ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054265

Parties:

Complaint:

Date of Adjudication Hearing:  30/06/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

Background:

The Complainant contends that he was discriminated against on the grounds of disability.

Summary of Complainant’s Case:

The Complainant provided extensive written and oral submissions summarised in his own words as follows:

I was employed in April 2023 by DM and SF, Directors of AMV Systems as a Service Technician for A/C (Air-conditioning Units) and AHU's (Air-handling Units). I was offered €15 per hour on a 50 hour weekly contract with F-Gas Training/Company Van and tools and pay review with increase on completion of 12 months after an initial 6 month trial period.

I noted clearly to PG, head H&S for the organisation on my H&S induction that I have a pre-existing latex and hand sanitizer allergy.

The first incident that took place was in Sept 2023 after I was sent into a 'High Care' facility ‘N’. The entry protocol consists of 'an automatic hand sanitizer station' followed by 'gowning up' which involves putting on gloves/hair net/garments/shoes after washing hands with anti-bacterial soap and sanitizer before proceeding to the next station to gain entry to production facility. I expressed concerns to my team lead which fell on deaf ears. I had a reaction to the skin on my hands and reported it to my team lead (PN).  SF (one of the Directors) agreed that I do not have to go into High or Medium Care in the future. I was not scheduled to go into those facilities again until April 2024 which again I expressed concerns regarding my hands. I was pressurized to enter the facility and carry out my work which I did reluctantly. Again I had a bad reaction to the hand sanitizer shortly after passing the station to enter. On completion of our work and exiting the production facility I reported to PN, team lead of my situation as I was in a lot of pain and knew that this would affect me for several weeks. He told me quote; ‘’if you are not happy you can find other work and move on’’.

I called SF to report the incident and comment made to me. He asked if I wanted to make an official complaint in writing which I declined stating that a disciplinary procedure would not benefit the operation overall and cause further animosity between Technicians. I continued to work in the weeks after that with great difficulty and had to attend my GP for a topical steroid creams to assist the repair given the extent of the damage I had sustained to the skin on my hands.

I expressed concerns to management as my personal life was impacted by the injury suffered (gardening/home maintenance/hobbies etc).The bio metric scanners in the facility could not give me access to parts of the plant because my finger print is not accepted due to the loss of skin. The highest scan I could give was only 38% and the system needs 60% for access. Management know this as it has been an ongoing issue at the facility. Head of Security even requested for me a 4 digit code because my bio metrics scans are not consistent. This request was denied by head security offsite.

I requested several times for my annual review meeting as I was eager to get training under way. I was continually told that all courses were fully booked and also again in my first review meeting on June 10th 2024 in the boardroom. I expressed concerns as I had been on a low hourly rate for the year and was finding it difficult financially and also I had been treated poorly by certain members of staff.

DM tried to make out that it was because 'I had no common interest with the other van technicians as I do not follow soccer and had nothing in common with the lads. There were other issues discussed also with regards to hygiene of other vans if van sharing and vaping in work vans. I do not smoke and reported this in conversation as a breach of Health & Safety in the workplace to DM but nothing was done. I was reluctant to sign off on the minutes of the meeting from the review as they were not clear or accurate to the discussion and given the fact that I was alone, had no witness nor legal representation while there were 2 Directors and HR present. They refused to discuss or acknowledge the incident that I previously reported on both occasions. HR e-mailed me every day the proceeding week to get me to sign off on the minutes and eventually scheduled a second review meeting in the Directors office as the boardroom was booked.

