ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00052484

Parties:

	Complainant	Respondent
Parties	Desmond Muldoon	Mark Monaghan sole trader

	Complainant	Respondent
Anonymised Parties

Representatives

Darragh McLoughlin and Annemarie Donohoe,

NORTH CONNACHT & ULSTER CITIZENS INFORMATION SERVICE

Brian Joyce

IBEC

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-00064200-001	20/06/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00064200-003	20/06/2024

Date of Adjudication Hearing: 05/02/2025

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral of this matter, by the said Director General, to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose. I confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the sworn/affirmed oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and which has been opened up in the course of the hearing).

In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-

“…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.”

I note that the Complainant herein has indicated that the most recent date of discrimination was the date of his dismissal which was the 22nd of December 2023. The workplace relations complaint form issued just shy of the six-month limit.

Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. No issue has arisen regarding this obligation.

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated the 20th of June 2024) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his disability (as detailed in Section 6 of the 1998 Act (as amended)). The unlawful behaviour complained of includes dismissing the Complainant for a discriminatory reason.

The Operative Section is Section 6 of the Employment Equality Act 1998 where: -

Sub Section (1) For the purpose of this Act…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) (referred to as the “discriminatory grounds”) …

Sub Section (2) As between any 2 persons, the discriminatory grounds ...are…

(g) That one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”) …

In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination and/or the discriminatory dismissal. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act), which can include (where relevant) re-instatement or re-engagement.

Section 85(A) of the Employment Equality Acts of 1998 to 2004 sets out the burden of proof which applies to claims of discrimination. In the first instance, the Complainant himself must establish facts which show that he suffered discriminatory treatment. It is only when these facts have been established that the onus shifts to the Respondent to rebut any inference of discrimination that has been raised. The inference must be such that the Complainant has established a Prima Facie case that he has been treated less favourably than another person is, has been or would have been treated in a comparable situation on one of the recognised grounds of discrimination which in this instance is the “disability ground”.

Prima Facie evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

The Labor Court has an established approach to this issue, and the test for applying the section 85A burden of proof is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):

“..the 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 where 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 is no infringement of the principle of equal treatment.”

Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence. Such evidence might even include a clear objective justification.

In Nevins, Murphy & Flood v Portroe Stevedores (EDA 051) the Labour Court held in adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite:-

“That since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden…. mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.

The Adjudicator must therefore determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of by the Complainant.

In addition to the above, I have allowed the Complainant to formally bring an additional complaint as against the Respondent. I am finding that this is appropriate in circumstances where the narrative of the workplace relations complaint form particularly outlined an intention to bring the claim. I am obliged to the Respondent for conceding this point. The additional complaint comes under Section 27 of the Safety Health and Welfare at Work Act 2005 (referenced in aforementioned Schedule 5) which protects employees from being penalised for having acted in compliance with the Safety Health and Welfare Act (SHW Act), for having performed any duty under the SHW Act, for having made a complaint (or other representation) under the SHW Act (to a safety rep, an employer or the Health and Safety Authority) or who has otherwise engaged in an exercise which might be deemed a protected act for the purposes of compliance with the Safety Health and Welfare at Work Act 2005. An Employer shall not penalise or threaten penalisation in such circumstances.

“penalisation” in the context of s.27 of the Safety Health and Welfare at Work Act 2005 would include (but is not limited to) suspension, lay-off, dismissal, demotion, transfer of duty, imposition of discipline or penalty as well as coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee.

The word “detriment” is given its ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665)

It is noted that Section 27(4) of the Safety Health and Welfare at Work Act provides that penalisation may include dismissal and further specifies that if the penalisation constitutes dismissal the employee may institute proceedings under the Unfair Dismissals legislation and that relief may not be granted to the employee in respect of that penalisation both under this Part and under the UD Acts.

Section 28 of the Safety, Health and Welfare at Work Act 2005 confirms that a decision of an adjudication officer under section 41 of the Workplace Relations Act in relation to a complaint of a contravention of Section 27 of the SHW Act shall do one or more of the following –

- Declare the complaint was well founded.
- Require the Employer to take a specific course of Action.
- Require the Employer to pay to the Employee compensation of such an amount that the Adjudicator considers just and equitable in the circumstances.

