Complainant

Respondent

Parties

Katarzyna  Kowalczyk

Medtronic Vascular Galway Unlimited Company

Representatives

Self Represented

IBEC Representative

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-00069489-001

22/02/2025

The Complainant is employed as an Assembler since 2011 and submitted a complaint that she had been discriminated against in relation to overtime, training, conditions of employment, work status, her contractual terms and other on the basis of her gender (Female) and race (Polish). She advised the latest date of discrimination was 18th September 2024. The Complainant went on sick leave on late 2024 and had not returned to work at the time of the Hearing. The Complainant submitted her complaint to the WRC on February 22nd 2025.

The Complainant has been employed by the Respondent since 21st of March 2011.

This case concerns discrimination, procedural unfairness in a grievance process, and victimisation following her formal complaint on 24/09/2024.

Grounds for Discrimination and Procedural Unfairness:

The grievance investigation concluded by the Respondent was flawed. The notes provided to the Complainant are incomplete and omit critical admissions of error regarding job-sharer arrangements while bonded by the Addendum to Employment Contract, overtime, training, selective treatment, recognition.

For over 15 months the Respondent provided incorrect data in reports, which they verbally admitted but failed to record officially.  As outlined in the formal complaint on 24/09/2024 to Magz Barrett, Cathy Murphy and Marion Walsh, the Complainant alleges that she has been consistently deprived of the opportunity to work additional hours and overtime, despite her contract explicitly stating that job-sharers are required to cover their partner's absences.

With regard to Absence Cover • Selective treatment : on the 18th and 19th of September 2024, the Complainants job share partner's hours were given to a day shift operator instead of the Complainant.. Her Supervisor's justification was that she "didn't know if I can work", which is not a valid reason to bypass contractual obligations.

Lack of Training : For over two years, the Complainant has requested training on additional worksteps to have the same opportunities as her colleagues. These requests were ignored, while other operators were given priority and consistent overtime. Despite her repeated requests for training to gain parity with her colleagues, the Respondent failed to provide it, effectively capping her earnings potential and professional development.

Failure to investigate – Following the report in September 2024, the Respondent failed to conduct a timely or transparent investigation. The Complainants follow-up enquiry eight weeks later regarding the status of investigation went unanswered, demonstrating a lack of regard for internal grievance procedures.

Breach of Terms of Employment The Complainants Job-Sharing agreement (Part-Time) had a fixed end date of 30/01/2025. Upon it's expiry, and in the absence of any signed extension, the Complainant alleged her status should have reverted to Full-Time (100% FTE). The Respondent unilaterally maintained her Part-Time status without her consent. The Respondent claims this was her "preference", but there is no written evidence or consultation to support this. This failure has caused the Complainant significant financial detriment, specifically the rejection of her Income Protection benefits.

Victimisation Following her formal discrimination complaint in September 2024, the Respondent has consistently refused to regularise the Complainants contract. She contended that the continued failure to reinstate her Full-Time status, despite repeated contact with HR and her Manager is a direct act of detriment and victimisation for exercising her rights under the Employment Equality Acts.

The Complainant stated that for over 2years her child has been refused the right to participate in Christmas Party for Kids organised by Respondent for all employee's children. Her access to work emails has been refused by Respondent.

The Respondent's actions show lack of good faith and a failure to adhere to both contractual and statutory obligations. The Complainant is seeking the Adjudication Officer to find in her favour and to award compensation for financial losses ( loss of benefits), as well as for the severe distress caused by this ongoing discriminatory treatment.

The Complainant submitted a large number of documents., emails and medical reports at various times in support of her complaint.

The claim relates to discrimination under the Employment Equality Acts, 1998 - 2015.

The details of the claim are set out in the claim form lodged with the WRC on the 22 February 2025. The Complainant’s claim of discrimination necessitates the discharge of the burden of proof that there is a prima facie case to answer by the Respondent as prescribed by section 85A of the Employment Equality Acts 1998-2015.

The following submission is made strictly without prejudice basis to the Complainant’s obligation to discharge this burden of proof.

Background to the Respondent: The Respondents operations in Galway are located across two main sites in Parkmore and Mervue. The facilities function as a Centre of Excellence for the research, development, and manufacturing of life-saving medical technologies. They primarily focus on respiratory and monitoring solutions (such as ventilators) as well as complex cardiovascular devices like drug-coated balloons for treating artery disease. Medtronic is a major local employer, boasting over 4,000 employees in Galway alone.

