Complainant

Respondent

Parties

Wojciech  Szabelski

Grant Engineering (Ireland) Unlimited Company Grant Engineering

Representatives

Seán Ormonde Ormonde Solicitors

Aleksandra Tiilikainen IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015

CA-00058330-001

17/08/2023

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

CA-00058330-002

17/08/2023

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

CA-00058330-003

17/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00058330-004

17/08/2023

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

CA-00058330-005

17/08/2023

The complainant commenced employment with the respondent on 12 June 2015 as a General Operative. He worked 40 hours per week and was paid €530 gross per week. His employment ended on 7 May 2024.

The complainant provided a detailed written submission.

The complainant submits that his problems at work started around 2017, when he began to experience bullying, discrimination and penalisation. However, to provide understanding and context of the complaints being investigated in this adjudication, the complainant outlines the following background.

In 2020 the complainant lodged a complaint with the WRC from which a recommendation was made that the respondent pay the complainant a sum of compensation.  The complainant asserts that because of lodging grievances and the complaints to the WRC against the respondent, he was penalised and discriminated against.

The complainant submits he has been penalised for raising and taking action about workplace conduct and concerns. The complainant has developed stress and anxiety disorder and depression, due to which he was (at time of submission) unable to work. The respondent was contacted by the complainant’s solicitor in July 2023, to confirm that despite him being not fit for work he was fit to engage with a disciplinary process through his solicitor. In reply, the respondent insisted on corresponding directly with the complainant (despite his illness) and outlined that they were refusing to deal with his solicitor’s office. Accordingly, the respondent has taken the position of delaying revealing the outcome of the most recent investigation into the complainant’s complaints until such time as the complainant returns to work. The complainant asserts that this delay in issuing an outcome is purposeful and amounts to discrimination on the grounds of disability.

The complaint submits that for a number of years he was bullied and intimidated, but no proper investigations took place into his complaints.  He was forced to move into the welding area though he did not have the proper training required to do the job.  Because of the problems he was experiencing he made two complaints to the WRC. A hearing took place in May 2023. His complaints were upheld.  The Adjudication Officer’s Recommended included a recommendation that the compliant be paid €3,000.  The complainant submits that the respondent did not undertake any of the recommendations. The current complaints before the Adjudication Officer pertain to the penalisation that occurred after the WRC complaints, referred to above, were made.

The complainant submits that the hostility he experienced intensified after he had made his complaints to the WRC. He attempted to return to work but was told he would have to provide a fitness to return to work cert, in frustration he threw his gloves to the ground; this incident was construed as him throwing gloves at his supervisor, and he was ordered to go home and not to come back for a week. Following union intervention, he was paid for this week. However, an investigation process was initiated thereafter which the complaint asserts was totally flawed.  The complainant was never provided with the outcome of the process. He submits that this episode amounts to further penalisation. 

The complainant submits that on 4 July 2023, the respondent informed him that he was to go forward for disciplinary action.  The complainant sought legal advice at this juncture and his solicitor contacted the respondent requesting particulars of the disciplinary action; the respondent refused to send these to the solicitor. As a result of the above the complainant has developed stress and anxiety disorder and depression, and he is currently certified as unfit to work, the complainant was removed from the payroll when absent from work on certified sick leave.  This had a knock-on effect on him until the eventual of resignation in May 2023.

The complainant submits that a pay agreement was made to increase the basic pay of employees over a three-year period from 2021 to 2023, including retrospection; the complainant has not been paid this increase.  The respondent has said that this is because the complainant was not on payroll as he was out on sick leave. Yet the respondent made absolutely no effort to have the complainant assessed by Occupational Health this of itself amounts to discrimination on the disability ground.

The complainant gave evidence on affirmation at the hearing.

The complainant stated that his complaint to the WRC made in 2020 related to bullying by other employees, not his manager. However, after lodging these complaints he felt his manager penalised him by speaking to him rudely and not getting work so not getting paid. He raised these matters, but he never got answers. He was issued with a Final Written Warning following an incident, in or around March 2021.  He appealed the warning, but an appeal never took place as the respondent told him they never received his document appealing the decision.

The complainant stated that penalisation took place in several way; it could be that he was denied requested days off or moving him from one job to another.  Others were not treated the same way. The atmosphere at work was very bad and it affected his health. The complainant was certified unfit to work in June 2023 due to workplace stress, the complainant stated that his employer was aware of this stress. The complainant stated that he was under investigation in May or June 2023 regarding an allegation that he threw gloves at his supervisor. The complainant stated that he had not thrown his gloves at his supervisor, rather he had thrown them at a wall.