The initial burden of proof herein is on the Complainant to establish the existence of both a protected act and a detriment. If and only if the Complainant establishes a protected act and a detriment does the burden shift to the Respondent to put forward evidence that the detriment suffered was not due to the protected act being the operative cause. The case of Paul O’Neill -v- Toni & Guy Blackrock [2010] 21 E.L.R. established that the burden of proof is on a Complainant to establish that on the balance of probabilities

- (a) she/he committed a protected act, and

- (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed.

The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.

The Toni and Guy case establishes the “but for” test in penalisation cases where it states :-

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Section 27(3) of the Safety Health and Welfare at Work Act 2005. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act. This suggestion that where there is more than one causal factor in the chain of events leading to the detriment complained of, then the commission of the protected act must be the operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”

In general terms, Employers have a duty to ensure employees safety health and welfare at work as far as is reasonably practicable. To prevent workplace injuries and ill health, the employer must take certain actions. These include:

- Provide and maintain a safe workplace which uses safe plant and equipment.
- Prevent risks from employees using any dangerous article or substance and from exposure to physical harm, noise and vibration.
- Prevent any improper conduct or behavior likely to put the safety health and welfare of the employees at risk.
- Provide instruction and training to employees on health and safety.
- Provide protective clothing and equipment to employees.
- Appoint a competent person as the organization's safety officer.

Background:

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in circumstances where there was the possibility of a serious and direct conflict in the evidence to be given by the parties named in this complaint, then an oath or affirmation may be required to be administered to any such person giving evidence before me. I confirm that I have administered the said oath/affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 20th of June 2024. In general terms I will therefore be looking at issues that have arisen in the six-month period directly preceding this date – December 21st 2023.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed has is deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”. Refer to the cross examination of each witness if cross-examination occurred.

Summary of Complainant’s Case:

The Complainant was fully represented by officers from Citizens Information. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an affirmation to tell the truth. I was provided with a comprehensive submission which was received on the 17th of January 2025. The Complainant additionally relied on his submission as set out in the Workplace Relations Complaint Form. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was dismissed for Discriminatory reasons relating to his disability. I note that the Complainant withdrew a claim under the Unfair Dismissals legislation early on in this process. I further note that in the complaint form narrative the complainant had indicated the following intention:

“Mr Muldoon makes a complaint under Section 28 of under the Safety Health and Welfare at Work Act 2015. He raised safety concerns with his employer and, as a result, his employment was terminated”

As is correct and proper and in the interests of fairness, I reserved my right to amend the workplace complaint form so as to include complaints (under other employment statutes) which appeared to have been articulated in the statement/narrative, but which had not been specifically particularised by this Complainant. In the circumstances I have allowed the Complainant to make a complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent was represented by the business representative group known as IBEC. The Employer MM gave evidence on his own behalf. Another witness (PM) gave evidence in support of the Employer. The Respondent provided me with a written submission (together with appendices) received on the 29th of January 2025. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making his case. All evidence was heard following an Affirmation. The Respondent and his witness were cross examined as appropriate.

The Respondent rejects that there has been any discriminatory treatment and further rejects that there has been any penalisation of the Complainant.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

I have carefully considered the evidence adduced in the course of this hearing.

The Respondent is a dedicated parcel delivery company covering the Cavan and Monaghan regions. The Respondent’s depot is based in Cavan, with circa 40 employees. The Respondent MM effectively holds a franchise to operate under the DPD banner.

The Complainant came to work for the Respondent in May of 2022. He was engaged as a courier driver and was responsible for a wide range of deliveries from pharma to household goods. The Complainant had previously worked in a similar parcel delivery company (DPD) in Collon, Co. Louth. He had worked the previous job for four years before the transfer over to the Cavan Monaghan depot in 2022.

As I understand it, the Complainant had worked as a driver in Collon using a UK driver’s licence. This had not been an issue in that depot and the Complainant moved to Cavan/Monaghan on that basis. The Complainant says he got on well in the new position and there were no issues for the first six or seven months.

