Complainant

Respondent

Parties

Mert Calvin Akyuz

GXO Logistics

Representatives

Represented himself 

Maurice Osborne BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00071280-001

02/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00071280-002

02/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00071280-003

02/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00071280-005

02/05/2025

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

CA-00071280-007

02/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00071280-008

02/05/2025

The respondent is a supply chain, warehousing and logistics business.  The complainant was recruited through an employment agency, Staffline Recruitment Ireland Limited (Staffline), and was assigned to a role as a general operative in one of the respondent’s warehouses in Santry in Dublin.  His job involved loading and unloading products, operating machinery, wheeling cages, manual handling and general work.  He started on December 13th 2024 and he resigned on April 29th 2025. 

The complainant’s wages were paid by Staffline and, when he resigned, his hourly rate for days was €14.94 and for €22.42 for nights.

On May 2nd 2025, the complainant submitted eight complaints to the WRC, six of which are considered here.  A complaint under the Transfer of Undertakings Regulations 2003 was withdrawn and the respondent objected to the investigation of a dispute under the Industrial Relations Act 1969.

Two of the complaints listed above are concerned with a claim of discrimination on the ground of disability and I will deal with these together. 

Under the heading of section 5 of the Terms of Employment (Information) Act 1994, the complainant claims that he wasn’t notified in writing of changes in his terms of employment.  He alleges that he was told at the start of his employment that he would be working day and night shifts, but he was only assigned to days, which attract a lower rate of pay compared to nights.  He also claims that he was moved from washing crates to a higher-value job separating lids and buckets and that he had to do weekly cleaning of machines.

In contravention of section 15 of the Organisation of Working Time Act 1997, the complainant claims that, on March 20th 2025, he was forced to work overtime.  In breach of section 26 of the same Act, he claims that he was penalised for making a complaint about being forced to work overtime.  He said that the penalisation occurred when his personal belongings were placed outside the warehouse.

The complainant’s last complaint concerns an allegation that, when he was absent due to illness on April 24th 25th and 26th, he received two days’ statutory sick pay.  He claims that he was entitled to pay for three days.

Chronology Leading to These Complaints

The documents submitted by the complainant include transcripts of a WhatsApp conversation between him and the shift manager, Mr Robert Kearns from the commencement of his employment on December 13th 2024 until April 29th 2025, the day before he resigned. 

On December 15th 2024, the complainant sent Mr Kearns a text message saying that he couldn’t come to work because his stomach was sick and he was feeling weak.  On December 28th, he sent a message to say he had a high fever and that he wouldn’t be in that day.  When he sent Mr Kearns a text message on Monday, December 30th, asking about his roster for the coming week, Mr Kearns replied saying, “You called in sick twice in a few weeks next time you will have to find a new job.”  The complainant argues that this was discriminatory treatment based on disability.

On March 20th 2025, the complainant was scheduled to work from 07.00 until 16.00.  He said that his team leader assigned him to clean a machine.  He said that he informed his team leader that he had an appointment that evening and that he could only stay until his scheduled finish time.  At around 15.45, the complainant had completed the cleaning job when he discovered that a part of the machine was missing.  He said that a colleague who was “not in a managerial position” insisted that he couldn’t leave until the job was finished.  He then informed his team leader that he hadn’t found the part and the team leader told him that he had to stay for 30 minutes and instructed him to find the missing part.  At 16.10, the complainant hadn’t found the part and he said that he had to leave.  When he was leaving at 16.15, he said that he heard a colleague shouting after him in the car park.  The following day, he submitted a complaint for investigation under the company’s grievance procedure.  He asked for an investigation into what he alleged was bullying by his colleague and “unlawful overtime enforcement” by his team leader.

The documents submitted by the complainant show that, at 09.16 on April 9th 2025, he got an email from the recruitment manager in Staffline, Mr Kevin Clarke, informing him that he that he had been offered a contract to work directly for the respondent.  However, at 15.40 the same day, Mr Clarke sent him a second email with a copy of an email from Mr Kearns, informing Mr Clarke that the company was recruiting “only 5 agency staff at the moment” and that they would not be taking on the complainant.  The complainant claims that this is another example of discrimination, because he exercised his right to take sick leave.  The WhatsApp records submitted by the complainant show that, when he sent a message to Mr Kearns to ask if he did something wrong, Mr Kearns replied, “No, we can’t take everyone at the moment, it will be a few weeks before we take you.”

