Complainant

Respondent

Parties

Santa  Musinska

Oak Central Recruitment Services Limited

Complainant

Respondent

Anonymised Parties

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Representatives

 Cleary & Co Solicitors

John Connellan BC Law

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-00064705-002

09/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00064705-003

09/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00064705-004

09/07/2024

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

CA-00064705-005

09/07/2024

The Complainant was employed as a Picker from 16 October 2023. She gave evidence on affirmation at the hearing wherein she complained that she was discriminated against on the grounds of disability, allergic eczema, by the Respondent.  She also complained that she was treated less favorably as an agency workers in relation to access to facilities and amenities and did not receive the same basic working and employment conditions as a comparable worker.

The Respondent is a limited company which is part of the group of companies offering logistic services to a variety of customers. Mr Brendan Hickey, Manager, gave evidence on Oath as did Fiona Savage, Quality Manager and Helen Shoer, Coty Department Team Leader.

There were a number of connected matters with the Complainant issuing complaints against six companies within the Masterlink Group.

It was the Complainant’s evidence that she commenced employment on 16 October 2023 as a cosmetic picker for online orders earning an hourly rate of €11.30 per hour. It was her evidence that soon after commencing employment she began to have a skin reaction and attended her GP who in turn referred her to a Dermatologist. She was diagnosed as having allergic eczema.

She took two periods of sick leave where medical certificates were submitted to the Respondent.

The Complainant’s evidence that she informed the Respondent of her health issues both verbally and through medical certificates. She spoke with Mr Hickey and Ms Shoer, who were aware of her disability.

The Complainant stated was provided gloves, but these did not prevent her condition from worsening, resulting in additional certified sick leave. The Complainant further stated that the Respondent failed to provide assistance or support during her return-to-work attempts and did not relocate her to a different picking area.

The Complainant stated that there was no discussion about moving to a different area in November or at any other time. She confirmed that she had her employment terminated by Mr Hickey on 26 January 2024, recalling that during the termination meeting Mr Hickey said, “I’m sorry, I have bad news. We are letting you go.” The Complainant also mentioned a prior meeting, possibly the day before, regarding her absence from work, where Mr Hickey indicated she was at home and not working. It was the Complainant’s evidence that Mr Hickey said something like “a lot of people will go,” but cannot remember precisely.

Regarding the leaving checklist form, the Complainant stated she did not remember signing it, though she thought she may have signed something.

The Complainant confirmed providing a medical report from her doctor and visiting the doctor when issues began after starting with the Respondent, including itching hands, which led to a dermatology referral. Although the report states the issues began in September 2023, the Complainant cannot recall the exact timeline given to the doctor. The same GP issued the medical certificates for work.

Cross Examination

During cross-examination, the Complainant was questioned about issues raised during employment. The Complainant confirmed discussing problems with their hands, including itching, with colleagues and managers, stating they spoke to Julia, Mr Hickey, and another colleague, as well as Helen Shoer. They explained that they often removed gloves at work to apply cream because their hands were sore. The Complainant’s evidence was this was the first time they had experienced such issues, denying any prior problems with their hands. When confronted with a claim that marks were noticed during the interview, the Complainant disagreed, stating they had no hand issues before starting work, though they had previously experienced facial spots while working as a truck driver.

It was put to her that the Doctor’s report indicated symptoms began in late September, which the Complainant could not confirm precisely but believed occurred after starting work. The Complainant acknowledged providing medical certificates but not full medical notes. They confirmed starting employment around late September or early October.

 It was put to the Complainant that she had pre-existing hand issues which the Complainant denied. It was put to the Complainant that that product volumes decreased during employment and suggested termination was due to reduced work, not medical issues. The Complainant understood this explanation but maintained that dismissal was linked to her absences caused by her hand problems, noting she were frequently at home due to the condition.

The Complainant further explained that the condition affected her constantly, describing it as “annoying all the time,” and that at work they frequently removed gloves to apply cream.

It was Ms. Savage’s evidence that during the interview, she noticed marks on the Complainant’s hands and empathised because she herself had experienced skin issues in the past.

