FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : CRONINS RACKING AND SHELVING CENTRE LIMITED (REPRESENTED BY M.P. GUINNESS B.L., INSTRUCTED BY O' MARA GERAGHTY MCCOURT SOLICITORS) - AND - MARTIN HOWELL (REPRESENTED BY CATHAL MCGREAL B.L., INSTRUCTED BY EUGENE SMARTT SOLICITOR) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Worker and the Company appealed the decision of the Equality Officer to the Labour Court. A Labour Court hearing took place on the 27th June, 2012 and the 3rd July, 2012. The following is the Court's Determination:
DETERMINATION:
- This matter came before the Court by way of an appeal by Cronins Racking and Shelving Limited (hereafter the Respondent) against the decision of the Equality Tribunal in a claim of discriminatory dismissal on grounds of disability by Martin Howell (hereafter the Complainant) and a cross appeal by the Complainant against the quantum of compensation awarded.
The Equality Tribunal found that the Complainant had been dismissed by the Respondent of grounds of disability. The Equality Officer awarded the Complainant compensation in the amount of €25,000.
The Respondent withdrew its appeal prior to the hearing of the appeals on 3rdJuly 2012. The Court proceeded to deal with the Complainant’s appeal on quantum.
The facts of the case are fully recited in the decision of the Equality Tribunal. Moreover, since there is no appeal against the findings of fact made by the Equality Officer those findings are adopted by the Court.
Position of the parties
It was submitted on behalf of the Complainant that he has been unable to find employment since his dismissal in 2008. The Court was told that the Complainant’s gross earnings while employed amounted to approximately €498 per week inclusive of overtime. It was further submitted, based on the last P60 furnished to the Complainant by the Respondent, that two years remuneration would amount to €46,800 and that in all the circumstances of the case the Court should make an award in that amount, which is the limit of the Court’s monetary jurisdiction. It was submitted that on the facts as found by the Equality Officer there were serious aggravating factors in the case which should be taken into account. In advancing the Complainant case his Counsel, Mr McGreal BL relied on the decision of the CJEU in Case C-14/83Von Colson and Kamann v Land Nordrhein – Westfalen[1984] ECR 1891.
On behalf of the Respondent it was submitted that having regard to its economic circumstances the award made by the Equality Officer was disproportionate in that it would place an excessive financial burden on the Company which it could not meet. Evidence was given by Mr Martin Howell, who is the Respondent’s auditors in relation to the financial position of the Respondent.
It was submitted by Ms Guinness BL, for the Respondent, that the Company could not afford to pay the award made by the Equality Officer and that it would be unable to raise the finance necessary to do so from any other source.
Conclusion of the Court
The Court has taken full account of the submission of the parties and of the evidence adduced on behalf of the Respondent concerning its financial circumstances. The Court has also taken account of the fact that that Complainant has not found alternative employment since he recovered, in March 2010, from the illness which led to his dismissal and to all of the factual circumstances surrounding the discrimination which he suffered.
Taking account of these factors the Court has come to the view that the award made by Equality Tribunal should be increased to one of €33,000.
Determination
The decision of the Equality Tribunal is varied so provide for an award of compensation in the amount of €33,000 in substitution of the award made by the Equality Officer. No element of the award relates to remuneration.
The Complainant’s appeal is to that extent allowed.
Signed on behalf of the Labour Court
Kevin Duffy
5th July, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.