The Complainant found that he was doing quite a lot of work on behalf of one customer in particular. MC Blinds operated out of Castleblaney, and the Complainant was dropping and collecting huge and heavy rolls of fabric for them. This was a key account for DPD in the area. He gave evidence that these rolls could be extremely difficult to carry and lift. Large consignments would be dropped off at the depot and very often the Complainant would be expected to load these up on his own. I understand at the drop off in MC Blinds, that there were usually a few people present to assist with the unloading. The Complainant raised the issue with management in the depot and is positive that he had certainly addressed the issue in early May of 2023. His line manager told him that he’d refer the issue up to MM. However, MM never came back to the Complainant. Instead, the Complainant went directly to MM on the 14th of June 2023 suggesting that perhaps MC Blinds might be asked to come and collect theses blinds from the depot. He says MM rejected this suggestion. The Complainant suggested that the fabric rolls could be stored on a height so that the Complainant could slide them into the back of his truck as against being left on the ground forcing the Complainant to raise them up himself.

The Complainant raised the issue again with the DPD area manager PM. This happened on the 21st of June 2023 and again on the 18th of July. PM appeared to agree with the Complainant and said he would talk to MM and accepted assistance was needed. PM suggested that shift workers coming off morning sorting shift might be kept back to assist. PM gave evidence that every depot tried to operate a “buddy” system so that there was always help on hand. He did concede however that this was not a formal policy and was not available in print. PM gave evidence that in his conversations with MM he was advised that there were always plenty of people around to assist the Complainant who was fully trained up in manual handling.

When the issue was again raised with MM on the 23rd of June 2023, MM said he was welcome to go and find one of the morning sorters to assist when he came in. Leaving it to the Complainant to sort out the problem. MM gave evidence that the Complainant knew where to get help if needed but was always inclined to work on his own.

The Complainant accepts that during this same timeline another workplace issue was also brewing concerning the validity of his driver’s licence. It is important to note that the Contract of Employment specifically states that:

Upon commencement of employment, you are required to have a full, clean drivers licence. It is your responsibility to drive within the law. Any material change in your licence must be reported to our office within 7 days both verbally and in writing.

Further along in the Contract it states:

As you are required to drive in the course of your duties it is a condition of your employment that you must have a current full Irish/EU driving licence held for two years. You must produce this driving licence for examination by the company at any time.

I am satisfied that the Complainant knew or ought to have known that his ongoing employment as a driver was in jeopardy if it was determined that he did not have a valid driver’s licence. The Complainant confirmed that both MM and PM were raising an issue with the UK licence that he had provided and that he was purportedly driving under. After all, he reasoned, that he had been driving under this same licence in the previous employment from whence he had transferred. Specifically, his employer in Cavan/Monaghan was now concerned that their own motor insurers would repudiate liability if an accident happened and it was disclosed that MM had employed someone who was driving without a valid licence. PM says that he happened to consider the driver’s licence as early as June of 2023 when he was performing a workplace audit on behalf of DPD. He says that at time that he brought it to the Complainant’s attention that the licence was manifestly out of date by eight years. He says that part of the conversation he had had on the 21st of June was to chase up the issue of the licence. PM says that the Complainant had indicated he had no time to renew his licence. The Complainant seemed to think that there was no problem with his driver’s licence.

The Complainant confirmed that he had a conversation with MM and PM on the 25th of July 2023 at which time they confirmed that it was their absolute understanding that the Complainant’s UK Driver’s licence was out of date, and the Complainant’s interpretation of his own Licence was incorrect. It was put to the Complainant that he needed to sort this problem out. The Complainant says that he had already made enquiries (with the National Driving Licence Service) and that he was at that time intending to update to an Irish licence and knew he had to do a number of things including having a full medical, get a utility bill and bank statement and fill out and post the form. The Complainant had seemingly put this job on the long finger even though it was an essential element of his job specification.

The Complainant suggested that he had relied on the advice given by a member of the Garda Siochana who had said his licence was valid, though was unable to provide written verification of this assertion when he was asked for same. The Complainant said that he would sort the problem out over the course of his upcoming annual leave.

Unfortunately for the Complainant, events overtook him. On the 11th of August 2023, some three months after the Complainant had first started to raise an issue over the weight of the material rolls, the Complainant did himself an injury lifting one of 17 rolls from the ground up to chest level and into the van. The Complainant says he knew immediately that his leg had sustained an injury as a result of the body contortion he had to perform as part of his work.

The Complainant says that MM was aware that the Complainant had hurt himself but allowed the Complainant to perform his day of work in the usual way.

