THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 190
PARTIES
Mr Dariusz Jasinksi
(represented by Maguire McClafferty, Solicitors)
and
DRT Ventures Ltd t/a ReInk
(represented by Ryan & Associates, Solicitors)
File Reference: EE/2007/443
Date of Issue: 6th October 2010
Claim
1.1. The case concerns a claim by Mr Dariusz Jasinski that DRT Ventures Ltd t/a ReInk, discriminated against him on the grounds of disability and race contrary to Sections 6(2)(g) and 6(2)(h) of the Employment Equality Acts 1998 to 2008, in terms of dismissing him after he brought a personal injury action against his employer following a workplace accident.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 24 August 2007. A submission was received from the complainant on 17 September 2008. No submission was received from the respondent. On 13 November 2009, in accordance with his 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 28 July 2010. Additional evidence was requested from the complainant on 22 July 2010 and received at the hearing of the complaint. The respondent asked for permission to make an additional written legal submission after the hearing and this was granted, together with an opportunity for the complainant to respond. The last piece of correspondence relating to the complaint was received on 24 September 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he commenced employment with the respondent on 30 April 2007. On 2 May 2007, a computer fell onto the complainant's head, who suffered a concussion and other injuries. He was subsequently certified unfit for work for a period totalling 13 weeks.
2.2. Towards the end of May, the complainant contacted his present solicitors and instructed them with regard to a personal injuries claim. The solicitors sent a letter which outlined the personal injuries claim to the respondent. Two weeks after the letter was sent, the complainant's employment was terminated.
2.3. It is the complainant's contention that he was dismissed solely because of the fact that he took a personal injuries claim. He further contends that he was dismissed because he was Polish. It is his contention that an Irish worker would not have been dismissed. In support of this, the complainant argues that during his service in the company he became aware of a number of accidents that took place at work, yet none of his colleagues took a case against the respondent and therefore remained employed.
3. Summary of the Respondent's Written Submission
3.1. The respondent did not make a written submission to the Tribunal prior to the hearing of the complaint.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are first, whether the complainant was suffering from a disability within the meaning of the Acts at the time of his alleged discriminatory dismissal, and second, whether the complainant was discriminatorily dismissed on the grounds of race and disability as alleged.
4.2. 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.
4.3. With regard to the complainant's complaint on the ground of race, it became clear at the hearing that the difference in treatment he alleges concerned other workers who were non-Irish nationals, including other Polish nationals. The complainant is Polish. So while other workers in the respondent's employment may have received better treatment while on sick leave, I find that it cannot be related to their, or the complainant's race or nationality. Accordingly, the complainant has not established a prima facie case of less favourable treatment on the ground of race, and his complaint in this matter must therefore fail.
4.4. With regard to the complainant's complaint on the ground of disability, the respondent disputes that the complainant is disabled within the meaning of the Acts. The complainant was employed as a general operative in a recycling plant, recycling computer monitors. A heavy monitor fell from a height of approximately 1.5 metres onto his head, causing a concussion and, due to the weight of the monitor and the way in which it fell onto the complainant, injuries to his spine.
4.5. The complainant submitted a report from a consultant orthopedic surgeon, dating from March 2010, which states that he continues to suffer from constant neck pain which is exacerbated by heavy lifting, as well as numbness in the right hand which extends up to the right forearm. This, too, is exacerbated by any heavy lifting. The consultant's report also states that "X-ray of dorsal spine performed on 8 April 2008 showed fusion of T8/9/10 thoracic vertebrae, which would explain his kyphosis and compensatory curve of the lumbar spine. Mr Jasinski confirmed that he did not have serious deformity of the dorsal spine or scoliosis in the past". The consultant further notes that "regarding his lower back, he says that he has intermittent lower back pain but felt almost daily on levels of activity of sitting for any length of time, standing for a length of time or attempting to lift or carry. The pain from the back radiates into the right tight to the knee level but there is no regular history of pins and needles, but occasionally his right foot will go numb". At present, he is only capable of doing light casual work that is not too taxing for him physically.
4.6. From this evidence, I am satisfied that the injuries which the complainant sustained in his accident were severe enough to render him disabled within the meaning of S. 2(c) of the Acts, which defines disability as "the malfunction, malformation or disfigurement of a part of a person's body." I am especially mindful of the fact that the complainant's physical difficulties, which as per his consultant's report can be traced back to his accident, are still persisting three years later.
