THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2011-256
PARTIES
Renata Kuckiewicz
(Represented by Rachel O'Flynn BL instructed by Colm Burke & Co. Solicitors)
v
Kaneford Limited t/a Byrnes Butchers
(Represented by Sarah Daly BL instructed by Michael Powell Solicitors)
File Reference: EE/2009/053
Date of Issue: 22 December 2011
Headnotes: Discriminatory dismissal - Discrimination on the grounds of race and disability - Procedures for dismissal while on sick leave - Reasonable accommodation - Employment Equality Acts, 1998 to 2008 s 6. 8 (6) (c), s 16(3), s 77(5) (a), s 77 (6A)
1. Dispute
This dispute involves a claim by Ms Renata Kuckiewicz (hereinafter "the complainant"), who is a Polish national, that
(i) she was discriminated against by Kaneford Limited t/a Byrnes Butchers (hereinafter "the respondent") on grounds of disability and race within the meaning of sections 6 (2) (g) and 6 (2) (h) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") and contrary to section 8 of the Acts by not offering her the same treatment in relation to conditions of employment as the respondent afforded to other persons where the employment circumstances of the complainant and the comparators were not materially different;
(ii) she was harassed on the grounds of race and disability during the course of her employment contrary to section 14A of the Acts;
(iii) she was dismissed on account of her race and/or disability contrary to section 8 of the Acts;
(iv) the respondent failed to comply with its obligation to take appropriate measures needed in this case to enable the complainant who had a disability to participate in employment, contrary to section 16 of the Acts.
An equal pay claim and a claim of victimisation were withdrawn.
2. Background
The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 27 January 2009. A written submission was received from the complainant on 22 July 2009. A written submission was received from the respondent on 8 September 2009. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 12 May 2011. Both parties attended the hearing.
3. Summary of the Complainant's case
3.1 The complainant was employed by the respondent as a sales assistant with effect from 25 May 2006. Her mother had died suddenly two months prior to that and the complainant was suffering from depression as a result. She was furnished with a contract of employment which she signed at the time but did not receive a copy of same. She was the only Polish person employed in the shop. The only other non-Irish national was a butcher from New Zealand.
3.2 She claims she was treated unfavourably compared to her co-workers by being required always to do the heavier duties in the shop such as cleaning and carrying, while her co-workers chatted. She would also have to take the meat machine apart and clean individual components. She was always the one expected to work extra hours. Her co-workers made derogatory comments about Polish drivers in her hearing. She was excluded by her co-workers who never invited her to join them for lunch. On one occasion when members of staff were purchasing produce in the shop she was ignored by the cashier and served last. She was crying on many occasions in the back room due to the behaviour of her co-workers. When questioned if she had complained to her boss that her co-workers were unfriendly to her she said she had not but stated that her boss must have been aware of it because he could see the shop on CCTV. When questioned she agreed that one of her co-workers (Ms A) was particularly friendly to her and had common interests.
3.3 She said that she had to work excessive hours in 2006, sometimes up to 60 hours a week. On 7 December 2006 she developed back trouble and as a result she was hospitalised for one day and out of work for six weeks on certified sick leave as a result. She claimed her employer taunted her at this time and told her that if she was on sick leave he would have to dismiss her. When she went back to work she informed her employer she must take it easy due to her back injury but there was no reduction in her workload. When questioned she agreed that her boss had called around to her house with insurance forms for her at her request. She also agreed that her boss helped her get a bank loan. She also agreed that he went to the Community Welfare Officer on her behalf at this time.
3.4 Due to an accident at home on 13 March 2008, she suffered a back injury which caused severe and constant pain. She rang the shop to tell them she would not be able to attend work as she had to go to her GP. She spoke to her employer's father who got angry with her and said she was needed in the shop immediately. She went to a Polish doctor who sent her for physiotherapy twice after which she felt worse. She then attended an Irish doctor who prescribed tablets. She did not go back to work but sent in fortnightly sick certificates. She spoke to her employer on the 23 May 2008 who warned her that if she could not put a timescale on her recovery she would be dismissed. After that discussion the complainant avoided meeting the respondent, instead she sent in her medical certificates by post. On 11 June 2008 she was diagnosed with right sided sciatica. Her GP noted soon after that the complainant was referred for an MRI scan but there was a three month waiting list. She informed her employer of this.
