FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : AN GRIANAN HOTEL (REPRESENTED BY P A DORRIAN & CO SOLICITORS) - AND - MARK LANGFORD (REPRESENTED BY MCINTYRE O'BRIEN SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 6th January, 2012. A Labour Court hearing took place on the 9th May, 2012. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Burt Hotel Limited trading as An Grianan Hotel against the decision of the Equality Tribunal in a claim of discriminatory dismissal on grounds of disability by Mark Langford under the Employment Equality Acts 1998-2011.
In this Determination the parties are referred to as they were at first instance. Hence, Burt Hotel Limited trading as An Grianan Hotel is referred to as the Respondent and Mark Langford is referred to as the Complainant.
Facts
The material facts, as admitted or as found by the Court, are as follows.
The Respondent operates a hotel located in Co Donegal. The Complainant commenced employment with the Respondent on or about 12thFebruary 2007. His contract of employment was not put in writing nor was he furnished with the written particulars of the terms of the contract. In a letter of appointment his role was described as that of manager with responsibility for the restaurant and the bar.
In or about 5thNovember 2007 the Complainant was involved in a road traffic accident in which he sustained personal injuries. In consequence of these injuries he was on sick-leave from 5thNovember 2007 until 28thNovember 2007. It was the Complainant’s evidence, which the Court accepts, that he gave medical certificates issues by his Doctor to the Respondent covering this sick leave. In consequence of his injuries he suffered from pain and limited lateral rotation, extensions and flexion.
The Complainant returned to work on 28thNovember and was advised by his Doctor that he should only undertake light duties. The Complainant informed his manager of this advice.
Some days after his return to work the Complainant was working in the hotel restaurant with two waitresses. During the course of the day one of the waitress, who was then pregnant, was obliged to leave work due to illness. In consequence the Complainant was obliged to lift plates and trays. According to the Complainant, he asked his immediate manager for assistance but none was provided. The effects of the Complainant’s injuries were exasperated by the heavy lifting that he had undertaken and he experienced severe pain. He left work and attended his Doctor. The Complainant was again certified by his Doctor as unfit for work and he again went on sick leave. The Complainant told the Court, and the Court accepts, that he continued to furnish the Respondent with medical certificates from his Doctor during this second period of sick-leave.
On or about 9thJanuary 2008 the Complainant was contacted by an employee of the Respondent and was asked to attend a meeting with his General Manage. At this meeting the Complainant was informed that he was being dismissed with immediate effect.
On the basis of what he was told by the General Manager, the Complainant believed that he was dismissed because of his lack of physical capacity to attend at work. He referred the within complaint to the Equality Tribunal on 2ndJuly 2008. Certain other claims were referred to the Rights Commissioner service of the Labour Relations Commission. These latter claims were compromised and settled on confidential financial terms. In his complaint to the Equality Tribunal the Complainant also alleged that the Respondent had failed to provide him with reasonable accommodation for his disability.
The matter was heard by the Equality Tribunal on 10thNovember 2011. In a decision in writing issued on 30thNovember 2011 the Equality Tribunal upheld the Complainant’s complaint of discriminatory dismissal on grounds of disability. The complaint, in so far as it related to a failure of the Respondent to provide the Complainant with reasonable accommodation, was not upheld. The Equality Tribunal awarded the Complainant compensation in the amount of €14,000.
The Respondent appealed to the Court. There was no cross-appeal by the Complainant.
Position of the Parties
In the notice of appeal filed with the Court on 6thJanuary 2012 by Solicitors for the Respondent the grounds of appeal were stated as: -
- “Complainant / Respondent does not aver to any of the nine protected grounds under the Employment Equality Acts,
Complainant / Respondent was dismissed on grounds of capacity
Appellant [sic] accepted settlement cheque in full and final settlement of all claims therefore the Equality Tribunal precluded from dealing with the matter".
In accordance with the procedures of the Court written submissions were filed with the Court on behalf of the Respondent dated 21stFebruary 2012. These submissions dealt only with points of law on which it was contended that the decision of the Equality Tribunal should be set aside.
At the hearing of the appeal Counsel for the Respondent, Ms Comiskey BL, told the Court that she was not proceeding on the basis of the submissions previously filed. Rather, Counsel told the Court, her instructions were the Complainant had been dismissed on grounds of redundancy.
Evidence was given on behalf of the Respondent by Mr Pearse Callaghan who is a Director of the Respondent. In his evidence the witness told the Court that the Complainant had originally been employed by a previous General Manager as an Assistant General Manager. According to Mr Callaghan, during 2007 it became apparent that the hotel was becoming unsuccessful as it was not being run efficiently. A new General Manager was employed for the purpose of restructuring the business. The Directors were advised by the new General Manager that the hotel was overstaffed. This advice was accepted by the witness and his co-Director. It was Mr Callaghan’s evidence that the Complainant was not fulfilling the role of assistant manager satisfactorily and that he was not ‘pulling his weight’. It was decided to terminate the Complainant’s employment and the witness instructed the General Manger to inform the Complainant accordingly. Other members of staff were also dismissed around that time on grounds of redundancy. Mr Callaghan testified that the decision to dismiss the Complainant was taken because his continued employment was no longer financially viable.