The Parkmore site is a diverse and inclusive workplace, with colleagues representing over 70 nationalities across the organisation. In late 2025, the site delivered IDE training for supervisors and managers in partnership with the Irish Centre for Diversity. This training focused on building inclusive leadership capability, increasing awareness of unconscious bias, and supporting equitable people management practices across the site. In addition, the site supports a number of active Employee Resource Groups including the Multicultural ERG. These groups play an important role in fostering inclusion, providing employee voice, and supporting education and awareness initiatives that contribute to a respectful and inclusive workplace culture.

Background to the Complainant; The Complainant commenced employment with the Respondent on 21 March 2011. She holds the position of Assembler and operates on a job-sharing basis on the evening shift in Medtronic Building 2 (Parkmore).

 The Complainant’s job-sharing request was confirmed by way of letter dated 8 April 2024 to cover a period from 30 January 2024 to 29 January 2025. The Complainant commenced sick leave on 24 September 2024.

Background to the claim:  On 23 September 2024, the Complainant alleged that she had not been called in to cover overtime for her job-share partner. On 24 September 2024, the Complainant verbally reported the alleged discrimination regarding overtime to her supervisor, Magz Barrett. On 25 November 2024, the Complainant raised a formal complaint via email to Magz Barrett, Cathy Murphy (Manufacturing Manager), and Marion Walsh (Head Shop Steward) alleging she had been repeatedly overlooked for overtime, lacked training, and that her job-share partner's hours were given to a day shift operator. In late November / December 2024: The Complainant went absent on sick leave and attended Occupational Health (OH) reviews. In line with standard practice, Management did not contact her during her sick leave. On 6 February 2025 Occupational Health confirmed the Complainant's fitness to engage with the Respondent’s Employee & Labour Relations (ELR).

 On 22 February 2025 the Complainant prematurely submitted her complaint to the WRC, prior to exhausting the Respondent’s internal procedures. On 19 March 2025, ELR contacted the Complainant, advising that an internal investigation would commence based on her November email. On 20 March 2025, the Complainant informed ELR of her WRC complaint; ELR clarified that the processes would be handled separately and encouraged her participation internally.

On 27 March 2025 the internal investigation formally commenced, conducted by Laura Barton and Sarah Fox. On the 24 September 2025, following an exhaustive and comprehensive investigation the formal investigation report was issued to the Complainant, a copy of the final report was provided. The Complainant appealed the findings in the report to Aidan O’Connor ELR Lead. The appeal outcome issued to the Complainant on 27 February 2026 and a copy of the appeal was provided.

Respondent’s argument

The Complainant is alleging that she has been discriminated against on the grounds of gender, race, and part-time employment status. Section 6 (1) of the Employment Equality Acts 1998 to 2015 states: “(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’)...” Direct discrimination is defined as occurring where one person is treated less favourably than another is, has been or would be treated and that person is of a different race, gender, marital status, family status, sexual orientation, religious belief, age, disability or member of the traveling community. Direct discrimination consists of two elements: the less favourable treatment of the individual making the complaint; the second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed. The Complainant has provided no evidence that she has been treated less favourably than another person is, has been, or would be treated. Secondly, the Complainant has also failed to establish a causal link between any alleged discriminatory treatment and her gender, race, or part time status.

Indirect discrimination is deemed to occur where an apparently neutral provision puts persons at a particular disadvantage compared with other employees based on one of the nine grounds covered by the Acts. There is no evidence to show that the Complainant has been indirectly discriminated against. It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably on the basis of the discriminatory ground cited. It is only when this burden is discharged that the burden shifts to the Respondent to rebut the inference of discrimination.

In Margetts v Graham Anthony & Company Limited, EDA038, the Labour Court stated: "The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Respondent submits that in her initial complaint, the Complainant has failed to discharge this evidential burden and consequently, this claim under the Employment Equality Acts, 1998 to 2015 must fail.

Response to Allegations; Without prejudice to the foregoing argument, the Respondent will now respond to the complaint made in order to demonstrate that no case of discrimination exists.

Allocation of Overtime Complaint. The Respondent denies that the Complainant was subjected to less favourable treatment based on gender, race, or part-time status. Overtime within Building 2 is governed by a long-standing, transparent operational practice. Friday overtime is allocated to evening shift operators (including the Complainant), while Saturday overtime is allocated to day shift operators. This geographical and shift-based logic ensures continuity and health and safety compliance. Furthermore, the Complainant’s specific unit, DHR Print, operates as an "independent work step." Unlike Manufacturing Cells where overtime may be general, DHR Print overtime is strictly demand-led, triggered only by specific ad-hoc backlogs. Overtime is neither a contractual right nor a guarantee.

