FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : ATOLVO ENTERPRISES LIMITED (REPRESENTED BY CROWLEY MILLAR SOLILCITORS) - AND - ELIZABETH GRAHAM (REPRESENTED BY KOD LYONS SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal under section 83 of the Employment Equality Acts, 1998 to 2011
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 5th June, 2012. A Labour Court hearing took place on the 24th October, 2012. The following is the Court's Determination:
DETERMINATION:
Atolvo Enterprises Limited (the “Respondent”) has brought this appeal pursuant to s.83 of the Employment Equality Acts 1998 - 2011 (the “Act”) against a Decision of the Equality Officer, number DEC-E2012-053, made on the 27thApril 2012 (the “decision”).
The Equality Officer decided that a complaint made pursuant to Section 8 of the Act by Ms Elizabeth Graham(the “Complainant ) was well-founded. The Equality Officer directed the appellant to pay the respondent the sum of €18,720 compensation for the infringement of her rights under the Act.
Background
On the 1stJune 2009 the Respondent took over the operation of a laundry business in which the complainant had been employed in a part time capacity for over ten years. The complainant was continued in employment on her existing terms and conditions of employment. On the 5thJuly 2009 the complainant, who had been suffering back pain, discovered that she had a tumour on her kidney that required surgery. She submits that she told the Respondent of the medical diagnosis and the need for surgery. She submits that the Respondent told her she could provide medical certificates on her return to work. She states that she underwent surgery on the 20thJuly 2009 and that she received a get well card from the respondent a week before her surgery. She states that on the 24thJuly 2009, whilst she was in hospital recovering after the surgery she learned she had been dismissed after she received her P45 in the post. The Respondent denies the complaints.
Complainant’s Position
The Complainant told the Court that she worked part time over a ten year period in the laundrette and was maintained in employment through successive changes in management and ownership of the business. She said that the Respondent took over the business in June 2009. She said that she continued to work as normal after the change of owner. She said she worked four hours per day, five days per week and was paid €9 per hour or €180 per week. She said that she was diagnosed with a tumour on the kidney that required surgery. She said she told the Respondent that she needed to take time off to undergo the medical procedures and would return to work as soon as possible. She said that the Respondent told her she could send in the relevant doctor's certificates when she returned to work. She said that she went into hospital to undergo the required surgery. While she was there she received a get well card from the Respondent. After the surgery she was sent her P45 and her employment terminated whilst she was in recovery in hospital.
She said she rang the Respondent to ascertain what was happening. She said he told her he needed full time staff and could no longer employ her.
She said she was not working at present and was unavailable for work as she was being paid a disability allowance by the state.
Ms Karen Graham, the Complainant’s daughter gave evidence to the Court. She said that she collected her mother’s outstanding wages in July 2009 after her mother had been admitted to hospital. When collecting the wages she said the Respondent gave her a “get-well” card to deliver to her mother in hospital.
She said that she was living in her mother’s house and brought her any post that arrived whilst her mother was in hospital. She said she gave her mother one letter while she was in hospital that her mother opened in her presence. She said it contained her mother’s P45.
A Mr Moran, the Complainant’s former partner, gave evidence to the Court. He said he occasionally did some deliveries and collections for the laundrette for which he was paid on a casual basis. He said he never collected the Complainant’s wages from the Respondent. He also said that he never discussed the complainant’s intentions regarding a return to work with the Respondent.
Respondent’s Position
Mr Terence Sweeney, the Respondent gave evidence. He said that he owned the property from which the laundry operated. He said that he had entered commercial arrangements to operate the laundry with a number of people over the years. These had all failed for one reason or another. On one occasion it gave rise to a need to engage in litigation to recover possession of the premises. At that point he decided to licence the right to operate the business to a company in which he and his son were the major shareholders. When they took over operating the laundry he held discussions with the Complainant. Initially he continued her employment on her existing terms and conditions of employment but told her he would rather have full time staff. He said she agreed to work full time provided he paid her in cash so as not to affect her social welfare entitlements. He said he refused to do this but did pay her cash in respect of a small number of hours she worked over a number of days.