The complainant returned to work with a fit to return to work certificate from his doctor, but he was sent to the canteen for three days. He stated that he was not given any documents in advance of an investigation into the glove throwing allegation. He was not provided with CCTV despite asking for it.  While he was out on sick leave the respondent did not communicate the outcome of the investigation with him of his solicitor.

The complainant gave evidence that while he was on sick leave his employer refused to communicate with his solicitor.

Regarding the allegation of racial discrimination, the complainant stated that he was never provided with an interpreter when he asked for one.  He stated that he needed an interpreter, for instance when the glove throwing allegations were made against him. However, his SIPTU representative was present at three disciplinary meetings. No other employees were treated this way.

Regarding his claim of discrimination on the disability ground, the complainant stated that he has a disability, and he had made his employer aware of it. When asked whether his employer had done anything to make life easier for him at work or whether they could have done anything for him, the complainant replied that he did not remember anything about this. He did say his employer could have had a different approach to him.  He was not aware if any other employees had been treated similarly while on sick leave.

In response to questions put to him in cross examination the complainant stated that he could not remember which letter it was in which he informed his employer that he had a disability.

Regarding not being allowed an interpreter the complainant stated that this happened at a meeting with Mr Tony Fanneran. The complainant could not provide the names of anyone else who had been treated better than him because of their race.

When it was put to the complainant that he had in fact been given the outcome of the investigation into the gloves incident and this outcome was included in his written submission, the complainant stated that [ when he had said earlier that he did not get it] he was not talking about the specific incident he was talking in general.

When questioned about the fit to return to work certificate the complainant stated he could not remember exactly if he had the cert with him when he had returned to work.

When asked by whom he was harassed the complainant stated that he did not remember; that he had been harassed by all his supervisors.

The complainant stated that the last straw was when he went to a supervisor to tell him he did not have enough materials to do his work. The supervisor did not want to listen to him and sent him away, so he went to another area where parts were being made, and the supervisor there called him an “a-hole”. 

The complainant makes several legal submissions including Rotunda Hospital v Gleeson [DDE003/2000];Cork City Council v McCarthy EDA21/2008; in reference to the complaint under the Employment Equality Act, 1998.  Tony and Guy Blackrock Limited v O’Neill [2010] E.L.R. in reference to the complaint made under the Safety, Health and Welfare at Work Act, 2005.

In closing, the complainant’s representative emphasised that the complainant had worked with the respondent for almost 10 years and it was only when the management team changed that he began to experience difficulties.  The complainant raised issues in 2018.  The WRC Recommendation emanating from a particular issue was not followed by the employer and it was from this that the complainant’s problems flowed.  The complainant health suffered as a consequence of the difficulties he was encountering at work and he was only sent to the OHP on the insistence of his solicitor. Despite requesting that correspondence be sent tohis solicitor, the respondent refused; another way of targeting the complainant.

The complainant’s representative that the respondent’s decision not to provide the complainant with the outcomes of the investigations into the grievances he had raised until he retuned to work made matters worse. Not paying him what was due to him on foot of a previous WRC recommendation is another form of penalisation.

The complainant’s representative argued that the complainant had tried to invoke his rights internally and externally and he was punished by the respondent for doing by being disciplined.

About the equality claim, the representative asserted that the respondent did not engage meaningfully in exploring the requirement for any reasonable accommodation that could have assisted the complainant in doing his job.  

There was a continuation of penalisation, going back some time.

The respondent provided a detailed written submission.

The respondent submits that the complainant has failed to particularise in his claim form and submission the details of how he was discriminated, harassed, penalised and victimised for each act; no dates or names were provided.  As such the respondent is prejudiced in its defence of these alleged complaints as it has been denied a reasonable opportunity to investigate. The respondent submits that it is up to the complainant to present, in the first instance, facts from which it can be inferred that breaches of the Acts took place.  It is only when this burden has been discharged that the burden of proof shifts to the respondent to rebut the inference of discrimination. The respondent submits that the complainant has failed to discharge this burden of proof and consequently his claims cannot succeed.

The respondent submits that the complainant was out sick between 5 and 8 April 2023, and when he returned, he was asked, by Mr Fanneran, to provide a Fit to Return to Work certificate as is normal practice. There was an altercation between the complainant and Mr Fanneran during which the complainant threw his gloves, welding sleeve and ear plugs at Mr Fanneran. The matter was being investigated when the complainant went out sick on 19 June 2023.