In cross-examination the witness accepted that he had employed another manager for the restaurant and bar within six-months of the Complainant’s dismissal. The witness further confirmed that the Complainant had never been formally warned in relation to his work performance. The witness did say that the Complainant had been told of dissatisfaction with his performance at management meetings. Asked if he had previously given redundancy as a reason for the Complainant’s dismissal, the witness said that he had given evidence to the Equality Officer to that effect. He did, however, accept the there was no record in the decision of the Equality Office of such a defence having been advanced.
The Complainant
In evidence the Complainant outlined his employment history with the Respondent. He said that he had never been furnished with a job description although in a letter of appointment he was told that he was being employed as the manager for the restaurant and bar. The Complainant told the Court that in or about 5thNovember 2007 he was involved in a road traffic accident in which he sustained injuries to his neck and upper body. This caused him paid in his neck and muscles which caused him to take sick leave. He returned to work on or about 28thNovember 2007 but die to the strain of work he had to resume sick-leave.
The witness told the Court that in or about 9thJanuary 2008 he was contacted by a receptionist at the hotel and was instructed to attend a meeting with the General Manager on that day. He attended the meeting as instructed. The General Manager informed him that his job was no longer available and that he was being dismissed with immediate effect. He asked the General Manager to explain the reason for this decision and he was informed that he no longer had the physical capacity to perform the job for which he was employed.
The Complainant told the Court that redundancy had never previously been mentioned as the ground justifying his dismissal. He said that he had no recollection of this having been mentioned in the course of the hearing before the Equality Officer. The Complainant further stated that he had never been told that his work performance was unsatisfactory although his did accept that dissatisfaction at the overall performance of the business was expressed at management meetings that he had attended. He said that these comments were of a general nature and had not been specifically directed at his performance.
In cross-examination it was put to the Complainant that he had been guilty of poor time keeping and he was shown records indicated that he had attended late for duty on a number of occasions. The Complainant denied that his time keeping was poor and he told the Court that he had never previously seen the records produced. The Complainant was also questioned about the production of sick certificates and it was put to him that the certificates furnished to the Equality Officer were ‘retrospective’. The Complainant said that he had furnished the Respondent with certificates weekly initially and then fortnightly. He did not keep copies of these certificates. He said that at the hearing before the Equality Tribunal the Equality Officer asked Mr Callaghan to produce these certificates but Mr Callaghan told the Equality Officer that he had lost them. At the request of the Equality Officer his Doctor issued certificates confirming that he was found unfit for work at the material times
Conclusion
The gravamen of the Complainant’s case is that he was dismissed because of the injuries that he suffered and his consequential absence from work. On that basis he contends that his dismissal was on grounds of disability. Inherent in this submission is a contention that the medical condition of which suffered in consequence of his injuries constituted a disability with the statutory meaning of that term.
Meaning of the Term Disability
The terms ‘disability’ is defined by s.2 of the Acts as follows: -
- "(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, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
In, Customer Perception v Gemma Leydon [2004] 15 ELR 101 (Determination EED037), this Court considered the meaning to be ascribed to the term 'disability' in light of the statutory definition and said: -
- “It is settled law that where a statue defines its own terms and makes what has been called its own dictionary, a Court or Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used”.
In referring to par (c) of the statutory definition, the Court then continued: -
- “Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition”.
In the instant case the Court is satisfied that the condition suffered by the Complainant, which he described in evidence, and the manifestations of which were confirmed in a report from his Doctor which was also put in evidence, amounted to a temporary malfunction of a part of his body. Consequently it was a disability for the purposes of the Act.
Burden of Proof
Turning to the question of whether this disability was a factor in the decision to terminate the Complainant’s employment, the Court must first consider the allocation of the probative burden as between the parties. The burden of proof in cases under the Act is now dealt with at s.85A of the Act. It provides, in effect, that where facts are established by or on behalf of a Complainant from which it can be presumed that discrimination has occurred, it is for the Respondent to prove the absence of discrimination. The application of this statutory provision involves a three-stage process as follows: -
The complainant must prove the primary facts upon which he or she relies in alleging discrimination,
The Court must evaluate those facts, if proved, and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination
If the complainant fails at stage 1 or 2 he or she cannot succeed. If the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination. (seeSouthern Health Board v Mitchell[2001] ELR 101)
At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts relied upon. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.
InWong v Igen Ltdand others[2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the probative burden passes to the Respondent, and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision, the complaint will be made out.