This second meeting scheduled for June 21st was heated from the offset towards me. All I wanted was a pay review based on my performance productivity and punctuality as I had put a massive push in to impress management in my first year. S, D and E only wanted me to sign off on the minutes of the previous meeting so I did in order to move things along. As soon as I signed the minutes the atmosphere in the rooms changed to a more light hearted scenario with laughs and jokes. I was also told that there was no training or hourly rate increase coming any time soon for me but AMV were in the process of employing 4-6 fully qualified Technicians over the next year. I again expressed concerns about the severity of the injury to my hands, lack of training or pay increase. I showed all 3 individuals present my hands which they all agreed were in terrible condition and DM told me to go see my doctor and take whatever time necessary to heal. I left the office and went directly to see my GP. I had no appointment so had to wait nearly 2 hours in reception. On examination of my hands I was signed off from Friday 21-June-2024 to 01-August2024 with a sick certificate for ''Work Related Dermatitis.

I had asked DM if the company were intending on supplementing my wage as I had to process an Illness Benefit Claim (IB1) with the Department of Social Protection. I was totally ignored. On Monday morning HR contacted me to take my van off me which I believe is a breach of contract.

I subsequently requested the 'Loss of wages' issue to be addressed several times in conversation/email and txts(WhatsApp) but never got a response. My holiday pay was also not processed correctly and I had to contact DM twice in order to get my entitlement processed. Up to the 31st of July no contact was made by management to me to see If I was certified to return to work the following day or was the cert extended. No arrangements were made either for me to pick up my company van in order to return to work. I feel that they were pushing me out of the company due to my medical issue. I then informed management by e-mail that due to medical reasons we would have to part company as I could not risk further injury to my hands. HR immediately responded 'accepting my resignation' which clearly I did not state given the manner and speed with which HR replied. Again I asked about the loss of wages but was again ignored.

SF was out of work due to medical reasons and returned to duties in August so most of my correspondence for the month of July was with DM or ET from HR.

SF contacted me with a view to discussing my situation on his return and we spoke on the phone. He told me that AMV would never discuss loss of wages in e-mails or texts and that we need to meet in person to discuss it. We arranged to meet in the car park of Mr. Price, Enniscorthy as I was reluctant for a third meeting in the office outnumbered.

SF only wanted me to sign off on the 'Offboard' procedure which meant returning company phone which contained all records/all tools/security badges/ PPE etc stating that he does not discuss money in any way. I was disappointed to say the least as time was passing and no amicable solution was presenting itself despite my requests. It is at this point that SF told me in the car park of Mr. Price that if I am not happy with his decision that I am entitled to go to the WRC and file a formal complaint.

I did not return the items requested nor did I sign the document as I now needed to gather evidence which was on my company phone. I could not believe my ears when SF told me to contact WRC. I told him that we are still in dispute over lost wages and would take him up on his advice to contact the WRC and would be in touch. I have copies of all e-mails/WhatsApp texts and photos necessary to back up my position. I received my final holiday pay on 06 Sept 2024 and subsequently returned all property belonging to AMV Systems to the office on that same day.  I requested all my training records from HR along with an accurate Work Reference that accurately reflects my time with the organisation. I received my records but the Work Reference issued is not an honest reflection of the work I carried out. It makes me out to be a 'General Operative' which is clearly not what I was. I carried out complicated Installations of AC systems along with maintenance which is very far from 'a cleaner'. I have responded to HR about my reference but have had no reply as of today.

The Complainant gave evidence under affirmation and was cross examined by the Respondent’s representative.

He stated that he had a serious adverse reaction to hand sanitizers in or around September 2023.    He had a further case of serious reaction in April 2024 when he was sent to a certain site “N”.  When he told Supervisor Mr N he said to him “you’re no use to me if you can’t go on that site” or words to that affect.  He told Director SF who asked him if he wanted to make a formal complaint.  The Complainant did not wish to submit a formal complaint.  He had some issues with fellow workers and did not want to make the situation worse.  He went on annual leave then from 24 April to 10 May 2024.  He requested a 12 month review with the Directors.  He felt strongly that he was not paid an appropriate hourly rate for the work he was doing for the company.  In his email requesting the review, he mentioned stress and from then on the entire focus the company had seemed to be on the word stress.  In June 2024 he had a review but the minutes of the meeting caused him concern as again stress was mentioned.  He showed the participants in that meeting (21 June 2024) the affect hand sanitizer products were having on his hands and he was told to go to the doctor and have some treatment.  He went to his doctor and was certified sick until 1 August 2024. 

