ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055512
Parties:
| Complainant | Respondent |
Parties | Ilavinio Vicente | Apcoa Parking Ireland Limited |
Representatives | Dominic Carthy | Peter Dunlea Peninsula Business Services |
Complaint(s):
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-00067568-001 | 21/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00067568-002 | 21/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00067568-004 | 21/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00067568-005 | 21/11/2024 |
Date of Adjudication Hearing: 16/06/2026
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant commenced employment with the Respondent the 3rd of May 2022 as a Parking Enforcement Officer, and he continues to be so employed. The claims the subject matter of this decision arose from the following series of events. On the 4th of April 2024 the Complainant received a Written Warning. He did not appeal this warning which related to performance issues. Further disciplinary issues arose leading to a disciplinary hearing chaired by Mr. Tom Kelly DPS Account Manager on the 24th of May 2024. Following this meeting the Complainant received another Written Warning dated the 10th of June 2024, in respect of: 1. Un-due care and attention to [his] work 2. Continued uncertified leave 3. Failure to inform [his] supervisor in writing by email of [his] absences
I shall refer to disciplinary meeting and the warning which issued after it collectively as the “the May 2024 Disciplinary”
An internal appeal was initiated and pursued by the Complainant against this written warning in accordance with the Respondent’s disciplinary procedures. As part of the appeal process the Complainant submitted a three-page letter setting out detailed grounds of appeal. This letter was dated the 16th of June 2024. An appeal hearing took place on the 18th of June 2024 chaired by Ms. Chelsea Smith HR Manager following which the warning was upheld on the 26th of June 2024. I shall refer to this meeting and its outcome collectively as “the June 2024 Appeal”. On the 10th of July 2024 the Complainant initiated a referral to the WRC pursuant to Section 13 of the Industrial Relations Act 1969, hereafter referred to as “the July 2024 IR Referral” taking issue with the process that had been conducted by the Respondent up to and including the June 2024 Appeal.
On the 8th of October 2024 the Complainant was notified of the following further disciplinary charges: “Continued uncertified leave, seven instances from July in 2024, dates involved: 10/07/24, 15/07/24, 02/08/24, 21/08/24 to 22/08/24, 23/09/24, 01/10/24 and 03/10/24 to 04/10/24.
This follows after you received a written warning in relation to your absences on 10/06/24.” These charges were put to the Complainant at a disciplinary hearing which took place on the 10th of October 2024 leading to a “Stage 3 Final Written Warning” dated the 17th of October 2024 citing as the basis of the warning: “Continued uncertified leave”. The letter went on to say: You are expected to reach the required standard of conduct by 31/12/24, at which time the Company will review the situation. However, the Company expects to see significant improvement before that date.
Please note that if you fail to reach the required standard of conduct further action will be taken under the Company’s disciplinary policy which may lead to your dismissal from employment. This warning will cease to have effect after a period of six months, provided I am satisfied that your conduct has reached the required standard.
I shall refer to this process, i.e. the disciplinary meeting on the 10th of October and the Stage 3 Final Written Warning dated the 17th of October 2024 collectively as the “the October 2024 Disciplinary”. The Complainant delivered a written appeal against this Final Written warning on the 18th of October 2024.
On the 21st of October 2024 the July 2024 IR Referral was listed before me for hearing. The Respondent’s representative was unavailable and an adjournment was granted.
On the 4th of November 2024 a date for the appeal hearing was set by email from Mr. Paul Nolan, General Manager – Parking, to the Complainant. An Appeal Hearing in relation to the October 2024 Disciplinary was conducted by Mr. Nolan on the 10th of November 2024 leading to a final outcome dated the 18th of November 2024, which affirmed the Final Written Warning. This process will be referred to as “the November 2024 Appeal”.
On 21st of November 2024 the Complainant initiated a number of claims and IR referrals to the WRC. The phrase ‘rights-based claim’ is used to denote a claim invoking a legally enforceable remedy as distinct from a referral leading to a recommendation pursuant to the Industrial Relations Act 1969
1. A Referral seeking a recommendation pursuant to Section 20 (1) of the Industrial Relations Act 1969. “The November 2024 IR Referral”. This referral was subsequently withdrawn as discussed below. 2. Two ‘rights-based’ claims alleging penalisation pursuant to Section 20 (1) of the Industrial Relations Act 2015. These claims were duplicates and one was withdrawn as a result (see below). 3. A ‘rights-based’ claim pursuant to the Employment Equality Act 1998 (as amended) alleging Harassment on the Ground of Race. This claim was withdrawn at the conclusion of the adjudication hearing (see below) 4. A ‘rights-based’ claim pursuant to the Employment Equality Act 1998 (as amended) alleging discrimination on two separate grounds: Race/Language and Disability. This claim was allocated a single CA reference number, but it involved two separate claims. Those claims are both dealt with under a single CA reference number (see below).
