EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 202
PARTIES
Mr Krzystof Kolakowski (represented by Mr Tiernan Lowey, B.L., instructed by Crimmins and Howard, Solicitors)
and
Croom Concrete Ltd (represented by IBEC)
File References: EE/2010/390
Date of Issue: 27th December 2012
Headnotes: Discriminatory dismissal - disability - no prima facie case - victimisation
1. Claim
1.1. The case concerns a claim by Mr Kryzystof Kolakowski that Croom Concrete Ltd discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of discriminatory dismissal and victimisation.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 20 May 2010. A statement was received from the complainant on 4 November 2010. A statement was received from the respondent on 5 January 2011. On 21 August 2012, 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 12 September 2012. Additional evidence was requested from the respondent at the hearing of the complaint and received on 22 October 2012. The last piece of correspondence relating to the complaint was received on 22 November 2012.
2. Summary of the Complainant's Statement
2.1. The complainant commenced work for the respondent as a general operative/welder on 17 June 2009. When he suffered a work injury on 20 November 2009 and was subsequently unfit for work, he received an Income Levy Certificate and a P45 form on 14 April 2010, backdated to 20 November 2009. The complainant states that he received no prior warnings or notice of his impending dismissal.
2.2. The complainant also states that he lodged a number of complaints with the Rights Commissioners Service of the Labour Relations Commissions on 23 November 2009 about his conditions of employment.
3. Summary of the Respondent's Statement
3.1. The respondent denies discriminating the complainant as alleged or at all. In the statement, it did not provide any details to the Tribunal as why it takes that position.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminatorily dismissed within the meaning of the Acts and whether he was victimised.
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. At the outset of the hearing, I asked counsel for the complainant to elaborate on his client's claim for victimisation, as it had not been set out, in a way consistent with the definition of victimisation under the Acts, in the complainant's submission. I also highlighted that complaints to Employments Rights Bodies other than the Tribunal are not comprehended by S. 74(2)(b) of the Acts. Counsel for the complainant clarified that this complaint had been brought as an alternative to the complaint of discriminatory dismissal. However, in the course of the hearing, no evidence was adduced that the complainant was victimised within the meaning of the Act. Accordingly, this part of his complaint must fail and I will only examine his complaint of discriminatory dismissal, on the ground of disability, in detail.
4.4. In terms of whether the complainant is a person with a disability within the meaning of the Acts, the complainant submitted a clinical report by a Consultant Rheumatologist which confirms that the complainant has suffering from osteoarthritis in both knees since prior to his alleged workplace accident, and also from chronic degenerative changes in his lumbar spine. These were identified by an MRI, and I accept that that the both conditions constitute disabilities within the meaning of S. 2(c) of the Acts.
4.5. However, this report, while it refers to degenerative conditions which by their nature are long-term, was only completed in April 2012. The respondent stated in evidence that they had never been on any notice on the part of the complainant, as to the existence of these disabilities, and neither did the complainant give evidence that he sought to notify the respondent about same.
4.6. Accordingly, I will only examine whether the workplace accident which the complainant claims to have suffered on 19 November 2009 resulted in him developing an additional disability within the meaning of the Acts, and whether that additional disability led to his dismissal.
4.7. The complainant's evidence on what happened was very contradictory. During his examination-in-chief, he claimed that he felt such severe pain in his back, knees and elbow that he could not move and was unable to get up from the floor. He did not describe the alleged accident in any way. He said that he then reported his injury to his Polish foreman. In contrast, during his cross-examination by the representative of the respondent, he claimed that the back pain had built up all day, and that he got up from the floor after a few minutes. He also stated that there were no witnesses for his accident.
4.8. The witnesses for the respondent, in their evidence, strenously disputed that they were on notice of any accident, and expressed doubts that it did indeed occur. Mr C., the plant manager and the complainant's supervisor, disputed that the complainant worked by himself, and stated that on the contrary, he worked in the middle of the plant. A Polish employee who at present serves as foreman in the respondent company and who would have been a general operative colleague of the complainant's at the material time, also disputed that the complainant worked alone. The respondent provided, at my request, a photograph of the complainant's workplace after the hearing, however, the complainant disputed that this was his workplace, but rather said that his activities varied a lot and that he did not always work in the same location. I prefer the evidence of the respondent's witnesses in this regard.
4.9. Mr C. further said that his office was located in a place were all workers had to pass it on their way out, and that when the complainant left the plant that evening, there was nothing unusual about him, and nothing in his demeanor which would have made anyone think he had suffered a disabling accident. Mr C. also gave evidence that there is a strict protocol for injuries suffered at work: the company's GP and the company's insurance carrier have to be notified for any injury that is in any way more than trivial.
4.10. The complainant, in his evidence, then stated that the following day, he attended work as normal but could only do light work. He also contradicted his earlier evidence that he had been cleaning, and stated instead that he did repair work. After work, he got in his car and drove to a Polish doctor in Midleton, Co. Cork, over 100 kilometres from Newcastlewest in Co. Limerick, where the complainant lived. The complainant stated that he had never attended this doctor before, but that he had found her name in a Polish shop. He stated that he didn't want to attend an Irish GP because of his poor English, and that this Polish GP was the only one to have surgery hours that evening. The complainant did not offer an explanation for how, if he was suffering from severe back and knee pain as stated, he still felt capable to undertake a 200-kilometre round trip by car to see this particular GP whom he had never seen or consulted before.
4.11. On 23 November 2010, the complainant lodged a number of complaints to other employment law bodies against the respondent. No evidence was presented that these complaints related in any way to the case before this Tribunal.
4.12. The complainant subsequently mailed in sick certs from this GP - and asserted that he did attend her practice every week. The An Post confirmation slips for the registered mail were produced in evidence. The complainant also attended a Polish orthopaedic specialist who practises in Cork city, but only after his employment with the respondent had come to an end. The complainant had learned of his termination of employment on 13 April 2010, and the earliest certificate from the specialist is dated 24/4/2010.
4.13. The respondent's accountant, Mr N., contacted the complainant by telephone on 29 March 2010 to discuss overtime payments. According to Mr N.s oral evidence, and his contemporaneous note on the sick note which the complainant had mailed in, the complainant was in fact in Poland when they spoke. However, the same sick note also confirms that the complainant was supposedly attending his Polish GP in Midleton on that day. The complainant disputed being in Poland and accused Mr N. of lying. However, I note that the sick note of 29 March 2010 is the only one so annotated by Mr N.
4.14. How the complainant's employment was terminated is also a matter of considerable dispute between the parties. It is clear that the complainant received a P45 form, backdated to 20 November 2009, in April 2010. The respondent says that this happened because the complainant requested it through his daughter, and therefore resigned. The complainant maintains he was dismissed while on sick leave. However, what matters for this Tribunal is whether any possible dismissal of the complainant occurred because of a disability.
4.15. In this regard, the evidence can be summarised as follows:
- The respondent was not on notice of the complainant's pre-existing conditions (which are disabilities within the meaning of the Acts) until the hearing of the complaint in September 2012.
- The complainant was lacking in credibility. He was unable (even with the assistance of an interpreter) to describe the accident he said he suffered on 19 November 2012, and which nobody else in the respondent plant noticed in any way;
- The complainant's evidence as to what he did immediately after the purported accident is contradictory;
- So is the complainant's evidence as to the work he performed the next day;
- It is also impacting the credibility of the complainant that, if he was as impaired with severe back and knee pain as he claims, he should nevertheless have chosen to drive on his own 200 kilometres from Newcastlewest to Midleton, Co. Cork to attend a GP previously unknown to him, as is the notion that there would have been no after-hours GP service closer by in the county or city of Limerick, given that Newcastlewest is the largest town in Co. Limerick in terms of population;
- There are doubts as to whether the complainant attended this GP as claimed by him, given that he was in Poland on at least one occasion on which the GP certified that he had attended her, and said GP was not in attendance at the hearing to give evidence on that matter, or on the complainant's supposed injuries, for that matter.
4.16. Accordingly, I am not satisfied that the complainant has succeded in establishing that he suffered a disability within the meaning of the Acts which would have been known to the respondent at the material time, and therefore, a prima facie case that the termination of his employment with the respondent was a discriminatory dismissal on the ground of disability as complained of. Therefore his complaint fails.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Croom Concrete Ltd did not discriminatorily dismiss Mr Krzystof Kolakowski on the ground of disability, contrary to S. 8(6) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
27 December 2012