ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00055341

Parties:

Complaints:

Date of Adjudication Hearing:  05/03/2025, 13/08/2025, 19/11/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,and/or Section 79 of the Employment Equality Acts, 1998 - 2015,  and/or Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003, 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 complaints were heard over 3 separate hearings.  Sworn evidence was given by witnesses and the opportunity given to cross examine.  The Respondent produced a booklet and the Complainant’s representative submitted some relevant documents and adduced oral evidence from the Complainant.

Summary of Complainant’s Case:

The Complainant’s representative gave detailed oral evidence in support of the complaints, summarised as follows:

Employment Equality Act

The Complainant came to Ireland from the Philippines to work for the Respondent.  His contract specifically stated that if the employment ended “without just cause” transportation to the country of origin would be arranged and paid for by the Respondent.  The Complainant was dismissed from his employment on 17 May 2024 and a flight back to the Philippines on 21 May 2024 was arranged for him.  This it is argued, gave him no opportunity to avail of a right to appeal his dismissal, and in circumstances where he was being sent back home and required to leave the country, this amounted to discrimination on the grounds of race and/or nationality.  It is submitted that in effect, this action by the Respondent did not occur against others in the employment who were of Irish origin.

Fixed term work Act

The Complainant was on a fixed term contract.  It is argued that he received less favourable treatment than a worker on a permanent contract.  The Complainant argues that his repatriation to the Philippines was in contravention of Section 6 (1) of the Act because it amounted to less favourable treatment than a comparable full-time employee.  

Unfair Dismissal

In April 2024 he was absent for a day as his wife was giving birth in the Philippines and he had to be on a video call all night.  It is submitted that the Respondent as an employer did not take this into account.  He argues that he was dismissed for exercising his rights to parental leave and he was therefore entitled to avail of the provisions of the Unfair Dismissals Act 1977. 

Complainant’s evidence

The Complainant gave sworn evidence and was cross examined by the legal representative for the Respondent.

Mr Icaro stated that an Agency hired him in the Philippines to be a Powder Sprayer.  He stated that his understanding of his contract was that if he makes a mistake, he can be repatriated at his own expense, but if the termination of his contract comes about with no proper cause, then the Employer has to pay for his ticket home.  He was dismissed on 17 May 2024 and given a ticket home to the Philippines on the following day.  He felt rushed when given the ticket as he wanted to stay in Ireland.  Migrant Rights in Dublin advised him.  If he took the ticket he could not stay in Ireland.  He believed it was against his contract that the employer paid for the ticket.  He sent an EE2 form to the employer.  He asked them to provide an example of a comparator.  He did not believe that any other nationality would be repatriated and therefore this was discrimination.  

He outlined what happened on 17 May 2024.  He was called to a meeting with a Manager and the HR Manager at 2.15pm after his break and was given a letter of termination of his employment.  He was surprised as all his performance reviews were positive.  He disputed that some of the meetings purported to have happened in January 2024 ever occurred.

Summary of Respondent’s Case:

The Respondent made submissions, summarised as follows:

Unfair dismissal claim

In the ordinary course, for an employee to bring a complaint seeking redress for Unfair Dismissal he/she must have a period of 12 months continuous service with his/her employer.

In that regard, Section 2 (1) of the Unfair Dismissals Act, 1977 (the “Act”) provides that:

“2.(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

• (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him”…

For the Complainant to be able to maintain the Complaint under the Act, he must bring himself within the exceptions provided for in Section 6 of the Act. 

In that regard, Section 6 (2) of the Act provides that:

“6.(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

1. e) the race, colour or sexual orientation of the employee”

In the Complaint, the Complainant states that he was: “discriminated against by reason of my Race.” and so, he purports to engage the provisions of Section 6(2)(e) referred to above.

With respect to the Complainant, however, the Complaint itself does not disclose any specific basis upon which that allegations of discrimination can be maintained by him.

In dealing with the “Specific Details” of the Complaint the Complainant states that his employment was terminated on the grounds that he was: “unsuitable for the role of Sprayer”.

That the Letter of Dismissal states that the foregoing was the reason behind the dismissal is not contested by the Respondent. The “unsuitability” in question arises, however, by virtue of the high level of absenteeism of the Complainant during the course of his employment with the Respondent.

