ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00053857

Parties:

Complaints:

Date of Adjudication Hearing:  02/07/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 28 of the Safety, Health & Welfare at Work Act 2005   following 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 contends that he was discriminated against on the ground of disability, was not afforded reasonable accommodation and was victimised for having made complaints “a protected act”.

Summary of Complainant’s Case:

The Complainant was one of the founder members of CPD Ventures Limited, trading as Yung Medical Aesthetics, entering into a Founders’ Agreement dated 29 December 2023. In this agreement the Complainant agreed to leave his senior HSE position to become an employee of CPD Ventures Limited and to be remunerated as per the contract of employment.

The Complainant is withdrawing his complaint under the Safety, Health and Welfare at Work Act.

The following claims are advanced:

• Discriminatory victimisation pursuant to the Employment Equality Act, 1998, specifically in relation to his disability, and failure to provide reasonable accommodation.
• The Complainant has also submitted a request for an investigation by a Workplace Relations Commissions Inspector under the Payment of Wages Act for the Respondent’s failure to provide him with a payslip detailing commission payment owed to him. The sum owing to the Complainant is €86,608.

He commenced employment with the company in January 2024, acting as the CEO and employee.

The company was established with three other original shareholders, and the Founders’ Agreement set out the intended share distribution and management structure.  The Complainant was also employed as an Employee of the organisation. In doing so, the Complainant and two other Directors agreed that the Complainant’s remuneration package would include 30% revenue share commission, arising from procedures which the Complainant directly administered and capped at a maximum of €120,000. It was on this basis, that the Complainant agreed his terms with the Respondent.  During his time with the Respondent, the Complainant generated €390,696 worth of revenue sales. This entitled the Complainant to commission totalling €117,208.

The Complainant was paid only €30,600 of this commission. This was comprised of two payments, one in May 2024 and one in June 2024. The remaining €86,608 is outstanding. No payslips for these commissions were ever provided to the Complainant.

During the course of employment, disputes arose regarding the management of the company, including the control of company assets such as an Instagram account, and payments of commission owed to the Complainant.

The Complainant was summarily removed as a director by the company, though the legality of this is in dispute. The company alleged breaches of fiduciary duty by the Complainant at a time when the Complainant was on certified sick leave.

Despite numerous requests, the company failed to provide the Complainant with a payslip detailing the breakdown of his pay and entitlements.

The Complainant was not paid all wages and commission due to him. Based on his contract of employment he avers that he is owed commission and other sums from the company. He also claims that the company discriminated against him based on a protected ground, namely a disability related to stress and depression for which the Complainant was on certified sick leave.

The company, through its Solicitors, threatened legal action against the Complainant in relation to one of Dr Coughlan’s Instagram accounts, further deteriorating the employment relationship.

The Complainant resigned from the company on grounds of constructive dismissal, citing the company’s failure to pay his contractual entitlements, failure to provide him with a payslip, and discrimination against him due to a protected ground.

The complainant’s conditions of stress and depression should be recognised as disabilities under the Acts, given the broad interpretation adopted by the WRC and Labour Court (ADJ-00015888, WRC, 8 Apr 2019; An Employee v Bus Eireann [2003] ELR 351; Mr O v A Named Company DEC-E2003-052). The complainant engaged in a protected act by making complaints or asserting rights under the Acts in relation to his disability. The employer subjected the complainant to adverse treatment following these complaints. Adverse treatment is not exhaustively defined but is accepted to cover a wide range of negative consequences, including disciplinary action, exclusion from benefits, or other forms of less favourable treatment. The causal link between the protected act and the adverse treatment is critical. The “but for” test is applied: would the adverse treatment have occurred but for the complainant’s protected act? (ADJ-00045266 & ADJ-00047456, WRC, 21 Mar 2024).

Once the complainant establishes facts from which victimisation may be presumed, the burden shifts to the employer to prove that the adverse treatment was not in reaction to the protected act (s.85A; ADJ-00048318, WRC, 17 Jul 2024; ADJ-00048049, WRC, 26 Jun 2024).

