Employment Equality Acts
Decision DEC-E2012-194
PARTIES
Daniel Kawonczyk
(Represented by Diarmuid Murphy B.L. instructed by
Maguire McClaferty Solicitors)
- V -
Drimbawn Mushrooms Ltd.
(Represented by Cormac Clancy B.L.
instructed by O'Riada Solicitors)
File reference: EE/2010/325
Date of issue: 21 December 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Race - Disability - Prima Facie case - Jurisdiction, Section 101
1. DISPUTE
1.1 This dispute concerns a claim by Mr Daniel Kawonczyk that he was subjected to discriminatory treatment and discriminatory dismissal by Drimbawn Mushrooms Limited on the grounds of his race and disability in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 27 April 2010 under the Employment Equality Acts. On 13 July 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to 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 on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 5 September 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. PRELIMINARY MATTERS
Jurisdiction regarding the dismissal element of the complaint
2.1 The respondent noted that proceedings had been initiated in the High Court which included, inter alia, a wrongful dismissal component. The respondent further noted that although the hearing per se had not commenced, the fact that it had sought to have the proceedings dismissed means that this matter falls within the ambit of Section 101(4)(a) of the Acts and that the Tribunal has no jurisdiction to hear the dismissal element of this complaint.
2.2 Section 101(4)(a) states that "An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun"
2.3 Having heard the parties submissions of this matter, I am satisfied that although the complainant has initiated proceedings before the High Court which include a wrongful dismissal element, and that pleadings, motions and other paperwork have been lodged with the Court Registrar, the hearing of this matter has not begun. Therefore, I consider that the Tribunal has the jurisdiction to hear the dismissal element of this complaint before it.
Submission regarding the Race ground in relation to this complaint
2.4 At the outset of the hearing, the complainant's legal representative informed the Equality Officer that they were not proceeding with the race element of the complaint and further confirmed that this element was being withdrawn. Accordingly the hearing proceeded, with the complaint based on the disability ground only.
3. SUMMARY OF THE COMPLAINANT'S CASE
3.1 The complainant submitted that he was employed by the respondent from September 2006 until he was dismissed on grounds of ill-health on 25 September 2009. The complainant submitted that, in May 2007, he suffered a back injury and when he returned to work in September 2007 he was assigned to light duties, in accordance with the suggestions of his medical advisors. The complainant submitted that he performed light duties for almost a year before being returned to full duties in July of 2008.
3.2 The complainant submitted that in March 2009, he suffered a relapse of his injuries and was absent until September 2009 when he attempted to return to work with a certificate stating that he was fit for light duties.
3.3 The complainant submitted that he was dismissed on grounds of ill-health on September 2009 and appealed this decision. The complainant submitted that in a letter dated 30 November 2009, the respondent stated that "there were no other jobs on the farm that [he was] willing to undertake".
3.4 The complainant submitted that the respondent has failed in its duty to provide him with reasonable accommodation. The complainant's representative stated that it was instructed that the reasons for that failure are not ones allowed in the Acts, i.e. that they constitute an unreasonable burden on the employer's resources.
4. SUMMARY OF THE RESPONDENT'S CASE
4.1 The respondent submitted that the complainant has failed to state what the alleged acts of discriminatory treatment in relation to access to employment were.
4.2 The respondent submitted that the complainant has failed to state what the alleged acts of discriminatory treatment in relation to his conditions of employment were.
4.3 The respondent submitted that the complainant has failed to state any precise or proper basis to ground a complaint of discriminatory dismissal
4.4 The respondent submitted that the complainant has failed to state what provision of Section 16 of the Acts is alleged to have been breached by it.
4.5 The respondent does not accept that the complainant suffers a "disability" within the meaning or scope of the Acts.
4.6 The respondent submitted that the complainant was offered alternative work prior to his dismissal in September 2009.
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory and discriminatory dismissal on grounds of his disability, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
5.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
5.3 Section 2 of the Acts defines a disability in the following terms:
''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;
5.4 Having regard to the oral and written evidence presented to the Tribunal, I am satisfied that the complainant suffers from a disability as defined in Section 2 of the Acts.
5.5 In the case of Dyflen Publications Limited v Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
5.6 Having considered the evidence from both parties the following facts have been established:
- The complainant was employed by the respondent since September 2006.
- In May 2007 the complainant suffered a back injury and was absent from work. He returned to work in September 2007 and was allocated light duties in accordance with the suggestions of his medical advisors.
- He performed these duties until July 2008 when his duties returned to normal. These normal duties included among other things, lifting and carrying heavy loads necessary in growing mushrooms.
- In March 2009 the complainant had a relapse of his injury and was absent until August 2009 when he indicated that he wished to return to work on the basis of undertaking light duties.
- The complainant was sent for a medical and in the subsequent report the doctor concluded that the complainant had a disc problem in his back at three levels and had undergone surgery to rectify the matter
- The doctor opined that the complainant was suffering from a recurrence of the injury that rendered him unfit for the foreseeable future to resume work as a general operative in the mushroom factory and furthermore the doctor was of the opinion that the complainant would not be in a position to undertake heavy physical work ever again
5.7 Evidence was given by the respondent that it had had five formal meetings with the complainant to ascertain whether it was possible for him to return to work and at one of those meetings, in July 2009, the respondent suggested to the complainant that it would look for alternative work in one or other of its sites but that the complainant indicated to it that he was not interested in returning to work. This version of events was disputed by the complainant who stated that he had no recollection of such a meeting.
5.8 Having heard the evidence of both parties, I prefer the respondent's version of events and therefore find that the complainant indicated to the respondent that he was unwilling to return to work for it.
5.9 At this point it is useful to consider the Labour Court's approach in the case of 'A Health & Fitness Club and A Worker' (Determination No EED037, ED/02/59) wherein the Court stated as follows:
"However a dismissal which appears to be discriminatory within the meaning of Section 8 of the Act may be saved by Section 16. This section 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.
(2) [Not relevant]
(3)(a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(c) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(d) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are 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 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 also 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 Section 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. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
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."
5.10 Having regard to the foregoing I consider that the respondent satisfied the first stage of the enquiry in that they sent the complainant for a medical to establish the extent of the complainant's disability and that they had due regard for the medical evidence submitted by the complainant. On this basis, I am satisfied that the respondent established a bona fide belief that the complainant was not fully capable of undertaking the position to which he had been recruited.
5.11 In relation to the second stage outlined by the Labour court, I am satisfied that the respondent made efforts to look at appropriate measures. In this regard, I note that on a prior occasion the complainant was provided with light duties but that the evidence given was that this option was not sustainable over the long term. In relation to the case to hand, I also note that over the course of a number of meetings with the complainant the respondent informed him that they would look at possible jobs across both of their locations and enquired as to what other work he could undertake. I am satisfied that the complainant indicated to the respondent that at that time he was not willing to come back to work for the respondent. I note that this exchange predates the receipt of the definitive medical report by one month and although I consider that it is preferable to revert to an employee upon receipt of a medical report, in the circumstances, the respondent had come to the bona fide belief that the complainant would not come back to work for them.
5.12 In all the circumstances of this case, I am satisfied that the respondent has rebutted the inference of discrimination raised and that this complaint must fail.
6. DECISION
6.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the disability ground has not been established and this complaint fails.
6.2 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory dismissal on the basis of the disability ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
21 December 2012