The Equality Tribunal
Employment Equality Acts 1998 - 2008
Decision DEC-E2009-016
PARTIES
Frank Storey
(Represented by Peter Leonard, instructed by Dermot McNamara & Co, Solicitors)
- V -
Erne Mineral Water Co. Ltd.
File reference: EE/2006/178
Date of issue: 18 March 2009
1. DISPUTE
1.1 This dispute concerns a claim by Mr Frank Storey that he was subjected to discriminatory treatment on thegrounds of disability in terms of Section 6 of the Employment Equality Acts, 1998 – 2004 and contrary to Section 8 of those Acts and that he was subjected to victimisation contrary to Section 74(2) of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 31 May 2006 under the Employment Equality Acts 1998 - 2004. On 28 May 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to the undersigned Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts 1998-2007 on which date my investigation commenced. Submissions were sought and received from the parties. As part of my investigation, I proceeded to hearing on 10 December 2008. The respondent made a final written submission on 3 January, 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent as a Lorry Driver from June 2005 until 16 May 2006. On 13 February 2006 during the course of his employment with the respondent, the complainant was involved in a motor accident which necessitated taking an extended period of sick leave.
2.2 The complainant submitted that he was examined by a consultant surgeon in April 2006 and was diagnosed as having ongoing neck and shoulder injuries and as a result was unable to return to work.
2.3 The complainant submitted that the respondent scheduled a meeting with the complainant but the complainant could not attend as he was experiencing severe back pain. The complainant telephoned the respondent to say that he would be unable to attend the meeting. The complainant further submitted that thereafter he received a letter referring to an earlier meeting (7 February 2006) concerning disciplinary matters. This correspondence stated that the respondent had reviewed those disciplinary matters and was now terminating his employment.
2.4 The complainant submitted that during the disciplinary meeting, it was agreed that his performance was under review. The complainant submitted that after this meeting he had only worked for the respondent for another six days prior to being dismissed.
2.5 The complainant submitted that the only conclusion that can be drawn is that the complainant was dismissed as a result of his periodic unavailability for work while he recovered from injuries sustained in the course of his employment.
2.6 The complainant submitted that in a medical report dated June 2006, he was certified fit for light duties. The complainant submitted that at no time did the respondent ask as to how he was recovering or provide appropriate measures to enable the complainant to return to work.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submitted that the complainant was dismissed for reasons totally unrelated to his injury. The respondent submitted that the reasons for dismissal related to serious performance issues related to the job including amongst other things a lack of attention to detail in completing of company documentation resulting in substantial financial loss to the company, endangerment of other employees, and misuse of the company telephone.
3.2 The respondent submitted that the serious performance matters were reviewed in May 2006 following the complainant’s continuing failure to engage with the respondent. The respondent came to the conclusion that the complainant’s continued employment with the company was inappropriate.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. Frank Storey on grounds of disability in terms of section 6 of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts. In addition it is for me to decide whether the complainant was subjected to victimisation contrary to Section 74(2) of the Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting the he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 The facts of this case are that the complainant was on certified sick leave from 13 February 2006 due to a neck and back injury sustained while employed by the respondent. I am satisfied that the nature of the injuries would bring them within the definition of disability as contained in the Acts. On 15 May 2006, while still out on certified sick leave for those injuries, the respondent proceeded to dismiss the complainant. On the basis of the foregoing facts, I find that the complainant has established a prima facie case and the onus to rebut the inference of discrimination raised shifts to the respondent.
4.4 At the hearing of this matter both parties gave evidence regarding the disciplinary issues that arose in relation to the complainant. Both accounts were broadly consistent and outlined a slowly deteriorating working relationship where a number of serious issues of a disciplinary nature surfaced. These were aired in the meeting between the parties of 7 February 2006. The outcome of that meeting was to agree to keep the complainants performance under review and to meet again on 28 February 2006.
4.5 Six days later, the complainant was involved in an accident while engaged in driving for the respondent. As a result of this accident the complainant went out on sick leave. It was conceded by the respondent in writing following the hearing that the complainant had submitted medical certificates covering the entire period of his sick leave up until the date of his dismissal.
4.6 The respondent stated that it had asked the complainant by phone and letter to contact it in order to arrange a meeting of the parties to resolve matters. The complainant confirmed that he was contacted twice to arrange an appointment but did not make contact with the respondent because he was on sick leave and also that he was not aware of the seriousness of the issues involved. The respondent eventually arranged a meeting for 16 May 2006 and communicated this to the complainant. The complainant rang on the evening of 15 May to indicate that he would not be in a position to attend the meeting due to his ongoing back and shoulder injury. In evidence, the complainant confirmed that he was not able to attend the meeting as he was suffering from back pain and further that he did not suggest an alternative date for the meeting to take place. I do not find it credible that the complainant did not contact the respondent to arrange an appointment because of the nature of his disability. Furthermore, I do not find it credible that an employee, who is under review for serious disciplinary and performance issues, would not consider a request to contact the employer to be a serious matter. Where an employer has made repeated efforts to engage an employee in discussions regarding his continued employment, I find that there is an onus on that employee to, at the very least, engage with the employer.
4.7 The respondent stated that following the failure on the part of the complainant to contact the respondent and the cancellation of the meeting, it was left with no alternative other than to let the applicant go. The respondent submitted that accordingly the decision to dismiss the complainant was taken in light of the serious disciplinary and performance issues raised with the complainant and his continuing failure to engage in a meaningful way with the respondent. I find the respondent’s account of events including the details of efforts made to contact the complainant to be credible.
4.8 In considering evidence submitted by both the complainant and the respondent, I am satisfied that the respondent’s decision to dismiss the complainant was influenced in a large part by the serious disciplinary and performance issues raised with the complainant and by the complainants continuing failure to engage with the respondent. I find that the respondent has rebutted the inference of discriminatory treatment raised by the complainant. Accordingly this complaint of discriminatory treatment fails.
4.9 The complainant submitted that he should have been afforded appropriate measures as provided for in Section 16 of the Acts, to enable him to carry out his job. As the complainant was medically certified as unable to work from 13 February 2006 until well after his dismissal, I find that the application of Section 16 is not relevant to this case.
4.10 An additional issue for the Tribunal to consider is whether the complainant was subjected to victimisation by the respondent within the meaning of Section 74(2) of the Acts.
4.11 The complainant put forward the argument that he was not given the chance to do anything else for the company as evidence of victimisation. On the basis of the foregoing there is not sufficient evidence to find that victimisation, as defined in the Acts, took place. Accordingly this element of the complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the respondent has rebutted the inference of discrimination raised by the complainant and accordingly this complaint fails.
5.2 In addition I find that the complainant has not established that he was subjected to victimisation as defined in Section 74(2) of the Acts. This element of the complaint also fails.
_________________
Conor Stokes
Equality Officer
18 March 2009