Regarding the specific allegation of a Male, Irish colleague receiving "preferential" overtime, the Respondent clarified the following during the internal investigation:

a) The Complainant’s job-share partner was unexpectedly absent. The supervisor was notified at short notice. The day shift operator was already on-site and was requested to remain for a limited duration (1–2 hours) to process priority orders. This was a "stay-on" request to manage an immediate backlog, not the allocation of a full additional shift. It would have been operationally inefficient and impractical to contact off site staff.

b) The Respondent’s internal investigation confirmed that the Complainant was offered overtime on Friday evenings, consistent with her shift pattern. The Complainant declined these opportunities, expressing a personal preference for Saturdays. Under the Employment Equality Acts, an employer is not required to alter established, non-discriminatory shift patterns to accommodate an employee’s preference for a specific day’s premium.

c) Finally, the investigation noted a breakdown in communication between the Complainant and her job-share partner regarding mutual cover. The Respondent cannot be held liable for a “lack of overtime” when the Complainant’s own shift-sharing arrangements, which they were responsible for coordinating, contributed to the vacancy.

It is respectfully submitted that the Complainant has failed to discharge the initial burden of proof required under Section 85A(1) of the Employment Equality Acts 1998 2015 in relation to this aspect of her claim. As previously set out, the law requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. The Respondent submits that no such primary facts exist. The Complainant cannot assert she was "denied" overtime when the internal investigation clearly established that overtime, when available, was available to her on Friday evenings, directly aligning with her contracted shift pattern. The fact that these available opportunities did not align with her personal preference for Saturday work does not constitute less favourable treatment on the grounds of gender, race or part time status. There is no legal obligation on an employer to fundamentally alter an established, universally applied custom and practice to suit the subjective preferences of an individual employee.

Without prejudice to the aforementioned failure to establish a prima facie case, the Respondent submits that any perceived difference in treatment regarding the September 18–19 incident was entirely driven by objective, non-discriminatory operational necessity. The decision to ask a day shift operator to remain on-site for 1–2 hours to clear a sudden backlog was a proportionate response to an immediate business need. The Respondent submits that any operator, regardless of gender, race or part-time status who was off site at that time would have been bypassed in favour of the immediate, on-site solution. Calling in an off-site employee for such a task is operationally unjustifiable and disproportionate.

In light of all of the foregoing the Respondent respectfully submits that this complaint must fail.

Alleged Discrimination Regarding Training: The Respondent comprehensively denies the allegation that the Complainant was denied cross-training (versatility) as a mechanism to limit her overtime opportunities, or for any discriminatory reason. The internal investigation clearly established that during the Complainant’s performance review in June 2024, her supervisor actively agreed to and supported her request for cross-training. There was no refusal or denial of training at any point. The subsequent delay in facilitating this training was dictated entirely by objective operational realities on the factory floor. During the period in question, the business unit faced significant constraints, including the necessity to onboard new hires, manage high turnover, and a critical lack of available backfill for the Complainant’s specific work step. Releasing the Complainant for training during this period would have severely disrupted production. The Complainant alleges that another colleague was prioritised for training over the summer, implying discriminatory treatment. The Respondent submits that this colleague’s training was driven by a distinct, urgent business requirement which was to qualify them as a dedicated trainer for the evening shift. They were not receiving general versatility training, but rather upskilling to fulfil a specific operational gap that the Complainant was not slated to fill.

Under the Employment Equality Acts 1998–2015, a Complainant must demonstrate that they were treated less favourably than a comparable employee in materially similar circumstances. The Respondent submits that the colleague cited by the Complainant is an invalid comparator. The colleague in question was undertaking, role-specific training to become an evening shift trainer—a distinct operational requirement entirely separate from the general versatility cross-training requested by the Complainant. Because their circumstances and the purpose of their training were materially different, no valid legal comparison can be drawn to establish a prima facie case of discrimination. The Complainant alleges she was denied cross-training (versatility) to limit her overtime opportunities. The internal investigation confirmed that her supervisor agreed to cross-train her during a June 2024 performance review. The subsequent delay was strictly due to operational constraints, including the onboarding of new hires, high turnover, and a lack of available backfill for her work step. The colleague she claims was prioritised for training over the summer was specifically being trained to become a trainer for the evening shift.  Even in the unlikely event that the Adjudication Officer accepts the colleague as a valid comparator, the Respondent submits that the prioritisation of the evening shift trainer was objectively justified. Allocating limited training resources to fulfil an urgent, systemic business need (creating a shift trainer) rather than individual versatility is a proportionate, non-discriminatory exercise:

Alleged Alienation and Exclusion from Departmental Line Meetings. The Respondent categorically denies the allegation that the Complainant was alienated or deliberately excluded from departmental line meetings. The Respondent submits that attendance at these specific meetings is dictated entirely by operational relevance and job function. The line meetings in question are specifically designed and tailored for operators working directly within the integrated manufacturing cells. Their primary purpose is to align interdependent team members on daily manufacturing targets, cell-specific issues, and immediate production handovers. As previously established, the Complainant operates an independent, standalone work step (DHR Print) outside of these manufacturing cells. Her daily workflow and output are not tied to the immediate, synchronized targets of the manufacturing cells. Consequently, the content of these line meetings is operationally irrelevant to her duties.