The messages show that the complainant woke up late on Friday, April 18th and, when he sent a message to Mr Kearns, Mr Kearns told him to report for work on Monday, April 21st.  He had permission to take a day off on Wednesday, April 23rd to attend a wedding.  At 06.22 on April 24th, he sent Mr Kearns a text message to say that he was sick.  Mr Kearns sent him a message at 10.17 and 11.56 asking him if he would be at work on Friday, April 25th.  When he didn’t reply, Mr Kearns sent him a message saying, “Take tomorrow off.”  At 12.33 on Friday, Mr Keans wrote, “see you Monday at 7am.”  The complainant didn’t attend work on Monday, April 28th or Tuesday, April 29th.  An email he included in his book of documents shows that, on April 9th 2025, he told Mr Clarke in Staffline that he was looking for work.  In his evidence at the hearing, he said that he started a new job in the middle of May.

The complainant read from a statement he prepared for the hearing.  He said that he commenced working with the respondent on December 13th 2024 through Staffline.  He said that his contract identified the respondent’s premises in Santry as his place of employment and his day-to-day work was directed by the respondent’s managers on the site.  He said that his wages were paid by Staffline.  He said that he was informed that he would be employed directly by the respondent and he had an ongoing expectation that this would happen.  In the end, he didn’t get an offer from the respondent.  He said that when he phoned in sick, there was a change in how he was treated.

Complaints under the Employment Equality Act 1998

The complainant claims that he was discriminated against on the grounds of a disability, when Mr Kearns sent him a text message on December 30th saying that he will have to find a new job the next time he calls in sick.  He claims that he was further discriminated against when he wasn’t offered a job by the respondent because of his sick leave record.

Complaint under the Terms of Employment (Information) Act 1994

The complainant claims that, at the start of his employment, he was informed that he would be working day and night shifts.  He said however, that he was rostered consistently for day shifts, and that he didn’t benefit from the higher night shift rate.  He also claims that his duties at work were changed from crate washing to removing lids from buckets and machine washing.

Complaints under the Organisation of Working Time Act 1997

The first complaint under this heading concerns a claim by the complainant that, on March 20th 2025, he was forced to work overtime.  In his second complaint, he claims that he was penalised for making a complaint about this, when his personal belongings were “suddenly placed outside the facility without my consent.”

Complaint under the Sick Leave Act 2022

The complainant was rostered for work from Monday to Friday, April 21st to 25th.  He was absent due to illness on Thursday and Friday, April 24th and 25th, although he submitted a medical certificate stating that he was ill until Saturday the 26th.  He received two days’ statutory sick pay from Staffline and he claims that he should have received pay for three days.

The respondent’s position is that the complainant has submitted these complaints against the wrong legal entity.  Under the following legislation, the complainant’s employer is the employment agency, Staffline:

The Terms of Employment (Information) Act 1994

The Organisation of Working Time Act 1997

The Sick Leave Act 2022

In line with the definition of “employer” in the relevant Acts, Staffline was responsible for paying the complainant’s wages.  He confirmed this in his complaint form.  He wore a separate uniform to the uniform of the respondent’s permanent staff.  He was not interviewed by the respondent, he was not offered work by them and he hadn’t got a contract of employment with the respondent.  He submitted his timesheets and his sickness certificates to Staffline. 

Complaint under the Employment Equality Act 1998

For the respondent, Mr Osborne acknowledged that the definition of “employer” in the Employment Equality Act is broader than in the other named Acts.  However, he submitted that the complainant’s claims must fail because,

During the short period of his engagement, the respondent was never put on notice by the complainant of a disability;

In terms of a complaint of victimisation, the respondent was never put on notice of any complaint under the Employment Equality Act and therefore, as the first tier of the “but for[1]” test has not been satisfied, there can be no claim of victimisation.

Giving evidence for the respondent, the shift manager, Mr Kearns said that the company sometimes recruits staff from among the agency staff.  He said that, in April 2025, they had an expectation that they would take on a number of agency workers, but they recruited less than they expected.  The HR manager, Ms Carmen Santoro said that the complainant had an expectation that he would be hired directly and that he was clearly disappointed when he wasn’t hired.