The Complainant then, however, assets that his dismissal was for (in his words) “cause” and seeks to (without more) invite the Workplace Relations Commission to construe that “cause” as having been discriminatory in nature. It is respectfully submitted that the Complainant is not, in the absence, at least, of some credible evidence entitled to being his Complaint within the exception provided for in Section 6(2)(e) of the Act and the Complaint must, accordingly, fail.

In fact, the only matter that Complainant puts forward as a ground for contending that his dismissal was discriminatory is that the Respondent arranged for his repatriation to the Philippines after his employment.

Employment Equality Act complaint

The Respondent submits that the Complaint is so vague and imprecise that it ought, on that ground alone, be dismissed.

At no stage has the Complainant (aside for the issue of the Respondent having arranged for his repatriation) provided any details as to how it is alleged that he was discriminated against on the grounds of his Race.

The Complainant was furnished with a full copy of his Personnel File and it is telling that he has been unable to identify a single meeting or piece of correspondence wherein he alleges, or contends, that the Respondent has discriminated against him.

Moreover, in the course of correspondence prior to the hearing of the Complaint, the Complainant was asked by the Respondent to set out the grounds on which he alleges that he was discriminated against on the grounds of Race. The Complainant never responded to that invitation.

It is submitted that the Complaint is so vague and imprecise that, with respect, the Respondent cannot possibly know what case it has to meet on the hearing of the matter. The Respondent has, as such, been prejudiced in the defence of the Complaint.

The Requirement for a “Comparator”

Generally speaking, it is accepted that if a complainant is to succeed in establishing that he / she has been discriminated against, then it is necessary for such a complainant to identify a similarly placed employee who has been treated more favourably than that complainant where similar (albeit not necessarily identical) circumstances prevail.

The Complainant has not, with respect to him, identified any actual (or even hypothetical) “comparator” against which his dismissal could be deemed to have been discriminatory.

In fact, the evidence to be adduced at the hearing will establish that no such “comparator” exists. That evidence will demonstrate that the Respondent has dismissed both Irish and EU Nationals (who also had less than 12 months service) where similar levels of absenteeism prevailed.

The “Make Up” of the Respondents Workforce

The Respondent places reliance on the evidence to be adduced at the hearing of the Complaint regarding the “make up” of its Workforce.

That evidence will demonstrate that the Respondent employs a large number of individuals from a diverse number of countries including the Philippines.

Evidence will also have been adduced as to the costs to which the Respondent would have gone in order to secure the employment of the Complainant. It is submitted that, having gone to that expense, it is simply illogical for the Respondent to have terminated the employment of the Complainant on grounds of Race.

Absenteeism

The Booklet sets out, in some detail, the high level of absenteeism of the Complainant during the course of his employment.

All told, the Complainant missed a total of six [6] days working days during the course of his employment with the Respondent.

The evidence will have established that none of the Complainants’ absences were on account of medically certified sick leave.

The Booklet will demonstrate that representatives of the Respondent and the Complainant had a number of “Return to Work” meetings after each instance of absenteeism.

At each of these meetings, the seriousness of absenteeism was raised with the Complainant and, in fact, he was issued with a “Warning” with respect to same.

In fact, having been issued with that “Warning” and not withstanding each of the “Return to Work Interviews” referred to, the attendance of the Complainant did not improve. The Complainant was absent from work on two further occasions subsequent to his Six Month performance Review and it is this which ultimately resulted in his dismissal.

The Contract

The Respondent relies on the provisions of Clause 24 of the Contract.

That provision provides that, notwithstanding the fixed term nature of the Contract, the Respondent remained entitled to terminate the Contract upon giving the Complainant the appropriate period of contractual notice. The Respondent reserved to itself the entitlement to pay the Complainant in lieu of his having to work his notice period.

There is, in the absence of the Complainant having 1 year’s continuous service and his failing to establish that his dismissal was discriminatory, no contractual or statutory prohibition on the Respondent having terminated the employment of the Complainant.

It is submitted that the Respondent was entitled to terminate the employment of the Complainant for any reason (other than the statutorily prohibited grounds invalidating a dismissal) prior to his having completed 1 year’s continuous service with it. The Respondent was within its right to adjudge the high level of absenteeism on the part of the Complainant as being sufficient to justify his dismissal.