3.5 On 10 July 2008 the complainant received the following letter from her employer, signed by Mr Y, the Managing Director:
"Date 10/07/08
Re: Your Employment status and Long Term illness.
Dear Renata
Further to our conversation of 23 /05/08 when we discussed the ongoing nature of your illness and the fact that no end or resolution seemed to be evident.
We agreed to wait and see what the consultant said on the 11/06/08 and take it from there.
On the 23rd you said that the MRI scan would happen before you saw the consultant, this now appears not to be the case as we received a letter from your doctor saying that you are on a waiting list of approx. 3 months for a scan.
This would put any possible return to work at well over three months allowing for Physiotherapy and/or an operation on your back. Therefore we could safely assume that your intended return to work would not be before October or November of this year.
You stopped work on the 13/03/2008 so this would mean that you will be out of work for a minimum of six months, probably 7 months and possibly longer still.
As we discussed on the 23/05 Kaneford cannot operate indefinitely by moving staff around to accommodate the holding of your job. We did agree however to wait until the consultant saw you and we further agreed that if there was a definite short timeline to your recovery arising from that visit that we discuss options, Unfortunately this is not the case and Kaneford feels it is unable to hold your job for that length of time.
Kaneford does not in any way dispute that you are unfit to work arising from your accident at home.
We would like to give you the opportunity to respond to this letter in person or by letter in case you disagree with any thing or if you need clarification on any point. So we are giving you a 2 week period from now (i.e. until the 24/07/08) to contact us regarding the situation, or to bring any other facts to light which may help put a better timescale on your recovery.
Be advised that without a material change in the facts given to us about your treatment timeline or some other agreement it is our intention to cease your employment with Kaneford Limited as of the 07/08/08, this gives you your statutory 2 weeks notice after the deadline f any representations. In the event of that happening you would receive a P45 in the post to your home address a short time after the 07/08/08.
We enclose a print out from the citizens information board regarding fair grounds for dismissal which can be found on the internet. The web site address is included on the document. I have highlighted the appropriate paragraphs.
Kaneford Limited wishes you a speedy recovery.
Yours sincerely
Managing Director
Kaneford Ltd."
3.6 Due to the waiting list and backlog for an MRI in Ireland, the complainant arranged to have an MRI scan in Poland and the scan was conducted on 5 August 2008. It was inconclusive. The complainant was issued with a P45 by her employer incorrectly giving the date of termination as 30 March 2008. This was subsequently amended to read 7 August 2008. Accordingly the complainant was dismissed from her employment. An Irish MRI scan in November 2008 did not show disc trouble. The complainant was not fit for work until 7 December 2009 when she obtained work in a card shop. She went sick after two weeks with back trouble. She was confined to bed for 2 weeks after which she resumed work until May 2010. In August 2010 she had another MRI scan in Poland which showed a slipped disc. She has not worked since.
4. Summary of the Respondent's case
4.1 The respondent raised as preliminary issues
(i) that the claim is out of time in that it was not made within 6 months of the last day on which the complainant actually worked for the respondent which was 13 March 2008; and
(ii) that the complainant's medical condition does not amount to a "disability" under the Act.
4.2 The respondent runs a family butcher business. It employs both butchers and shop assistants. The Managing Director Mr Y offered the complainant a job when he found her crying and clearly distressed in the shopping centre where his shop is located. At the time the complainant worked for a leading department store in the same shopping centre. The complainant told him her mother had died in Poland and that because she had been given no leave by her employer she couldn't go to visit her grave. Mr Y told her to go and visit her mother's grave and that a job would be waiting for her with the respondent upon her return.