MM did give the Complainant a lift home that night after a discussion concerning the need to detail the incident in the accident report book.

The Complainant happened to be on annual leave thereafter. The Complainant noted that he had always intended using this period of paid leave to get his driver’s licence issue sorted out. At the start of the leave and as his leg got worse, the Complainant was obliged to attend with a GP. An MRI scan was arranged which confirmed that there were torn tendons in the Complainant’s knee. The Complainant kept his employer notified of the developments and was certified sick from the 21st of August to the 4th of September. The employer was anxious to know if the Complainant would be back for the busy Christmas period. The Complainant went onto disability benefit and eventually had an operation on his knee at the beginning of December 2023. The Complainant was aware that he would be on crutches for a considerable period and thereafter his knee would need rehabilitation.

Quite out of the blue, on the 21st of December 2023 the Complainant received a letter (dated the 18th of December) from his Employer stating:

This notice is to inform you Desmond Muldoon that your employment with DPD Cavan and Monaghan will end on Friday the 22nd of December 2023.

Your employment has been terminated for the following reason:

No driving licence produced, and no person can drive a mechanically propelled vehicle in a public place unless they hold a valid driving licence.

I note a right of appeal was given albeit with a tight deadline. The Complainant did not avail of this right of appeal and did not seek an extension of time to submit an appeal.

MM gave evidence that as Christmas was approaching, he certainly needed to fill the Complainant’s role although he would always recruit extra staff at that time of the year anyway. MM stated that the issue of the Complainant’s invalid driver’s licence had now been known to him for over six months. He had always understood that the Complainant was going to sort the issue out when he was taking annual leave in August of 2023. Whilst MM had no way of knowing whether the Complainant had acquired a new licence, it is clear that the Complainant did not produce one in response to the letter of dismissal. I accept therefore that the Employer was entitled to assume (albeit after the termination has been delivered) that the Complainant did not have a valid driver’s licence as of the 22nd of December 2023.

I am further satisfied that it is a fundamental pre-requisite in the performance of the duties of a driver, that the driver hold a current full and valid driver’s licence in the relevant category of vehicle. The Complainant herein did not have one and had not had one for the five years preceding the termination of his employment.

It is an unfortunate fact that the complainant had not been particularly alive to the seriousness of the situation and had not made the time, during his convalescence, to obtain a driver’s licence. He had assured his Employer that he intended getting this job done in August of 2023.

It was in the absence of the production of the said driver’s licence that the employer determined in December of 2023 that, as he said, he “needed to move on”. To my mind, given the seriousness of the situation the Complainant’s employment should have been suspended as far back a July of 2023 given the fact that this was driver driving without a valid licence.

I do not particularly care for the manner of the dismissal nor the timing (being that it was Christmas week), but there is nothing to suggest that the fact that the Complainant was at that time nursing an injury that might be considered a disability was a factor to the final decision. DPD and its Franchisees can and should only engage drivers who are legally entitled to drive on the public highways on their behalf.

I am therefore finding that the Complainant has not made out a Prima Facie case of discrimination.

Having regard to the claim under the Safety Health and Welfare at Work Act 2005 I find that I am bound to consider the case of Paul O’Neill -v- Toni & Guy Blackrock [2010] 21 E.L.R. . On balance I am satisfied that detriment suffered (the dismissal in this case) was not due to the protected act being the operative cause. Whilst I can accept that the Complainant has raised an issue which might be classified as a protected act (concerning the health risk of carrying heavy items) I am not satisfied that the detriment must have been incurred in retaliation for the Complainant having made the protected act. As stated:

“This suggestion that where there is more than one causal factor in the chain of events leading to the detriment complained of, then the commission of the protected act must be the operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment”

On balance the Respondent had to terminate the employment because the Complainant was not in a position to continue performing his role in the absence of a driver’s licence. The termination was inevitable in circumstances where the Complainant had not made any effort to apply for a new and valid licence. Having a valid licence was a contractual imperative fundamental to this employment relationship.

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.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064200-001 - The Complainant was not discriminated against by reason of his disability

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00064200-003 – The complaint herein is not well founded and the Complainant was not penalised for having made a complaint to the Employer under the SHW Act.

Dated: 14th July 2025

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Key Words: