The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER'S DECISION
NO: DEC-2012-182
Parties
Damante Tugarino
(Represented by Owen Keany BL, instructed by
Hugh McCabe Solicitors)
v
ISS Ireland Ltd. t/a ISS Facility Services
(Represented by IBEC)
Date of Issue: 20 December 2012
File No. EE/2011/798
Keywords
Employment Equality Acts - disability - working conditions - reasonable accommodation - discriminatory dismissal - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Damante Tugarino (hereafter "the complainant") that he was discriminated against in relation to his working conditions on the grounds of his race and disability and subjected to discriminatory dismissal on the same grounds by ISS Ireland Ltd. (hereafter "the respondent"). The complainant alleges that on 4 August 2011, he was informed by his supervisor that the company was of the view that he was incapable of carrying out his duties as a cleaner as a result of his eye condition and was ordered to work out the rest of the day and leave.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 30 November 2011 under the Employment Equality Acts. On 27 August 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh- 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 25 September 2012. The hearing was reconvened on 19 November 2012 to hear outstanding matters in relation to the case.
2. Summary of Complainant's case
2.1 The complainant is a Filipino national who commenced employment as a cleaning operative with the respondent in March 2004. The complainant was for most of this time an undocumented migrant. In or around August 2009, following an intervention by the Migrant Rights Centre of Ireland, the respondent obtained a work permit for the complainant. The complainant suffers from a series of eye conditions, glaucoma, cataracts and uveitis. The complainant argues that he drew attention to the fact that he had eye conditions on a number of occasions during the course of his employment, in particular, in or around October 2009, June 2010 and August 2011 following incidents in the workplace when the complainant's eyes had been exposed to cleaning chemicals.
2.2 The complainant's supervisor of many years, Ms. R was replaced by Ms. D in or around September 2010. On or about 22 July, 2011, the complainant was approached by Ms. D during the course of his shift at the building where he was responsible for cleaning the gent's toilets. Ms. D informed the complainant that the client (being an agent of the owners of the premises) had made a complaint about his standard of work and she issued the complainant with a verbal warning. The complainant's representative asserts that notwithstanding its awareness of the complainant's eye complaint, the respondent made no attempt to investigate the extent of his condition and to reasonably accommodate the complainant's disability in the workplace. The complainant's representative states that not once was the complainant asked to attend a medical assessment by the respondent.
2.3 On or about 1 August 2011, the complainant was instructed to "deep-clean" the gents toilets. This process entailed the complainant carrying out a rigorous and physically demanding clean of the toilets with the use of high strength chemicals. The complainant was expected to do this without the benefit of protective clothing or goggles. During the course of his duties, the complainant got chemicals in his eyes causing severe redness and irritation. The following day, the complainant spoke to Ms. D about the situation and informed her that he had suffered an exacerbation of his condition as a result of his contact with the chemicals. Ms. D simply told the complainant to attend a doctor. The complainant's representative states that no further investigation was made by the respondent into the nature of the complainant's condition.
2.4 The complainant's representative submits that on Thursday 4 August 2011, in the course of the complainant carrying out his duties, he was approached by Ms. D and another supervisor. Ms. D informed the complainant that his deteriorating eyesight had meant that he could no longer carry out his work properly and that the respondent was dismissing him. Ms. D told the complainant to finish his shift and then leave the premises. In or around the 11 August, 2011 the complainant was contacted by Ms. D who informed him that he would need to attend the respondent's office to sign a document before he could be provided with his P45. The complainant's representative submits that the complainant required his P45 for the purposes of making an application for social welfare benefit and duly complied with Ms. D's request. When he attended the respondent's office, the complainant was asked a number of questions by Ms. D in the company of one of his Filipino colleagues. The complainant was informed that he must sign an "Exit Interview" document stating that he had requested his P45 failing which, the complainant was informed by Ms. D the P45 could not be released to him by the respondent. Accordingly, the complainant signed the document. The complainant's representative states that the complainant was summarily dismissed on 4 August 2011 and that the respondent's actions in inducing his signature under threat of withholding the complainant's P45 were a sinister attempt by the respondent to retrospectively apportion blame to the complainant for its termination of his employment.
2.5 The complainant's work permit was due to expire on 11 August 2011. Notwithstanding that fact, there was a waiting time of circa 5 weeks in processing such applications and guidelines issued by the Dept. of Jobs, Enterprise and Innovation which stated that such applications should be submitted at least 12 weeks in advance of the permit expiration date. The respondent had not submitted any permit renewal application prior to the complainant's dismissal on 4 August, 2011. The complainant was instructed to attend the above exit interview on precisely the same day as his work permit had expired. In or around September 2011, the complainant attended a Professor of Opthalmology and Consultant Opthalmic Surgeon for a medical examination. On examination of the complainant, the Professor confirmed the nature of the complainant's condition being glaucoma, cataracts and uveitis. In assessing the complainant's ability to carry out his functions as a cleaner, the professor stated ...there is no doubt that he (the complainant) is capable of carrying out the normal duties of a cleaner with his current level of vision, which approximately reaches driving standards in his right eye. Although he requires a number of medications to keep his eye condition under control, there is no reason that he could not work as a cleaner in a full time capacity whilst still complying with his medication. The complainant's representative argues that he was capable of carrying out his duties as a cleaner and that the respondent had no reason for summarily dismissing him on 4 August, 2011.
2.6 The complainant's representative states that the complainant remained unemployed for a considerable time and lost his employment permit as a result of the respondent's decision to terminate his employment. As a further direct consequence of the termination of his employment, the complainant lost his existing immigration status and was denied social protection from the State. Since his termination, the complainant was forced into homelessness for a considerable period of time. In addition, the complainant has been unable to take up employment in the State owing to the loss of his immigration status. In summary, the complainant's representative submits that the respondent's decision to dismiss the complainant on 4 August 2011 was based on the grounds of his disability. It further submits that the respondent took no steps to investigate the nature of the complainant's condition and the measures it could take to accommodate the complainant in the workplace.
3. Summary of Respondent's case
3.1 The respondent states that the complainant was employed as a cleaner. He was assigned morning duties between 7 am and 10 am in a particular building and evening duties between 5 pm and 7 pm in a different building. The respondent asserts that it is important to note that in the cleaning sector, the hours and duties of work are, in reality, not set by the employer but by the client. The respondent also submits that it is usual practice in the cleaning sector that the client and the contract supervisor or manager will 'walk-through' the premises and review the premises condition within a quality of cleaning context. As this is done on a walk-through basis, any issue raised by the client is dealt with on the spot without need for documented communication between the parties. The process is renewed at the next mutual review. In relation to the complainant's evening duties, the client was not satisfied with the cleaning standard in the gent's toilets in July 2011 and requested improvement. This was brought to the attention of the complainant and he was given a verbal warning about cleaning standards in accordance with the respondent's disciplinary code. The verbal warning was given 'on the job' to the complainant and was followed in writing on 22 July 2011.
3.2 The respondent states that despite the warnings given, the standards did not improve as desired and the client requested a change of cleaner. This was acceded to and the complainant was advised that he had lost his evening assignment. The respondent submits that it advised the complainant that it would seek to find him alternative suitable evening work in the event of it becoming available elsewhere. The complainant had suggested to the respondent that the reason his standard of work may not have been acceptable is that he had difficulties with his eye sight which he said could have excused his work performance. In that regard, the complainant advised the respondent that he had arranged a medical appointment to address his personal concerns. In conjunction with this, the complainant had asked for two weeks holidays commencing on Monday 8 August, 2011 which were granted to him. The respondent states that during the complainant's holiday absence, he requested to meet with his supervisor, apparently to request his P45 but which his supervisor realised was a more substantial issue, in that, the complainant was in fact requesting his own resignation. A meeting was arranged for 11 August whereby the complainant would come to meet his supervisor.
