Employment Equality Acts 2000 to 2011
DECISION DEC-E2012-091
A Manager
(Represented by Mr. Kevin Healy BL on the instructions of O'Flaherty and Brown Solicitors)
V
Food Production Company Limited
File No. EE/2009/761
Date of Issue: 16 July 2012
Case Reference EE/2009/761
Keywords:
Employment Equality Acts - Discriminatory Dismissal - Disability - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a complaint by a manager (hereafter "the complainant") that he was subjected to a discriminatory dismissal by a food production company (hereafter "the respondent") on the ground of his disability. The complainant maintains that he was dismissed on or about 14 April 2009 because he is a person with a disability.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal under the Employment Equality Acts on 13 October 2009. On 10 February 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 21 May 2012. Final date for correspondence was received on 25 June 2012. The parties' names have been redacted to protect the complainant's privacy.
2. Case for the complainant
2.1. The complainant commenced employment with the respondent on 26 January 2009 as a production manager. The complainant submitted that as soon as he began working with the respondent he learned that he was expected to work long hours, including the night shift. It was the complainant's case that he was told by unnamed colleagues from the outset that he would not last in the company and that he had been told that other managers had been pressurised to leave their jobs
2.2. On 26 March 2009 the complainant attended an 'out of hours' general practitioner service and was certified sick for the following day. He had felt chest pains. He contacted the respondent and left a message on the operational manager's message service. The reason for this was that he did not feel well enough to talk to anyone in person. The message conveyed that he would be out on sick leave the following day. The complainant posted the sick certificate to his employer the following day. From this day onward, the complainant was suffering from stress.
2.3. The complainant attended his general practitioner the following day and was certified sick for an additional 7 days. The complainant stated that the diagnosis was stress and that he was advised to avoid all stressful situations. This is the reason why the complainant left another message on the respondent message service and switched off his company mobile phone. He simply could not talk to anyone in person as this would have been too stressful.
2.4. On 3 April the complainant received an open-ended sick certificate from his general practitioner. The complainant rang his employer's messaging service at approximately 12.25 pm and left a message stating that had attended his own doctor and was certified unfit to work due to stress. He informed his employer that he would post the certificate to him.
2.5. On 4 April 2009 the complainant posted social welfare certificates dated 27 March 2009 and 3 April 2009 to his employer.
2.6. On 5 April the complainant received a letter from his employer dated 3 April 2009 stating that the complainant had not been in touch with the respondent since 26 March 2009. The complainant assumed the letter was sent prior to him leaving a message on the respondent's phone on 3 April 2009. As far as the complainant was concerned he had duly kept the respondent informed of his illness.
2.7. On 11 April 2009 the complainant received a letter from the respondent that stated that if he would not contact the respondent immediately (by 14 April 2009) the respondent would assume the complainant wanted to terminate his employment. The complainant wrote an immediate reply to the respondent and faxed it through on the same day. In this letter the complainant made it clear that he did wish to remain in his job and that he was carrying out his contractual obligations by sending in certificates each week. The complainant stated that he would continue to submit his medical certificates to fulfil his contractual obligations until such a date that he was fit to resume work. He also alerted the respondent that he had seen his own job advertised on the internet and that under no circumstances did he wish to resign from his job. The complainant then received a letter dated 14 April 2009 terminating his employment.
2.8. The complainant submitted that at the time when he was on sick leave his wife had come across a very similar job advertisement than the role that he had. The advertiser was the respondent and the complainant understood this to mean that the respondent had decided to dismiss him.
2.9. The complainant refuted that he had been to a meeting with his manager on 3 March 2009 where his performance had been discussed. It was submitted that the respondent had failed to provide any written evidence of such meeting. The complainant had clearly the skills and capacity to perform the duties of the post and the fact that he had, after he had recovered from his disability, been reemployed in a senior capacity by a former employer clearly demonstrates this.
2.10. It is the complainant's case that the he has clearly suffered discrimination on the ground of disability in that, at the time of the dismissal, he was suffering from stress and was on certified sick leave. The complainant was dismissed without the benefit of fair procedure and natural justice.
4. Case for the respondent
4.1. The respondent is engaged in food production specialising in retailer house brands and brand co-manufacturing. The complainant was employed as a production manager on a busy site where he was responsible for its management. It was submitted that it was made clear to the complainant at the interview stage that the role would not be a 9 to 5 one and that any person with experience of the manufacturing sector would know that in any case. The work involves constant problem solving and requires a manager's full attention.
4.2. The complainant left the business on Thursday 26 March 2009. The complainant had attended a senior management meeting that day where a difficulty with a certain product had been discussed and a provisional plan to ensure the product got to the client had been agreed. As part of the solution the complainant was to present himself at the plant on Saturday. However, the respondent received a phone message from the complainant stating that he would be out sick the following day. As a result of the complainant being out sick another manager had to step in to oversee the manufacturing on this site.
4.3. The respondent attempted to ring the complainant on a daily basis after it received the message. Sometimes the complainant's phone would ring out, and other times it was switched off. It was submitted that the respondent's operations manager is an approachable person and that the respondent had provided the complainant with a list of contact numbers, including the personal numbers of the managing director and operations manager, in order to facilitate the complainant in making direct contact with the company. It was submitted that it was imperative that the complainant made contact with the respondent in order for them to provide appropriate cover at the site. To this effect, the respondent has a communication clause in its contract of employment that dictates that the complainant informs his manager on each day of absence of the specific reasons. It is the respondent position that the complainant had failed to do so and had actually evaded any attempts to make direct contact with him.
