WARD
(REPRESENTED BY MS. HANNIFFY BL
INSTRUCTED BY BYRNE, CAROLAN, CUNNINGHAM - SOLICITORS)
AND
AUGHRIM/KILMORE/ELPHIN FÁS DEVELOPMENT SCHEME
(REPRESENTED BY C. E CALLAN & COMPANY - SOLICITORS)
1. DISPUTE
This dispute involves a claim by Mr. Malachy Ward that he was (i) discriminated against by Aughrim/Kilmore/Elphin FÁS Development Scheme on grounds of disability in terms section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) victimised in terms of section 74 of the Acts when he was treated adversely and ultimately dismissed for raising certain issues with the respondent. The respondent rejects the complainant's assertions and contends that his employment was terminated for poor work performance and unacceptable behaviour.
2. BACKGROUND
2.1 The complainant commenced employment as a General Operative with the respondent in February, 2005. The complainant has diabetes, which necessitates him checking his blood sugar levels during working hours and if necessary injecting insulin and alleges that he informed the respondent of this soon after he commenced employment. His contends that the respondent failed to allow him the time to perform those functions; that it further failed to provide the appropriate facilities to enable him to do so; that it failed to take account of his disability in the course of his employment and that when he raised these issues with the respondent it victimised him, culminating in his dismissal on 26 August, 2005. The complainant submits that this constitutes (i) discrimination of him on grounds of disability contrary to the Employment Equality Acts, 1998 and 2004 and (ii) victimisation of him contrary to those Acts. The respondent rejects the complainant's assertions and states that it dismissed him for his continual poor performance at work and his unacceptable behaviour towards the Scheme Supervisor.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 7 September, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Written submissions were received from both parties and a Hearing of the complaint occurred on 21 June, 2006. A number of points were raised at Hearing which required further clarification via correspondence between the parties and the Equality Officer.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment with the respondent on 7 February, 2005 as a General Operative on a week on/week off basis. He contends that on the first occasion he spoke with the Scheme Supervisor Mr. Reynolds (on the telephone) he informed him he had diabetes. The complainant adds that he reminded the Supervisor of his diabetes on the first day he reported for duty and that Mr. Reynolds asked him to get a medical certificate confirming his condition. The complainant states that he obtained such a medical certificate from his General Practioner on 16 March, 2005 and that he gave a copy of same to Mr. Reynolds shortly afterward. The complainant states that the nature of his diabetes requires him to monitor his blood sugar levels 2/3 times a day and this procedure must be done in a clean environment. In this regard he sought to use the toilet facilities provided by the respondent. He adds that the nature of the work he was doing involved moving from one location to another and on occasion he could be over 1,000m from toilet facilities. He contends that his Supervisor refused him permission to visit these facilities on a number of occasions and he was therefore left with no option but to check his blood sugar levels and inject himself in his car at the side of the road, if necessary. The complainant contends that the toilet facilities were in any event either unavailable to him when required (as they were locked or he had been instructed not to use them at particular times) or were unhygienic and that the respondent failed to address these matters when he raised them with it. He therefore reported the matter to the Health and Safety Authority (on 4 July, 2005) along with other concerns he had in respect of health and safety on the scheme.
3.2 The complainant states that when he reported the matter to the Health and Safety Authority both Mr. Reynolds and the Scheme Secretary Mr. Dennehy used abusive language to him and threatened him with dismissal. On 22 July, 2005 he received a letter from Mr. Dennehy which was a formal warning about his behaviour and work performance. He states that this was the only warning he received from the respondent. He adds that on 4 August, 2005 he was standing in the Community Hall with a colleague when Mr. Dennehy arrived and a conversation followed in the course of which he alleges Mr. Dennehy called him a "cripple" and told him he was getting a permanent holiday from the scheme. The complainant was subsequently dismissed from his position with effect from 26 August, 2005. He submits that the termination of his employment constitutes victimisation of him contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against him and states that it was not aware of the complainant's condition until June, 2005 when he furnished a medical certificate to Mr. Reynolds advising he had diabetes. It further denies that the complainant was ever refused permission to use the toilet facilities at any time by Mr. Reynolds. It states that toilet facilities were available at five locations on the scheme and these facilities were available to the complainant as necessary. It accepts that there were restrictions placed on two of the locations but contends that the complainant had keys to one of them. In conclusion it considered the facilities adequate for the complainant and any other employee's needs. The respondent adds that had it known of the full details of the complainant's condition it would have accommodated him without difficulty. It states that the scheme was inspected by the Health and Safety Authority in early July, 2005 (toilet facilities were raised as part of the complaint to that Authority) and it no action was taken against the respondent on this point.
4.2 The respondent rejects the assertion that it dismissed the complainant in circumstances amounting to victimisation contrary to the Acts. It states that the complainant's general behaviour and overall poor performance was the reason it terminated his employment. It adds that the complainant was given a verbal warning by the respondent on 4 July, 2005. A second warning followed on 8 July, 2005 because of his aggressive behaviour toward Mr. Reynolds on 7 July. These warnings were followed by a written warning on 18 July, 2005 because there was no improvement in either the complainant's behaviour or performance. The respondent states that instead of improving, matters subsequently got worse and it decided to terminate the complainant's employment with effect from 26 August, 2005. The respondent rejects the assertion that the termination of his employment was connected in any way with his complaint to the Health and Safety Authority or his disability and submits that it was wholly as a result of unacceptable behaviour and poor performance. Finally, the respondent (Mr. Dennehy) denies in the strongest terms that he called the complainant a "cripple" in the course of the conversation they had on 4 August, 2005. The respondent states that Mr. Dennehy has diabetes himself and he had also suffered a stroke and would not in any circumstances use such a word. It states that Mr. Dennehy was overseeing the scheme that day as Mr. Reynolds was on leave and he (Dennehy) was merely performing that function when the complainant became aggressive toward him.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for consideration by me are whether or not Mr. Ward was (i) discriminated against by Aughrim/Kilmore/Elphin FÁS Development Scheme on grounds of disability in terms section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts as regards his conditions of employment and (ii) victimised in terms of section 74 of the Acts when he was treated adversely and ultimately dismissed for raising certain issues with the respondent. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.
5.2 Section 85A of the Employment Equality Acts, 1998 and 2004 sets out the procedural rules to be applied in respect of the burden of proof to be discharged by parties in claims of discrimination. It requires that the complainant must, in the first instance, establish facts from which it can be inferred that he suffered discriminatory treatment or was victimised contrary to the Acts. It is only when the complainant has established those facts to the satisfaction of the Equality Officer and s/he regards them as being of sufficient significance to raise a presumption of discrimination or victimisation, that the burden shifts to the respondent to rebut the inference(s) raised.