4.3 The respondent denies that the complainant was ever required to do the heavier duties within the shop. All employees were told never to carry heavy boxes and always to ask for help in such circumstances. The complainant was never asked to take the meat machine apart. This was a task for butchers. The complainant was asked to clean display dishes as often as anyone else. She was never asked to work longer hours than her co-workers. Ms A, a co-worker who worked alongside the complainant gave oral evidence. She was friendly with the complainant. She denied that the complainant was treated less favourably. She denied that colleagues laughed at the complainant. She said that all the assistants had to wash up and prepare the kebabs, not just the complainant. The complainant did not socialise much with her colleagues, spending her short break talking on her mobile phone. She had no recollection of any case where the complainant was passed over in the queue of staff buying discounted meat. She had seen the complainant crying on occasion but these were related to problems in her personal life, not due to problems with co-workers.
4.4 Regarding the complainant's absence in December 2006, the respondent denies he taunted or threatened her with dismissal. He points out that he helped her in the following ways:
1. He organised a bank loan for the complainant as she had previously failed to arrange one herself.
2. He visited the Community Welfare Officer on her behalf to arrange for her to get a medical card and some income payment.
3. He helped her fill out insurance forms to cover her one day stay in hospital.
4. He went to the Department of Social Welfare to initiate her claim in an effort to assist her in obtaining injury benefit payments.
5. He gave her a free ham at Christmas and arranged cover for her for the Christmas period.
4.5 As regards the complainant's absence from 13 March 2008, the respondent denies that the complainant was spoken to by his father in an angry manner or was told she was needed in the shop immediately. The respondent was sympathetic to her situation. He considered that the medical treatment she was getting was not good enough and offered to loan her money for an X-ray, an offer which was refused.
4.6 On 23 May 2008 the complainant met with the respondent and brought more insurance claim forms for him to fill out. These forms were to assist the complainant claim money due to absence from work due to disability. Because there was no sign of the complainant returning to work, the respondent asked her whether she intended to return but she did not seem interested. When asked if she ever intended to return she just shrugged her shoulders and did not respond. At the same meeting the respondent and complainant discussed the ongoing nature of the complainant's illness and the fact that the respondent considered that the business could not operate indefinitely by moving staff around in order to keep her position open. The complainant told him she would have the results of an MRI scan on her spine prior to attending a Consultant (which appointment had been scheduled for 11 June 2008) and in turn the respondent said he would wait until he had received the results of this MRI scan along with the findings of her Consultant in order to see if there was an estimate as to the timescale of her recovery at that stage. He told her if there were no developments at that stage that he would have no option but to issue her with a P45 but that she would also get a letter from him detailing the position of her employment in advance of any P45 being issued to her. The respondent believed she understood what he told her and she did not seem unduly concerned by this.
4.7 The respondent received a letter from the complainant's GP dated 13 June 2008 stating that the complainant attended the neurosurgeons on 11 June 2008. The neurosurgeons were concerned that the complainant may have a slipped disc in her back and were arranging an MRI scan of her spine. The letter went on "there is obviously a considerable waiting list for this and they estimate 3 months. She will obviously be out of work as she is unfit until then." The respondent sent the letter to the complainant which is reproduced at paragraph 3.5 above. This was the letter the respondent had told the complainant on 23 May 2008 that he would have no alternative but to send her, if no estimate as to the timescale of her recovery was forthcoming, as her job could not be held open indefinitely. The complainant was told in this letter that failure to advise the respondent of a possible timescale on her recovery would leave the respondent no other choice but to cease her employment due to long term illness with effect from 7 August 2008 and that she would receive a P45 in the post to her home address a short time after this date. The complainant made no contact with the respondent in response to this letter. The respondent was never informed of any MRI scan performed in Poland.
4.8 In or around 7 August 2008, the complainant contacted the respondent to ask for her P45 to be issued. The respondent arranged for his accountant to issue. Unfortunately the P45 gave the wrong leaving date of 30 March 2008 instead of 7 August 2008. This was corrected after the complainant contacted the respondent.
5. Legal considerations
5.1 The respondent raised as preliminary issues
(i) that the claim is out of time in that it was not made within 6 months of the last day on which the complainant actually worked for the respondent which was 13 March 2008; and
(ii) that the complainant's medical condition does not amount to a "disability" under the Act.