Application to the Instant Case
The Complainant told the Court in evidence that when he sought an explanation for his dismissal the then General Manager of the Respondent told him that it was because his no longer had the physical capacity to undertake the work for which he was employed. The Court fully accepts the truth of this evidence. It is, however, probative of what was said by the General Manager although it is not probative of the veracity of what was said. Nevertheless, the fact that the General Manager explained the Complainant’s dismissal in terms which clearly linked it to his disability is, in the Court’s judgment, of sufficient significance in itself to raise an inference of discrimination on grounds of disability, thus shifting the burden of proving the contrary to the Respondent. There is also an abundance of corroborative evidence in this direction which will be considered in evaluating the evidence adduced by the Respondent.
The Respondent’s Explanation
Mr Callaghan told the Court that the Complainant was dismissed on grounds of Redundancy. The Court is satisfied as a matter of fact that the first occasion on which this explanation was advanced was in this witness’s evidence to the Court. While in a de novo hearing a party is entitled to adduce new or different evidence to that tendered at first instance, where contradictory or inconsistent evidence is given at first instance to that given on appeal, this is a matter that can go to the credibility of a witness.
At par 4.12 of the carefully drafted decision of the Equality Officer the following is recorded in relation to the progress of the case before him: -
- “As the hearing progressed, the respondent's representative informed the Tribunal that rather than having been dismissed for the reasons given in its written submissions, i.e. that the complainant was dismissed as he was no longer capable of doing the work which he was employed to do - that the respondent had to look at the needs of their business, and compare same with the nature of the complainant's illness and the likely length of his continuing absence; the complainant was, in fact, dismissed for disciplinary reasons as would be borne out by the testimony of a witness. The witness present at the hearing, Mr X, was one of Directors of the respondent company. When asked to provide details of the disciplinary reasons for complainant's dismissal he replied that the Directors had received complaints and that, as silent directors, they did not want to receive any complaints directly. He stated that the business was only just set up and outlined the timeframe, in months, of the gradual opening of its premises from February 2007 until July 2007. When asked whether the complaints had been put to the complainant, Mr X stated that the complainant had been told about the complaints along with the then General Manager and that these were noted in the minutes of the management meetings. The complainant suggested that these complaints related to the operation of a newly-opened hotel rather than about the complainant specifically. Following questioning by the Equality Officer, Mr X conceded that he could not remember any details of any specific complaints that referred to the complainant, and that the minutes of the management meetings would not reflect any complaints specifically about the complainant but would show that people from the area had come to him and his brother (another Director in the company) directly to complain about aspects of the hotel. In response to a question from the complainant, Mr X also confirmed that he still received complainants about the hotel directly but a lot less now”.
Nowhere in the Equality Officer’s decision is there any record of redundancy having been advanced as the reason for the impugned dismissal. Mr Callaghan told the Court that he did tell the Equality Officer that the Complainant’s role had become redundant. The Complainant’s evidence was that this was never mentioned in the course of the hearing at first instance. The Court finds it impossible to accept that if this reason for the dismissal had been advance at the hearing before the Equality Tribunal it would not have been recorded by the Equality Officer.
It is of further significance that in the notice of appeal filed with the Court by Solicitors for the Respondent the following statement appears: -
- “Complainant / Respondent was dismissed on grounds of capacity”.
In evidence Mr Callaghan did refer to dissatisfaction with the Complainant’s ability to perform his functions as a manager but this was advanced as a reason for his selection for redundancy. The use of the word ‘capacity’ by the Respondent’s Solicitors, on instructions from the Respondent, is suggestive of physical capacity. It is also entirely congruent with the explanation proffered to the Equality Tribunal in the Respondent’s original written submissions which the Equality Officer recorded as being: -
- “that the complainant was dismissed as he was no longer capable of doing the work which he was employed to do - that the respondent had to look at the needs of their business, and compare same with the nature of the complainant's illness and the likely length of his continuing absence”.
Furthermore, no mention was made of redundancy in the written submissions filed with the Court on behalf of the Respondent in February 2012.
Overall the Court has found that the evidence advanced by the Respondent was wholly unreliable both in terms of its inconsistency and in the uncertain and hesitant manner in which it was given. While the Court accepts that the Respondent’s business was experiencing financial and structural difficulties at the material time it cannot accept that this was the operative reason for the Complainant’s dismissal. It is, impossible to accept that if redundancy was the operative reason for the Complainant’s dismissal that this would not have been stated at the material time and at an earlier stage in these proceedings. No cogent explanation was given for this omission.
Having considered all of the evidence in this case the Court is fully satisfied that the Respondent has failed to discharge the burden that it bears. According the Complainant is entitled to succeed.
A number of legal issues were raised by the Respondent in its original submissions to the Court concerning the entitlement of the Complainant to pursue the within complaint. These issues were not pursued at the hearing.
Determination
For all of the reasons set out herein the Court is satisfied that the Complainant was dismissed on grounds of disability. Accordingly, the Court affirms the decision of the Equality Tribunal and the Respondent’s appeal is disallowed.
The Court is further satisfied that the award of compensation in the amount of €14,000 is appropriate in all the circumstance of the case. This award is likewise affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
14th May, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.