Summary of Respondent’s Case:

The Respondent company is in liquidation.  A representative of the Liquidator attended the hearing.      No evidence was proffered.

Findings and Conclusions:

The Complainant contends that he suffered discrimination on the grounds of disability, having suffered stress and depression brought about by the circumstances in his employment including non payment of wages.   He also contends that the Respondent failed to provide him with reasonable accommodation to carry out his job, in that rather than supporting him when he was on sick leave, the Respondent threatened him and removed him from his position as Director.  The Complainant further contends that he was victimised for having engaged in a protected act by making complaints or asserting rights under the Act in relation to his disability.

The applicable law

Section 6 (1) of the Act states:

“(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..

Section 6 (2) (g) states:

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

(g)   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”).

The Complainant’s case is that he was not paid all wages and commission due to him.  He also claims that the company discriminated against him based on a protected ground, namely a disability related to stress and depression for which the Complainant was on certified sick leave.

I note the medical certificates presented that the Complainant was suffering from stress and depression during August 2024.  The response from the Respondent was to inform him that he was in breach of his “fiduciary duties”, and to remove him from his position.

The Complainant cited payments on time to a Contractor JV as a comparator.

Reasonable Accommodation

The complaint here is that the Respondent failed to provide the Complainant with reasonable accommodation in accordance with its obligations under Section 16 of the Acts.

Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking their duties.

The Supreme Court in the case of Nano Nagle School -v- Daly [2019] IESC 63 has provided clarification regarding the nature of the obligation on employers to consult with employees when considering the provision of reasonable accommodation within the meaning of Section 16 of the Acts.  In essence, the Supreme Court in this judgement has held that while there is no statutory obligation to consult with the employee it would be wise for an employer to engage in “meaningful participation” in discharging its obligations under Section 16 of the Act.

In this instant case, I find that not only did the Respondent fail to engage with the Complainant it actually threatened him regarding his “fiduciary duties” and removed him from his position as  Director.  I find this element of the complaint to be well founded.

Victimisation

The complaint of victimisation must be considered relates to victimisation contrary to Section 74(2) of the Acts. Section 74(2) of the Acts defines victimisation as follows:

“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 the complainant

….. ….. …..

(f)     an employee having opposed by lawful means an act that is unlawful under this Act….

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

In the case of Tom Barrett v Department of Defence EDA-1017 the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that

(i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”,

(ii) the Complainant must be subjected to adverse treatment by his/her employer and

(iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.   In the instant case I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”.

In this instant case, I find that despite his contention that he was victimised for having engaged in a protected act by making complaints or asserting rights under the Act in relation to his disability, no evidence has been presented to support such a contention.  I note that his solicitor by letter dated 5 September 2024 advised the Respondent’s solicitor of the intention to commence proceedings in the WRC and Courts.  However, this postdates the Complainant’s termination of his employment.         I find this element of the complaint to be not well founded.

It is uncontested that the Complainant suffered from stress and depression.  This condition arose because of the Respondent’s failure to pay him in comparison to payments of contractors who could be said to be in an associated employment.

I find the complaint that the Complainant was not afforded reasonable accommodation to carry out his job and he was discriminated against by the Respondent on grounds of disability.

I find his complaint to be well founded and I order the Respondent to pay to the Complainant the sum of €86,608 for loss of earnings.  I further order the Respondent to pay to the Complainant the sum of €5,000 compensation for the effects of the discrimination.

Decision:

CA-00065810-001            Employment Equality Acts 1998 - 2015

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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.

Based on the findings and reasons above, I have decided that the complaint is well founded.  I order the Respondent to pay to the Complainant the sum of €86,608 for loss of earnings and €5,000 compensation for the effects of discrimination.

CA-00065810-002            Safety, Health & Welfare at Work Act 2005 

This complaint was withdrawn.

Dated:   17-09-25

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: