FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : GREEN LINE PALLETS LIMITED - AND - JOHN WHYTE (REPRESENTED BY REIDY STAFFORD, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy 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 21st June, 2012. A Labour Court hearing took place on the 25th October 2012. The following is the Court's Determination:
DETERMINATION:
This is an appeal by the worker (herein after called “the Complainant”) against the Decision of an Equality Officer in a claim alleging discrimination on the disability ground by the Company (hereinafter called “the Respondent”).
The Complainant complained that he was discriminated against on the disability ground when he was dismissed from his employment in breach of terms of Section 6(2)(g) of the Employment Equality Acts 1998 to 2011 (the Acts) and in contravention of Section 8 of the Acts. He also claimed that the Respondent did not make sufficient efforts to accommodate his disability in contravention of Section 16 (3) of the Acts.
The Complainant has a disability, he is profoundly deaf and has a severe speech impediment.
The Equality Officer found that the Complainant had failed to establish aprima faciecase of discriminatory dismissal on the ground of disability contrary to the Acts and therefore found that his complaint could not succeed.
In his findings the Equality Officer concluded as follows:-
- “The parties agree on the thrust of the reason given by the respondent for the termination of the complainant's employment. Whilst this reason may be unfair and unreasonable I cannot conclude that it is discriminatory. Moreover, the complainant has failed to present any evidence that would support his assertion that the respondent's perception of him was linked to his disability. In light of my comments in this and the preceding paragraphs I find, on balance, that the complainant has failed to establish a prima facie case of discriminatory dismissal contrary to the Acts and his complaint cannot therefore succeed.”
Background
The Complainant was employed by the Respondent as a General Operative from 29thApril 2009 until 18thJune 2009 when he was dismissed. The Complainant secured employment with the Respondent with the assistance of a FÁS Agency called Kildare Coalition of Supported Employment Limited.
Summary of the Complainant’s position
Mr. Andrew Cody, Reidy Stafford, Solicitors, on behalf of the Complainant submitted that the Complainant was discriminated against on the ground of his disability when the Respondent dismissed him and failed to provide him with adequate accommodation to take account of his disability.
He submitted that that pursuant to Section 85A of the Acts the Complainant, has set out aprima faciecase that his dismissal was discriminatory on the grounds of disability, he cited the decision of this Court inGoode Concrete v Oksana Shaskova EDA0919wherein it states as follows:-
- "where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This involves a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. 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 proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. ".
Mr. Cody stated that in the document there was a reference to an understanding between the Respondent and the Complainant that the latter was on a six-month probationary period, however, he was dismissed less than two months later. Therefore, Mr. Cody submitted that any suggestion of an understanding was entirely irrelevant as the Complainant’s contract of employment was not terminated at the expiry of the probationary period.
Mr. Cody referred to a document from the Respondent attached to the Equality Tribunal’s“Reply to a Request for Information"and dated 10thAugust 2009. It outlined the Respondent’s position on the claim submitted by the Complainant to the Equality Tribunal under the Acts. He rebutted the arguments made in that document whereby the Respondent had stated that the Complainant’s output was wholly inadequate and way below the average of the other employees. In the document the Respondent stated that a Director of the Company approached the Liaison Officer of the FÁS Agency and expressed his concern that the Complainant's work was not satisfactory and a meeting was set up on 8thJune 2009 between the Company and the FÁS Agency’s Administrative Offices in Kilcullen to discuss how best his work output could be increased. The document stated that the Complainant was invited to this meeting, the outcome of which decided that in order to avoid any perceived confusion with regard to instructions, the Complainant would liaise solely and work under the supervision of the Director and the Senior Operative on site. It went on to say that“notwithstanding the co-operation on the part of the Respondent the change had no impact on the Complainant's productivity”. The Complainant was dismissed on 18thJune 2009.
Mr. Cody rebutted the points made in the Respondent’s document and contended that the Complainant was not informed that his performance was a problem nor was he provided with an opportunity to remedy any difficulties with his work. The Complainant was not invited to any meeting to take place on 8thJune 2009 and he knew nothing about the meeting. He said that the Respondent had not observed its own disciplinary procedures, the Complainant was not given any warnings and he was not supplied with the reasons for his dismissal nor even that dismissal was in the contemplation by the Respondent.
Mr. Cody said that on the day of the Complainant’s dismissal the Respondent made no effort whatsoever to communicate with the Complainant. He submitted that it would have taken very little to write down for the Complainant’s benefit what the complaints were. The Complainant had to guess through lip-reading what his Supervisor was saying, he was then asked to leave and handed a cheque. No effort was made to allow him to respond.