3.3 The complainant's supervisor was concerned as to whether the complainant was aware of the consequences of a resignation and it was arranged that a colleague, also a Filipino national would attend and act as an interpreter to avoid any misunderstandings. The respondent states that it is important to note that at this juncture, the complainant's employment had not ended as he still was contracted to his morning 7 - 10 am shift. At the meeting on 11 August, the respondent asserts that the complainant made it clear that he was seeking his P45 by way of his own volition. He explained that it would benefit him by way of health and welfare entitlements. The complainant acknowledged that his immediate intention was to proceed with his medical appointment and he recorded as an explanation for his resignation on his exit interview form that it was "medical reasons/eyes". In summary, the respondent submits that the complainant initiated his own resignation, that he sought a meeting to arrange same at a time when he was on leave. The respondent submits that every effort was made to ensure that he knew the consequences of his request for his P45.
3.4 The respondent agrees that the complainant began working for the respondent in 2004 at a time when he did not have permission to work in Ireland. The respondent made considerable efforts to secure his right to work and this was granted in August 2009. The respondent submits that the complainant's permission to work was due to expire on 11 August 2011 and the respondent was prepared to support a renewal but the complainant's resignation frustrated that process. The respondent asserts that while it acknowledges that in general, applications for renewal of work permits should be submitted a number of weeks in advance of the permit expiration date, it has, on occasion, applied for renewal of work permits on behalf of its employees at very short notice and such permits have been granted. The respondent submits that the company has a dedicated HR department and that no manager/supervisor is allowed to terminate any person's employment without prior consultation and involvement of HR department. The complainant alleged that he was required to sign an exit interview form failing which he would not be given his P45. The respondent argues that even if it dismissed him which is rejected out of hand, it is inconceivable that the respondent would seek to put a pre-condition in place to facilitate its alleged intention. The respondent submits that it carried out the exit interview with the complainant in line with best practice models. The respondent argues that it is inconceivable that the respondent would seek to record a reason on the exit interview document which would leave the termination of employment open to claims of unfairness or discrimination.
3.5 The respondent rejects the complainant's assertion that the materials used in office cleaning are hazardous and require protective clothing and goggles. The respondent argues that the materials are widely in use in the sector without difficulty and are the same or similar to those commercially on sale to the public e.g. CIF, pledge etc. The complainant submitted that his medical diagnosis indicates that he suffered from a range of eye related difficulties. The respondent argues that while his eye complaints are common cause as it has been set out in the consultant diagnosis associated with his complaint, the details of this were not disclosed to the respondent by the complainant while he was employed. The respondent argues that it could not have reasonably known its detail. Notwithstanding that, the diagnosis indicates that the complainant was able to perform normal cleaning duties. The respondent submits that this information substantially damages the complainant's claim that he was discriminated against on grounds of disability. In summary, the respondent denies the allegation of discrimination on grounds of race or disability in relation to the complainant' termination of employment and it submits that the complainant resigned from his post in order to seek medical treatment for his eye condition.
4. Conclusions of Equality Officer
4.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of race and disability, in terms of section 6(2) (g) and (h) of the Employment Equality Acts and contrary to section 8 of those Acts in relation to his conditions of employment and discriminatorily dismissed the complainant contrary to the provisions of the Employment Equality Acts. In reaching my Decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
4.2 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. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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". Section 6(1) of the Employment Equality Acts, 1998 to 2008 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 is a person with a disability and the other is not or is a person with a different disability". Section 6(2)(h) of the Acts defines the discriminatory ground of race "as between any 2 persons...that they are of different race, colour, nationality or ethnic or national origins".
4.3 In the present case, it is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts. Disability" is defined in Section 2 of the Acts as meaning -
"(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".
4.4 The complainant suffers from a series of eye conditions, glaucoma, cataracts and uveitis. I am satisfied that his eye condition comes within the definition of disability as outlined in section 2 of the Acts. The complainant argues that his supervisors were aware of his problems with his eyes as when he came into the office to sign the attendance book, he could not sign it properly. The complainant also advised his supervisor when there were complaints about his work that he had problems with his eyes. His supervisor asked him if he required glasses and advised him to get his eyes tested. The complainant argues that he drew attention to the fact that he had eye conditions on a number of occasions during the course of his employment, in particular, in or around October 2009, June 2010 and August 2011 following incidents in the workplace when the complainant's eyes had been exposed to cleaning chemicals. In relation to the complainant's assertion that the materials used in office leaning are hazardous and require protective clothing and goggles; after questioning both the complainant and the respondent, I am of the view that the materials used by the complainant are widely in use in the sector without difficulty and are the same or similar to those commercially on sale to the public e.g. CIF, pledge etc. The respondent states that despite the warnings given to the complainant about the standard of cleanliness, specifically in relation to his evening shift, the standards did not improve as desired and the client requested a change of cleaner. In this regard, the complainant was advised on 4 August that he had lost his evening assignment. Although the complainant has argued that he was summarily dismissed on this date; given the sequence of events, I prefer the evidence of the respondent on this matter and I am of the view that he was advised on 4 August, 2011 that he was being removed from his evening cleaning duties.
4.5 The respondent gave evidence at the hearing and stated that given its client was unhappy with the level of cleanliness in the building where the complainant carried out his evening shift, it had no option but to remove him from same. This transpired following prior complaints both verbal and written by his supervisor to the complainant about the lack of cleanliness. The respondent submits after a time, there was still no improvement and it had no option but to remove him from his evening duties. However, the respondent submits that it advised the complainant that it would look for another evening assignment for him in the interim. The complainant's solicitor has argued that the respondent failed to take into consideration the complainant's disability and failed to provide him with reasonable accommodation. The respondent argues that a consultant medical report dated 13 October 2011 was provided but that it did not receive any medical documentation during the complainant's employment and that it was unaware of the extent of his eye condition while he was employed. At any rate, the respondent submits that the consultant states that the complainant is capable of carrying out the normal duties of a cleaner with his current level of vision.
4.6 The respondent reiterates that the complainant advised his supervisor that he was attending a medical appointment on Friday afternoon 5 August 2011 regarding his eye condition and requested holiday leave in order to get medical treatment for his condition and this request was granted. In the Labour Court determination in A Company v A WorkerEDA106, the Court determined that the onus is on an employer to discharge their duty under section 16(3) where it stated as follows;
"There is a clear duty on an employer to make enquiries as to whether, with special treatment and facilities, an employee suffering from a disability can continue in his employment"
In another Labour Court determination A Government Department v An Employee EDA061, the Labour Court found that the duty to reasonably accommodate an employee with a disability was a proactive duty and furthermore that it was a means to an end and not in itself the end of the duty placed upon the employer. The complainant argues that he drew attention to the fact that he had eye conditions on a number of occasions during the course of his employment, in particular, in or around October 2009, June 2010 and August 2011 following incidents in the workplace when the complainant's eyes had been exposed to cleaning chemicals. He also asserts that when his supervisor complained about the standard of cleanliness where he carried out his evening cleaning duties in July 2011, he advised her that it may be due to his deteriorating eyesight because of his eye condition. The complainant submits that his supervisor had previously advised him to got get his eyes tested that he may need glasses. Given that the respondent had in excess of 3000 employees and a turnover in the tens of millions of euro, I am of the view that such an organisation would have access to an occupational/health service and the complainant should have been referred on to this service for assessment when he complained to his supervisors regarding the difficulties he was experiencing due to his eye condition. Given the respondent's workforce and the substantial client base, I am also of the view that his supervisor should have been in a position to provide him with another evening assignment after losing his 5 - 7 pm slot while also referring him to their occupational/medical service for assessment. The complainant had been with the company since March 2004. The complainant in losing his evening slot underwent a reduction of 40 % in his working hours and this would have had a substantial impact on him. Overall, in taking all the evidence into consideration, I am satisfied that the complainant has established a prima facie case on the issue of discrimination in his working conditions on the grounds of disability and the respondent has failed to rebut that evidence.