Evidence of HR Manager

The HR Manager outlined the background of the situation.  The Company is a sub contractor for engineering works.  They employ up to 280 employees, including 142 EU workers and 66 non EU Nationalities. Most of the non EU Nationalities are from the Philippines.  It costs up to €10,000 to hire each employee from abroad and therefore the decision to dismiss any employee is not taken lightly.  In the Complainant’s case, due to his absenteeism he was deemed to be unsuitable and he was met on 17 May 2024 in the company of his Manager and the HR Manager and told he was being dismissed.  His absenteeism amounting to 6 days in 6 months was unacceptable and he had been warned that immediate improvement was required.  He did not apply for parental leave.  The witness confirmed that other employees of different nationalities, including Irish had been dismissed for unacceptable levels of absenteeism.

Evidence of Operations Manager

The Operations Manager gave evidence of the effect absenteeism has on the team.  Sprayer is a key position so attendance is very important.  The Manager spoke to the Complainant on a number of occasions about this and about being absent on 2 consecutive days over a weekend.  He had asked the Complainant to work weekends and take 2 days off during the week.  The Complainant agreed to do this from 13 January 2024 and then went absent on 13 and 14 January 2024.  The witness said he ‘can’t square’ allegations of discrimination with the company’s policies and practices and the fact that they employ many nationalities.  He confirmed that ‘suitability’ covers a range of things including safety, quality and absenteeism.  

Evidence was also given by HR Administrator to confirm she produced the documents outlining the absenteeism  records of the Complainant.

Evidence was also given by the Complainant’s direct Supervisor who confirmed that there was no major issue with his work but that he was told his attendance needed improvement.

Findings and Conclusions:

CA-00067438-001          Employment Equality Act 1998

The Employment Equality Act 1998 prohibits discrimination as between any two persons in employment on the following nine grounds as contained in Section 6 (2) of the Act as follows:

• (a) That one is a woman and the other is a man (in this Act referred to as “the gender ground”).
• (b) That they are of different civil status (in this Act referred to as “the civil status ground”).
• (c) That one has family status and the other does not (in this Act referred to as “the family status ground”).
• (d) That they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”).
• (e) That one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”).
• (f) That they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”).
• (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”).
• (h) That they are of a different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).
• (i) That one is a member of the Traveller community and the other is not (in this Act referred to as “the traveller community ground”).

The Complainant in this case alleges he was discriminated against on the ground of race/nationality/ethnic origin (the ground of race).

Burden of Proof

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(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 her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The complaint here is that the Respondent discriminated against the Complainant on the grounds of race.  His employment was terminated on 17 May 2024.  The termination letter stated that he was ‘unsuitable for the role of Sprayer’.   the Respondent made immediate moves to have him repatriated to the Philippines.  This, the Complainant states was in direct opposition to the clause in his contract which stated that in the event of the employment being terminated for no just cause, the Employer would return the employee home to country or origin at the employer’s expense.  If the employment was terminated for ‘just cause’, in other words because the employee had been dismissed for reason, then the employee would bear the cost of his own return to the country of origin.  The Respondent states that the Complainant had an unacceptable level of sick leave and therefore was unsuitable to continue in the employment.  I also note the difficulties caused by the Complainant’s absences as he did not want to work in the wet spray area.  From the notes of various meetings held he admitted that some of his absences were related to this issue and he had indicated he would go back to the Philippines if he was forced to work in the wet spray area.

The Respondent dismissed the Complainant for absences and arranged for his repatriation at their expense.  The Complainant argues the fact that they bore the cost for his repatriation and denied him the right to stay in the country to appeal his dismissal discriminated against him in circumstances where this would not apply to other employees.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant 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 was no infringement of the principle of equal treatment”.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.  However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, I find that the Complainant has established the facts that the Respondent dismissed him and was arranging repatriation in circumstances not strictly in accordance with his contract.   I accept that this situation would not pertain in relation to Irish employees.

I note the Respondent argued that in the absence of a comparator, the Complainant did not establish a prima facie case and cannot succeed.

On the question of a comparator, in cases involving less favourable treatment, a comparator can be actual or hypothetical. (Determination EDA1310, Henry Denny v Rohan, in which the Labour Court followed the decision of the House of Lords to that effect in Shamoon v Chief Constable of the RUC [2003] IRLR 258).

A hypothetical comparator can be constructed by asking why the complainant was treated as he/she was. If the treatment complained of was because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic. The Complainant in this instant case was dismissed, not given a right to appeal and was given a ticket to send him back home to the Philippines from Ireland. It follows that an appropriate comparator is a person in a similar role who does not have the same or similar race characteristic.   It is well settled that discrimination can arise where similar situations are treated differently or where different situations are treated similarly (see the decision of the Labour Court in Campbell Catering v Rasaq [2004] ELR 310). By application of that principle, at the material time a hypothetical comparator would not be prevented from staying in the country.   A hypothetical comparator in this case is an employee who is not a Filipino.

