CORRECTION ORDER
ISSUED PURSUANT TO SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1998
This Order corrects the original Decision ADJ-00051082 issued on 13/05/2025 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00051082
Parties:
| Complainant | Respondent |
Anonymised Parties | An Executive Assistant | A Company |
Representatives |
| Robin Hyde Alastair Purdy and Co. Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 79 of the Employment Equality Acts 1998-2015 | CA-00062721-001 | 21/03/2024 |
Date of Adjudication Hearing: 26/09/2024
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015following 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 Complainant worked for the Respondent as an Executive assistant. |
Summary of Complainant’s Case:
The Complainant worked for the Employer from 6th September 2023 until 9th October 2023. The Complainant says he was forced to leave his job due to the conduct of his employer or others at work. He obtained an order for payment of his one week’s notice pay against the Employer from the Workplace Relations Commission. The Complainant says he was instructed by the CEO to wait until she came to him on 9th October 2023. He saw his colleagues being given tasks to do, but he was not given any work to do. This was a change from the usual routine. The Respondent’s behaviour, cold tone and facial expressions made the Complainant feel uneasy. The Complainant could hear the CEO chatting to other colleagues and laughing. He felt excluded. The CEO came to see him after 5pm that evening. She shouted at him for ten minutes for not emailing her regarding a colleague’s resignation on 6th October 2023. The Complainant was surprised as he was not requested to forward emails to the CEO previously, or in other resignation situations. The resignation email was emailed directly to the CEO. The shouting escalated into louder and offensive unprofessional swearing by the CEO. The Complainant did not respond. However, due to the constant unreasonable yelling, high turnover rate of staff, and instances of unfair and discriminatory treatment due to his gender and race, he had to protect his mental health. He was forced to hand in his notice and resign. The CEO said the Complainant’s resignation is effective immediately. She asked him to leave immediately and disable his work account. She did not wish him to work out his notice. The Complainant said he was singled out and reprimanded extensively over a resignation which was outside his responsibilities. Meanwhile other colleagues who were aware of the resignation, and Patricia who had access to the CEO’s email were not reprimanded or denied work. The CEO refused to assign him any work demonstrating her intent to remove him from his position. There were other incidents. On 3rd October 2023, he was told to reorganise the entire office and asked to relay it to other staff. The staff were surprised and said the CEO usually asks them directly. The Complainant was left to complete the entire workload himself. The CEO publicly shouted at him for leaving an empty box in the office. He received an email from the CEO about trying to contact him before 5pm saying he had gone home. However, he did not leave until after 5.15pm that day. He did not receive any contact from the CEO about the urgent issue. The CEO imposed a 9-6pm work schedule whereas previously the Complainant had some flexibility to leave early and take a shorter lunch break. The CEO refused to approve the Complainants request for remote working once per week, in contrast with his two colleagues. The Complainant began to feel anxious and worried that he might be dismissed. He was not provided with a proper laptop and monitor and had to use his own laptop. This contrasted with the treatment of other staff. The Complainant was enticed with promises to work on a particular programme, but this was inexplicably postponed. It was in contrast to the Complainants colleagues who were allocated tasks. He was tasked with duties far beyond his job description such as HR, IT support and payroll. His colleagues were not requested to perform tasks outside their job descriptions. The CEO did not answer his calls when urgent issues arose. He had to ask another colleague to intervene who was able to contact her. He felt she selectively responded to communication which hindered his role and left him feeling marginalised and disregarded. The Complainant was asked to send the CEO documents regarding an employee’s dismissal which he sent on 4th October 2023. The CEO rang him ten minutes later in a cold accusatory voice questioning him. He told her the email was unread in her inbox, but she continued to claim it was not received. On 6th October 2023, the CEO said she would be in work later. However, when he spoke to the Manager regarding the time she would be in, the Manager said the CEO was working from home that day. The Complainant says two non-white employees were forced to bring WRC complaints against the company for non-payment and the discriminatory practices are systemic. He was replaced by a white female colleague who was employed on 3rd October 2023, when the treatment he received escalated. The Employer now claims a mistake in the complaint form regarding their registered address. This claim is unfounded, as the same address has been used in previous Labour Court and WRC cases without any delays. It is an attempt to create an excuse for their misconduct and non-compliance with the process. |
Summary of Respondent’s Case:
The Employers representatives submitted a letter of 16th September 2024 objecting to the hearing of the complaint. They submit the Complainant lodged his claim under Section 13 of the Industrial Relations Act 1969, which affords the Employer the right to object to the claim being heard by the Workplace Relations Commission (“WRC”). The Employer only became aware of this case upon receiving direct notice of the Hearing from the Complainant via email on 20 June 2024. Prior to this communication, the Employer had not formally received any notice of the hearing or complaint due to an error in the complaint form, which incorrectly listed the Employers former registered address. This clerical mistake resulted in a significant delay in receipt of the relevant documentation, thereby precluding the Employer from exercising its right to object within the timeframe stipulated by the applicable procedural rules. We understand that procedural fairness, as guaranteed to all parties, includes the right to be properly informed and to have the opportunity to respond or object to any claim made under the Industrial Relations Act. Unfortunately, the address error compromised this essential aspect of due process, effectively prevent the Employer from participating in the preliminary stages of this matter e.g. exercising the right to object to the WRC’s investigation. In light of these circumstances, we respectfully inform you that the Employer will not be attending the forthcoming Hearing. The Employer believes that attending the Hearing under these conditions would be inappropriate and inconsistent with the principles of procedural fairness. |
Conclusions:
I have heard and considered the parties submissions and oral evidence of the Complainant. As this matter involves a dispute pursuant to S13 of the Industrial Relations Act 1969, I am anonymising the identity of the parties to this complaint.
This complaint was received by the Workplace Relations Commission on 21st March 2024. At the time the complaint was received, the address of the Employer was correctly stated on the complaint form. The Employer was notified about the complaint by letter from the Workplace Relations Commission on 15th April 2024 to its registered office address. S 50 of the Companies Act 2014 states: (1) A company shall, at all times, have a registered office in the State to which all communications and notices may be addressed. (2) Particulars of the situation of the company's registered office shall be specified in the statement delivered pursuant to section 21 (1)(a) prior to the incorporation of the company. (3) Notice of any change in the situation of the registered office of a company shall be given in the prescribed form, within 14 days after the date of the change, to the Registrar who shall record that change. On 15th April 2024 when the complaint was notified to the Employer by the Workplace Relations Commission the company was notified at its correct address. The company address was changed by the Companies Registration Office on 30th April 2024 when notice of the company change of address was received. As the Employer was served with the complaint correctly at its then registered office address, I proceeded to hear the complaint in the absence of the Employer’s representative. This complaint is made pursuant to S13 of the Industrial Relations Act 1969. However, in the text it refers to an unfair dismissal due to discrimination on the grounds of race and gender. The Worker also submitted another complaint pursuant to S13 of the Industrial Relations Act 1969 for unfair dismissal under the Unfair Dismissals Act 1977. At the hearing on 26th September 2024, the Worker said he wished to pursue a complaint of unfair dismissal and discrimination on the race and gender grounds against the Employer. As the Employer did not attend the hearing, the Workplace Relations Commission wrote to the Respondents representatives by letter dated 27th September 2024 after the hearing notifying the Worker wished to proceed with a complaint of race and gender discrimination and discriminatory dismissal at the hearing pursuant to S79 of the Employment Equality Act 1998-2021. This is in line with the judgment in Louth VEC v The Equality Tribunal [2016] IESC 40. The Respondent was requested to furnish any written submissions within fourteen days. In response to the WRC’s correspondence of 27 September 2024, the Respondent’s Legal representative submitted comprehensive written submissions on behalf of the Respondent on 1 October 2024, explicitly addressing the proposed reclassification and setting out detailed objections in law. Unfortunately, due to error in the internal processing of the post-hearing submissions these were not considered by the Adjudication Officer. S101 of the Employment Equality Act 1998-2021 provides: (4A) (a) Where an employee refers— (i) a case or claim under section 77, and (ii) a claim for redress under the Act of 1977, to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977. (b) In this subsection— "Act of 1977" means the Unfair Dismissals Act 1977; "dismissal" has the same meaning as it has in the Act of 1977; "relevant date" means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation. As the Complainant cannot pursue two separate complaints of unfair dismissal and discriminatory dismissal at hearing. S101 of the Employment Equality Act 1998-2021 deems the Complainants complaint of discriminatory dismissal to be withdrawn. The Complainant alleges discrimination by the Employer on the grounds of his race and gender, in terms of S6 (2) of the Employment Equality Acts 1998-2015. The burden of proof is set out in Section 85A (1) of the 1998-2015 Acts which provides that: “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.” Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent. S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The “race ground” is defined in the Acts and is that they are of different race, colour, nationality or ethnic or national origins. The “gender ground” is that one is a woman and the other is a man. The Complainant was employed for a number of weeks with the Respondent. He has outlined significant concern regarding a difference of treatment while in employment. He was furnished with written terms and conditions which provided a grievance procedure through which he could have raised allegations of discrimination on the race and gender ground in relation to his computer, remote working and communication issues. No evidence was provided by the Complainant of raising the issues even informally to try to resolve them or clarify expectations. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201considered the evidential burden imposed on a Complainant by section 85A of the Act and stated: “The first requirement is that the claimant 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 is no infringement of the principle of equal treatment.” In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Labour Court stated “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. I am not satisfied that the Complainant has discharged the burden to establish primary facts from which an inference of discrimination based on his race and gender can be drawn. |
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 complaint is dismissed. |
Dated: 30/6/25
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
|
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051082
Parties:
| Complainant | Respondent |
Anonymised Parties | An Executive Assistant | A Company |
Representatives |
| Robin Hyde Alastair Purdy and Co. Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 79 of the Employment Equality Acts 1998-2015 | CA-00062721-001 | 21/03/2024 |
Date of Adjudication Hearing: 26/09/2024
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015following 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 Complainant worked for the Respondent as an Executive assistant. |
Summary of Complainant’s Case:
The Complainant worked for the Employer from 6th September 2023 until 9th October 2023. The Complainant says he was forced to leave his job due to the conduct of his employer or others at work. He obtained an order for payment of his one week’s notice pay against the Employer from the Workplace Relations Commission. The Complainant says he was instructed by the CEO to wait until she came to him on 9th October 2023. He saw his colleagues being given tasks to do, but he was not given any work to do. This was a change from the usual routine. The Respondent’s behaviour, cold tone and facial expressions made the Complainant feel uneasy. The Complainant could hear the CEO chatting to other colleagues and laughing. He felt excluded. The CEO came to see him after 5pm that evening. She shouted at him for ten minutes for not emailing her regarding a colleague’s resignation on 6th October 2023. The Complainant was surprised as he was not requested to forward emails to the CEO previously, or in other resignation situations. The resignation email was emailed directly to the CEO. The shouting escalated into louder and offensive unprofessional swearing by the CEO. The Complainant did not respond. However, due to the constant unreasonable yelling, high turnover rate of staff, and instances of unfair and discriminatory treatment due to his gender and race, he had to protect his mental health. He was forced to hand in his notice and resign. The CEO said the Complainant’s resignation is effective immediately. She asked him to leave immediately and disable his work account. She did not wish him to work out his notice. The Complainant said he was singled out and reprimanded extensively over a resignation which was outside his responsibilities. Meanwhile other colleagues who were aware of the resignation, and Patricia who had access to the CEO’s email were not reprimanded or denied work. The CEO refused to assign him any work demonstrating her intent to remove him from his position. There were other incidents. On 3rd October 2023, he was told to reorganise the entire office and asked to relay it to other staff. The staff were surprised and said the CEO usually asks them directly. The Complainant was left to complete the entire workload himself. The CEO publicly shouted at him for leaving an empty box in the office. He received an email from the CEO about trying to contact him before 5pm saying he had gone home. However, he did not leave until after 5.15pm that day. He did not receive any contact from the CEO about the urgent issue. The CEO imposed a 9-6pm work schedule whereas previously the Complainant had some flexibility to leave early and take a shorter lunch break. The CEO refused to approve the Complainants request for remote working once per week, in contrast with his two colleagues. The Complainant began to feel anxious and worried that he might be dismissed. He was not provided with a proper laptop and monitor and had to use his own laptop. This contrasted with the treatment of other staff. The Complainant was enticed with promises to work on a particular programme, but this was inexplicably postponed. It was in contrast to the Complainants colleagues who were allocated tasks. He was tasked with duties far beyond his job description such as HR, IT support and payroll. His colleagues were not requested to perform tasks outside their job descriptions. The CEO did not answer his calls when urgent issues arose. He had to ask another colleague to intervene who was able to contact her. He felt she selectively responded to communication which hindered his role and left him feeling marginalised and disregarded. The Complainant was asked to send the CEO documents regarding an employee’s dismissal which he sent on 4th October 2023. The CEO rang him ten minutes later in a cold accusatory voice questioning him. He told her the email was unread in her inbox, but she continued to claim it was not received. On 6th October 2023, the CEO said she would be in work later. However, when he spoke to the Manager regarding the time she would be in, the Manager said the CEO was working from home that day. The Complainant says two non-white employees were forced to bring WRC complaints against the company for non-payment and the discriminatory practices are systemic. He was replaced by a white female colleague who was employed on 3rd October 2023, when the treatment he received escalated. The Employer now claims a mistake in the complaint form regarding their registered address. This claim is unfounded, as the same address has been used in previous Labour Court and WRC cases without any delays. It is an attempt to create an excuse for their misconduct and non-compliance with the process. |
Summary of Respondent’s Case:
The Employers representatives submitted a letter of 16th September 2024 objecting to the hearing of the complaint. They submit the Complainant lodged his claim under Section 13 of the Industrial Relations Act 1969, which affords the Employer the right to object to the claim being heard by the Workplace Relations Commission (“WRC”). The Employer only became aware of this case upon receiving direct notice of the Hearing from the Complainant via email on 20 June 2024. Prior to this communication, the Employer had not formally received any notice of the hearing or complaint due to an error in the complaint form, which incorrectly listed the Employers former registered address. This clerical mistake resulted in a significant delay in receipt of the relevant documentation, thereby precluding the Employer from exercising its right to object within the timeframe stipulated by the applicable procedural rules. We understand that procedural fairness, as guaranteed to all parties, includes the right to be properly informed and to have the opportunity to respond or object to any claim made under the Industrial Relations Act. Unfortunately, the address error compromised this essential aspect of due process, effectively prevent the Employer from participating in the preliminary stages of this matter e.g. exercising the right to object to the WRC’s investigation. In light of these circumstances, we respectfully inform you that the Employer will not be attending the forthcoming Hearing. The Employer believes that attending the Hearing under these conditions would be inappropriate and inconsistent with the principles of procedural fairness. |
Conclusions:
I have heard and considered the parties submissions and oral evidence of the Complainant. As this matter involves a dispute pursuant to S13 of the Industrial Relations Act 1969, I am anonymising the identity of the parties to this complaint.