Furthermore, Mr. Cody submitted to the Court that the Respondent had failed to discharge the legislative requirement contained at Section 16(3) of the Acts to reasonably accommodate the Complainant by the taking of appropriate measures. He submitted that if a meeting had taken placebetween the Complainant and the Respondent, he would in all probability have been able to engage with them through lip-reading and written notes.
In support of his case Mr. Cody cited a Determination of this Court inA Company v A WorkerEDA106 which determined that the onus is on an employer to discharge their duty under Section 16(3) where it stated as follows:-
- "There is a clear duty on an employer to make enquiries as to whether, with special treatment and facilities, an employee suffering from a disability can continue in his employment"
He also cited Labour Court DeterminationA Government Department v An Employee EDA061where it found that the duty to reasonably accommodate an employee with a disability was a proactive duty and furthermore that it was a means to an end and not in itself the end of the duty placed upon the employer.
In support of his argument that there was a duty on the Respondent to act if the Complainant’s performance was not satisfactory, Mr. Cody citedNagel v Mulcahy Group West Ltd [UD 1981/621]where it was determined that an employee should be given the opportunity to improve with a view to meeting the required targets.
Finally, Mr. Cody stated that the Respondent had failed to follow theIBEC & ICTU Workway Disability and Employment Guidelines 2004,in particular the agreed guidelines for communicating with people with hearing difficulties, which states:-
- "There are five methods of communication used by people with hearing difficulties; sign language, finger spelling, handwriting, lip reading and hearing aids. We should not assume that, if a person is deaf or hearing impaired, they can use or understand sign or lip-read, for example. A method preferred by one individual may not be suited to another."
The Court has considered the oral and written submissions made on behalf of the Complainant. In the absence of the Respondent no evidence was presented on its behalf.
The Law Applicable:
Burden of proof
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.
In the jurisprudence of this Court the test for applying this notion is that developed inSouthern Health Board v Mitchell[2001] ELR 201. Here the Court adopted the following analysis of Article 2 of the Burden of Proof Directive upon which Section 85A is now based: -
- “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.
1. The Complainant must prove the primary facts upon which they rely in alleging discrimination;
2. 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; and
3. 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.
Conclusions of the Court
The Court must consider whether or not the Complainant’s disability was a factor which influenced the decision to terminate the Complainant’s employment to a degree which renders the Respondent liable for unlawful discrimination.
With the assistance of a sign language interpreter, the Complainant gave evidence under oath to the Court and told the Court that he was not informed of the meeting which took place on 8thJune 2009 between the Respondent and the FÁS Agency concerning his work performance. He said that he was not aware that such a meeting was taking place. He was not invited to attend nor to be represented at that meeting. He told the Court that he was not made aware that his performance was a problem and that he was going to be under special supervision following the meeting on 8thJune 2009.
In his evidence the Complainant accepted that while his work output may not have been as high as his colleagues this was because he was only there for a short time and his colleagues were more experienced in making pallets. He told the Court that the first he knew of the meeting held on 8thJune 2009 was when the Respondent replied to the Equality Tribunal after he made his claim under the Acts. He said that the first time he became aware of the Respondent’s concerns over his work performance was when the Director of the company informed him verbally that he was dismissed and handed him a cheque for his wages. He said that he received nowritten communication from the Respondent.
In the Court’s view it is reasonable to accept the Complainant’s contention that the lack of communication with him concerning his work output and the eventual decision to terminate his employment can be judged to be related to his disability.
The Court is satisfied that the above facts are of sufficient significance to raise an inference of discrimination on the disability ground and so shift the burden of proving the absence of discrimination on to the Respondent in accordance with Section 85A of the Acts.
The Respondent failed to appear before the Court and was not available for questioning on the reasons for the Complainant’s dismissal.
In these circumstances, the Court cannot place any reliance on the document submitted by the Respondent to the Equality Tribunal. Accordingly, on the uncontradicted evidence of the Complainant, the Court must hold that the Respondent has failed to rebut the presumption of discrimination in this case and the Complainant is entitled to succeed.
Determination:
The Complainant was discriminated against on grounds of his disability contrary to Section 8 of the Act. The Equality Officer’s Decision is overturned and the Complainant’s appeal succeeds. The Court is satisfied that the appropriate redress is an award of compensation. The Court notes that the complainant was employed in a part-time capacity earning €224 per week. In all the circumstances, the Court determines that an award which is fair and equitable should be measured at €10,000. The Respondent herein is ordered to pay compensation to the Complainant in that amount.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
2nd November, 2012Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.