Under the Employment Equality Acts 1998–2015, to establish a claim of discriminatory treatment, the Complainant must demonstrate that she was treated less favourably than a comparable employee in materially similar circumstances.

The Respondent submits that the Complainant is relying on an invalid comparator. She is comparing her treatment (non-attendance at cell meetings) to the treatment of manufacturing cell operators (attendance at cell meetings). Because the operational requirements, workflow dependencies, and daily target metrics of a cell operator are fundamentally different from an operator performing an independent work step, they are not valid comparators in law. The Respondent submits that the composition of daily line meetings is an entirely objective, non-discriminatory matter of business organisation The requirement for an employee to attend a meeting is based strictly on the relevance of the agenda to their specific role. Excluding an employee from a meeting that has no bearing on their day-to-day tasks is a standard, objectively justified management practice aimed at operational efficiency. It is entirely devoid of any discriminatory animus related to gender, race, or part-time status. Complaint in relation to Carers Benefit application.

The Respondent notes that the Complainant’s original grievance, submitted in November 2024, did not include any allegation regarding a request to reduce her working hours by 10 minutes per day for Carer's Benefit purposes. Despite this procedural omission by the Complainant, the Respondent, acting in good faith and demonstrating a commitment to thoroughly addressing all employee concerns, permitted the inclusion of this issue during the investigation phase.

The Respondent entirely refutes the allegation that the Complainant was deliberately ignored or that her request was treated without empathy. The internal investigation and subsequent appeal identified that the complication regarding the Complainant's hours was rooted in an administrative anomaly, not discriminatory intent.

The Complainant’s contract stipulates 18.5 hours per week. However, part-time work on a 4 day evening shift results in a 18.84 hour working week. There was some confusion during the investigation, due to the fact that the 0.5 was interpreted as equating to 30 minutes when it in fact equates to 50 minutes. The Complainants payslip correctly reflects 18.84 hours paid per week. As a corrective action, the Respondent has committed to holding a discussion with the Complainant prior to her return to work to permanently resolve the system discrepancy. The Complainant alleges she received no clear answer or support regarding her request. This is factually incorrect. The Respondent submits that meaningful engagement did occur. Specifically, Cathy Murphy (Senior Manufacturing Supervisor) offered the Complainant an alternative job-sharing shift pattern that would have accommodated her requirement. While the Complainant argues she did not receive an "official" or "formal" reply, the Respondent submits that a viable, concrete alternative was presented to her at the operational level by her Senior Supervisor, which she failed to take up.

To establish discrimination under the Employment Equality Acts 1998–2015, the Complainant must show she was treated less favourably because of her status as in this instance a primary caregiver. The Respondent submits that the discrepancy in the Complainant's logged hours was due to a misinterpretation of the Kronos decimal conversion and part-time 4 day evening shift calculation. There is no evidence of less favourable treatment. While legislation such as the Work Life Balance and Miscellaneous Provisions Act 2023 provides frameworks for requesting flexible working arrangements for caring purposes, the obligation on the employer is to consider the request reasonably and communicate with the employee.

The Respondent submits it fully discharged its duty of reasonable engagement. The Senior Manufacturing Supervisor directly offered the Complainant an alternative shift pattern designed to meet her needs. The Complainant’s subjective dissatisfaction with the perceived "formality" of the offer does not negate the objective fact that a solution was provided by management. An employer cannot be held liable for an employee’s failure to engage with a proposed, viable alternative.

Respondents Position

The Respondent respectfully submits that the Complainant has fundamentally failed to discharge the statutory burden of proof required under Section 85A of the Employment Equality Acts 1998–2015. The onus rests entirely on the Complainant to establish primary facts from which it may be presumed that discrimination occurred on the grounds of her gender, race or part-time status.

The Complainant relies on subjective interpretations, invalid comparators, and a misunderstanding of operational structures. No credible evidence to date has been produced to substantiate any of these allegations. Consequently, as no prima facie case has been established, the Respondent requests that the Adjudication Officer dismiss this claim in its entirety. Without prejudice to the foregoing, if the Adjudication Officer determines that the evidential burden has been discharged, the Respondent submits that at no point was the Complainant treated less favourably than any other employee in a comparable situation.