He said he had no knowledge the complainant had a history of back problems. He said he was aware the complainant attended the doctor one afternoon but was unaware of the nature of her illness. He said he was not advised the complainant was going into hospital. He said he first learned of this when her daughter came in to the laundry to collect her wages after her stay in hospital had commenced. He said that Mr Moran had subsequently called in to collect her back week’s pay. At that point Mr Moran told him the Complainant would be out for an indefinite period of time because of her condition. He said he sent the Complainant a get well card. He said he thought he had posted it but accepts the evidence of Ms Karen Graham that he gave it to her. He said that he did not send the P 45 until the Complainant had been released from hospital. He said he did not receive a call from the Complainant while she was in hospital regarding the P45. He said that the business continued for a period of time but eventually it failed and was ceased trading in September 2010.
The Law:
In relevant part Employment Equality Acts 1998 – 2008 provide
Definition:
“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,
6.—(1)For the purposes of thisAct, discrimination shall be taken to occur where, on any of the grounds insubsection (2)(in thisActreferred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
(2)As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of thisAct) are—
(g)that one is a person with a disability and the other either is not or is a person with a different disability (in thisActreferred to as “the disability ground”),
Burden of proof
“85A.—(1)Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
(2)Thissectionis without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
(3)Where, in any proceedings arising from a reference of a matter by the Authority to the Director undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in aparagraphof that provision has occurred, it is for the respondent to prove the contrary.
(4)In thissection‘discrimination’ includes—
- (a)indirect discrimination,
(b)victimisation,
(c)harassment or sexual harassment,
(d)the inclusion in a collective agreement to whichsection 9applies of a provision which, by virtue of thatsection, is null and void.
The Complainant submits that she suffered from a disability within the meaning of the Employment Equality Acts 1998 -2008. The Complainant presented medical evidence that she was diagnosed with a tumour on the kidney that necessitated surgery. The Respondent did not dispute the evidence presented. Accordingly the Court finds that the Complainant suffered from a disability within the statutory meaning of that term.
The Complainant was employed by the respondent on a continuous basis for ten years. The Respondent disputed the length of the Complainant’s employment. He noted that he had taken over the business in June 2009 and accordingly sought to establish that date as the date of commencement of the Complainant’s employment. This issue was considered by the Employment Appeals Tribunal (EAT) in a related case. The EAT decided that the complainant’s employment was continuous over a ten year period. The Court notes however that length of service is not a factor to be taken into consideration in cases where discrimination on the disability ground are before it. Accordingly nothing turns on this point.
There is a conflict of evidence between the parties regarding the time and date and circumstances of the Complainant’s dismissal. The Complainant argues that she was summarily dismissed by letter dated 24thJuly while she was in hospital recovering from surgery. This account is supported by the Complainant’s daughter Ms Karen Graham.
The Respondent argues that he terminated the Complainant’s employment after he had been told by her former partner, Mr Moran, that, due to the nature of her illness, she would not be returning to work. He argues that she thereby terminated her own employment.
Mr Moran denies ever having had such a conversation with the Respondent.
The Respondent says that he drafted a letter in July but delayed sending it for some weeks until after she returned home from hospital. He says that he did not receive a telephone conversation from the Complainant regarding the letter while she was in hospital.
He says that he had told her on taking over the business that he wanted to take on full time workers and had offered her the opportunity to go full time. He says that she was unwilling to put her Social Welfare Benefits at risk and accordingly would only accept full time work if she were paid cash for the extra hours. He says that he refused to do this.
Finally says that the Complainant terminated her own employment, that her former partner conveyed that message to him; that he took the opportunity of her leaving to proceed with his plan to take on full time workers. Finally he says that he would have retained the complainant in employment had she been available and willing to work on a full time basis in a legal manner.