4.7 The respondent contends that the complainant stated to his supervisor that he was going to have surgery on Friday 5 August and requested a week's holidays for the following Monday, 8 August. The respondent states that the complainant contacted his supervisor on Monday morning requesting a further weeks holidays. However, on Wednesday 10 August the complainant contacted his supervisor and requested his P45 so as to avail of his health and welfare entitlements. The complainant states that he was contacted and advised that he would not get his P45 unless he signed a document. The complainant attended a meeting with his supervisor and another Filipino colleague who acted as interpreter. The supervisor explained to the complainant that he could not come back to work if he was given his P45. The supervisor submits that the complainant was of the view that if he had his P45, he would obtain better health and welfare benefits from the State. The complainant's colleague who was also a Filipino national gave evidence at the hearing that she acted as interpreter at the meeting with the complainant regarding the exit interview. She asserts that the supervisor advised him of the consequences of granting his P45 that he could no longer work in the company. She also states that when asked for the reason for leaving, the complainant stated for medical reasons/eyes. The respondent states that following the complaint from their client about the standard of cleaning in the gents toilets, the complainant was advised that it would have to take him off those duties. The supervisor states that the complainant came in to work on the Friday morning and signed the "sign-in book" and carried out his morning shift and said he was attending for a medical procedure in the afternoon.
4.8 The sign-in book was submitted to the Tribunal in evidence following the first hearing date. It has the complainant's signature on the sheet under Friday 5 August 2011. When put to the complainant, he asserts that it is not unusual for an employee to sign-in in advance for the following day or indeed for the week. He contends that on Thursday morning, he signed in for Thursday and Friday. The respondent totally refutes this and states from the point of view of health and safety and fire regulations, this policy would not be approved and that individuals sign in on the day of their shift. The complainant's representative brought to the attention of the Tribunal the fact that on another date, the complainant was signed in but by someone else. The respondent acknowledged that this was the position but argued that it was an exception to the normal practice. The respondent submitted the exit interview form as evidence to the Tribunal. This document is signed by the complainant and in the box for reason for leaving, the explanation given is medical reasons/eyes. The complainant's colleague, a Filipino national who was at the exit interview meeting gave evidence that the complainant's supervisor explained the consequences of granting him his P45 and stated that matters on the exit interview form were explained to the complainant and he signed same. I found her to be a cogent witness and consistent in her testimony. Given that (i) the complainant's signature is on the sign-in book on Friday 5 August and that (ii) he has signed the exit interview form which states that the reason for leaving is medical reasons/eyes and (iii) the testimony of the complainant's Filipino colleague, overall, based on all the evidence, I am satisfied that that the complainant has not provided evidence of a prima facie case of discrimination on the grounds of disability or race in relation to his termination of employment from the respondent company and I find in favour of the respondent on this matter.
5. Decision of the Equality Officer
In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that
(i) the complainant was discriminated against by the respondent in relation to his working conditions on grounds of his disability
(ii) the complainant was not discriminated against in relation to his termination of employment with the respondent on grounds of race or disability, in terms of section 6(2) of the Acts and contrary to section 8 of the Acts.
I, therefore order, in accordance with my powers under section 82 of the Employment Equality Acts, 1998 - 2011 that the respondent pay to the complainant the sum of €6000 by way of compensation for the distress suffered and the effects on him of discrimination in his working conditions on grounds of disability. This compensation does not contain any element of remuneration and therefore not subject to PAYE/PRSI.
______________
Valerie Murtagh
Equality Officer
20 December, 2012