THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 046
PARTIES
Mr Con Maher
(represented by Gerard O'Brien, Solicitors)
and
CIE Medical Department and CIE
(represented by CIE Solicitors Office)
File Reference: EE/2007/510
EE/2008/210
Date of Issue: 13th April 2010
Claim
The case concerns a claim by Mr Con Maher that the CIE Medical Department and CIE discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of access to employment. The complainant further claims that the second named respondent victimised him when it made no response to another job application he had submitted, upon learning that a complaint with the Tribunal was pending.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 3 October 2007, and a further complaint with regard to his alleged victimisation on 11 April 2008 A submission in respect of both matters was received from the complainant on 5 September 2008. A submission, also dealing with both complaints, was received from the respondent on 9 February 2009. On 28 August 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 31 March 2010.
1.Summary of the Complainant’s Written Submission
The complainant submits that in July 2006, he applied for a position as school-bus driver with the respondent. He passed the driving test, and subsequently underwent a medical exam on 11 August 2006. In reply to a question from the examining doctor, he stated that he had undergone an angiogram test in 2003. He subsequently provided the results of that test to the respondent. On 25 August 2006, the complainant was informed that he had failed the medical examination because of the angiogram report. In a letter dated 18 October 2006, the respondent's Chief Medical Officer specified to the complainant that he had been deemed unfit for recruitment as a part-time bus driver "because you were noted to have a 50% blockage of your left anterior descending coronary artery." The complainant decided to instruct a solicitor in this matter, and on 7 April 2007, all medical reports in the possession of the respondent were forwarded to the complainant.
It is the complainant's contention that the respondent discriminated against him in the following ways:
· All applicants for this and similar positions were not required to supply angiogram test results;
· Bus driver who are currently employed by the respondent are not required to undergo angiogram tests;
· The regulations governing the fitness to drive Group 2 vehicles contains no specific exclusion of an applicant with a condition like the complainant's.
The complainant further argues that the test results were three years old by the time they were used to deny him access to employment.
With regard to his victimisation, the complainant submits that in October 2007, he made a further application for a school bus driving job with the respondent in the Thurles/Templemore area. In the first week of November, he received a phone call from a staff member in the respondent's Limerick office. They discussed the complainant's previous application, and when the complainant was asked about its outcome, he advised the staff member that he had referred the matter to the Tribunal. The staff member said he would take this into consideration when making his decision. The complainant received no further communication from the respondent in the matter. He contends that this constitutes victimisation within the meaning of the Acts.
2.Summary of the Respondent’s Written Submission
The respondent contends that both complaints are out of time pursuant to the time limits set in S. 77(5) of the Acts. The respondent further contends that CIE Medical Department is not the correct respondent, as it is not an employer, or prospective employer, of the complainant.
On the substantive issues, the respondent denies discriminating against, or victimising, the complainant. In particular, the respondent disputes that it is discriminatory not to compel all applicants for driving positions to supply angiogram test results. The respondent argues that it would hardly be reasonable or necessary to compel every applicant for a driving position to supply similar test results when there was nothing immediately apparent in any investigation that the applicant suffered from a heart condition.
The respondent accepts that there is no specific exclusion for heart conditions like the one that affects the complainant, to drive Group 2 vehicles. Nevertheless, the respondent maintains that its Chief Medical Officer has an obligation to satisfy himself that an applicant is medically fit to drive a bus and that he presents no danger to himself or to his passengers or to the general public by virtue of any medical condition he may suffer from.
In the case of the complainant, the rationale for the respondent's Chief Medical Officer in refusing the complainant's application on medical grounds was that the anterior descending coronary artery is the main coronary artery supplying the entire left ventricle of the heart. In the opinion of the Chief Medical Officer, a blockage in this artery placed the complainant at risk of a sudden cardiac event, making him unsuitable for public service vehicle driving.
The respondent also rejects that it victimised the complainant in his subsequent application, and states that the reason the complainant's application was not further processed was that he had previously been rejected as a bus driver on medical grounds by the respondent's Chief Medical Officer.
3.Conclusions of the Equality Officer
The issues for decision in this case are whether the complaints were brought in time pursuant to S. 77(5) of the Acts; and I have therefore jurisdiction to investigate them; and if so, whether complainant was discriminated against on the ground of disability in access to employment, and victimised by the respondent, within the meaning of the Acts.