The Court found the Complainant an honest and believable witness. All of the documentary evidence before the Court supported her version of events. Moreover both Ms Karen Graham and Mr Moran’s version of events also supported the Complainant’s position.
On the other hand the Respondent admitted that the letter that was sent to the Complainant was dated the 24thJuly 2009 but contended that it was not sent until after she returned home from hospital.
This account does not benefit the Respondent. Firstly it is clear that he intended dismissing the complainant while she was in hospital. It reveals no enquiries on his part to determine with the Complainant the likely duration of her confinement in hospital or of the extent to which the medical procedures she underwent would affect her capacity to work.
He contends that he acted on information provided to him by Mr Moran. However Mr Moran disputes this version of events. The Court found Mr Moran a credible witness. Moreover the documentary evidence before the Court supported his version of events. The Respondent said that Mr Moran told him the Complainant would not be returning to work when he collected her outstanding wages while she was in hospital. Mr Moran denied ever having collected the Complainant’s wages on that or any other occasion. He also denied having any conversation regarding the Complainant’s intentions regarding a return to work.
However the Respondent also told the Court that Ms Karen Graham collected an outstanding wages cheque while her mother was in hospital. The documents submitted to the Court by the Respondent show that there was only one outstanding wages cheque due to the Complainant that clearly could not have been collected on two different occasions by two different people. Accordingly the Court prefers the evidence of Mr Moran in this regard. The Court further prefers the evidence of Mr Moran that he had no conversation with the Respondent regarding the Complainant’s alleged decision not to return to work.
Finally the Court found Karen Graham a credible witness also. She said that she brought an envelope that had arrived in the post to her mother while she was in hospital. She said that she was present while her mother opened the envelope that contained the Complainant’s P45. The Respondent said that he did not send the P45 until a much later date.
The Court prefers the evidence of Ms Graham in this regard.
Ms Karen Graham said that when collecting her outstanding wages the Respondent gave her a get well card to give to her mother. The Respondent said that he thought he had sent the card in the post but now accepted that he gave it to Ms Graham.
It is clear that the Respondent’s recollection of these events is confused. The documentary evidence supports the Complainant’s version of events. The Respondent did not present a convincing or coherent account of events that would support his version of events. To believe him the Court would have to conclude that the Complainant, Ms Karen Graham and Mr Moran were all mistaken and that the documentary evidence should be ignored in its entirety. This is not a conclusion the Court is persuaded to adopt.
The Respondent presented no evidence to the Court regarding his contention that he offered the Complainant full time work that she refused. No written offer was presented to the Court, no minutes of meetings were produced and no witnesses to any such conversations were identified to the Court. Accordingly the Court finds that no such offer was put to the complainant.
The Court has reached a similar conclusion regarding the Respondent’s contention that the Complainant sought full time work on a cash basis to protect her social welfare entitlements. No evidence of any such conversation was presented to the Court. Again the Court prefers the evidence of the Complainant in this regard.
Conclusion
The Court finds that the Complainant was suffering from a disability within the statutory meaning of that term. While she was in hospital recovering after surgery she was dismissed from her employment. Section 85(a) of the Act provides
“85A.—(1)Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
In this case the Complainant established the fact that she was suffering from a disability when she was dismissed from her employment. Having done so there is a statutory presumption that there has been discrimination in relation to the Complainant and it is for the respondent to prove the contrary. In this case the Court finds that the Respondent has failed to discharge this statutory burden and the presumption of discrimination has not been defeated.
The Court finds the Complaint well founded. The appeal is rejected.
In considering the issue of redress the Court finds that the Equality Officer’s decision was reasonable and proportionate. Accordingly the Court upholds the decision of the Equality Officer in this regard.
Determination
The Complaint is well founded. The appeal is rejected. The Court awards the Complainant compensation in the sum of €18,720.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
6th December, 2012Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.