The claim was received by the Tribunal on 27 January 2009 which was less than 6 months after the date declared by the respondent in the amended P45 issued to the complainant as the date she left his employment (7 August 2008). Her claim of discriminatory dismissal is therefore within time. As regards her complaints of discrimination in conditions of employment and harassment, insofar as these relate to events which happened prior to 13 March 2008, these happened more than 6 months prior to the date of submission of the complaint to the Tribunal. Section 77 (5) (a) of the Act provides that subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
Section 77 (5) (b) provides that "on application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly."
Section 77 (6A) (a) provides that --
discrimination or victimisation occurs --
(i) if the act constituting it extends over a period, at the end of the period,
(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and
(iii) if it arises by virtue of a provision which operates over a period, throughout the period.
No application for an extension of time under section 77 (5) (b) was made.
I have to consider whether or not the behaviour complained of which happened after 13 March 2008 (related to her absence and termination of employment after her accident at home) and what happened prior to that date (allegations of discrimination and harassment in the workplace) represents a continuing act of discrimination or harassment extending over a period.
Having listened to the evidence presented by the complainant I have decided that the allegations made against the respondent in respect of the period after 13 March 2008 are unrelated to what is alleged to have transpired in the workplace prior to that date and consequently they do not amount to an act extending over a period straddling that date. The elements of the complaint which relate to matters alleged to have happened in the workplace prior to 13 March 2008 are out of time and therefore I have no jurisdiction to hear them.
5.2 The respondent disputes that the medical condition suffered by the complainant which caused her to be absent on sick leave amounts to a disability within the meaning of the Act.
The respondent has submitted in evidence two documents which show his level of awareness of the complainant's condition prior to the termination of her employment. These are (i) a copy of an insurance claim by the complainant countersigned by the respondent and dated 23 May 2008 in which her condition is described as "back pain and sciatica awaiting neurosurgeon appointment 11 June 2008" and (ii) a letter to the respondent from the complainant's GP quoted at paragraph 4.7 above in which the respondent was informed that neurosurgeons were concerned that the complainant may have a slipped disc in her back and were arranging an MRI scan of her spine. He was also informed that there was obviously a considerable waiting list for the MRI estimated at 3 months and consequently that the complainant would be out of work as she is unfit until then.
In the Act "disability" means --
(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.
The complainant argues that her suffering with a suspected slipped disc places her within the category (c) above i.e. the malfunction, malformation or disfigurement of a part of a person's body.
I consider that a condition diagnosed as back pain and sciatica which a neurosurgeon suspects may be caused by a slipped disc and which a doctor states renders the complainant unfit for work is a disability within the definition above.
5.3 I shall now consider the complaint of discriminatory dismissal on the grounds of race and/or disability.
Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows -
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."
It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.4 Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2) (g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons ... that one has a disability and the other either is not or is a person with a different disability" and section 6(2) (h) defines the ground of race "as between any 2 persons... they are of different race, colour, nationality or ethnic or national origins".
5.5 Section 8(6) (c) of the Acts provides that an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures, as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.
5.6 The first element of the complainant's claim concerns the allegation that she was subjected to a discriminatory dismissal by the respondent on the grounds of her race. No evidence has been adduced by the complainant to show that she was treated less favourably than another person of a different nationality is, has been or would be treated in a comparable situation (i.e. who was on extended sick leave). The respondent stated in oral evidence that he had dismissed an Irish person for being on long term sick leave. Therefore the complainant has not established a prima facie case of discriminatory dismissal on the ground of race.
5.7 The second element of the complainant's claim is that the respondent dismissed her because of her disability. The complainant and respondent referred me to the case of Niaomh Humphries v. Westwood Fitness Club where the Circuit Court approved the determination of the Labour Court on a case of discriminatory dismissal on the ground of disability. The following reasoning is based on the principles set out in that case.
5.8 Section 6 and Section 8 (6) (c) together provide that an employer shall be taken to have discriminated against an employee in relation to conditions of employment if the employee is afforded less favourable terms, on the ground of disability, in respect of dismissal and disciplinary measures. In the present case it is clear from the letter sent to the complainant on 10 July 2008 that her dismissal arose wholly from her inability to work due to her disability. Therefore it follows that the dismissal was prima facie discriminatory and unlawful.
