrangement was to facilitate the ordering and installation of blinds in a room that was suitable, once blinds were installed, in the complainant’s own work location. The complainant acknowledged the temporary offer of the suitable room in the other building but was dissatisfied with this as it involved walking and carrying equipment to express which she found disruptive to her working day and was ultimately an unsatisfactory option for her as it required her to leave meetings on occasion in order to walk to the other location. The complainant also outlined that she had been told that the time she spent away from her work location was unpaid and was considered to be her lunch break. While this assertion was denied by the respondent the complainant ultimately chose to remain at her work location and express in the bathroom or in the corner of her office when possible, to avoid lengthy absences from her work. Apart from being dissatisfied with her work location and the issue of expressing during the working day, the complainant was also dissatisfied with her hours of attendance. As I understand it, the complainant had two choices on commencement of employment in respect of her attendance. The first option was to work on the “flexi time” system. This involves attending for the required number of hours per week between 8am and 6pm each day and additional hours can be used to take a day off the following month if the time is accrued. This is commonly known as a “flexi day” and this clocking system is also used as a record of hours worked each day and lunch breaks taken etc. The complainant chose not to avail of this arrangement. The second option was to work the contractual hours of 9am-5.24pm each day with one hour for lunch. The lunch hour is usually unpaid, and this may have led to the complainant’s understanding that if she used her lunchbreak to express in the other location that this would be unpaid, but, in my view, this is not to say that the time the complainant used to express was to be regarded as being unpaid. Conclusion In any claim of constructive dismissal, the complainant must show that due to the conduct of the employer, there was no other option than to resign from the employment. In the within complaint, the complainant asserts that due to the discriminatory behaviour of the respondent towards her, she was left with no option but to resign from her employment. I have considered the issues raised and I find that the respondent did not act in a discriminatory manner towards the complainant leaving her with no other option than to resign from her employment. I am of the view that the respondent, in the short amount of time it had to provide facilities to the complainant, made every effort to address her needs. While the complainant may have been dissatisfied with the solutions offered, the options were put in place to facilitate and assist the complainant while more suitable arrangements were put in place. Clarification was also provided to the complainant in respect of the issues she raised relating to the work location and daily management of her working hours. I do not find that there were any discriminatory elements relating to the way the respondent addressed these issues or that the complainant was in a situation where she had no option but to resign from her employment. The complainant obviously had her own preferences with regard to her working hours, her location of work and the facilities she required but, in my view, the respondent acted fairly towards her in regard to the facilities it was putting in place. The complainant remained dissatisfied and ultimately chose to resign which was her right, but I do not find that the resignation was brought about as a result of the respondent’s actions towards her. On that basis, I find that the complaint is not well founded. |
Decision:
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-00038571-001 – Employment Equality Acts complaint The complaints relating to discrimination on the grounds of gender and family status are out of time and are statute barred. The victimisation complaint and the complaint relating to discrimination with regard to “conditions of employment” are also out of time and are therefore statute barred. Discriminatory Dismissal (Constructive) Within CA-00038571-001 there is a complaint of discriminatory dismissal. As the complainant resigned, this is a claim of constructive discriminatory dismissal. For the reasons stated above, I find that the complaint is not well founded. CA-00038571-003 – Employment Equality Acts complaint The complainant alleges discrimination on the disability ground in respect of her son’s disability and later in respect of her own disability that had been diagnosed post the referral of the complaints. These complaints are out of time as no acts of discrimination were identified within the cognisable period of the complaints (8th January 2020 – 7th July 2020) and I have not granted an extension of time to the complainant for the reasons stated. I also note that in complaint application CA-00038571-001, the complaint also alleges that she was victimised and discriminated against in regard to her “conditions of employment.” These duplicate complaints are also out of time and are statute barred. The complaint of discriminatory dismissal within CA-00038571-003 is a duplicate complaint and is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00038571-002 – Terms of Employment (Information) Act, 1994 The relevant contract was signed on the 25th June 2019. The complaint was lodged in excess of 12 months after the contract was signed. In the absence of any legislative provision allowing for an extension of time beyond 12 months, I find that the complaint is out of time. |
Dated: 13th October 2023
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Discrimination, terms of employment |