This complaint was received by the Workplace Relations Commission on 21st March 2024. At the time the complaint was received, the address of the Employer was correctly stated on the complaint form. The Employer was notified about the complaint by letter from the Workplace Relations Commission on 15th April 2024 to its registered office address. S 50 of the Companies Act 2014 states: (1) A company shall, at all times, have a registered office in the State to which all communications and notices may be addressed. (2) Particulars of the situation of the company's registered office shall be specified in the statement delivered pursuant to section 21 (1)(a) prior to the incorporation of the company. (3) Notice of any change in the situation of the registered office of a company shall be given in the prescribed form, within 14 days after the date of the change, to the Registrar who shall record that change. On 15th April 2024 when the complaint was notified to the Employer by the Workplace Relations Commission the company was notified at its correct address. The company address was changed by the Companies Registration Office on 30th April 2024 when notice of the company change of address was received. As the Employer was served with the complaint correctly at its then registered office address, I proceeded to hear the complaint in the absence of the Employer’s representative. This complaint is made pursuant to S13 of the Industrial Relations Act 1969. However, in the text it refers to an unfair dismissal due to discrimination on the grounds of race and gender. The Worker also submitted another complaint pursuant to S13 of the Industrial Relations Act 1969 for unfair dismissal under the Unfair Dismissals Act 1977. At the hearing on 26th September 2024, the Worker said he wished to pursue a complaint of unfair dismissal and discrimination on the race and gender grounds against the Employer. As the Employer did not attend the hearing, the Workplace Relations Commission wrote to the Respondents representatives by letter dated 27th September 2024 after the hearing notifying the Worker wished to proceed with a complaint of race and gender discrimination and discriminatory dismissal at the hearing pursuant to S79 of the Employment Equality Act 1998-2021. This is in line with the judgment in Louth VEC v The Equality Tribunal [2016] IESC 40. The Respondent was requested to furnish any written submissions within fourteen days. No submissions were received from the Respondent. S101 of the Employment Equality Act 1998-2021 provides: (4A) (a) Where an employee refers— (i) a case or claim under section 77, and (ii) a claim for redress under the Act of 1977, to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977. (b) In this subsection— "Act of 1977" means the Unfair Dismissals Act 1977; "dismissal" has the same meaning as it has in the Act of 1977; "relevant date" means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation. As the Complainant cannot pursue two separate complaints of unfair dismissal and discriminatory dismissal at hearing. S101 of the Employment Equality Act 1998-2021 deems the Complainants complaint of discriminatory dismissal to be withdrawn. The Complainant alleges discrimination by the Employer on the grounds of his race and gender, in terms of S6 (2) of the Employment Equality Acts 1998-2015. The burden of proof is set out in Section 85A (1) of the 1998-2015 Acts which provides that: “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.” Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent. S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The “race ground” is defined in the Acts and is that they are of different race, colour, nationality or ethnic or national origins. The “gender ground” is that one is a woman and the other is a man. The Complainant was employed for a number of weeks with the Respondent. He has outlined significant concern regarding a difference of treatment while in employment. He was furnished with written terms and conditions which provided a grievance procedure through which he could have raised allegations of discrimination on the race and gender ground in relation to his computer, remote working and communication issues. No evidence was provided by the Complainant of raising the issues even informally to try to resolve them or clarify expectations. The Labour Court in Southern Health Board v Mitchell [2001] ELR 201considered the evidential burden imposed on a Complainant by section 85A of the Act and stated: “The first requirement is that the claimant 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 is no infringement of the principle of equal treatment.” In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Labour Court stated “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. I am not satisfied that the Complainant has discharged the burden to establish primary facts from which an inference of discrimination based on his race and gender can be drawn. |
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 complaint is dismissed. |
Dated: 13/05/25
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
|