 She recalled the Complainant mentioning previous work on bin trucks and suggesting that might have contributed to skin problems. It was Ms. Savage’s evidence it was definitely the Complainant’s hands at the time. She stated that skin complaints were not common among employees, and she was unaware of any widespread issue. Regarding safety gloves, Ms. Savage explained they are provided primarily for comfort, grip, and to prevent minor injuries like paper cuts when handling cardboard boxes, not as PPE against chemical exposure or spillages. She submitted wearing gloves is a personal choice. Finally, Ms. Savage confirmed that the Complainant never raised any complaint directly with her, despite being informed during induction that health and safety concerns should be reported to her.

Under cross examination Ms Savage confirmed in her evidence that after initially noticing some irritation on the Complainant’s hands on the first day, they did not observe any further issues. They stated that interactions with the Complainant were minimal, limited to casual greetings, and they were not involved in discussions about absences or dismissal, as those matters were outside their remit.

Ms Savage evidence was she unaware of any issues related to low pick rates. She clarified that she did not provide gloves to the Complainant, as this was handled by another person. When asked about company procedures, the Ms Savage explained that if an issue such as a hand infection had been formally reported, it would normally be escalated to them as Quality and Compliance Manager for investigation. However, no such complaint was made, and the matter was never brought to their attention. They emphasised that a formal complaint would have been required for escalation.

Ms Shore’s Evidence

Ms Shore explained that she is the Team Leader in the Coty department and is responsible for training new employees. She first met the Complainant when providing voice training for the warehouse picking headset system.

While training the complainant, Ms Shore noticed her scratching the backs of her hands and asked if there was an issue. The Complainant said her hands became itchy and sore at times. Ms Shore offered her gloves, specifically latex gloves, which the complainant tried on and removed. She then offered palm-coated nitrile gloves, which were also given to her.

Ms Shore clarified that gloves were available to all pickers on an optional basis, with some employees choosing to wear them and others not. She confirmed the gloves provided were the nitrile palm-coated type.

Mr Hickey’s Evidence

Mr Hickey stated that he was aware of the Complainant’s skin issues before her employment commenced, as her sister, who was a driver at the company, had mentioned it during recruitment. To the best of his knowledge, the issue related to the backs of her hands. He denied ever receiving a complaint from the Complainant about her hands and was unaware of any such complaints being raised with others.

He confirmed the Complainant had absences totalling around two weeks during her three months of employment, all certified by medical certificates. One return-to-work form recorded “hand infection” as the reason for absence, which he accepted as genuine. Mr Hickey did not consider the condition to impact her work. Gloves were available, and when she returned from absence, he ensured she had gloves.

He explained that the Coty department became extremely busy in the run up to Christmas, with volumes doubling, and seasonal staff were recruited. After Christmas, business volumes dropped sharply, and staffing was reduced. Two employees left voluntarily, and the Complainant, being the most recently hired, was selected for termination.

Mr Hickey said the Complainant did minimal or no picking work in the last two days before her termination, instead assisting with cleaning and stock preparation. He denied telling her before the termination meeting that she was “at home a lot and not working.” He stated the decision to let her go was due to reduced business volumes, made at a management meeting.

In cross-examination, he confirmed he was aware of her hand condition throughout her employment. He had occasional conversations with her about it, during which she said she had cream and would be fine. He did not escalate the matter to health and safety, move her to another department, or have detailed discussions about adjusting her work. He confirmed her employment was on a permanent contract subject to a six-month probation period and that the probation terms were in her contract.

In response to an inquiry, the Respondent submitted that each of the three witnesses for the Respondent worked for the Respondent stating that “everyone in Clonmel is employed by Oakview Central Recruitment Services”.

CA-00064705-002 and CA-00064705-005 – Section 77 of the Employment Equality Acts 1998 - 2015

Preliminary Matter

The Complainant submitted her complaint to the Workplace Relations Commission (“WRC”) by way of a Complaint Form received on 9 July 2024. By letter dated 12 July 2024, the Complainant’s solicitor was advised that the form was incomplete and could not be processed until a completed form was received. A further letter dated 22 August 2024 was issued, noting that no response had been received and that the complaints could not be progressed. Despite this a hearing date was scheduled.

This matter was initially scheduled for hearing on 19 February 2025. At that hearing, the Complainant sought an adjournment, to which the Respondent consented. However, the application for adjournment was declined on the basis that the Complaint Form lacked any detail, no submissions had been received from the Complainant, and, in the interest of fairness, the Respondent was entitled to be informed of the nature of the complaints against it.