All the above were allocated to ADJ-00055512. A Case Management hearing took place on the 16th April 2025 and directions as to submissions were issued.
A further claim was initiated by the Complainant in May 2025. Two claims were initiated which were duplicates. As a result, one was withdrawn and the other proceeded which was allocated WRC File Reference: ADJ-00059292.
A further Case Management Hearing took place on the 24th of June 2025, and a hearing date was set for the 18th and 19th of September 2025 but was postponed by the WRC.
A full hearing in relation to all claims took place in Lansdowne House over four days on the 24th and 25th of November 2025 and the 16th and 17th of June 2026. The present decision deals with all current claims with the exception of ADJ-00059292, which is the subject matter of a separate decision.
The Complainant and his Representative gave evidence. On behalf of the Respondent evidence was given by Mr. David Dunne, The Complainant’s Line Manger, Mr. Tom Kelly, Contracts Manager, Ms, Chelsea Smith, HR Manager and Mr. Paul Nolan, General manager – Parking.
All witnesses gave evidence on affirmation. |
Summary of Complainant’s Case:
The Complainant made a number of claims and a number of detailed written submissions which gave rise to a degree of confusion and necessitated a number of Case Management hearings. The matter was complicated by the fact that a number of claims were initiated in duplicate and the duplicates were withdrawn and other claims which had been initiated were subsequently withdrawn for other reasons. The Respondent delivered a number of written submissions in response to those delivered by the Complainant. At the conclusion of the hearing the parties made closing submissions on each of the claims in respect of which a decision was required. For the sake of clarity these submissions which deal with the individual claims made are presented and discussed in the Findings Section of this decision. |
Summary of Respondent’s Case:
The Complainant made a number of claims and a number of detailed written submissions which gave rise to a degree of confusion and necessitated a number of Case Management hearings. The matter was complicated by the fact that a number of claims were initiated in duplicate and the duplicates were withdrawn and other claims which had been initiated were subsequently withdrawn for other reasons. The Respondent delivered a number of written submissions in response to those delivered by the Complainant. At the conclusion of the hearing the parties made closing submissions on each of the claims in respect of which a decision was required. For the sake of clarity these submissions which deal with the individual claims made are presented and discussed in the Findings Section of this decision. |
Findings and Conclusions:
Summary Of Claims The Complainant’s representative made a closing submission which was expressed in terms which were similar to those set out in a written submission which was made prior to the final hearing dates. Included in that submission was CA-00067568-005 – which was advanced at that stage as a claim for Harassment on the Race Ground. However before the hearing concluded the Complainant withdrew that claim. The other claims in respect of which a decision was sought were as follows: CA-00067568-001 the Complainant’s representative made closing submissions in relation to two separate claims pursuant to the Employment Equality Act 1998 (as amended) both of which were associated with the same CA Reference as follows: Race Discrimination (Language Accommodation) Disability Discrimination (Secondary Reliance) CA-00067568-002 – Penalisation for Referring a Complaint to the WRC pursuant to Section 20 (1) of the Industrial Relations (Amendment) Act 2015 A fourth Claim was made alleged Harassment on the Ground of Race. CA-00067568-005. This claim was withdrawn at the conclusion of the hearing.