5.9 However a dismissal which appears to be discriminatory within the meaning of section 8 of the Act may be saved by section 16. Section 16 provides as follows:-
"16. -- (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual --
(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as 'appropriate measures') being provided by the person's employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of --
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's business, and
(iii) the possibility of obtaining public funding or other assistance.
(4) In subsection (3) --
'appropriate measures', in relation to a person with a disability --
(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.
5.10 The Labour Court found that this section---
"can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they were employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable, s.16 (3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered ... Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.
However, in the instant case the respondent made no effort to obtain a prognosis of the claimant's condition. They did not discuss the situation with her before taking a decision on her future. They came to the conclusion that she could not be retained because of her disability without the benefit of any form of professional advice or assessment of the risks associated with her condition.
There were a number of courses of action open to the respondent. They could have had the situation assessed professionally and considered the most appropriate approach to adopt in consultation with the claimant and her medical advisor. Further, the claimant intimated her desire to re-enter hospital for further treatment. A decision on her future could have been deferred and she could have been given a further period of sick leave to undergo this treatment.
Had the claimant been given further leave her progress could have been monitored and her return to work made conditional upon medical certification that she was fully fit to resume her duties. Such evidence could have been required from either her own doctors or nominees of the respondent. The claimant was not paid during absences on sick leave and the respondent accepted that they could have employed a temporary replacement without additional costs....
The Court is satisfied that the claimant was dismissed wholly or mainly because of her disability. Further it has not been shown to the satisfaction of the Court that the claimant was not fully capable of continuing to perform the duties for which she was employed within the meaning of s.16(3) of the Act.
Accordingly, the claimant is entitled to succeed.
5.11 The complainant argued that the respondent in the present case did not comply with the minimum requirements set out by the Labour Court. In particular the respondent did not send the complainant for independent medical advice; did not wait for the outcome of the MRI scan and did not consider what appropriate measures might be taken to facilitate her.
5.12 The respondent contended that he complied with his obligation to make enquiries by continuously asking about the complainant's medical progress. When no one knew what was wrong with her, he offered to advance her money to pay for an X-ray. The respondent points out that he accepted the complainant's doctor's view of her condition. Therefore he was under no obligation to obtain separate medical advice. Her own GP informed him by letter that she was not able to return to work and that she was due to get an MRI scan for a suspected slipped disc. The complainant herself did not consider she was capable of returning to work. She suggested no appropriate measures. There is no evidence she could have done lesser tasks.
6. Conclusions
6.1 The behaviour of the respondent in this case can be distinguished from that of the respondent in Niaomh Humphries v. Westwood Fitness Club. In the present case the respondent made efforts to obtain a prognosis of the complainant's condition. He discussed the situation with her before taking a decision on her future. The complainant was allowed a full opportunity to participate and was invited to present relevant medical evidence and submissions.
6.2 The complainant did not engage with the respondent after the meeting of 23 May 2008. At that meeting the respondent got the impression that she was not bothered about keeping her job. She did not reply to the respondent's letter of 10 July 2008. She did not inform him that she had arranged to have an MRI carried out in August 2008 in Poland earlier than it could be done in Ireland, a material factor which might have changed the view of the respondent about dismissing her on 7 August 2008. The complainant was not paid during absences on sick leave and it is possible that the respondent could have employed a temporary replacement without additional costs. However because of the unwillingness of the complainant to engage with the respondent, such potential measures were not explored.
6.3 An employer is not obliged to keep a post open indefinitely for an employee on sick leave. However, if the employee in question has a disability, the employer must comply with the procedures laid down by the Labour Court so as to avail of the defences set out in section 16 of the Act. The respondent in this case has so complied.
7. Decision
7.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
(1) I do not have jurisdiction to investigate the complaints of discrimination and harassment in respect of acts alleged to have taken place prior to 13 March 2008.
(2) The respondent did not discriminate against the complainant on the race or disability grounds pursuant to section 6(2) of the Acts, in respect of dismissal contrary to section 8(6) of the Acts.
(3) The respondent did not fail to comply with his obligation under section 16 (3) of the Acts to take appropriate measures to enable the complainant to carry out fully the duties of the job.
Therefore the complainant's case fails.
________________
Niall McCutcheon
Director
22 December, 2011