FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : BUS EIREANN - AND - ALAN WYNNE (REPRESENTED BY LAMBE DIVILLY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Worker appealed the decision of the Equality Officer to the Labour Court on the 13th January, 2012. A Labour Court hearing took place on the 16th June, 2012. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Alan Wynne against the Decision of an Equality Officer under the Employment Equality Acts, 1998 – 2011 (“the Acts”) which found in favour of the Complainant and awarded him the sum of €5,000 compensation and ordered the Company to write to him to advise him of the next recruitment drive for bus drivers and ensure that he is made fully aware of the next opportunity to apply for a position.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Alan Wynne will be referred to as the “Complainant” and Bus �ireann will be referred to as the “Respondent”.
The Complainant appealed againstthe quantum of compensation awarded for the discrimination found to have occurred. The Complainant further appealed the order made by the Equality Officer requiring the Respondent to inform him of future recruitment forthe position of bus driver. The Complainant submitted that these orders do not provide any or adequate recompense for the discrimination complained of. The Complainant’s notice of appeal stated the following:
- "This appeal is against only that part of the decision of the
- Director of the Equality tribunal in respect of the remedy
(award of compensation made at paragraph 6.2 of the said
decision) and/or the amount of that compensation. Such an
award, together with the order contained in paragraph 6.3 of
the said decision, is not an effective remedy and does not
compensate the Complainant/Appellant sufficiently or at all
for the effects of the discrimination complained of and as
found as fact in paragraph 6.1 of the said decision. The said
discriminatory treatment has had, and continues to have,
significant effects on the Complainant/Appellant, including
emotional, occupational and financial consequences.”
- Director of the Equality tribunal in respect of the remedy
The Respondent raised a preliminary issue concerning the scope of the appeal before the Court. It held that the appeal should not be limited to considering the remedy only but that the Court was free to overturn the entirety of the Equality Officer’s decision.
Mr Colm Costello, Solicitor for the Respondent submitted that Section 83(1) of the Acts contemplates that either party may appeal against a decision; it does not contemplate that either party may appeal against part of a decision only. He submitted that this is so because it does not permit a part appeal but only a full appeal.
Mr Costello referred to Section 83(1) of the Acts which states that"not later than 42 days from the date of a decision of the Director under section 79, the complainant or the respondent may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.”
He contrasts this with Order 57, rule 1 (2) and (7) of the Circuit Court Rules (S.I. No. 312 of 2007), in respect of an appeal from the Employment Appeals Tribunal under the Unfair Dismissals Act 1977, which provide as follows:
- "(2) All appeals or applications for enforcement under Section
11 of the 1993 Act shall be made by way of Motion on Notice
which shall set out the grounds upon which the plaintiff is
relying for the reliefs sought and shall, in the case of an
application for enforcement of the determination of the
Tribunal under Section 11(3)(a) of the.1993 Act, indicate
whether or not an appeal has been brought from the
determination concerned and, if no such appeal has been
brought, that the time for appeal has elapsed, or, if such
appeal has been brought, the date upon which Notice of
Appeal was given and evidence of abandonment thereof. Such
applications shall be in accordance with Form 36A of the
Schedule of Forms annexed hereto ...
(7) If the plaintiff wishes to appeal against part only of a
determination of the Tribunal, the application shall clearly
identify that part against which it is intended to appeal.”
Section 83 in the same terms as Order 57 if it so wished and it did not do
so.
Ms Karen Talbot, B.L. instructed by Lambe Divilly, Solicitors, disputed the Respondent’s assertion and submitted that there was no need or benefit in reopening matters of fact already established by the Equality Officer, this she said would only lead to an absurdity.
Having heard from both sides on the preliminary issue the Court is satisfied that Section 83(1) of the Acts provides that either party may appeal to the Labour Court by specifying in writing the grounds of that appeal and thereby limit it to only part of the decision of the Equality Officer. In the absence of any appeal on the findings of fact found by the Equality Officer on the substantive issue of discrimination, the Court does not see the value in reopening that issue.
The Court informed both parties of its Decision to confine its Determination to the Complainant’s appeal in respect of the remedy awarded by the Equality Officer.
The Complainant was provided with the opportunity to submit a written submission to the Court on the issue of remedy only. The Company was provided with the opportunity to respond to any additional submissions made. Both parties subsequently advanced further submissions on this point.
Background
In early April 2008, the Complainant applied for a driving position with the Respondent. The application was acknowledged by letter dated 8th April 2008. The Complainant held a full clean 'D' licence at the time of his application. The Complainant attended for an interview/driving assessment on 30th April 2008. On 12th May 2008, the Complainant was informed by telephone that he had passed the aptitude, interview and driving test and that he would receive a start date subject to the medical examination.
The Complainant attended for medical examination on 19thMay, 2008.By letterdated 13th June2008 the Complainant was advised that hisapplication had been unsuccessful as the Medical Officer had"advised that a number of operational restrictions would be required in order to satisfy[his]personal circumstances"and that"these restrictions cannot be satisfied in the course of ordinary business."