The Respondent has comprehensively demonstrated that every action contested by the Complainant was rooted in: a) Objective Operational Necessity: Including the allocation of ad-hoc overtime, the scheduling of specific shift-trainers, and the composition of manufacturing cell line meetings. b) Good Faith Engagement: Including management's proactive offer of an alternative shift pattern to accommodate the Complainant's caregiving responsibilities. The Respondent has acted reasonably, transparently, and in full compliance with its obligations under employment equality legislation. The company’s decisions were driven exclusively by standard objective business requirements and factory floor logistics, entirely devoid of any discriminatory animus.

Therefore, the Respondent respectfully requests that the Adjudication Officer find in its favour and reject the Complainant's claims across all grounds.

The Respondent argued at the Hearing that the Complainant has constantly changed and added to her complaint and that it should be limited to the complaint form she submitted to the WRC. At the Hearing the Adjudicator set out the various discriminatory boxes ticked by the Complainant on the complaint form and reviewed the content of same and stated he would give the Complainant latitude, within these limits, to set out her complaints in the Hearing. On consideration of the evidence provided nothing stands or falls on this issue.

The Law

Discrimination for the purposes of this Act

“ (1)  For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

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

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),   and

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

s. 8 Discrimination by employers etc.

Discrimination in Specific Areas

8.Discrimination by employers etc.

(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e)classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination……

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.”

At the completion of the Hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

 “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Burden of Proof

Section 85A( (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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 Labour Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is 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 Complainant 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 is no infringement of the principle of equal treatment.”

It follows that a Complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard: “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64,  the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Timeframe for complaints

The complaint was submitted to the WRC on February 22nd 2025. The Complainant has been on certified sick leave since late 2024 and remans on sick leave and advised the Hearing she understood the starting time for her complaints was September 24th 2024. It was explained to the Complainant by the Adjudicator that the timeframe for consideration of any alleged discrimination is six months before the date of submission of a complaint to the WRC. In practical effect, this meant the timeframe for any direct work alleged discrimination is August 22nd 2024 to the date the Complainant went on sick leave.

Section 77 of The Employment Equality Act 1998 (as amended) was explained to the Complainant as she is a Lay Litigant, albeit one who has engaged in a HR Diploma and an interest in employment Law (as per a medical report) and the Act states;

“5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

The Complainant made an application to the Hearing that the delay in submitting her complaint was due to issues outside her control and this should allow her to include any claims of alleged inequality in the 12 months before February 22nd 2025. The Respondent objected to this request. The Adjudicator advised the parties he would take this request under consideration and advise his decision on the request in this Decision. The parties then set out their full case.

“Reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll.  “ Here the test was set out in the following term;

“It is the Court’s view that in considering if reasonable cause exists it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context of which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time.  The Complainant’s failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability that had those circumstances had not been present he would have initiated the claim on time.”

In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should been enlarged for “good reason” in judicial review proceedings pursuant to Order 84 Rule 21 of the Rules of the Superior Courts 1986.   That approach was held to be correct by the High Court in Minister for Finance v CPSU and others .   The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation  .  Here Costello J (as he then was) stated as follows; “The phrase “good reasons” is one of wide import which it would be futile to attempt to define precisely.    However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved Plaintiff believed that he or she were justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.   Secondly, the onus is on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, I must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause.  It is the actual delay that must be explained and justified. Finally, while the established test imposes a relatively low threshold of reasonableness on an Applicant, there is some limitation on the range of issues which can be taken into account.  In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings, or as applies in this case, the Complainant was in error of the commencement time for complaints.  

The Complainant herein argues that she primarily failed to file her complaint because internal investigation processes were not started immediately after she lodged her internal complaint. It is common case that the Complainant has submitted that the most recent date of alleged discrimination she relies on occurred on is 18 September 2024 or possibly the Christmas party in December 2024.  It is also common case that the Complainant referred her originating complaint to the Workplace Relations Commission on February 22nd 2025, some five (or two months) after the most recent alleged act of discrimination.

The Complainants attendance at work prior to her submitting her complaint was submitted by the Respondent to the Hearing. I am satisfied that the Complainant is a competent person with an interest in employment law, based on her medical report She displayed a very thorough and extremely detailed capability in dealing with the issues involved in this complaint and at work. The Complainant was on sick leave from late 2024 onwards and the Respondent advised that they would conduct an investigation once given the medical go ahead to do so, which took some months to get. This is reasonable and good practice. The Complainants main ground for seeking an extension of time for evaluation of her complaints was the delay in establishing the investigation.  However, the WRC complaint was submitted within six months of the Complainant notifying the Respondent of some of her complaints but not all. There was four months between the lodging of the first complaints and the commencement of the investigation. However during this time the Complainant was on sick leave and did not provide a letter stating she was fit to engage in the investigation until February 2025 and the investigation began in March 2025.