The Complainant proceeded to open her evidence with the clear proviso that the hearing would be adjourned thereafter to allow the Respondent to take full instructions and file submissions. Directions were given for the filing of submissions.

The Complaint Form in this matter indicated three complaints: discrimination on the grounds of disability, and two complaints under Section 25 of the Protection of Employees (Temporary Agency Work) Act 2012. No narrative or further details were included in the Complaint Form.

The submissions filed by the Complainant, dated 7 March 2025, sought to broaden the complaint under the Employment Equality Acts to include discriminatory dismissal, failure to reasonably accommodate the Complainant, and victimisation.

In support of its application, the Complainant relied upon the judgment in County Louth VEC v Equality Tribunal [2009] IEHC 370 where it was held the complaint could be originating document before a statutory tribunal, could be amended “so long as the general nature of the complaint stays the same”

It is also noted- “that this can only be done so long as “the respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.”

MacMenamin J in the Supreme Court appeal of County Louth VEC v Equality Tribunal [2016] IESC 40 held:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

It was the Complainant’s submission that it is permissible to amend a claim, provided the general nature of the complaint remains the same. In this instance, the complaint continues to allege discrimination on the grounds of disability. The Complainant referred to the case of Department of Foreign Affairs v Cullen (EDA116), where the claimant was not permitted to amend her claim to include matters arising after the original claim was lodged, as this would amount to a new claim. The Complainant emphasised that she is not seeking to introduce any such post-lodged claims. Furthermore, the Complainant submitted that an Adjudicator has jurisdiction to consider claims under statutory provisions not expressly cited in the complaint form, where evidence suggests those provisions apply. This authority arises from the mandatory investigative role of Adjudication Officers under the Employment Equality Acts, and this approach has been adopted in previous cases, including A Hair Stylist v A Hair Salon (ADJ-00015823) and A Civil Engineer v A Concrete Manufacturing Company (ADJ-00027348).

The Respondent’s Solicitor was present at the first hearing, was subsequently furnished with the Complainant’s detailed submissions, and was provided with an opportunity to respond. The Respondent also had the opportunity to address these points during the second hearing date but did not raise any objection. It is noted that both parties were legally represented throughout the proceedings and the parties’ evidence was presented at the hearing and cross-examined.

This issue was addressed in detail in the Noel Feeney v Oberstown Children Detention Campus, ADJ-00050420 wherein the Adjudication Officer found:-

“As the WRC form is non-statutory, the general nature of the complaint may also be set out via any representations to the WRC within the requisite time limit subject to any extension of time.  Such a substitution/addition also requires that it is under a statute in which the WRC has jurisdiction and the respondent has been afforded sufficient notice to meet same such that no prejudice is caused.”

While it is unsatisfactory that the Complainant submitted an incomplete Complaint Form, ignored correspondence from the WRC seeking clarification, failed to file submissions in advance of the hearing, and only sought to expand her complaint after the first hearing, I note that the Respondent did not raise any objection or claim prejudice in relation to the amendment of the complaints. Evidence was presented by both parties and cross-examined during the hearings, and no objection was raised by the Respondent on the grounds of prejudice or otherwise. Accordingly, I will allow the complaint to be amended to include claims of discriminatory dismissal, failure to provide reasonable accommodation, and victimisation.

Discriminatory Dismissal

In terms of the discriminatory dismissal, the Complainant’s employment was terminated on 26 January 2024. Her contract of employment provides for one weeks’ notice thereby arriving at 2 February 2024 as the date of dismissal. Therefore, the consignable period for the purposes of Section 77 (5) of the Employment Equality Acts is 6 months from the date of the dismissal; 2 February 2024 to 1 August 2024.

In terms of the compliant relating to failure to provide reasonable accommodation the period in which the Complainant was employed was from 16 October 2023 until 26 January 2024 plus one weeks contractual notice period, 2 February 2024 and at its height where the Complainant succeeds in discharging the burden of proof and the Respondent fails to demonstrate it provided reasonable accommodation, the latest date of discrimination could be 2 February 2024, her last day of employment. Again, the consignable period for the purposes of Section 77 (5) of the Employment Equality Acts is 6 months from the date of the dismissal; 2 February 2024 to 1 August 2024.

