Case Number: DEC-E2016-050. Workplace Relations Commission
| Judgment Date | 01 March 2016 |
| Year | 2016 |
| Docket Number | DEC-E2016-050 |
| Court | Workplace Relations Commission |
| Parties | Monika Martela -V- M.K. Human Resources Limited (t/a Temple Recruitment) and DHL Supply Chain (Ireland) Limited |
1.1. This dispute concerns a complaint by Ms. Monika Martela that the Respondents, M.K. Human Resources Limited (t/a Temple Recruitment) and DHL Supply Chain (Ireland) Limited, discriminated against her on grounds of disability contrary to Section 6 of the Employment Equality Acts and contrary to Section 8(1)(b) of those Acts in relation to her conditions of employment.
1.2 It is further submitted that the Complainant suffered victimisation following her raising the matter of her grievance and also that her alleged dismissal from DHL Supply Chain (Ireland) Limited constituted discriminatory dismissal within the meaning of the Employment Equality Acts.
2. Background2.1 The Complainant is a Polish national who came to Ireland in 2007 and registered with an employment agency - Industrial Temps (Ireland) Limited – which assigned her to various entities, including Ryanair and IKEA. The business of Industrial Temps (Ireland) Limited was subsequently acquired by M.K. Human Resources Limited (trading as Temple Recruitment).
2.2 M.K. Human Resources Limited (“the agency”) assigned the Complainant to DHL Supply Chain (Ireland) Limited (“DHL”) in December 2010. She was assigned to DHL until November 2011 and again from April 2012 until February 2013 when she became unfit for duty as a result of a serious medical condition which required surgery. She was certified unfit for work until 3 June 2013. Prior to her return to work the Complainant states that the agency requested an additional medical certificate to confirm that her medical condition was not work-related before she was permitted to resume duty.
2.3 Following her medically certified absence, the Complainant requested that she be reassigned to her pre sick leave duties at DHL. However, her request was not granted and she states that she was given no work placement for a considerable time, following which she was granted occasional temporary roles. The Complainant submits that these occasional temporary assignments were only granted after she had referred complaints to the Equality Tribunal and the Employment Appeals Tribunal alleging breaches of employment legislation.
2.4 Ms. Martela referred 2 complaints of alleged discrimination to the Equality Tribunal, the first on 9 October 2013 and the second, which included allegations of victimisation, on 20 April 2015. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General, on 15 October 2015, delegated the complaints to me - Gary Dixon, Equality/Adjudication Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date on which I commenced my investigation. Written submissions were received from each party. As required by Section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on 19 November 2015.
2.5 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
3. Summary of Complainant’s case3.1 The Complainant submits that she was working on a long term assignment with DHL until her certified sick leave commenced on 5 February 2013. She states that when she submitted a fit to resume medical certificate she was not allowed to do so by the agency who requested further information from her medical adviser. The Complainant considers that the agency acted in bad faith in this regard and she believes that it had no intention of allowing her to return to her prior position at DHL, as evidenced by the fact that her medical adviser had provided all the medical clarification sought by the agency.
3.2 The Complainant states that neither the agency nor DHL sought to have her independently medically assessed in the context of providing her with reasonable accommodation. However, she accepts that such reasonable accommodation was not required in any event as she was fit, ready, willing and able to return to her previous job at DHL which, she alleges, was “terminated” by the Respondents.
3.3 The Complainant alleges that following referral of her complaint to the Equality Tribunal, she was offered a position at Ryanair on comparably excellent remuneration but that it never actually materialised; instead she was given a “short intermittent assignment” at Kingston Technology.
3.4 The Complainant submits that she was confronted and pressurised by the agency in May and November 2014 in relation to her having referred complaints of alleged breaches of employment law to the Equality Tribunal and the Employment Appeals Tribunal. She states that when she refused to withdraw these complaints, she found herself out of work. She alleges that other work colleagues have not been treated in this manner by the agency as they were offered various interviews and positions that were not offered to her. She further alleges that the HR Director of the agency told her she would “be destroyed” and would not receive further assignments or references from the agency. She considers that the failure to reinstate her at DHL following her return form sick leave constitutes discriminatory dismissal contrary to the Employment Equality Acts.
Alleged prima facie case of discrimination
3.5 As outlined previously, the Complainant submits that when she attempted to return to the workplace following a period of sick leave, the agency sought to clarify that her medical condition was not work-related. She considers that this request was made in bad faith and was not for the purpose of assessing her availability, ability or suitability to return to the workplace because when her medical adviser confirmed the position, the agency then issued a “pre-dated” letter (i.e. a letter dated one month in advance of its postal date) informing her that there was no work available. Ms Martela submits that the agency simply did not wish to facilitate her return to work in circumstances where she provided a fit to resume medical certificate and where it had been confirmed that her medical condition was not work-related. The Complainant believes that these facts are sufficient to establish an inference of discrimination on the ground of disability which is of appropriate substance to place the burden on the Respondents to prove the contrary.
4. Summary of Respondents’ cases4.1 MK Human Resources Ltd.
4.1.1 The agency accepts that the Complainant had been assigned to DHL under a contract for services for temporary workers. However, it states that the contract does not specify any exclusivity in regard to DHL (or any other user of its services), nor was the Complainant contracted specifically to DHL.
4.1.2 The agency submits that no “dismissal” took place as the Complainant continues to be employed and receives wages, etc., as appropriate. As regards the Complainant’s statement that she was aggrieved when her assignment at DHL ended, the Respondent states that she was never employed by DHL but was assigned there as a temporary agency worker; the need for such temporary agency work at DHL diminished during the Complainant’s 4 month sick leave absence.
4.1.3 The agency contends that following the Complainant’s absence on sick leave she was offered numerous assignments but that she declined most of these placements. In relation to periods where no work placements were available, the agency refers to clause 4 of its contract for services which states, inter alia, that “the temporary worker acknowledges….there may be periods where no suitable work is available ….” .
4.1.4 The agency denies the Complainant’s assertion that, unlike other fellow agency workers, she was not offered interviews and it outlined various interview opportunities that had been afforded to the Complainant. However, it states that she was intent on returning to DHL despite that particular role no longer being available. In that regard the agency states that the Complainant’s pre sick leave role was not filled by any other agency worker. (This was confirmed by DHL at the hearing).
4.1.5 In relation to the allegations of victimisation, the HR Director of the agency refutes the Complainant’s assertions in regard to events following referral of her complaints to the Equality Tribunal and the Employment Appeals Tribunal....
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