Case Number: ADJ-00015142. Workplace Relations Commission

• Docket Number: ADJ-00015142
• Hearing Date: 02 November 2018
• Date: 10 September 2019
• Court: Workplace Relations Commission
• Parties: Mary Helebert v ICE Group Business Services Limited

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Respondent is a licensed agency company supplying labour to client companies. The Complainant commenced employment with the Respondent on 12 May 2017, on which date she commenced work with one of the Respondent’s client companies (hereafter referred to as the Hiring Company). With the exception of a two-month period in September/October 2017, when she was on certified sick leave, the Complainant worked in the Hiring Company until her contract was terminated on 6 April 2018. On 12 June 2018, the Complainant submitted a complaint of discriminatory dismissal, on the grounds of disability, under the Employment Equality Act 1998, to the Workplace Relations Commission. Also on the same date the Complainant submitted a similar complaint against the Hiring Company under case reference ADJ 15144.

Summary of Complainant’s Case:

Preliminary Point: The representatives of the Complainant commenced their submission by setting out a preliminary objection. According to the submission, the Respondent refused to comply with their obligations under Data Protection Regulation. It was submitted that the Respondent was called upon to provide, in the normal way, all personal data held by them in respect of the Complainant. According to submissions on behalf of the Complainant, this request was declined and refused on spurious grounds in a misconceived application of Section 60 of the Data Protection Act, 2018. It was further submitted that the Complainant was significantly hampered in maintaining her claim to the WRC by reason of the refusal of the Respondent in this regard. However, it was submitted that, notwithstanding this, the Complainant wanted to bring it to the Adjudication Officer’s attention that, while she wishes to proceed with her claim, documentation had not been furnished to her in advance of the hearing. It was submitted, on behalf of the Complainant, that in such circumstances, trial by ambush, which has never been an intended feature of WRC hearings, arises in this case. Substantive Submissions: According to submission made on her behalf, the Complainant was employed pursuant to an undated Contract of Employment, issued by and signed on behalf of the Respondent, through which she had been recruited by the Respondent for placement with the Respondent’s Client, the Hiring Company, with whom she commenced working on 12 May 2017. According to the Complainant’s submission, the Contract of Employment included provisions in respect of absence from work and lateness, which placed obligations on employees including, but not limited to: “if you are absent for a period greater than two consecutive days you must provide a doctor’s Certificate and a weekly Medical Certificate thereafter for the duration of the absence”. It was submitted on behalf of the Complainant that her employment was going well and she was very happy in the workforce. However, on or about 29 August 2017, the Complainant became ill having awoken with a swollen eye, blisters and spots all over the left-hand side of her face. It was submitted that the Complainant immediately went to her doctor who advised that she had shingles. Given that this condition is highly contagious and causes a serious health risk and safety threat to those in proximity of the contagion, it was submitted that the Complainant’s attendance at work was completely out of the question. According to the Complainant’s submission, pursuant to contractual obligations, she obtained a sick certificate and furnished same to both the Respondent and the Hiring Company. It was further submitted that, given the nature of the illness, the Complainant attended an eye specialist as she was worried that the condition might affect her eyesight and/or cause blindness. It was further submitted that the infection did, in fact, spread to one eye, which meant that it needed to be treated. According to her submission, on or about 22 September 2017, during the period of illness, as referred to above, the Complainant was alarmed to receive her P45, from the Respondent, stating that the date of cessation of employment was 29 August 2017. It was submitted on her behalf that the Complainant was in shock, in the first instance, to have received such correspondence, but in addition, in light of a serious medical condition, the wrongful termination of her employment because of illness gave rise to discrimination by reason of a disability pursuant to the Employment Equality Act, 1998 to 2015. The Complainant further contends that she was discriminated against pursuant to Section 6 and Section 1 (a) (2) of the 1998 Act, where she was treated less favourably than another person is, has been or will be treated in a comparable situation on discriminatory grounds. It was further submitted on behalf of the Complainant, that the Respondent has an obligation pursuant to Section 16 of the Act, to treat those with disabilities, under the Act, in a way as expressly set out and, in particular, pursuant to Section 16 (3)(b), which requires that the employer take appropriate measures, where needed, to enable a person who has a disability to have access to employment. It was submitted on behalf of the Complainant, that the actions of the Respondent, in the circumstances that pertained, amounted to a discriminatory dismissal. According to the Complainant’s submission, on 3 October 2017, she received an email and a call from a representative of the Respondent seeking an update on her recovery and enquiring as to when she would be fit to return to work. It was submitted that this was in the context of the said individual’s termination of the Complainant’s employment, some two months previously. It was further submitted that it is the Complainant’s contention that her re-employment was a calculated decision on the part of the Respondent, designed to avoid any potential obligations of a statutory nature under the Employment Equality Acts, by reason of discriminatory dismissal. It was submitted that, desperate for work and with no other means of income, the Complainant returned to work on 25 October 2017. According to the Complainant, she worked diligently and loyally for the Hiring Company, without issue or coming to any negative attention. According to the Complainant’s evidence, on 29 March 2018, she was requested to go to the Respondent’s office in the Hiring Company’s premises. According to the Complainant’s evidence, a representative from the Respondent informed her that her employment was terminating on Friday, 6 April 2018. It was further stated that this was confirmed by letter, dated 4 April 2018 from the Respondent. It was submitted on behalf of the Complainant that the facts speak for themselves and it is quite clear that the behaviour of the Respondent amounts, at first instance, to unlawful discrimination by reason of disability from a medical condition. According to the Complainant’s submission, she was duped into returning to her position in October 2017, in a carefully orchestrated attempt by the Respondent and/or their Agents to avoid their obligations under the Acts. It was further submitted, by the Complainant, that the Respondent purposely waited for six months to have expired from the date of the initial termination of employment, in an attempt to avoid their obligations for claims of discrimination. It was further stated that the actions of the Respondent aggravated the situation significantly and compounded the earlier discriminatory conduct against the Complainant. Finally, it was submitted that the Complainant relies on, if necessary, though not so thought, in extending the time for reasonable cause in respect of the discriminatory dismissal element of the case, pursuant to Section 77 (5) (b) of the Act. It is the Complainant’s case, notwithstanding the foregoing, that, in circumstances where the last act of dismissal gave rise to ongoing discrimination, there is no requirement to have any extension of time in any event.

Summary of Respondent’s...