Substantive Matter

Discrimination Generally

There are three separate complaints underEmployment Equality Acts 1998-2015 (the “Acts”) and propose setting out the section will apply to all three complaints.

Section 2 defines “disability” as:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

Section 6 of the Acts provides the definition of discrimination:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.”

Section 6 (2)of the Acts sets out the disability ground:-

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

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”),”

Burden of Proof

Section 85A of the Acts sets out the burden of proof:

“(1) where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

Therefore, the burden of proof is on the Complainant to show that he was treated less favourably on account of her disability and was not reasonably accommodated, was subject to victimisation and was ultimately dismissed from her employment.  To this end the Complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

InMelbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Disability

There was a dispute as to whether the Complainant had a disability. Therefore, the first issue to address is whether the Complainant has a disability within the meaning of Section 2 of the Acts.

It was the Complainant’s evidence that she developed allergic eczema on her hands after commencing employment with the Respondent. A medical report dated 8 August 2024 was presented from her treating General Practitioner.

While the Respondent strongly disputes the timing of the onset of this condition, this is not a matter for this Tribunal and should not be conflated with a personal injury claim regarding fault for the eczema. The focus of this complaint under the Acts is whether the condition constitutes a disability for the purposes of the legislation.

There appears to be no case law in this jurisdiction confirming that eczema qualifies as a disability under Section 2. Looking to the Employment Tribunal in the UK for guidance, there are two somewhat conflicting decisions:

In Cobley v Kettering General Hospital NHS Foundation Trust (Case No: 3300907/2024), the Tribunal found that eczema did not satisfy the disability test, although it was noted that insufficient medical evidence had been presented.

In contrast, in Mr J S Sharma v Lagardere Travel Retail (UK) Ltd (Case No: 3300989/2021), the Tribunal found that eczema and dermatitis constituted an impairment and therefore a disability.

Helpful decisions from the Equality Tribunal are discussed in Bolger, Bruton, and Kimber’s Employment Equality Law (2nd Ed., 2022), at paragraphs 7-76 to 7-77. These include Guinane v Tesco Ireland (DEC-E2011-81) and A Worker v A Food Manufacturer (DEC-E2010-187), which suggest that in the absence of medical evidence, a condition is unlikely to be found to constitute a disability.

Section 2 of the Acts, particularly subsections (b) and (c), have been considered:

“(c) the malfunction, malformation or disfigurement of a part of a person’s body.”

The definition of disability is broad. The onus is on the Complainant to establish that her diagnosis of allergic eczema falls within the definition of disability under Section 2 of the Acts.

A medical report was presented by the Complainant, although its contents are disputed by the Respondent. The report was written at the request of the Complainant’s solicitors in August 2024. While such a request is not unusual, the report does not state whether, in the GP’s opinion, the Complainant has a disability for the purposes of the Acts. Although this is not an essential requirement, it is would have been practical given the report was commissioned to support the Complainant’s case.

A recurring issue in this case is that both parties appear to be attempting to address two distinct legal avenues: complaints under the Acts, for which this Tribunal has jurisdiction, and elements of a personal injury claim, for which it does not. The burden of proof differs under each, and it is incumbent on the Complainant to address the complaint she has initiated. This catch all approach   taken by the Complainant has proved confusing.

Medical certificates were also presented, originally furnished by the Complainant but submitted by the Respondent, which do not provide any detail beyond stating that the Complainant was unfit for work on three separate occasions.

The absence of any contrary medical opinion from the Respondent’s Occupational Health Physician, either during the Complainant’s employment or thereafter, is also noted.

The Complainant attended her GP on several occasions, with medical certificates issued on 31 October 2023, 13 January 2024, and 15 January 2024, deeming her unfit to work. Her GP, in his August 2024 report described the skin on her hands in late 2023 as “really really bad,” “very broken,” “itchy,” and “weeping,” to the extent that an “urgent dermatology opinion” was required. Although she did receive this specialist opinion, no report from her Consultant Dermatologist was presented. At the time of the GP’s report in August 2024, it was noted that she had recovered well but still had some rash on her left hand.

Applying Section 6(1)(a)(ii) of the Acts, there is no requirement for the disability to be long term; it may have existed but no longer exist. This interpretation was applied by the Labour Court in Customer Perception Ltd v Gemma Leydon (EED0317), where a temporary injury was held to constitute a disability within the meaning of the legislation.