The Complainants submissions in relation to each of these claims (with the exception of the harassment claim which was withdrawn) was as set out below. Discrimination – Race/Language It was submitted that the Complainant was discriminated against on the race ground by reason of language difficulties associated with his Portuguese speaking background which thereby placed him at a disadvantage compared to employees whose first language was English. The Complainant contends that he was subjected to discrimination on the race ground during the appeal process relating to the Final Written Warning. The Complainant's first language is Portuguese and he maintains that he experiences difficulties engaging with complex disciplinary and employment matters in English. In advance of the appeal hearing, on or about 6 November 2024, the Complainant requested that the process be conducted in writing, or alternatively that questions be provided in advance, in order to allow him a reasonable opportunity to understand and respond to the allegations being made against him. These requests were refused and the appeal proceeded in the format determined by the Respondent. The Complainant further states that during the appeal hearing itself he encountered difficulty engaging with the process in English and renewed his request for the hearing to be conducted in writing. He contends that this request was also refused. The Complainant contends that, as a consequence, he was placed at a disadvantage when compared with a hypothetical comparator whose first language was English and who would not have faced the same language barriers when attempting to understand, participate in, and respond to the matters under consideration during the appeal process. The Complainant maintains that the refusal to facilitate his requests hindered his ability to effectively engage with the appeal process and restricted his ability to fully present his position in response to the allegations being considered. The Complainant relies upon the race ground on the basis that language is intrinsically linked to nationality, ethnic origin and national origin. The complaint is not that the Complainant was treated differently because he requested a written process, but that the request arose directly from the language difficulties associated with his Portuguese speaking background and the fact that English is not his first language. The point was made that the provision of a facility to conduct the appeal in writing would not have imposed a disproportionate burden on the Respondent and no basis for the refusal of this facility was provided by the Respondent. The Complainant contends that the language difficulties identified during the appeal process cannot be separated from the protected characteristic relied upon and form the basis upon which the alleged less favourable treatment occurred. Discrimination – Disability Complaint The Complainant contends that he was subjected to less favourable treatment arising from concerns relating to his mental health and wellbeing during the course of his employment. The Complainant repeatedly informed the Respondent that he was experiencing stress, anxiety, sleep disturbance and other symptoms which he attributed to workplace conditions, including exposure to racial abuse, threats and workplace hostility encountered during the course of his duties. The Complainant maintains that these issues were impacting his attendance at work and were brought to the attention of the Respondent on a number of occasions. The Complainant further maintains that the Respondent was afforded opportunities to investigate those concerns, including through referral to Occupational Health, but failed to do so. The Complainant contends that, notwithstanding the Respondent's knowledge of the concerns being raised, disciplinary action continued in relation to absences which he attributed to those underlying health issues. Disability Ground The Complainant acknowledges that the question of whether the conditions complained of satisfy the statutory definition of disability within the meaning of the Employment Equality Acts remains a matter for determination by the Commission. The Complainant's position is that the Respondent was aware, or ought reasonably to have been aware, of the symptoms and concerns being raised and was afforded opportunities to investigate those concerns further but failed to do so. Matter for Determination The issue for determination is whether the Respondent's treatment of the Complainant, including its response to the health concerns raised and its approach to absences attributed to those concerns, amounted to discrimination on the disability ground. Penalisation Pursuant to Section 20 (1) of the Industrial Relations (Amendment) Act 2015 The Complainant contended that the timing of the October 2024 Disciplinary raised the inference of penalisation against the Complainant for having made the initial Industrial Relations Referral (the July 2024 IR Referral) following the Disciplinary and Appeal in May and June 2024 respectively.
Respondent’s Closing Submission The concept of “language accommodation” is unknown to Irish law and is not specifically provided for anywhere in the Employment Equality which only recognises the concept of reasonable accommodation in respect of a disability. In any event the Complainant did not identify any aspect of the disciplinary process which he did not understand, and he did not request a translation. He was asked to detail the medical issues in writing, but he did not respond. As regards the provision of questions in writing the Respondent’s usual format is to conduct disciplinary and appeal meetings orally. In relation to the claim pursuant to Section 20 (1) of the Industrial Relations (Amendment) Act 2015 the Respondent’s position was that the disciplinary process in October 2024 arose for legitimate reasons which arose form continued uncertified absences. It had, it was contended, nothing to do with the July 2024 Industrial Relations referral and moreover the Complainant was not singled out at that time as a number of other employees who had not made an industrial relations referral were also subjected to similar disciplinary procedures. The Cognisable Period All of the claims which were intimated in respect of which a decision was sought were initiated on the 21st of November 2024 and thus they are capable of capturing relevant events occurring in the period from the 21st of May 2024 to the 21st of November 2024. That period covers the following events: The May 2024 Disciplinary. The June 2024 Appeal The October 2024 Disciplinary. The November 2024 Appeal
Findings Regarding Reports of Racial Abuse by the Complainant The Complainant’s evidence was that he was subjected to racial abuse by members of the public throughout his employment. He said that initially the issues were well handled and he felt that he was coping. He made a number of reports to the Gardai. However, he recalled one occasion when he reported to the Gardai that a man thrown coffee in his face but the Gardai did not arrive and he stopped reporting incidents to the Gardai at that stage. He could not recall when this occurred and he said it could have been any time between 2022 and 2024. The Complainant said that he reported racial abuse many times to Mr. Dunne or to LM (who worked with Mr. Dunne), and he confirmed that he did so by email or text message as well as by telephone but that he eventually he gave up reporting the issues to anyone. Mr. Dunne also gave evidence for the Respondent. He was not involved in the conduct of any of the disciplinary or appeal procedures under review, but he was and remains the Complainant’s immediate line manager and he gave evidence from this perspective. Regarding the Complainant’s evidence that he had been repeatedly subjected to racial abuse which he repeatedly reported to the Respondent Mr. Dunne gave evidence of a particular situation in October 2024 (i.e. after the June 2024 Appeal process) which was reported to him in respect of which he offered support including not deploying the Complainant to that location any further. He also recalled another incident which was reported to him in September 2025 where again he offered support and he allowed the Complainant to go home. [This incident falls beyond the cognisable period in relation to the claims the subject matter of this decision.] The Respondent could not trace any record of any such texts, emails or records of telephone complaints from the Complainant. The Complainant was afforded several opportunities to adduce evidence of any of these communications, but he did not do so. I found the evidence of Mr. Dunne to be reliable and truthful and in the absence of any documentary evidence from the Complainant supporting his claim of reporting multiple incidents of racial abuse, I accept Mr. Dunne’s evidence that only one such incident was reported, in October 2024, within the cognisable period which between the 21st of May 2024 and the 21st of November 2024 and that when it was reported, support was offered by Mr. Dunne. Mr. Dunne was not a decision-maker in the relevant Disciplinary or Appeal procedures which were handled by Mr. Kelly, Ms. Smith and Mr. Nolan. There is no evidence that any specific incidents of racist abuse were discussed in any of the hearings conducted by these witnesses other than the October 2024. This incident had not arisen when Ms. Smith conducted the June 2024 Appeal and the evidence from that meeting indicates that specific complaints were neither sought by Ms. Smith nor provided by the Complainant. Findings as to the Respondent’s State of Knowledge of the Complainant’s Health Mr. Dunne said that he enquired “many times” about the Complainant’s health, but the Complainant never wanted to discuss his health. Mr. Dunne did become aware of a mental health issue but there was very limited information. He did refer another employee to occupational health, but that employee had provided details of his medical condition. In relation to referring the Complainant for occupation health review, he said that he missed the issue at the time but if he had picked it up, he would certainly have made a referral. His failure to do so was not intentional. Mr. Dunne said that he did his best to support the Complainant as his line manager and frequently enquired after his welfare as distinct from his health. He offered support to the Complainant in relation to any issues which the Complainant raised with him. it was accepted as a fact that at no stage either prior to or during the cognisable period applicable to this claim did the Complainant ever submit medical certification reciting work-related stress or injury. It is also the case that when asked to discuss the reasons for his uncertified sick days in the period from May to the 10th of November 2024 the Complainant declined to discuss the reasons verbally at any of the disciplinary or appeal meetings which occurred during this period.
General Analysis of Evidence The May 2024 Disciplinary In the process which I have described above as “the May 2024 Disciplinary”, the written warning dated the 24th of May 2024 included a statement, at point 1, that the Complainant had given “Un-due care and attention to [his] work”. In the course of his evidence, Mr. Kelly, who conducted the disciplinary hearing, said that this charge related to incidents where the Complainant had refused to de-clamp vehicles. He accepted that this charge was not put to the Complainant at the disciplinary hearing. I note that the Complainant raised this procedural issue (amongst others) in his letter of appeal against the warning. This letter was dated the 16th of June 2024.