The respondent accepts that on 11 July 2023, Ormonde Solicitors wrote to them regarding matters relating to the complainant’s employment.  The respondent wrote back to Ormonde Solicitors informing them that they would only deal with the complainant or his union representative on matters relating to his employment.

The complainant attended an Occupational Health Physician (OHP) who deemed the complainant unfit for work.  The OHP concluded that “there are no accommodations that I can currently recommend,”.

The complainant remained out sick. The respondent attempted to arrange another visit for him to the OHP but the complainant contacted the respondent with a note from his doctor confirming he was unfit to attend.  The complainant resigned from his employment with the respondent on 7 May 2024.

The respondent submits in relation to CA-00058330-002 (Employment Equality Act, 1998) that the complainant has failed to outline when and how exactly he was victimised by the respondent. And that he did not suffer any unfair treatment.

The respondent submits in relation to CA-00058330-003 (Safety, Health and Welfare at Work Act,2005) the complainant has not raised any issue that could be considered a protected act as contained in s27(3) and suffered a detriment because of it. The respondent submits that the complainant has not been able to prove that he committed a protected act and no act of retaliation for any such alleged protected act has been specified.

In relation to CA-00058330-004 (Protected Disclosures Act, 2014), the respondent submits that the complainant never made a protected disclosure, nor was he penalised.

In relation to CA-00058330-005 (Employment Equality Act,1998) the respondent submits that the complainant has failed to present facts form which it can be inferred he was treated less favourably than another person, has or would be treated.  He has also failed to provide a comparator. The respondent also submits that the complainant has provided no medical evidence to support his claim of having a disability.  No evidence has been provided of discrimination of the race ground. The complainant has not discharged his burden of proof. He has not been indirectly discriminated against.

Mr Gary Kelly, HR Manager, gave evidence on affirmation on behalf of the respondent at the hearing. Mr Kelly stated that the complainant had been asked to provide a Fit to Return to Work certificate after his absence, as this was company policy, the complainant was treated the same way any other employee would have been treated.  Regarding investigations, Mr Kelly stated that the complainant was provided with an interpreter every time he requested one.  Initially the company had used other employees to interpret for the complainant, however at some stage it got to the point where none of the complainant’s colleagues would accompany him, so the respondent had to get outside interpreters.

Mr Kelly stated that in his referral to the OHP, he had included a mention of the references to depression and stress made by the complainant. Mr Kelly stated that at no time did he ever receive a document from a medical practitioner saying the complainant suffered from a disability. He never received any communications from a medical practitioner stating that the company needed to provide reasonable accommodation in order for the complainant to do his work.

When asked if he was aware of the complainant being treated any differently due to his nationality the witness replied no and expanded to say that there are approximately 300 employees on site and about 25% of these are not Irish born.

When asked whether the complainant had ever raised an internal complaint due to his race or nationality, disability or about penalisation, the witnessed answered, no.  When asked whether the complainant had ever raised a Health and Safety complaint, the witness answered, no.  When asked if the complainant had ever lodged an internal complaint on a protected disclosure, the witness answered, no.

In response to questions put to him in cross examination, Mr Kelly stated that it was not for him to make a medical assessment of the complainant based on an email.  He stated that the OHP had been asked as to whether there was a disability and was a reasonable accommodation required, neither were specified by the OHP.

Asked why he had not dealt with the complainant’s solicitors, Mr Kelly stated that this was the company’s standard practice; they deal with the employee or their union.

The witness did agree that the complainant had raised an issue about his competence to weld but this was not in his opinion a health and safety matter. He denied that the complainant was forced to sign documentation stating that he was competent to weld.

Regarding the claim that the complainant had made a Protected Disclosure, the witness stated that the company has a Protected Disclosures Policy and the mattes raised by the complainant were in line with the Grievance Policy and that is how the company treated them.

Mr Tony Fanneran gave evidence on affirmation at the hearing.

Mr Fanneran denied calling the complainant an “a-hole”, he also rejected the idea that he had prevented the complainant access to an interpreter when he had looked for one. Mr Fanneran stated that the complainant had ever given him a medical statement saying that the complainant had a disability.

The witness was questioned about welding training, and it was put to him that the complainant was asked to sign a document stating he had been trained when he had not been trained. Mr Fanneran stated that the complainant would have been asked to sign a document confirming he was trained.  When asked someone refused to sign such a document, would they be sent home, Mr Fanneran stated that he never had anyone not sign a training document. Asked whether the complainant had refused to sign such a document Mr Fanneran stated that he could not recall.

