ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00056499
Parties:
| Complainant | Respondent |
Parties | Caroline Silva | Bellew Food Company Limited Finnegan's Farm |
Representatives | Neil Cosgrave COSGRAVE SOLICITORS |
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Complaint(s):
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-00068750-001 | 21/01/2025 |
Date of Adjudication Hearing: 08/07/2025
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses presents. The legal perils of committing Perjury were explained to all parties.
The matter was heard by way of remote hearing on 8 July 2025, 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.
Prior to the hearing date the Respondent had sought but was not granted a postponement.
On the day before the hearing the Respondent informed the WRC that neither he nor anyone from the respondent company would be attending the hearing. On the morning of the hearing no one attended on behalf of the respondent company. I allowed the customary 15 minutes to allow for a late attendance but there was a “no show”.
In the circumstances I decided to proceed with the hearing without the Respondent whom I am satisfied was on notice of the hearing.
Background:
The Complainant commenced employment with the Respondent on 10 September 2024 as a Kitchen Operative. Her employment ended on 6 November 2024. She was paid €650 per week. A complaint form was lodged with the WRC on 21 January 2025. In her complaint form, the Complainant submits that she was dismissed for a discriminatory reason. |
Summary of Complainant’s Case:
The Complainant gave evidence on Oath at the hearing. The complainant stated that she started working for the Respondent in September 2024 and initially everything was fine. However, problems began to arise with her General Manager, Ms Y, who would make nasty comments about the Complainant; ‘she seemed to be after me; she always complained about my work and said I trayed up “like a pig”.’ The Complainant stated that she on the 5 November 2024, she started worked at 07.00 hrs. Soon after starting work, she got unwell and felt very weak. She was helped to a changing room by a colleague, but she was told there was no one who could bring her to a hospital. The Complainant gave evidence of attending her doctor and being diagnosed with hypertension. She also stated that she had a blood disorder (documentary evidence of which was provided in the written submission provided by the Complainant’s representative) which had been diagnosed years previously. The symptoms of this disorder include bouts of hypertension, which can result in the sufferer feeling unwell and unable to function properly. The Complainant stated that the Respondent was aware that she suffered from this blood disorder as she had shown the Respondent a card, (copy provided at the hearing) she is obliged to carry indicating she suffers from a blood disorder, when she had previous episodes of being unwell. The Complainant stated that the following day, 6 November, she provided the Respondent with a medical certificate from her GP covering 6 and 7 November (copy provided at the hearing). On 6 November 2024, the Complaint also contacted the Production manager, Ms Y by WhatsApp, to make her aware that she would have to wear a blood pressure monitor for 24 hours and that she had a note from her doctor about this which she would bring with her when she returned to work. The Complainant stated that later that same day she received a response to her Whats App message for Ms Y which stated; “Hi, because of your ongoing absences in recent weeks we need to ensure your safety at work- I would need a fit to work reference. Thanks.” Later the same day the Complainant received another message from Ms Y which read; “Hi Caroline, just talked to my general manager about you and unfortunately we need to let you go, it didn’t work out, sorry about it. Wish you all the best in the future. [name].” The Complainant stated that she wanted to talk to the Respondent about being let go and she sent another WhatsApp message later that day, she got no response from the Respondent to this message. By way of a comparator the Complainant stated that there were two other employees, neither of whom had disabilities, but had very poor attendance records, but they were not dismissed for absence. In closing, the Complainant put forward that it was too much of a mere coincidence that having felt weak and collapsing on 5 November and then on 6 November submitting a medical certificate and telling her employer she would have to wear a blood pressure monitor, that she was “fired”, the same day. It is implausible to believe that the two things were not linked. The sequence of events speak for themselves. The Complainant submits that she has proven a prima facie case and in the absence of any counter arguments her claim must succeed. |
Summary of Respondent’s Case:
The Respondent did not attend the hearing. |
Findings and Conclusions:
Establishing a prima facie case. The Complainant alleges that she was discriminatorily dismissed because of her disability. In a claim of discrimination under the Act it is for the Complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the Respondent. There is a three-tiered test for establishing if the burden shifts to the Respondent which is often referred to as the “Mitchell” test. It provides: - 1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the complainant fails to do so. he or she cannot succeed. 2) If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination. 3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent (Mitchell v Southern Health Board [2001] ELR 201) In this instant case I find evidence has been adduced that raises a presumption of discrimination, for the following reasons: The Complainant has a disability. The Respondent was aware that the Complainant had a disability. The bout of illness she suffered on 5 November 2024, related to her disability. The Complainant was dismissed summarily on 6 November 2024 and this dismissal was linked to her disability. Other employees who did not have a disability but did have poor attendance records were not dismissed by the Respondent. I find the Complainant has adduced sufficient evidence to establish a prima facie case. In the absence of evidence from the Respondent I find the Complainant was discriminated against.
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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.
The Complainant was discriminated against and I order the Respondent to pay her a sum of €7,800 in compensation for the effects of this discrimination. |
Dated: 11th August 2025.
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Prima facie case, discrimination, disability |