The June 2024 Appeal The Appeal Hearing in relation to the May 2024 Disciplinary was chaired by Ms. Smith and was attended by the Complainant and his representative. All three gave evidence on affirmation in relation to the content of this meeting. As to the run-up to, the conduct and the outcome of this meeting, several issues arose from the evidence and submissions. Firstly; no minutes of this meeting were taken, and the only written record is that contained in the outcome letter dated the 26th of June 2024. Secondly; the Complainant’s appeal letter which was submitted before the hearing was questioned. Amongst the Complainant’s submissions to this adjudication process was a hard copy of an email from Ms. Smith to the Complainant which, I was informed, was sent on the same day of the Appeal Hearing. The text was as follows: “An Appeal letter is a formal part of a process and needs to be a personal reflection of your disagreement with a decision etc. The letter submitted referred to a third person which read inconsistently therefore it is reasonable to ask if this is a letter written by yourself based upon your feeling/treatment or you have potentially been either coerced or forced to send a false representation” The Complainant and his representative in their evidence both affirmed that a significant proportion of the meeting was taken up discussing the authorship of the appeal letter. Ms. Smith in her evidence said that she raised the issue as the appeal letter appeared to have been written by a third party. However, she accepted that she “probably shouldn’t have questioned its validity”, that she “shouldn’t have done that”. In her outcome letter of the 26th of June 2024 Ms. Smith dealt with the issue in a single paragraph of a two-page letter as follows: “At the meeting I did raise concerns in regard to the genuine representation of the appeal letter and whether it was written by you or a third party as it consistently referred to a third person which did not make sense. You confirmed this letter was written by you and the appeal letter is a true personal reflection of your disagreement with an unfair decision resulting in a sanction.” Thirdly; the Respondent was on notice of a possible work-related health issue, yet no consideration was given to referring the Complainant for occupational health review. The Complainant initiated the appeal by way of the letter of appeal (referred to above) which was dated the 16th of June 2024. This was a detailed three-page letter setting out a number of procedural issues. On page 2 of the letter the following was stated: “The reasons for all absences were work related, due to mental health/work related stress as a result of racial and verbal abuse from customers experienced on an ongoing basis.” In her evidence, Ms. Smith accepted that assault and mental health were specifically identified in the Respondent’s Risk Assessment document. It was put to her that the risk to the Complainant was clearly identified to her in the appeal letter - she said that she did review medical certificates which had been submitted by the Complainant which did not disclose mental health issues. However, she accepted that the appeal letter did raise this issue as a potential concern, but she could not explain why no referral to occupational health or other medical assessment had taken place. As to why no referral was made by any of the individuals involved in the various processes before and after the appeal conducted by Ms. Smith, Mr. Kelly and Mr. Nolan both stated that the Complainant had consistently failed to produce any medical certification in relation to mental health issues and had refused to discuss the reasons for his absences. Mr. Dunne’s evidence on this issue is summarised above and it should be noted that he did not receive any medical certification from the Complainant either.
Turning to the medical issue of the Complainant’s assertion, in his appeal letter of the 16th of June 2024, that he was suffering from work-related mental health issues, I accept that Ms. Smith had no medical certification which would have mandated a medical referral and it is also the case that no such medical certification was ever provided at any time within the cognisable period. The failure on the part of the Complainant to provide medical certification supporting his assertion of work-related mental health issues coupled with his persistent failure or refusal to discuss his mental health at any stage in any of the disciplinaries or appeals when asked to do so is fatal to any possible claim advanced by the Complainant of disability discrimination which issue will be the subject of specific findings below in relation to that claim. That said, even if the Respondent did not discriminate against the Complainant on the disability ground by failing to have him medically assessed in the circumstances, I would point out that the failure to consider this possible aspect of the matter as a possible mitigating factor when considering a penalty or reviewing one already handed down calls into question the thoroughness and professionalism of the procedures adopted by the Respondent at every stage of the disciplinary and appeal processes captured by the cognisable period. Moreover, in relation to the June 2024 appeal, I find that the challenging by Ms. Smith of the authorship of the Complainant’s appeal letter was inappropriate, to say the least. Apart from the foregoing criticisms, I have also identified above a procedural flaw in relation to the May 2024 Disciplinary. If that flaw had been ruled upon in an Industrial relations referral it would have been open to the Complainant to argue that the warning should have been set aside and if such an argument were to have led to a positive recommendation, then the imposition of a final written warning built upon it may also have been susceptible to a positive finding such as the reduction from a final written warning to a written warning simpliciter. Other flaws were also identified including the poor note taking practices and lack of clarity as to whether and if so, when and by what means, meeting notes were forwarded to the Complainant. Having made all of the above findings I will now turn to the actual claims made. Those claims were rights-based and very specific and depended on the strict proofs required by the relevant legislation and in particular by the Employment Equality Act 1998 (as amended). For the reasons set out below I do not find that the flaws in the Respondent’s procedures, manifold as they were, are sufficient to establish facts from which an inference of discrimination pursuant to Section 85 A can be drawn. The flaws which have been identified, and for that matter those that have not been identified but which the Complainant advanced, could all have been processed by way referral under the Industrial Relations Act 1969 and indeed referrals under this legislation (two in all) were made by the Complainant. However, those referrals were withdrawn in favour of rights-based remedies which were the subject matter of protracted and detailed evidence at the hearing and the findings contained in this and the related decision. I would make one further general observation at this point which is that even if the Complainant had proceeded with the IR Referrals which were made, if he had made further referrals or is contemplating doing so still, it would be worthwhile noting that all the warnings issued have been “served” (as Mr. Kelly put it) and have expired. In his evidence Mr. Kelly confirmed that the Final Written Warning issued on the 17th of October 2024 was due to expire in the absence of any further infractions six months from that date and that as at the date of hearing no such further infractions had occurred and as a result that warning has expired. Mr. Kelly further confirmed that no disciplinary issues had arisen since that warning and this was the case as at the last hearing date.
The Equality Claims Section 85A (1) of the Employment Equality Act 1998 (as amended) provides: - 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 Claim in Relation to Discrimination on the Ground of Race/Language The Complainant was interviewed in English before commencing his employment with the Respondent in May of 2022. He has been speaking English throughout his employment. Although he was born in Angola and Portuguese is his first language, the Complainant lived in Ireland for a number of years prior to joining the Respondent. He was an Irish citizen before joining the Respondent and remains so. There are multiple references in the submissions to the Complainant’s struggling with understanding English but there is no formal request for special facilities such as the provision of translated documents or for a translator to be provided in any of the internal meetings. As to whether the Complainant himself ever specifically requested a translator in any of the internal meetings he said that he “probably did not” and all the Respondent’s witnesses denied that he ever did so. There is no record of such a request in the notes of any of the meetings. The clearest reference by the Complainant to a language issue was in an email to Mr. Nolan dated the 6th of November 2024 in advance of the November 2024 Appeal where the Complainant requested “that the appeal be conducted via email to ensure clear communication and as part of reasonable accommodation for my language needs”. Mr. Nolan responded on the 7th of November 2024 as follows: “Taking into account, the level of English required for the role and the fact that we had no communication issues or language misunderstandings during our previous meeting, I believe it is acceptable to proceed in the format outlined in my previous letter”. The Complainant’s principal argument is that he should have been afforded a written format for the November 2024 Appeal. The Respondent said that oral hearings are the usual format for appeal hearings. I have considered the minutes of the Appeal hearing and the evidence given to me at the adjudication hearing by both the Complainant and by Mr. Nolan in relation to the content of the formal meeting in relation to the November 2024 Appeal. At the start of the meeting the Complainant sought to challenge the sickness reporting policy, but it was made clear that the warning which was under consideration related to the number of uncertified absences and not from any breach of the sickness reporting procedure. Mr. Nolan imparted this information twice in the meeting and then sought information from the Complainant asking: “Was there a reason for the absences?” – to which the Complainant replied: “I don’t want to elaborate on the issue. I have provided information by email”. Mr. Nolan said: “To assist you, I need the information” to which the Complainant said: “Can you not email any questions to me?”. The meeting progressed in this manner with Mr. Nolan asking for a reason for the absences and Complainant refusing to provide a reason on the basis that information had already been provided and repeatedly requesting that Mr Nolan put his questions in writing. It is hardly surprising that the meeting did not go well but the question is why, and more specifically, whether the reason for its not going well related to a language issue or was attributable to some other cause or causes. The Complainant contended that the reason for requesting the questions in writing was because of his difficulties understanding English. The impression which I have formed, based on all the evidence is that the Complainant may have been confused as to the reasons for the Final Written Warning before the meeting commenced. This is plausible given the manner in which the Warning letter of the 17th of October 2024 was phrased, which does not specify the exact reason but instead uses the more general phrase: “You are expected to reach the required standard of conduct” albeit that the letter does use the phrase ‘Continued uncertified leave’. Although it is arguable that even if the invitation letter was more precise as the charge which was put in that letter was “Continued uncertified leave”, the written warning did not repeat those charges or make specific findings on them. Such lack of clarity could have led any employee to be confused whether English was his first language or not. Accordingly, I do not think it was unreasonable for the Complainant to have needed the clarification which he sought whether he was a native speaker of English or not. However, it is also abundantly clear that Mr. Nolan provided this clarification on several occasions in the meeting. It was repeatedly pointed out to the Complainant that the reason for the warning under appeal was the number of uncertified absences in respect of which an explanation was sought. I cannot accept that the Complainant failed to understand these clarifications and nor given that there was only one essential question - that being: what was the reason for the absences? – can I find a justification for the Complainant asking for the questions (plural) to be put in writing. My overall assessment is that the wording of the Final Written Warning was inadequate and for that reason unfair, but that unfairness was mitigated in the appeal meeting by the clarifications provided by Mr. Nolan. Although it was far from ideal that Mr. Nolan had to provide those clarifications I am satisfied that when he did so the Complainant understood what was being said. My overall impression is that the Respondent’s procedures in relation to the wording of the Final Written Warning were inadequate albeit that Mr. Nolan’s clarifications in the meeting mitigated this situation considerably. This still leaves an issue of unfairness of procedures but as indicated already a breach of procedures does not in itself automatically raise an inference of discrimination. On the basis of the evidence which I have heard including that of the Complainant, I find as a fact that no specific request was ever made by or on behalf of the Complainant for the translation of documents of for the provision of oral translation at any of the internal meetings. The Complainant said that his English is “ok but he struggles with political and legal language”. However, it is difficult to see how any of the terminology used in the internal meeting could be so described and the Complainant in his evidence did not identify any words or phrases which were used in any of the meetings which he did not understand or that he misunderstood. The mere possession of a protected characteristic does not establish discrimination on the basis of that characteristic. In considering the language issue as a whole I am not satisfied that the facts established give rise to an inference of discrimination such as to shift the burden of proof to the Respondent and it follows that the Respondent did not discriminate on the race/nationality and by extension the language ground.