The grounds relied on by the Complainant in support of her application to extend time meet the tests established by the Labour or Superior Courtsand I seegrounds to extend the time allowed for the complaints to 12 months.  However, I do not see this  extension of time decision as having any major impact on the assessment of the complaints put forward in this case as they could be deemed to have occurred, given many were ongoing,  in the six months before the submission of the complaint to the WRC and therefore require assessment.

The Evidence

The Complainant gave evidence to the Hearing and her position is set out in the relevant sections below. In summary, the Complainant stated she worked only Monday and Tuesday since she commenced part time work. She maintained she should cover for all absences for her Job Sharer, that the overtime system is rigged to give to Irish staff overtime on a Saturdays, that she has been denied access to training, her definition of her hours of work were discriminatory, she was denied the option to attend the Children’s Christmas party, denied the option to attend staff meetings and her continuing retention of her last work status (part time) was a discriminatory act.

The Complainant was cross examined by the Respondent Representative and was asked did she accept the system of allocating overtime as described and that it was the same for 23 years. The Complainant replied she did not. It was put to the Complainant that she had very little contact with her Job Sharer and she agreed. The Complainant agreed she was not on site on September 18/19. The Complainant stated she was 15 minutes from the site and should have been called in. The Complainant specified a few days over the prior six months where she had completed overtime, approximately five.

 It was put to the Complainant did she agree that in a six month period she was expected at work on 54 occasions and was absent, for various reasons, on 39 occasions and on some occasions when she attended work she had to leave early due to headaches and that this was facilitated by her Supervisor. The Complainant agreed. With regard to cross training it was put to the Complainant that her performance review of June 2024 mentioned she should be cross trained and did she accept that she had to be at work to be trained. The Complainant accepted this. The Complainant was asked did she agree the other person trained was to have them upskilled as an Evening Shift Trainer. The Complainant stated she was denied training

Maragaret (Mags)  Barrett, Evening shift Supervisor gave evidence she was with the Company 22 and ½  years and outlined the Complainants stand alone role. She advised overtime was allocated on a cell basis and evening staff got Friday evening overtime and day shift staff got Saturday overtime and this practice has been in existence since she commenced work at the Respondent. She advised that generally there is not much overtime for individual work stations and that workload is generally balanced and there is no guarantee of overtime. With regard to the September overtime issue she advised how she got a late phone call from the other Job Sharer that she would not be coming to work and that she asked the trained employee on days to stay back for a while to help out with the work required. She advised there was not too much work on Thursday evenings and that overtime was not always available on the Fridays and when she spoke to the Complainant she was told she could come to work on Fridays but the Complainant wanted to work on Saturdays to suit her personal circumstances. Ms. Barrett advised with regard to cross training that this was agreed it would be good to do but because the Complainant had booked family time off , due to high turnover of staff, variable attendance, that new hires got first priority in training and the push to increase output that the cross training did not take place. She also advised that to allocate the Complainant to training she needed a trained replacement for her and this was very difficult to do in the later half of 2024.Ms Barrett advised she was brought up in a muti cultural environment and was born in another country and strenuously denied the allegation of discrimination.

Ms. Barret was cross examined by the Complainant and asked did she work Fridays which she replied she did not and was asked how would the Complainant know there was overtime on a Friday evening if Ms. Barret was not at work.  Ms. Barret explained that there was no necessity for printing DHLs on Thursday evening as most would have been printed and there was not much necessity for overtime on Friday evenings. Ms. Barret said she had no visibility on the day shift. Ms. Barret stated the Complainant was not in a lot of time and she would not contact her when she was on parental leave. She advised the Complainant could come to work on Fridays if she wanted/needed to. Ms. Barret advised due to the Complainants migraine she had to be selective on what she could get her trained on. Mss Barret was asked about who worked Fridays and the Complainant understood it was her Job Sharer.