Having carefully considered all the evidence, I find that the eczema suffered by the Complainant resulted in a malfunction of her hands and amounts to a disability for the purposes of Section 2 of the Acts.

Knowledge of Disability

The Respondent’s witnesses all agreed that they were aware the Complainant had a skin condition—acknowledging that they either saw the reaction on her hands during the interview, were aware that she was frequently taking her gloves on and off in the workplace, or noted her sick leave due to the condition, which was described as a “hand infection” on her return-to-work form in January 2024. No medical evidence was presented by the Respondent. Ms Savage’s own testimony regarding her personal experience of this disability was sincere, and as the Quality Manager, her account provides clear evidence that the Respondent had constructive knowledge of the Complainant’s disability even prior to her employment.

Consequently, I find that the Respondent did have knowledge of the Complainant’s disability.

Having made these findings, the next issue to consider is whether the Respondent reasonably accommodated the Complainant’s disability in the workplace.

Reasonable Accommodation

Section 16(3) of the Equality Acts requires an employer to take appropriate measures, where needed, to enable a person with a disability to have access to employment, to participate in and advance in employment or undergo training. 

The Supreme Court in Nano Nagle v Daly [2019] IESC 63 held that the Section 16(3) of the Act places mandatory duty on the employer to take all “appropriate measures” unless any measure would constitute a “disproportionate burden” for the employer. The employer must demonstrate that they have fully considered the reasonable accommodation question.  Furthermore, the Court held that the test is one of reasonableness and proportionality.

InCunningham v Irish Prison Service [2020] IEHC 282the High Court held: “Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome on the employer and did not impair the operational capacity.”

It was the Complainant’s evidence that she was provided with gloves, but they did not alleviate her skin condition. From her evidence, the Complainant appears to be a resilient individual who did not wish to cause disruption in the workplace.

It is clear that the Respondent had constructive knowledge of the Complainant’s disability from the interview stage and throughout her employment, during which she was offered gloves to protect her hands. However, it was the Respondent’s evidence that these gloves were part of the standard PPE available on site. Despite this, and in light of the Complainant’s repeated absences and return-to-work interviews, the Respondent failed to carry out a risk assessment and/or refer the Complainant for an occupational health review neither of which would have been burdensome.

It is also noted that the Complainant’s medical certificates from her GP did not specify the reason for her absences, nor did she provide any report or guidance from her treating doctors to her employer regarding how she could be reasonably accommodated. The duty to provide reasonable accommodation does not rest solely with the Respondent, particularly where the Complainant was attending her GP and Consultant, who had intimate knowledge of her condition and could have offered an informed opinion to assist her in continuing to work.

In conclusion, I find that the Complainant was discriminated against by the Respondent in failing to reasonably accommodate her disability in the workplace where it was on notice of her disability.

Victimisation

Section 74 (2) defines victimisations for the purpose of the Acts:

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

Having regard to the Complainant’s evidence, I find that there is a complaint of discriminatory dismissal. However, she did not present any evidence to show that this dismissal, or any other adverse treatment, was a reaction by the Respondent to the Complainant taking any of the steps listed from (a) to (g) in Section 74(2) of the Acts.

Consequently, I find that the Complainant was not victimised by the Respondent.

Dismissal

Section 2 of the Acts defines dismissal as:-

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;’

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 note at para. 7-86, “his requires there to be a connection between the disability and the alleged discriminatory acts. This connection is not established by way of motive or intention to discriminate, but rather from the facts before the Tribunal from which it may infer discrimination.” Reliance is placed on the Labour Court determination in A Technology Company v A Worker EDA0714:

“a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable that a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

It was the Respondent’s evidence that, following a decline in demand after the Christmas period and a subsequent management meeting, the Complainant’s employment was terminated due to a lack of available work. Evidence of the decline in sales was presented at the hearing. The Respondent further stated that three employees were hired in October 2023, including the Complainant. Of the three, two resigned, and the Complainant was selected for termination under the terms of her probation clause.

No documentary evidence was presented to support the claim of a seasonal increase and subsequent reduction in headcount after Christmas. When asked whether this was a regular pattern, Mr Hickey acknowledged that customer demand typically declined in January each year.