CA-00071280-001 and CA-00071280-007:

Complaints under the Employment Equality Acts 1998

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Acts 1998 – 2015 (“the Act”): 

…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section 6(2)(g) “the disability ground” islisted as one of the nine discriminatory grounds.

The complainant claims that he was discriminated against when the shift manager suggested that he would have to look for a new job if he called in sick again.  He claims that he wasn’t offered a job by the respondent because of his sick leave record.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015:

85A – (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.

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than someone who is not disabled.

The Primary Facts

The initial burden of proof in disability cases is not onerous and simply requires a complainant to present evidence that links their disability to less than favourable treatment.  Evidence is required that could lead to an inference that, compared to someone who is not disabled, the treatment of the complainant was unfair.  Apart from the problem that the complainant did not compare his treatment by the respondent to how someone who is not disabled was treated, he presented no evidence that show that he has a disability.  The transcripts of the WhatsApp messages he sent to his shift manager show that, on December 15th 2024, he had a sick stomach.  On December 28th, he had a high fever.  On March 10th 2025, he told Mr Kearns that he couldn’t do his shift because he had a headache from travelling from Galway and he needed to rest.  He couldn’t work the following day because he said that his doctor’s opinion was that his body wasn’t used to the Galway weather.  He didn’t come to work on April 24th following his attendance at a wedding the previous day.

Under the heading “Interpretation,” at section 2(1) of the Employment Equality Act 1998, “disability” is defined as,

(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[.]

Based on the evidence submitted by the complainant, it is apparent that, during 20 weeks that he was assigned to work for the respondent, he suffered from the usual conditions that befall most people on occasions; he had stomach pain, a high temperature, a headache and a bout of tiredness from driving.  While these ailments may cause a physical malfunction or malformation, they are normal, recurring and temporary.  They are not sufficient to be included in the definition of “disability” as intended by the legislation. 

Having reached this conclusion, I must find that the complainant has not discharged the burden of proving that he was discriminated against and the responsibility for proving otherwise does not shift to the respondent.

CA-00071280-002:  Complaint under the Terms of Employment (Information) Act 1994

CA-00071280-003:  Complaint under the Organisation of Working Time Act 1997

CA-00071280-005:  Complaint under the Organisation of Working Time Act 1997

CA-00071280-008:  Complaint under the Sick Leave Act 2022

From the documents submitted by the complainant, it is apparent that his employer was Staffline Recruitment Ireland Limited.  He presented a document headed “Assignment Details Form,” setting out his basic terms and conditions of employment, and this was issued to him by Staffline on December 12th 2024.  Included in his documents is an email from Mr Clarke in Staffline dated April 9th 2025.  Mr Clarke wrote to the complainant saying,

“We are pleased to inform you that you have been offered a contract directly with GXO commencing from April 7th 2025.” 

The shift manager, Mr Kearns wrote to Mr Clarke later on the same day saying that only five agency staff would be recruited, and that the complainant was not among the five.  In his second complaint under the Employment Equality Act, the complainant claims that he was discriminated against when he wasn’t offered a job by the respondent. 

From my investigation of these complaints, it is apparent that the crux of the problem that caused the complainant to contact the WRC is the failure of the respondent to hire him directly.  While I can understand that this caused him to be upset and to feel rejected, as he was not employed by the respondent, his complaints under the legislation listed in this section have been submitted against the wrong respondent.  

CA-00071280-001 and CA-00071280-007

I have concluded that the complainant has failed to discharge the burden of proof which requires him to set out the primary facts that can be relied upon to establish a complaint of discrimination.  Based on this conclusion, I have decided that his complaints under the Employment Equality Acts is not well founded.

CA-00071280-002:  Complaint under the Terms of Employment (Information) Act 1994

CA-00071280-003:  Complaint under the Organisation of Working Time Act 1997

CA-00071280-005:  Complaint under the Organisation of Working Time Act 1997

CA-00071280-008:  Complaint under the Sick Leave Act 2022

As I have concluded that the complainant was not employed by the respondent, I decide that these complaints are not well founded.

Complaints against the wrong entity, discrimination, burden of proof not discharged