Ms. Cathy Murphy, Senior Manufacturing Manage, Building 2 gave  evidence that her priority was to look after headcount, new hires and planning. She advised she was with the company for 28 years and it was unusual to work part time with Carers leave. She advised she rang a colleague to see if anyone was working part time and doing Carers Leave. She advised she tried to assist the Complainant with her issue by finding a job in Building 1 to get her Carers leave and the Complainant advised she did not want to work in Building 1 and she was going to Poland.  Ms. Murphy advised evening staff are happy with the overtime arrangements. She advised staff are asked to put their name in for overtime on Tuesdays and the list would go up and she would see if there was enough people to work a full cell. She advised there was high turnover in 2024 and there were 74 new hires that got priority for training. She advised the Complainant had good attention to detail and was excellent at her job.  She advised there was no guarantee of overtime and that overtime was now limited to 600 hours on site for 400 employees. She advised it was standard practice to ask a day shift employee to stay back if a Job Sharer was sick at short notice and that it was rare if ever they would ask a Job Sharer to come in. She advised that in general Job Sharers work out hours between them and that a Job Sharer would not ask another Job Sharer to come in if they were out sick. She advised she would not disturb someone on their day off. The Complainant cross examined Ms. Murphy and asked did she ever deliberately deny her training and Ms. Murphy advised no. Ms. Murphy advised there was a different landscape now as there was no new hires at the moment. The Complainant advised that she did not refuse the deal offered in Building 1 and that it was not a good match for her in Building 1 and that she expected Ms. Murphy to come back to her but she didn’t.

The Complainant shared detailed medical information regarding some medical conditions she is experiencing but I do not deem it necessary to set this out in the Decision.

Findings

As part of my investigative role I asked the Respondent to supply the overall breakdown between Male and Female staff. It is almost 50;50. I also asked for a breakdown of foreign nationals employed and the Respondent advised 64 different nationalities are employed by the Respondent and 90 Polish Nationals are employed by the Respondent of which 58 are Female.  I also asked and was supplied post the Hearing for a breakdown of the operations department staff and this is approximately 70% Irish and 30% non Irish. The fundamental conclusion I have reached from this information is no one could suggest there is systemic gender or race bias within the company and in particular there is no systemic bias on a gender (Female) basis in hiring Polish nationals.  In addition, the Complainant is a member of SIPTU and engaged with her SIPTU Representative on issues but I was not informed of any generic claim of discrimination regarding access to overtime allocation, payroll system, part time work status or training. The relevance of stating this is that the Complainant has to completely rely on specific actions that relate solely to her as being the basis for her alleged discrimination.

Discrimination on allocation of overtime

Having considered the evidence it is clear that in the Complainants general work area there is an established practice of, where overtime may be required, the Respondent places a note on Tuesday regarding overtime for Friday/Saturday and staff are invited to put their names on a list as to their availability. The Complainant does not seem to have used this process much.

On the specific two days (Sept 18/19) which the Complainant states caused the overtime discrimination, the Complainant was not working and very limited overtime (an hour or two) was given to a Male Irish staff member working days to continue to fill work needs that arose from the non attendance of the Complainants Job Sharer, who gave notice of her sickness just shortly before her shift was to commence.. It is illogical and unreasonable from a business and industrial relations viewpoint tor a Company to phone a person off site on their day off to come into work for an emergency hours or so overtime, when notice of the job sharers non attendance due to illness  was only received very shortly before their expected shift start time. The practical and sensible thing to do is ask the skilled day shift Operator to stay on to cover the emergency.

With regard to the overtime allocation on Sept 18th this occurred due to an unplanned absence and a normal production scheduling need. There was no evidence the person was asked to do the overtime because they were Male and Irish, they were asked because they had the skills to fulfil the emergency need. The person that was requested to do the hour cover could equally have been a Polish Female If they had been the person skilled in the department to do the job. 

On the more general note a rule regarding overtime on Fridays and Saturdays has existed for around 23 years and appears to be both fair and practical. It is not reasonable for the Complainant to say this long standing established precedent is discriminatory and should be amened to suit her particular needs which appear to be to work overtime on Saturdays. The Complainant has not established any prima facia discriminatory action in relation to the allocation of overtime.

Discrimination in application of the Complainants part time work status

The Complainants part time contract ceased on 30/01/2025 when the Complainant was on sick leave. The Complainant alleged she should have automatically returned to full time status at that time and not doing so was discriminatory. The Complainant was asked by the Adjudicator had she sought and been denied a return to full time employment and the Complainant advised she had not sought a return to full time employment. The Complainant has also not retuned to work since her part time contract expired. 

I find that the Complainant has not been denied a return to full time employment and she had a responsibility to request a return to full time employment if that is what she wanted, but having failed to do so cannot hold the Respondent responsible for not doing so while she is out sick and claiming it was a discriminatory act. I recommend the Complainant should advise the Respondent formally of her work status desire prior to return to employment from sick leave and the matter dealt with internally. The Complainant has not established any prima facia discriminatory action in relation to the her part time work status.