5.3 The complainant contends, in the first instance, that the respondent failed to take account of the fact that he had diabetes in the course of his daily working life - in particular refusing him permission to absent himself from his work to monitor his blood sugar levels - thus discriminating against him on grounds of disability. He adds that even if such permission was granted the toilet facilities were either unavailable to him at certain times and in many cases they were unhygienic. The respondent denies that it was aware of his condition until June, 2005 when he furnished a medical certificate confirming his diabetes and also denies that it refused the complainant permission to use the toilet facilities as required. There is clearly direct conflict between the parties on this issue and in those circumstances an Equality Officer must decide, on balance of probability, which version is to be preferred. I note from the evidence of Mr. Reynolds at the Hearing that he had little, if any training on dealing with people with disabilities. I believe that, in these circumstances, if he was aware of the complainant's diabetes he would have discussed the matter with the Scheme's Committee. This would have prompted a response from Mr. Denney in particular as he has diabetes himself. I further note that the nature of the work involved meant that the complainant could be working at different locations each day/week and that Mr. Reynolds was also required to move around the scheme in the course of his working day. If, as was alleged, Mr. Reynolds remonstrated with the complainant for leaving work frequently (and I am inclined to the view that this was not the case) I am satisfied that it was something he would have done with any employee in the circumstances and was not in any way connected with the complainant's disability. Finally, I note that the complaint made by Mr. Ward to the Heath and Safety Authority in early July, 2005 states that "toilets are a half a mile away". No other information is included. The minutes of the respondent Committee Meeting of 24 June, 2005 also include a reference to a complaint by Mr. Ward as regards toilet facilities. No reference is made in either document to the complainant's condition or his contention that the toilet facilities were unhygienic and therefore unsuitable for his particular needs. In addition a note of a telephone conversation on 8 July, 2005 between the complainant and a FÁS Regional Official states that when asked by the official if he (the complainant) had informed the respondent of his diabetes the complainant "did not reply". Having assessed all the evidence submitted by the parties on this issue I am satisfied, as a matter of probability, that the evidence of the respondent is to be preferred and the complainant has therefore failed to establish a prima facie case of discrimination on grounds of disability
5.4 The second element of the complainant's claim is that he was dismissed by the respondent in circumstances amounting to victimisation in terms of section 74 of the Acts for having raised issues about, inter alia, toilet facilities on the scheme with the Health and Safety Authority. He denies that he received the verbal warnings on 4 July, 2005 and 8 July, 2005 which the respondent alleges he was given. The respondent states that these warnings and the final written warning of 18 July, 2005 arose because of the complainant's continued poor performance and his unacceptable behaviour towards Mr. Reynolds in particular and his failure to improve - circumstances which ultimately resulted in the termination of his employment with effect from 26 August, 2005. The respondent furnished minutes of a number of Committee Meetings during the year - the first of which is dated 5 May, 2005 - in which the Committee was advised by Mr Reynolds that the complainant's performance was poor and his attitude was aggressive and abusive. This issue was also discussed at meetings on 16 June, 2005 and 24 June, 2005. In the course of the latter meeting the Committee decided to issue the complainant with a verbal warning. The respondent states that this warning was issued to the complainant on the day he next reported for duty - 4 July, 2005. The respondent adds that the verbal warning issued to him on 8 July, 2005 arose because of an incident involving the complainant and Mr. Reynolds the previous day - the nature of which was recounted by Mr. Reynolds at the Hearing. Having assessed all of the evidence submitted by the parties on this matter I am satisfied, on balance, that the respondent had serious concerns about the complainant's performance and behaviour for a period which predates his complaint to the Health and Safety Authority and that it raised those issues with him in the course of the verbal warnings on the dates indicated. I am further satisfied that the complainant's continued failure to address those concerns, even when they were identified to him in writing on 18 July, 2005, resulted in his dismissal on 26 August, 2005. As stated above the onus is on complainant to establish facts from which it can be inferred that his dismissal by the respondent constitutes victimisation of him contrary to the Employment Equality Acts, 1998 and 2004. I am not satisfied that such facts have been established on the evidence adduced. Whilst it is arguable that there is a certain degree of unfairness in the manner in which the dismissal was handled by the respondent, unfairness is not in itself determinative of discrimination. In light of the foregoing I find that the complainant has failed to establish a prima facie case of victimisation contrary to the Acts. Before leaving this matter I feel that it is incumbent upon me to state that, on balance, I do not accept the assertion that Mr. Dennehy called the complainant a cripple in the course of their conversation on 4 August, 2005.
6. DECISION OF EQUALITY OFFICER
I find that the complainant has failed to establish a prima facie case of (i) discrimination on grounds of disability, in terms of section 6 of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts and (ii) victimisation in terms of section 74 of the Acts and his claim therefore fails.
________________________________
Vivian Jackson
Equality Officer
23 January, 2007