The Complainant’s attention was drawn to a risk assessment conducted in August 2023 which identified his severe irritation to antibacterial soaps, hand sanitizers and latex gloves.  The assessment outlined that he was to use simple soap and use Nitrile gloves.  The Complainant stated this was the first time he saw the risk assessment.

Summary of Respondent’s Case:

The Company refutes all allegations made by the Complainant that he was discriminated against on the grounds of disability, failure to provide reasonable accommodation, promotion and training and conditions of employment.

The complainant commenced employment with the Respondent as a General Operative on 26 April 2023.  He confirmed his resignation on 21 August 2024.

Following the skin reaction he experienced from using the hand sanitizer at a client site, and once it was brought to the attention of management, measures were put in place, in conjunction with the client, so that the Complainant would avoid the hand sanitizer.  Special gloves were also provided.

A risk assessment was carried out in August 2023 and the measures regarding using soap and nitrile gloves were put in place.

He was also informed that he was not required to go through this area on the client site.

In relation to training, he was on a waiting list for training before he went on sick leave.

On 8 April 2024 the Complainant used the hand sanitizer on the client site and informed his Supervisor by text the next day that his hands were sore.  The Supervisor replied apologising for forgetting about his issue with the hand sanitizer and confirming he need not go to that site.

Several emails were exchanged between the Complainant, the Operations Director and the Finance Director.  The Complainant was seeking a pay rise.  However, in one of his emails he referred to ‘interpersonal politics’ and ‘silent treatment’ and ‘negative treatment’ which had been stressful and the fact that a balanced remuneration package would go some way to alleviate this.

The Finance Director responded by informing him that negative treatment would not be tolerated and the Operations Director replied that performance and pay would be reviewed in the longer term but the immediate issues referred to must be addressed first.

A meeting was held with the Complainant on 10 June 2024.  He retracted his statement about stress and negative treatment. He stated he simply wanted a pay review.  However, he would not sign the minutes of that meeting when they were sent to him.    

A further meeting was held on 21 June 2024.  The Complainant offered no explanation for not signing the previous meeting’s minutes other than to say the issue of pay and the other issues should have been dealt with in 2 separate meetings.

The Complainant went on sick leave and submitted a medical certificate stating dermatitis and covering absence from 21 June to 1 August 2025.

On 23 July 2024 the Complainant requested 4 days sick pay be paid as expenses.  The Finance Director responded to say this would not be possible.

Another medical certificate was received covering absence from 1 August to 30 October 2024.  This certificate stated ‘work relate contact dermatitis’.

On 31 July 2024 in an email accompanying the certificate the Complainant stated that his hands were healing only due to not being exposed to the daily disinfectant spray and the hand sanitizer in the client site.  He stated that this “leaves us in a situation where we must part company on medical grounds much to my regret”.  He expressed the wish that the matter could be sorted out amicably and locally without third party involvement and he asked for figures for wages, holiday pay and loss of wages “due to injuries suffered”.

HR (ET) replied accepting his resignation, confirming that no wages were owed, balance of 6.5 days annual leave would be paid and the loss of wages would be discussed further.  A meeting was requested for 8 August 2024. The Complainant replied that he did not resign and he declined the offer of a meeting. Further correspondence led to some confusion as the Complainant stated he did not resign and yet requested his holiday pay, P45 and a reference.  ET also advised the Complainant in relation to the meeting he declined to attend:

“The purpose of the proposed meeting was to discuss options available to you and also to us, in order for us to help you with your pre-existing condition, and how we can overcome this issue, to include alternative roles with the same terms and conditions which you currently enjoy, but without placing you with risk to your pre-existing dermatitis.” 