The Disability Discrimination Claim CA-00067568-001 It was alleged that the Respondent discriminated against the Complainant on the disability ground by the Respondent's response to the health concerns raised and its failure to investigate, assess, and support those concerns through appropriate intervention and accommodation measures. The Complainant in his evidence said that he informed the Respondent that he “struggled with his mental health”. Reference was made by the Complainant’s representative that the issue of the Complainant’s mental health was raised in the Complainant’s letter of Appeal dated the 16th of June 2024. That letter included the following text: “Due to economic hardship, the employee did not have the money to pay for a GP visit and medical certificate (There is no free primary Healthcare in Ireland) and the employee did not have the funds available and is on minimum wage with a family to support.
The reasons for all absences were work related, due to mental health/work related stress as a result of racial and verbal abuse from customers experienced on an ongoing basis.”
There is a fundamental difficulty with this claim insofar as it seeks to invoke any protection on the grounds of disability. It was accepted at the hearing that the Complainant did not submit any medical evidence to the Respondent within the cognisable period disclosing or evidencing that he had a disability. It was accepted that such certification was eventually submitted on or about the 2nd of April 2025 and there is also an email from the Complainant’s representative dated the 18th of April 2025 where the issue is referenced. However, the present claim was made in November 2024 and thus neither the medical certificate or the email both dated April 2025 were received by the Respondent prior to the initiation of the claim in November 2024 and they are thus not relevant to the fundamental issue which is whether there was evidence of a disability within the cognisable period. It is noteworthy that the Complainant was expressly invited to provide medical information on a number of occasions but that he failed to do so. One example falling towards the end of the cognisable period is already discussed above in relation to the language issue and that is the November 2024 Appeal. However, another example of the Complainant’s approach is evident from the notes of the October 2024 Disciplinary which was the subject of that appeal. That disciplinary was conducted by Mr. Kelly, and the following exchange is recorded: “…the issue is the volume of days you are taking. Can you tell us why so many days? The Complainant responded: “I do not need to disclose my reasoning for being out only to my doctor, I have sent an email and that’s all I have to say” Although the Complainant took issue with the accuracy and completeness of the notes from this and other meetings, he accepted in evidence that the foregoing extract was accurate. It would appear that the Complainant and/his representative had an understanding that there is no obligation on an employee to provide evidence of a disability beyond making reference to a possible issue arising which then places an onus on an employer to investigate that issue by referring the employee to an occupational health doctor. If and to the extent that this was the understanding it was incorrect as the Act clearly obliges an employee to establish that he had a disability and that he communicated that fact to the employer. In the present case the oblique references to “mental health issues” coupled with an outright express refusal to provide medical information which was expressly requested a number of times, does not constitute proof of the existence of a disability or that it was communicated to the Respondent and absent such proof the issue of discrimination on the ground of disability cannot arise. For this reason the claim is not well-founded and it follows that the Respondent did not discriminate against the Complainant on the disability ground.