I find that the burden of proof shifts to the Respondent to prove, on the balance of probabilities that there was no discrimination.

In considering the situation, I note that the reason the Respondent dismissed the Complainant initially and in the dismissal letter it was stated that he was ‘unsuitable’ as a Sprayer.  Then in subsequent correspondence with the Overseas Workers Welfare Administration Office of the Philippines Embassy in London the Respondent stated that there had been a ‘typo’ in the dismissal letter and that he was dismissed for unsuitability which could include absences. There appears to have been a combination of issues which led to the Complainant’s dismissal.  I note the documents on file that indicate the Respondent’s dissatisfaction with the Complainant’s attendance and his reluctance to work in the wet spray area and I have some sympathy for the Respondent’s position.  However, it is noteworthy that the Respondent did not exercise fully the disciplinary procedures including the right to a fair hearing, be represented and right to appeal.  The rapid move to effectively repatriate him indicates that the Respondent treated the Complainant in a different and less favourable manner than another employee.  It follows that in that respect the Complainant was treated differently and less favourably because of his race.

I find the complaint to be well founded.

CA-00067438-002          Protection of Employees (Fixed-Term Work) Act 2003

Section 6 of the Act provides:

6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

In this instant case, the Complainant argues that his repatriation to the Philippines was in contravention of Section 6 (1) of the Act because it amounted to less favourable treatment than a comparable full-time employee.   I find no evidence has been put forward by the Complainant to support this contention.  The Complainant had a fixed-term contract and it was terminated by the Respondent in advance of the expiry date for stated reasons. Those reasons included his unsuitability for the employment because of his absenteeism.  The repatriation was not connected to his fixed-term contract.  The complaint is not well founded.

CA-00067438-003          Unfair Dismissals Act 1977

The Complainant contends that he was unfairly dismissed for having exercised or proposed to exercise his rights under the Parental Leave Act and he therefore is covered by the Unfair Dismissals Act 1977.

It is common case that the Complainant had less than one year’s continuous service with the Respondent.  In order to avail of the provisions of the Act, Section 2 (dd) and Section 6 (2B) must be invoked:

Section 6 (2) (dd) of the Act provides that a dismissal shall be deemed to be unfair dismissal if it results wholly or mainly from:

“(dd) the exercise or proposed exercise by the employee of the right to parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or a request for flexible working arrangement under and in accordance with the Parental Leave Act 1998, or carer’s leave under and in accordance with the Carer’s leave Act 2001.” 

Section 6 (2B) and Section 6 (2C) provides that the Act shall apply to persons covered by 6 (2) (dd) who would otherwise be excluded by paragraph (a) of Section 2 (1).

Section 8 of the Parental Leave Act sets out the notice in writing which must be given to the employer by the employee as being 6 weeks in advance  (emphasis added).   In this instant case, no such notice was given by the Complainant of his intention to take parental leave.  He did not turn up for work on 3 April 2024 and emailed his employer to say he was sorry he could not turn up for work as his wife was giving birth.  I find that this does not constitute the Complainant exercising his right to parental leave.  Likewise, while the Respondent might have considered his absence on the day to have been “force majeure” leave, they did not deem it as such.  I find that the Complainant did not exercise or propose to exercise his right under the Parental Leave Act and therefore cannot avail of the exceptions in the Act and does not have a valid claim under the Unfair Dismissals Act 1977. His complaint is not well founded.

Decision:

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.

CA-00067438-001          Employment Equality Act 1998

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, conclusions and reasons above, I have decided that the complaint of discrimination is well founded and in accordance with Section 82 of the Act I order the Respondent to pay to the Complainant the sum of €6,000 compensation for the effects of the act of discrimination.

CA-00067438-002          Protection of Employees (Fixed-Term Work) Act 2003

Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 requires that I make a decision in accordance with the relevant redress provisions of that Act.

Based on the findings, conclusions and reasons above I have decided that the complaint is not well founded.

CA-00067438-003          Unfair Dismissals Act 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Based on the findings, conclusions and reasons above I have decided that the complaint is not well founded.

Dated:   9th February 2026.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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