On 20 August 2024 SF and the Complainant had a telephone conversation during which the Complainant confirmed he wished to resign.  A follow up email from SF confirmed receipt of the Complainant’s resignation and that holiday pay would be paid to him in his final payslip. SF and the Complainant met on 26 August 2025 off site during which ‘off boarding’ was conducted.

The Complainant submitted his complaint to the WRC on 2 October 2024.

Prima Facie case of discrimination and burden of proof

It is well established by the Equality Tribunal and the Labour Court that the onus of proof in the first instance lies with the Complainant to present facts from which it may be inferred that he has been treated less favourably than another person is, has or would be treated on the discriminatory ground.

Case law was cited where the Labour Court dealt with the evidential burden of proof, such as Margetts & Graham Anthony & Company Limited EDA038, Mitchell & Southern Health Board DEE011 and Cork City County and Kieran Mc Carthy EDA0821.

The Respondent strongly submits that in this case, the Complainant has failed to discharge the burden of proof, he has not provided a comparator and his complaint must fail.

It is also submitted that as contained in the Safety, Health and Welfare at Work Act, the employee must take responsibility for his own safety.  The Complainant did not remind the Supervisor of his issue when he went into the client site on 8 April 2024.  Further, no issues were raised by the Complainant until 2 months later when he sought a pay review meeting.  2 meetings were held with him.  He raised issues about others’ treatment of him, then retracted that.  It was only after the clarification meeting on 20 June 2025 that his hands became an issue, and he went on certified sick leave. This was some 10 weeks after he had been on the client site. 

The van the Complainant was using broke down and had to be temporarily replaced with a rental van.  This had more room in it so when the Complainant went on sick leave, the van was taken back to fill a practical need. 

Evidence from Operations Director

SF gave sworn evidence summarised as follows:

The Complainant was interviewed by him for the job.  He had no specific experience or qualifications in refrigeration, air conditioning or heating systems.  The relevant training would be FGAS a qualification obtained through the Training Boards.  There is a waiting list and in order to obtain the qualification, the employee would have to have had experience/ on the job training.  The Complainant resigned his position before training could be arranged.

The first he heard of the Complainant’s dermatitis was when he received a phone call from him in July 2023.  SF immediately contacted the Health & Safety Manager (ER) and they conducted a risk assessment which covered the issues of soap and gloves.  The site was also contacted to tell them the Complainant should not be required to go through the system where he might be exposed.                If the Complainant had contacted him on 8 April 2024, when he went into the site where he had to use the hand sanitizer, SF would have told him to not go there.   In a later incident, the Complainant did tell him (SF) that he was unhappy about the way he was spoken to by the Supervisor.  However, he was clear there was no mention of being threatened he would have to be let go or was no use to him.  He would never condone anyone saying to an employee they would have to be ‘let go’.

The Witness gave evidence about the review meetings on 10 June and 21 June 2024.  He said the review covered some points on performance, pay was discussed and the witness said they would raise it with the Directors.  Training was mentioned as having a backlog and it still does.  The Complainant talked about working under some duress but would not elaborate or take it further.

The Complainant and SF had a phone conversation on 20 August 2024.  When he asked the Complainant if he was open to alternative roles, the Complainant said “No my mind is made up”.

He conducted an ‘off boarding’ with the Complainant in the car park of Mr Price in Enniscorthy on 26 August 2024.  The Complainant had confirmed he was resigning and the purpose of meeting with him was to get passes from him and any other items in connection with his employment.  The Complainant wanted to discuss his grievances, including alleged unfair treatment, the issue of not signing the minutes of the June meeting. SF told him he was not discussing these issues and if he was not happy he could go further, meaning to the Directors, Owner of the business or possibly legal channels.  He was very clear that he did not recommend the Complainant go to the WRC.  

Evidence by affirmation was also given by the Finance Director and the HR Co-ordinator.

Findings and Conclusions:

The Complainant clearly had grievances in relation to his employment ranging from grade, title, pay, pay review and treatment by some of his peers.  He had concerns about hygiene issues in vans and was understandably somewhat stressed by the issues he encountered.  However, he chose not to submit a grievance or formal complaint to the Respondent.

He has contended that he was discriminated against by the Respondent on grounds of disability and it is to that contention this investigation and decision must be addressed.

The specific issues in the Complainant’s complaint are:

Discrimination on grounds of disability

Discrimination in relation to promotion

Discrimination in relation to training

Discrimination in relation to failure to provide reasonable accommodation

Discrimination in relation to conditions of employment.

The Complainant stated the most recent date of discrimination as 21 June 2024.  This was the date that he stated he was signed off work with work related dermatitis. 

One of the issues raised by the Complainant in his complaint of discrimination concerned training.   The Operations Director gave cogent evidence in relation to the issue of training.  Many training certificates were submitted to show that the Complainant underwent specific relevant training to his job.   It appears that the Complainant may not have qualified to be eligible for the FGAS training course he wanted to undertake.  Nevertheless, I note the evidence submitted that the Finance Director DM urgently requested training for the Complainant on FGAS on 13 June 2025.  This was prior to the Complainant being signed off on a medical cert on 21 June 2025.

In relation to the Complainant’s allegation that reasonable accommodation was not provided, I note the risk assessment conducted in August 2023.  The Complainant stated he had not seen the sheet containing the results.  However, he knew the agreement to use simple soap and wear Nitrile gloves.  The Supervisor apologised to him regarding the 8 April 2024 incident.  I further note the emails of 9 August and 13 August 2024 from HR and 20 August 2024 from Ops Director which clearly state the Respondent’s offer to discuss alternative work for the Complainant which can be construed as ‘reasonable accommodation’.   The Complainant refused to meet with the Respondent to explore this avenue. The evidence of the Ops Director was that when he asked the Complainant if he was open to alternative roles, the Complainant said, “No my mind is made up”.

The applicable law

Section 6 (1) of the Act states:

“(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..

Section 6 (2) (g) states:

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

(g)   that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).

The Complainant in this case did not provide a comparator to submit that he was treated less favourably than another person who is not a person with a disability or a person with a different disability.  His case is that he was treated unfairly in relation to the Supervisor requiring him to attend at a Plant that caused his condition of dermatitis to deteriorate.  He had further grievances in relation to the Respondent not paying him the remuneration and grade he believes is warranted or at least conducting a favourable pay review.  He went on sick leave following the meeting on 21 June 2024.  

Burden of Proof

The issue here is whether the Complainant has established a prima facie case, that is the establishment of facts from which the burden of proof, which lies in the first instance with the Complainant.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(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 her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found 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 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 was no infringement of the principle of equal treatment”.

In Elephant Haulage Ltd v Garbacevs the Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”  The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

In this instant case, the Complainant was clearly unhappy with his pay and conditions of employment.  The respondent dealt with his medical situation by carrying out a risk assessment and offering not to expose him to risk in relation to hand sanitizers and gloves.  One error was admitted by the Supervisor when he apologised for forgetting the Complainant’s issue and offering to sort out an alternative.  There was no evidence of refusal of reasonable accommodation especially as contained in the HR Co-ordinator and the Operations Director written offers to the Complainant to discuss suitable alternatives.  Training was requested for the Complainant prior to his exit from the employment.

Given the circumstances, I find that the Complainant has failed to discharge the burden of proof as provided for in Section 85A of the Employment Equality Acts 1998-2011 that the principle of equal treatment has not been applied to him.  The Complainant has failed to provide a prima facie case and his complaint of discrimination is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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.

The Complainant has failed to provide a prima facie case and I have decided that his complaint of discrimination is not well founded.

Dated: 13th of August 2025 

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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