4.7. It is not part of the complainant's complaint that the respondent failed in his duties towards him pursuant to S. 16 of the Acts, which outlines the provision of reasonable accommodation for workers with disabilities. However, both parties gave evidence on this point which I consider to be connected to the respondent's later decision to terminate the complainant's employment, which is why I will briefly state it here.
4.8. The complainant said in evidence that when he was in hospital, the respondent contacted him to ask when he would be able to return to work. According to the complainant, the respondent promised him lighter work at this point. This is also supported by a letter from a consultant in Emergency Medicine, dated 4 July 2007, which certifies the complainant as fit to work on light duties only.
4.9. However, the complainant stated that these light duties did not materialise and that he was told he could not be transferred to light duties because the people working in that area had greater seniority than he. This was confirmed by Mr. K., Director of the respondent company, who stated in direct evidence that it was not possible to bring the complainant back into lighter duties because it was mostly women, and one man nearing retirement, working in that area and these workers could not be asked to do the heavy lifting duties which the complainant had carried out prior to his accident. He also stated that he was not sure this reasoning was communicated to the complainant.
4.10. The complainant's employment with the respondent was terminated on 10 July 2007, effective 13 July 2007. I indicated to both parties at the hearing of the complainant that I would be guided in my deliberations on this matter by the recent Labour Court decision in the case of A Company v. A Worker [EDA106]. In that case, there was a dispute between the parties as to whether the complainant, who was on sick leave following an accident at work, had his employment terminated because of his disability or because of performance issues which had arisen previously. The Court held that
the only fact in issue in this case is whether the Complainant's disability was a factor which influenced the decision to terminate his employment to a degree which renders the Respondent liable for unlawful discrimination.
The Respondent's explanation for the decision to terminate the Complainant's employment is that his level of performance was unacceptable. The Respondent must prove that this, and not the Complainant's disability, was the operative reason for the dismissal.
[...]
The Court must now examine the evidence presented by the Respondent to discharge the burden of proof. The requirement to establish that there was no discrimination whatsoever means that the Court must examine whether the Complainant's disability was a factor in the decision to dismiss him.
In Wong v Igen Ltd and others [2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson LJ pointed out, in a sex discrimination case, that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. That decision was made having regard to the wording of Article 2 of Directive 2000/78/EC which provides that there shall be no discrimination "whatsoever" on any of the grounds proscribed by that Directive.
Gibson LJ considered the scope which should be ascribed to the notion of "no discrimination whatsoever". He held that if the protected factor or characteristic is more than a "trivial influence" in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority which the Court readily adopts.
4.11. Based on these considerations, the Court went on to hold that the complainant's disability did have a bearing on the termination of his employment, since his employment was terminated while he was still out on sick leave, and no further performance issues had arisen in the short time before he became injured. Consequently, the Court held that the complaint was well founded despite some misgivings about the complainant's credibility as a witness.
4.12. In the case on hand, I found the complainant to be a credible witness and the existence of his disability to be well supported by relevant documentation. Furthermore, there is no alternative explanation as to why the complainant's employment was terminated. The respondent, in its additional submission on the above Labour Court case, which was received after the hearing, states that it sent the complainant to be examined by the company doctor on 9 July 2007, and received the relevant report on 24 July, yet chose to terminate the complainant's employment by letter dated 10 July 2010. The fact that the respondent, by its own evidence, did not choose to wait for this medical report before terminating the complainant's employment raises a strong presumption that it was the complainant's disability that caused his dismissal.
4.13. In the same submission, the respondent seeks to state that the complainant was let go because there was no work for him to do, and that another worker was dismissed for the same reason on the same date. However, this was not part of the respondent Director's oral evidence at the hearing of the complaint, and I therefore attach very little credibility to it. I do not find that it rebuts in any meaningful way the presumption that the complainant was dismissed because of his disability. The complainant is therefore entitled to succeed.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did discriminatorily dismiss the complainant on the ground of disability contrary to S. 8(6) of the Acts.
5.2. In accordance with S. 82(1)(c) of the Acts, I hereby order that the respondent pay the complainant €5000 in compensation for his discriminatory dismissal. This award reflects the seriousness of discriminatorily dismissing a worker with a disability, yet also seeks to take into account the fact that the complainant was only present in the workplace for three days before he suffered his accident, and that his total employment relationship with the respondent only lasted for a couple of weeks. The award is not in the nature of pay and not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
6 October 2010