Mr Leigh Feery gave evidence on affirmation at the hearing.

Mr Feery gave evidence regarding his investigation into the glove incident. He had found the complainant to have been insubordinate and that he acted in a threatening manner. In cross examination he stated that although he did receive correspondence from the complainant’s solicitors he had only replied to the complainant as it was company policy to deal with the employee or his union.

In closing, the respondent’s representative responded to the allegation that the WRC recommendation was not followed as the complainant was out and never did return to work.

Regarding the equality claim, the respondent’s representative that neither in his written submission or in his evidence had the complainant identified a comparator. The allegation that he was denied access to an interpreter when he needed one was countered by the evidence given at the hearing.  The complainant never provided any medical evidence that he suffered from a disability, the OHP’s report did not identify a disability nor did it recommend any reasonable accommodation that should have been made.

The complainant stated that everyone harassed him but when pushed on this assertion he could not say who harassed him.; he never lodged a grievance on this in any case. He did not say how he was victimised under the Employment Equality Act in his evidence.

Regarding the complainant under the Safety, Health and Welfare at work act, 2005. The respondent’s representative put forward that the complainant’s submission did not provide any information on what protected act he committed, the only reference to it in evidence was made by the complainant who stated that he had made a complaint under Health & Safety which had been investigated.

As for the complaint under the Protected Disclosures Act, the respondent’s representative asserted that there was no evidence to support the claim that a protected disclosure had been made, in any case Mr Kelly gave evidence that he was not aware of any protected disclosure having been made by the complainant. Indeed, during the hearing the complainant had stated that his protected disclosure was in fact his own grievance that he had raised with his supervisor.

The representative is of the view that in this instant case the complaints made by the complainant are frivolous and vexatious.

The complainant has claimed he was penalised in contravention of the provisions of the Industrial Relations (Amendment) Act, 2015. Given that this Act only deals with Sectoral Employment Orders however and none of the complaints submitted has anything to do with a Sectoral Employment Order, I find that this complaint is misconceived.

The complaint is not upheld.

In his complaint form, the complainant has submitted that he was victimised for taking an action set out in section 74 of the Act.

“Section 74 of the Act states:

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 considered the written submissions and the oral evidence of the parties to this case I find that the complainant has failed to demonstrate any link between his 2020 complaint and the actions of the respondent in relation to him. 

The lack of cogent evidence from the complainant allied to the explanations forthcoming from the respondent in relation to matters such as the glove throwing incident, the welding training and access to an interpreter bring me to a conclusion that this complaint is misguided.

That being the case, I cannot find in the complainant’s favour.

The complaint is not upheld.

The complainant submits that he was penalised for making a complaint under the above Act.

Section 27 of the Act states:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

I find nothing in evidence that demonstrates that the complainant made a health and safety complaint and if he did in fact make such a complaint that he suffered a detriment because he made it.  Therefore, this complaint must fail.

The complaint is not upheld.

The complainant submits that he was penalised or threatened with penalisation by his employer for having made a protected disclosure under the 2014 Act.

Section 5 of the Act states:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

It is up to the complainant to establish that (a) on the balance of probabilities that he committed a protected act, (b) that he suffered a detriment (c) that having regard to the circumstances, it can be inferred from subsequent events that the protected act was an operative consideration leading to the detriment imposed.

Personal grievances are not Protected disclosures. I find nothing has been adduced that satisfies me that the complainant did make a protected disclosure. Therefore, this complaint must fail.

The complaint is not upheld.

The general rule in the context of the burden of proof is that the burden lies on the party asserting a particular claim.

I have examined whether the complainant has established a prima facie case of discrimination.  The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, 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 continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the complainant has established a prima facie case a three-tier test is employed:

First, the complainant must establish that she is covered by the relevant discriminatory ground.

Second, she must establish that the specific treatment alleged has actually occurred.

Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

In this instant case, no medical evidence of the existence of a disability has been forthcoming. The complainant has failed to establish that he was covered under the disability ground, therefore this complaint falls at the first hurdle.

The matter of discrimination on the race ground does get over the first hurdle as the complainant is not Irish. However, I find no cogent evidence was adduced by the complainant to make me believe he any detriment he suffered, and if he did suffer a detriment, it was linked to his race.  The absence of a comparator only acts to confirm my view that he was not discriminated against by reason of his nationality.

The complainant has failed to establish a prima facie case of discrimination.

The complainant was not discriminated against.

SEO, evidence, prima facie,