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
With regard to the timeliness of the complaints being referred, I propose to deal with the complaint of access to employment first, then with the complaint of victimisation. With regard to access to employment, I note from the respondent's own evidence that the complainant was advised by letter dated 18 October 2006 that he was deemed unfit for recruitment on medical grounds. I therefore take this to be the date on which the complainant learned about the outcome of his application. From April 2007 onwards, the complainant benefited from the advice of a solicitor. Nevertheless, the complainant's complaint was only received by the Tribunal on 3 October 2007. At no time between that date and the date of the hearing, 31 March 2010, did the complainant's representative seek to make representations to the Director for an extension of time pursuant to S. 77(5)(b) of the Acts. Therefore I find I am bound in this matter by the decision of the Supreme Court in The State (Aer Lingus Teo) v. Labour Court (No. 1) [1987 ILRM 373], where it was held that S. 19(5) of the Employment Equality Act of 1977, being the equivalent provision to S. 77(5) of the Acts, obliged the courts to interpret the time limit strictly where reasonable cause for extension had not been shown. I further note the finding of the High Court in The Minister for Finance v. The Civil and Public Service Union and others [2006 IEHC 145], which upheld, inter alia, a finding by the Labour Court that the onus is on the party wishing to avail of an extension of time pursuant to the provisions of S. 19(5) or S. 77(5), respectively, to make an application to this end to the court or judicial body seized of the matter.
I therefore find that the complainant's complaint of discrimination in access to employment has been brought outside of the time limits specified in S. 77(5) of the Acts, and I have no jurisdiction to investigate the matter.
With regard to his complaint of victimisation, it is common case that the complainant and a manager of the respondent's discussed the complainant's second application for a bus driver position with the respondent on the phone in November 2007 and there the manager for the respondent learned of the pending claim before the Tribunal. The complainant filed a victimisation complaint in April 2008, which is within the six month time limit proscribed by the Acts. I therefore find that I do have jurisdiction to investigate the matter of the complainant's alleged victimisation.
The witness for the respondent, Mr A., stated in response to a direct question that it was the normal practice of the respondent to respond to job applicants who are not immediately successful in securing a position with the respondent by letter. This letter will either state that the applicant has not been successful, or will advise the applicant that his or her application will be kept on file, should a suitable position arise in the future. Leaving a job application completely unresponded to, as happened to the complainant, is not normally the practice of the respondent.
I find that this treatment of the complainant's job application, in deviation from the respondent's normal practice, to be adverse treatment within the meaning of the Acts. I further find that the fact that the complainant's application remained "unprocessed", in the words of the respondent, after the respondent learned that a complaint with the Tribunal in respect of the complainant's previous job application had been filed, does raise a prima facie case that the complainant was victimised within the meaning of S. 74(2) of the Acts.
In response, the representative of the respondent expressed regret for the manner in which the complainant's application had been treated, but denied victimisatory intent, or a connection with the complainant's case pending before the Tribunal. He stated that the reason the application remained unprocessed was because of the complainant's earlier rejection by the Chief Medical Officer. However, I note that this was the subject matter of the complainant's discrimination complaint, and that therefore a causal connection between the reason for the respondent's behaviour and the pending case exists. Furthermore, the respondent's representative did not provide a satisfactory answer to my question why the respondent, if it was satisfied it could stand over the CMO's decision, did not advise the complainant accordingly?
Mr. A, in evidence, claimed that he had wished to be polite by talking to the complainant directly on the telephone. However, he stated that he had not told the complainant of his lack of success over the telephone, either. However, Mr A. accepted in cross-examination by the representative of the complainant that he said to the complainant on the telephone that he would consider the matter of the complainant's case with the Tribunal when he had learned that it was pending.
Based on the evidence summarised in the preceding paragraphs, I am not satisfied that the respondent has rebutted the complainant's prima facie case of victimisation pursuant to S. 74(2) of the Acts, and therefore I find that the complainant is entitled to succeed.
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) I have no jurisdiction to investigate the complainant's claim of discrimination on the ground of disability, due to it being lodged outside of the time limits specified in S. 77(5) of the Acts.
(ii) CIE victimised Mr Con Maher by leaving his job application unprocessed after learning that a discrimination complaint with the Tribunal was pending following an earlier job application.
I therefore order, pursuant to S. 82(1) of the Acts, that the respondent pay the complainant €2,500 for the effects of the victimisation. The award is not in the nature of pay and therefore not subject to tax
______________________
Stephen Bonnlander
Equality Officer
13 April 2010