The Complainant gave evidence that she returned from sick leave and was informed the following week that her employment was being terminated due to excessive sick leave. This was denied by the Respondent.

The Complainant’s contract was a permanent one; not a seasonal contract. It contained a probation clause stating that the first six months of employment would be treated as a probationary period, with provision for extension. In terms of termination, the contract required one week’s written notice from either party “at any time during or at the end of this period, without either party having to give reasons.” Mr Hickey’s evidence was that there was insufficient work for the Complainant.

The Respondent presented an “Employee Leaving Checklist Form” noting the reason for leaving as “Seasonal Work Finished,” with a leaving date of 26 January 2024. There was no evidence that one week’s notice was paid to the Complainant, nor was there a termination letter issued in accordance with the contract. This document suggests the Complainant was on a fixed term contract, which is incorrect, and implies that her termination was unrelated to performance or conduct despite the probation clause being cited by the Respondent at the hearing.

The Respondent offered three different reasons for the Complainant’s termination: the end of a seasonal contract, failure to pass probation, and redundancy due to a downturn in work. For the reasons outlined above, I do not accept that the Complainant was employed on a seasonal contract or that she failed probation.

Regarding the redundancy argument, it is not accepted that, given the nature of the Respondent’s business, there would not be better workforce planning. The annual trend in customer demand should have informed staffing decisions more effectively, rather than a decision being made at a management meeting on 26 January 2024 to terminate the Complainant’s employment on the same day.

Furthermore, Mr Hickey was asked whether alternative employment was offered to the Complainant. It was put to him that she held a driving licence for six different categories of vehicles, yet he did not consider her for forklift driving due to lack of training, nor did he consider redeploying her to another department.

Given the proximity between the Complainant’s sick leave and her dismissal, I find there is an inference of discrimination in the absence of any other rational explanation and the Complainant was dismissed because of her disability.

CA-00064705-003 - Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

Section 1 of the Protection of Employees (Temporary Agency Work) Act, 2012 (2012 Act) defines the following terms:

“employee” means a person who has entered into or works (or, where the employment has ceased, entered into or worked) under a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into or worked) under a contract of employment;

“employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person;

“hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person;

Section 3 of the 2012 Act provides, “This Act applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer.”

In the Complainant’s submissions, she relies on Sections 2, 11, 14, and 15 of the 2012 Act. However, the Complainant did not address any of these complaints in her evidence. There was no evidence presented regarding the basic working and employment conditions, as defined by Section 2(1) of the 2012 Act, either in relation to the Complainant herself or her comparable full-time colleagues.

Moreover, despite clarification from the Respondent regarding the different companies within the Masterlink Group and the presentation of the Complainant’s contract of employment, no evidence was adduced to support her complaint regarding the identity of the hirer and/or the employment agency.

While the Complainant provided detailed legal submissions, she did not provide any evidence to support her complaint.

For these reasons, I find that the complaint is not well-founded.

CA-00064705-004 - Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

The Complainant states in her Complaint Form that she was treated less favourably by her Employer to whom she was hired out as an agency worker in relation to access to facilities and amenities.

Again, for the same reasons as outline above the Complainant did provide any evidence to support this complaint.

For this reason, I find the complaint is not well founded.

CA-00064705-002 - Section 77 of the Employment Equality Act, 1998 - 2015

I find the Complainant was discriminated against by the Respondent.

Dismissal

Having regard to all the circumstances of this case, I am satisfied that the appropriate redress is an award of compensation for discriminatory dismissal on the grounds of disability. I therefore order the Respondent to pay the Complainant the sum of €8,000 for the discriminatory treatment endured. In arriving at this award, consideration has been given to the Complainant’s short length of service with the Respondent, as well as the principle that any award should be effective, proportionate, and dissuasive.

CA-00064705-005 – Section 77 of the Employment Equality Acts 1998 - 2015

Reasonable Accommodation

Having regard to all the circumstance of this case I am satisfied that the appropriate redress is an award of compensation for discrimination on the grounds of disability and failure to provide reasonable accommodation, and I order the Respondent to pay the Complainant the sum of €5,000  for the discriminatory treatment endured.

Victimisation

I find the Complainant was not victimised by the Respondent.

CA-00064705-003 - Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

I  find the complaint is not well founded. 

CA-00064705-004 - Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

I find the complaint is not well founded. 

Discrimination – Agency Worker