The Claim for Penalisation Pursuant to Section 20 91) of the Industrial Relations Amendment Act 2015 CA-00067568-002 (also Duplicate Claim in respect of the same subject matter bearing Reference, CA-00067568-004) There were a number of complaints filed at various stages by the Complainant some of which were duplicates and some of which were withdrawn at various stages in the adjudication process. In a communication dated the 8th of June 2026 the Complainant’s representative referred to all of the claims that had been made and indicated which were duplicates and which were being withdrawn. With regard to the Industrial Relations referrals the following clarifications are of relevance
Cases made by the parties: In their submissions the parties focussed on the factual circumstances. The Complainant contended that the timing of the October 2024 Disciplinary raised the inference of penalisation against the Complainant for having made the initial Industrial Relations Referral following the Disciplinary and Appeal in May and June 2024 respectively. The Respondent’s position was that the disciplinary process in October 2024 arose for legitimate reasons which arose form continued uncertified absences. It had, it was contended, nothing to do with the July 2024 Industrial Relations referral and moreover the Complainant was not singled out at that time as a number of other employees who had not made an industrial relations referral were also subjected to similar disciplinary procedures.
Relevant Statutory Provisions The parties engaged as discussed above regarding the factual circumstances but neither party opened the relevant provision under which the claim was made. That provision is Section 20 (1) of the 2015 Act which (with emphasis added for the reasons explained below) provides as follows: 20. (1) An employer shall not penalise or threaten penalisation of a worker for— (a) invoking any right conferred on him or her by this Chapter, (b) making a complaint to the Workplace Relations Commission that a provision of this Chapter has been contravened, or (c) giving notice of his or her intention to do either of the matters referred to in paragraph (a) or (b). It is important to note that the protection against penalisation conferred by Section 20 (1) of the 2015 Act is expressly limited to the rights afforded by “this Chapter” of the Act. The Chapter in question is Chapter 3 which comprises Sections 13 – 21 inclusive and is headed “Sectoral Employment Orders”. Those sections are exclusively dedicated to the creation, regulation and supervision of Sectoral Employment Orders as defined in Section 13. The protection against penalisation conferred by Section 20 (1) only relates to disputes arising from the invocation of rights, making a complaint or giving notice of intention to do either of those things relating to Chapter 3. Section 23 (2) amends the Workplace Relations Act 2015 to confer the power on an adjudication officer to hear and determine complaints pursuant to Section 41 of the Workplace Relations Act 2015: “…in relation to a complaint of a contravention of— (a) subsection (1) of section 20, (b) a registered employment agreement (within the meaning of Chapter 2), or (c) a sectoral employment order (within the meaning of Chapter 3). While Chapter 3 (as noted above) deals with Sectoral Employment Orders, Chapter 2, which comprises Sections 6 to 12 inclusive, deals with Registered Employment Agreements as defined in Section 5. The present dispute alleges penalisation arsing from the initiation by the Complainant of a claim pursuant to Section 13 of the Industrial Relations Act, 1969 in relation to disciplinary sanctions. This claim was initiated by the Complainant on the 3rd of July 2024. The provision which is invoked in respect of the claim before me however is Section 20 (1) of the Industrial Relations (Amendment) Act 2015 and as outlined above, neither that provision nor Chapters 2 or 3 of that Act are applicable to the claim made under Section 13 of the Industrial Relations Act 1969 in respect of which or because of which the penalisation is alleged to have occurred. Accordingly, I have no jurisdiction to entertain the Complainant under Section 20 (1) of the Industrial Relations (Amendment) Act 2025 as it does not arise from the breach of any rights conferred by, or a dispute or threatened dispute in relation to, that Act and I so find. In making the foregoing finding I am mindful of the complicated and multi-faceted nature of this dispute and I am also aware that, in addition to the present claim (in respect of which a duplicate claim was lodged as noted above), the Complainant also on the same date (the 21st of November 2024) initiated a second referral under Section 13 of the Industrial Relations Act 1969 which contained the exact same submission as the one which grounded the present application. However, there are no specific penalisation provisions in the Industrial Relations Act 1969 that are analogous to those provided for the Industrial Relations (Amendment) Act 2015 and so even if either or both of the 1969 Act referrals had been progressed no finding in relation to penalisation would have been possible and any other recommendation which might have been made would not have been legally binding. That is not to say however that the dispute could not have been resolved by way of Industrial Relations recommendation if it had been confined to that forum.
Harassment on the Race Ground - CA-00067568-005 This claim was withdrawn by the Complainant’s representative immediately before the conclusion of the hearing.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.
CA-00067568-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 – The Respondent did not discriminate against the Complainant CA-00067568-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 – The Claim is not well-founded CA-00067568-004 - Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 – Duplicate of CA-00067568-002 – Claim withdrawn. CA-00067568-005 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 – Claim withdrawn |
Dated: 27/07/26
Workplace Relations Commission Adjudication Officer: Michael MacNamee
Key Words:
Employment Equality Act – Section 85A – Race/Language – Disability |