Position of the Parties
Ms Talbot submitted that a disability had been imputed to the Complainant by the Respondent and the decision not toemploy theComplainant was based solely on the basis of its assessment that he sufferedadisability. Ms Talbot submitted that the Complainant does not have a disability within the meaning of the Acts, or at alland he isfully willing, competent, available and capable of undertaking all of the dutiesattached to the position of driver with the Respondent,In the alternative, she submitted that the Respondent failed in their legal obligations to make reasonable accommodation for the Complainant, notwithstanding that no such,or indeed any, accommodation was necessary.
She stated that this obligation was considered by this Court inA Health and Fitness ClubvA Worker (EED037)and on appeal by the Circuit Court inHumphreysvWestwood Fitness Club (2004) ELR296.She stated that the Complainant of his own accord submitted medical evidence from his General Practitioner to the Respondent, which the latter appeared to have given no consideration to. The Respondent did not consult with the Complainant in any way in respect of its opinion regarding the disability it imputed to him. The Complainant was not given any opportunity to comment or make submissions on the conclusion reached by the Respondent in respect of his 'medical' condition.
Ms Talbot further submitted, without prejudice to the foregoing, that the taking of any such measures would not impose a disproportionate burden on the Respondent, particularly given its size and status as a commercial semi-State body.
In her supplementary submission to the Court, Ms Talbot submitted that the appropriate remedy in the circumstances of this case are that an order be made under the provisions of Section 82(1)(c) requiring the Respondent to appoint the Complainant to the position of bus driver with effect from May 2008 in order to put him into the position in which he would have been had it not been for the discrimination he suffered. She stated that theComplainant is fully willing, competent,available and capable of undertaking all of the duties attached to theposition of driver with the Respondent in the conditions under which those duties are or may be required to be performed. Furthermore, she sought an order under the provisions of Section 82(1)(e) awarding maximum compensation to the Complainant for the effects of discrimination.
On behalf of the Respondent Mr Costello stated that by memorandum dated 21stMay 2008 from the Respondent's Chief Medical Officer (CMO) informed the Respondent that the Complainant needed a functional driving testwith an Inspector of theDriving School. However, the CMO stated that if the Complainant passed the test he would need restricted duties in terms of the duration of time he could be driving.
Mr Costello stated that the Respondent endeavoured to fulfil the requirements specified by the Chief Medical Officer butconcluded that it could not do so bearing in mind the nature of the Respondent's services to destinations outside of metropolitan Dublin and the impact of traffic congestion. He said that to provide the Complainant with a break after two to two and a half hours driving would create major operational difficulties and place a disproportionate financial burden on the Respondent.
By letter dated 28thMay 2008 to the Respondent the Complainant's general medical practitioner gave his opinion that the Complainant was fit to drive a bus/coach for a period of four and a half hours followed by a mandatory rest break, as per the regulations under the Organisation of Working Time Act, 1997.
In its supplementary submission to the Court the Respondent submitted that the remedy set out in the Equality Officer’s determination was appropriate and should be upheld by the Court. It referred to the Equality Officer’s finding that it was within its rights to conduct a medical examination and as part of its requirement to address concerns noted by the qualified medical consultant on the basis of information available to it. It submitted that while holding against the Respondent for failing to consult with the Complainant, the Equality Officer fell short of holding that had the Respondent consulted with him it would have appointed him to the position of bus driver.
Remedy
The Equality Officer found that the Respondent’s decision not to offer the Complainant a position as a bus driver in May 2008 amounted to discriminatory treatment on the grounds of disability. He held that the Respondent should have consulted with the Complainant about the medical evidence available and allowed him the opportunity to offer his own expert medical evidence. He held that the Respondent should have reserved its decision until that was explored. The Equality Officer concluded that this would have included giving the Complainant the opportunity to comment on the medical evidence, particularly since that medical evidence did not deem him incapable of carrying out the job but rather that certain measures would have to be assessed. Accordingly, he was satisfied that the Respondent was not in possession of all sufficient facts to be able to rely on a defence under Section 16 of the Acts when arriving at its decision not to offer him a position as a bus driver.
Determination
The Court is of the view that the Respondent’s failure to abide by the terms of Section 16 of the Act was a serious breach of its statutory obligations and therefore is of the view that the award decided by the Equality Officer is inadequate in the circumstances.
The jurisdiction of the Equality Tribunal, and of this Court on appeal, to award redress is grounded on Section 82 of the Act. Section 82(1)(c) of the Act provides that the Court may make an order for compensation for the effects of acts of discrimination. Where this mode of redress is decided upon the Court is required to follow the decision of the CJEU inVon Colson andKamann -v- Land Nordrhein Westfalen 1984 ECR 1891which held that sanctions for breaches of Community rights must ensure that they are effective and have a deterrent effect, and must amount to more than purely nominal compensation.
Taking account of CJEU inVon Colsonthe Court sets the level of compensation at €12, 697.38 for the effects of the discrimination, the maximum allowable under the Act in this case.
Furthermore, the Court determines that the Complainant should be advised of the next available vacancy or recruitment drive for bus drivers and the Respondent must fully comply with its obligations under Section 16 of the Acts, as found by the Equality Officer in his findings and Decision.
The Equality Officer's Decision is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th July, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.