4.4. The respondent has not encountered a situation where a senior member of staff would refuse to take phone call over a prolonged period. It was submitted that the situation was untenable. The complainant was the manager of the plant and 20 staff relied on him. He had been provided with a company phone. In the complainant's absence the operations manager had to oversee the operations in the plant and the managing director stated that he had to make a decision in circumstances where he could see the effect this extra task was having on his operations manager.
4.5. The respondent wrote to the complainant informing him that if he did not make contact with them by 14 April 2009, the respondent would assume that the complainant wanted to terminate his contract of employment. A selection of phone numbers (including personal phone numbers) was included in this letter to provide the complainant with a wide choice of persons to contact.
4.6. It was submitted that if the complainant had made contact with the respondent then the next step for the respondent would have been to refer the complainant to the company doctor. This was not possible as the complainant refused to communicate with the respondent.
4.7. The respondent had formed the view, based on the complainant's refusal to communicate with management, that the complainant did not wish to remain in the respondent employment. It is entirely because of the complainant's continued refusal to contact the respondent who as a key member of management ought to have appreciated the necessity of such contact that the respondent formed the view that the complainant no longer wanted to work with the respondent. It was also pointed out that if the complainant had made such contact the respondent would have been able to explain that the job advertisement was not for the complainant's position.
5. Conclusion of the equality officer
5.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA0917 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". In addition, I must be satisfied that the complainant is a person with a disability within the meaning of the Acts.
5.2. It was submitted that the complainant is, or was at the time of lodging his complaint, a person with a disability. It was accepted by both parties that the complainant was out on sick leave at the time of his dismissal and that the reason for this absence was 'stress'. The respondent, upon my questioning, made no submission in relation to whether an employee who is stressed can be considered to be a person with a disability. The definition of a disability is set out in section 2 of the Acts. I find that while it is obvious that the model contained in the Acts is broader in scope than that set out in Directive 2000/78/EC and can therefore, in certain circumstances include disabilities of a temporary nature. I find that it does not however include mere references to sickness made without supporting medical evidence (for example see DEC-E2010-187). I find that 'disability' and 'sickness' cannot be simply treated as being the same and this is the reason why the word 'disability' was used in the Acts instead of 'sickness'. I find that every person has been 'sick' at some stage of their lives but not every person is entitled to be defined as having a disability within the meaning of these Acts. It is clear that the complainant, on his own evidence, was not happy in his new role with the respondent. It is clear that he found the hours to be extensive and I note that he submitted that he was also grieving for a family member.
5.3. I note that the Labour Court has accepted in Government Department v Worker (EDA/094) that a strictly literal interpretation of the statutory definition to 'stress' would produce the result that mere unhappiness, ordinary stress or disappointment which effects a person's emotions would have to be classified as a disability:
"It would appear to the Court that if the statute [above Acts] were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity."
The Court of Justice of the European Union in Chacon Navas v Eurest Collectividades SA [C-13/05] held that the concept of disability must be given an autonomous and uniform meaning across the Member States. It "must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life" (at paragraph 43).
5.4. I do not find that a person who is 'stressed' is automatically protected by the disability ground. 'Stress' is a normal part of life. I do accept that if stress is not properly managed it can manifest itself in health problems. However, I cannot construe 'stress' to be a disability in these circumstances in accordance with the Acts. The complainant provided a couple of sick certificates from a general practitioner and stated that he subsequently had to take medication for his mood. I have been provided with no evidence to support the complainant's assertion that he was ever diagnosed with a recognised mental illness or physical malfunction in accordance with the Acts. It is clear that the complainant, at the time of his dismissal, was 'sick'.
5.5. It is not under dispute that the complainant was dismissed. I find that this dismissal was as a direct result of the complainant's continued absence from the workplace that was aggravated by the complainant's refusal to speak directly with the respondent. I note that the complainant argued that he was under medical advice not to speak with the respondent however I note that no medical evidence was provided to support the assertion that the complainant could not speak with any of his colleagues. I find that in circumstances where the respondent had put in writing that the complainant urgently make contact with the respondent it was unreasonable for the complainant not to do so or, at least, to get a relative or a medical professional to do so. It is difficult to appreciate why the complainant chose to write a fax insisting that he was unwell and as long as he provided his medical certificates he should be simply be kept on the respondent books instead of complying with his employer's request. It ought to be clear that an employer must be provided with relevant information concerning an absent employee's circumstances in order to enable the employer to plan and manage the situation and to explore whether section 16(3) obligations arise. An employer is entitled to relevant information about the complainant's condition and has a right to refer an employee for a medical examination.
5.6. It is clear that sickness can develop into a disability. While the concept of an imputed disability was not explored at the hearing, I am satisfied on the facts of this case that the respondent was not imputing a disability onto the complainant. It is clear that the respondent was frustrated with what it viewed as the complainant's un-cooperation and unreasonableness is the circumstances. I note that the respondent position was that if the complainant had made contact with the respondent the complainant would have been referred to the respondent's occupational physician. The facts provided here do not support an inference of imputed disability discrimination as it is clear that the respondent had formed the view that the complainant - who was still in his probationary period - was avoiding the respondent and his minimum duties as a manager.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the complainant has not established a prima facie case of discriminatory treatment on the disability ground. The complainant was not a person with a disability at the time of the dismissal.
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Tara Coogan
Equality Officer
16 July 2012