FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A RESTAURANT (RESPONDENT) - AND - A WORKER (COMPLAINANT) (REPRESENTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act, 1998.
BACKGROUND:
2. The complainant commenced employment as a waitress with respondent on the 8th November, 2000 and was dismissed on the 18th February, 2001. The worker claims that she was unfairly dismissed and was discriminated against on the grounds of disability.
Management rejected the claim that the worker was unfairly dismissed. It states that the worker was dismissed because she failed to reach the required standards.
The worker referred a complaint to the Labour Court on the 13th August, 2001, in accordance with Section 77 of the Employment Equality Act, 1998. Labour Court hearings took place in Galway on the 28th February, 2003, and on the 24th March, 2003. The following is the Court's determination:-
DETERMINATION:
Introduction:
The complainant was employed part-time as a waitress by the respondent. She commenced her employment on 8th November, 2000 which continued until 18th February, 2001 when she was dismissed. The complainant suffers from epilepsy, which is a disability within the meaning of Section 2 of the Employment Equality Act, 1998. She contends that her dismissal was on grounds of this disability and amounted to unlawful discrimination. The respondent denies that the complainant was dismissed on grounds of her disability. He contends that she failed to satisfactorily complete her probationary period and was dismissed because she was unsuitable.
The Facts:
The material facts as admitted or as found by the Court are as follows:
The complainant, who was then a student, applied for a part-time position as a
waitress at the respondent's restaurant and was interviewed by the manager. The
complainant was told that she would be given one night's trial and if she was
considered suitable she would be offered regular employment. At this
interview the complainant told the manager of her disability.
The complainant started working on the 8th November, 2000. After the initial
night's employment she was offered regular part-time hours in the evening and at
weekends. The respondent did not provide the complainant with a written contract of employment. Neither did he issue her with particulars of the terms of her employment as is required by the Terms of Employment (Information) Act, 1994. The Court accepts that at no stage was the complainant required to undergo a probationary period of any duration.
Shortly after the commencement of her employment the complainant experienced
a seizure whilst working in the restaurant. She rested for a time and returned to
work. Neither the respondent nor the manager made any issue of this event.
On 28th January, 2001 the complainant experienced a further seizure at work. She had some advance warning of the episode and left the room in which she was working and rested for some time. The complainant quickly recovered and returned to work. The following day the respondent enquired as to how she was but did not otherwise comment on what had occurred.
- On 11th February, 2001 the manager of the restaurant brought the complainant into her office and asked her about the seizure which she had experienced some weeks previously. The manager told the complainant that the respondent had “freaked out” about her epilepsy and that she was being dismissed. The complainant was given a week’s notice of dismissal, which she worked out.
The Submissions of the Parties:
The Complainant’s Case.
The Solicitor for the complainant submitted that the reason given to the complainant for her dismissal was her epilepsy. The respondent had never made any complaints concerning the complainant’s competence or capacity to carry out her work as a waitress. The complainant had previous experiences in working in a similar capacity elsewhere and had not experienced any difficulties. Another employer was called in evidence and testified as to the complainant’s competence and suitability whilst working for him as a waitress.
It was submitted that all of the evidence pointed toward the complainant’s disability being the main or only reason for the dismissal. It was further submitted that the respondent had not shown that the complainant was other than fully competent and fully capable of doing the job for which she was employed. The Solicitor for the complainant submitted that even if there was a doubt as to her capability (which was denied) the respondent failed to consider what reasonable facilities could be provided so as to accommodate the complainant.
The Respondent's Case:
The respondent told the Court that he left the day-to-day management of the restaurant to the manager. Her duties involved taking responsibility for staff matters. The manager is currently out of the country and is not available to give evidence.
The manager had told the respondent that she had come to the conclusion, that for reasons which were related to the Court, the complainant was not suitable for the job at which she was employed and that she (the manager) proposed terminating her employment. The respondent agreed with this decision because he felt it was a matter coming within the manager's responsibility. He said that the complainant’s epilepsy had nothing whatever to do with the decision to terminate her employment. Specifically, he denied making the remark which was allegedly attributed to him by the manager in her discussion with the complainant.
The respondent adduced evidence that following the complainant’s dismissal, and following the initiation of these proceedings, he had employed another employee who suffered from epilepsy. Another employee of the respondent, who suffered from a chronic illness, gave evidence of the concern which the respondent had shown towards her and the assistance which he had provided to her in dealing with her illness.
Conclusions of the Court:
The Court recognises that the respondent is at a considerable disadvantage in that the restaurant manager, who dismissed the complainant, was not available to give evidence. At the adjourned hearing, when the respondent was represented by Solicitor and Counsel, the Court was informed that this person would not be available as a witness and that no application was being made for an adjournment to facilitate her attendance.
The complainant was clear in her evidence that the manager had told her that she was being dismissed because of her disability. She also told the Court that the manager had indicated to her that the decision was related to the respondent's reaction to the seizure which she had experienced at work.
The complainant’s testimony regarding alleged communications passing between the respondent and the manager is hearsay and cannot be accepted as establishing the respondent’s attitude towards the complainant's disability. Moreover, there is no other evidence to show that the respondent ever indicated that he had a difficulty with the complainant because of her disability. The content of the discussions between the complainant and the manager on the 11th February, 2001 is, however, evidence that the manager was influenced by the complainant’s disability in deciding to terminate her employment. In the absence of any rebuttal evidence, the complainant's evidence regarding this discussion is accepted.
In her evidence the complainant also denied that there was any basis for the complaints made by the respondent in relation to her work performance. She further testified that neither the respondent or the manager had ever raised any issue with her in that regard.
The complainant was closely questioned by the Court in relation to her evidence. Having considered this evidence and having regard to her demeanour in giving evidence, the Court is satisfied that she presented as an honest witness and that her recollection of the material events is accurate.
The respondent’s evidence was that the decision to dismiss the complainant was taken by the manager. On the basis of the complainant’s evidence the Court accepts as a fact that the manager told the complainant that she was being dismissed because of her epilepsy and that this was, in fact, the dominant or only reason for the dismissal. The Court is reinforced in its finding by the absence of any complaints or warnings issued to the complainant concerning her work performance.
There is no admissible evidence to refute the respondent’s clear evidence that he did not participate in a decision to dismiss the complainant because of her disability. Nonetheless, at all material times the manager was acting in the course of and within the scope of her employment as restaurant manager in dismissing the complainant. Consequently, both at common law and by virtue of section 15(1) of the Act, the respondent is vicariously liable for the acts of the manager.
Determination:
The Court is satisfied that the complainant herein was dismissed on grounds of her disability at a time when she was fully competent and fully capable of performing the duties of her employment. The Court is further satisfied that the said dismissal constituted discrimination on the disability ground contrary to Section 8 of the Employment Equality Act, 1998.
The Court further determines that the appropriate redress is an award of compensation. Having regard to all the circumstances of the case, including the financial loss suffered by the claimant, the stress which she suffered in consequence of the discrimination and in bringing this claim, the Court measures the amounts which is fair and reasonable at €7,500.
The respondent is ordered to pay the complainant compensation in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
9th April, 2003______________________
LW/LWDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.