Discrimination regarding the payroll data re work hours as it relates to Carers Benefit

The Respondent operates a standard system of log in and payroll slips.  The Complainant stated that as her payslip did not show she worked 18 hours and 30 minutes that this was discriminatory in that it affected her case for Carers Allowance as the working maximum hours allowed was 18 hours and 30 minutes. The payslip showed the actual hours worked in decimal places as outlined above. The Respondent explained the payroll system to the Hearing and has offered to assist the Complainant on her return to work with a letter stating what hours she actually does work.

The Complainant was asked did she seek from HR or her Line Manager a letter from the Respondent stating her actual hours of work which presumably would have clarified matters and assisted her claim for Carers Allowance. The Complainant advised she did not seek this letter.

The Respondent payroll system is a general system for around 4,000 staff and could not be amended for just one person. The actions of the Respondent were not discriminatory as it applied to all staff and as pointed out above the Complainant did not seek, what would be standard in the circumstances, a letter from the Respondent setting out her hours of work. The Complainant has not established any prima facia discriminatory action in relation to the calculation of her work hours

Discrimination regarding attendance of her Child at the Christmas party

The Complainant was on long term sick leave and as per company general practice was disconnected from the internal email system thus not being notified of the Children’s Christmas party. This temporary closing of the email access was not unique to the Complainant and is a general rule. The Complainant was aware there was a Children’s Christmas party and appears to have made no effort whatsoever to establish when it was on and ask to attend. The Complainant has not set out any prima facia discriminatory act or Comparator in similar circumstances to her in this area.

Right to replace Job Sharer based on the Complainants contract

The Complainant set out what she interpreted as a right per her contract to be called in when her Job Sharer was absent from work.. The contract states the following  “Absence Cover; Job Sharers will be required where possible to cover their partner's absences on Certified Leave, Annual Leave, Maternity and Adoptive Leave and Parental Leave”. A situation arose on Sep 18/19 where the Complainants Job Sharer rang in sick just before her shift start time. The Complainant was not at work on that day. Line Management asked a Male Irish day worker to stay back for an hour or so on both days to cover for the Job Sharer. The Complainant alleged this was a discriminatory act based on her contract. In the first instance there is no contractual right  specified in the Complainants contract that she would be offered overtime in the event of her Job Sharer short term absence. The wording is construed to cover long term absences such as Annual leave or Adoptive Leave etc and not short term absences.. It also states “where possible” will be required to cover their Partners absences. This gives some flexibility on the issue from the Job Sharers perspective. It is not a mandatory requirement to cover the Job Sharer in the stated contractual circumstances. Given the short notice from the Job Sharer of her illness it is likely the absence was uncertified (this was not advised to the Hearing) but even if it was certified there is no right to be asked to come into work for an hour or so from home on your day off to cover for an emergency situation. Asking the on shift day employee to stay back and cover for an hour or so was the practical Business solution on the day and was not a discriminatory act. The Complainant has not established any prima facia discriminatory action n relation to her contract of employment.

Discrimination due to not being allowed attend meetings

The Complainant alleged that she was not invited to attend meetings. The Respondent advised the role was a stand alone one and there was no need for the Complainant to attend meeting in a nearby Cell. The requirement to attend meetings is a management decision on the allocation of staff time and no prima facia case of discriminatory action in relation to her work conditions has been established by the Complainant.

Discrimination due to lack of Cross Training

The evidence supplied to the Hearing showed that the Complainant was at work on very little occasions during the months prior to her sickness and this combined with the managers evidence of the need to train the new hires first, justified the lack of training provided to the Complainant. I fully accept the Respondents arguments put forward regarding the person being trained to be a Trainer got priority before the Complainant against a background of a business need due to high turnover at the time and that was not a like for like comparator situation. The Complainant has not established any prima facia case of discriminatory action in relation to training.

Victimisation

The Complainant alleged she was victimised but based on the above the Complainant did not meet the burden of proof to establish this claim.

Conclusion

From the makeup of staff supplied the Respondent staffing is definitely multicultural and is a near perfect Male/Female balanced employer. No evidence of any generic bias against Polish women could be construed due to the number of Female Polish staff employed. In general, the Complainant came across as a very competent and detail oriented person but she appears to have taken very little or no proactive actions to resolve her issues. Two experienced Female Managers gave evidence which was both reasonable and fair and showed no bias to the Complainant. From the detailed assessment above of each allegation and my general conclusions, I find that the Complainant has not established a prima facia case on any of the three grounds submitted as discriminatory, race, gender and employment work status and her complaint is not well founded.  

I find that the Complainant has not established a prima facia case of discrimination or victimisation, she was not discriminated against and her complaint is not well founded.

Discrimination on race grounds