Employment Equality Acts
Decision DEC-E2013-059
PARTIES
An Employee
(Represented by Roland Budd, B.L.,
Instructed by Patrick J O'Meara & Co., Solicitors)
- V -
A Transport Company
(Represented by Karen Talbot, B.L.,
Instructed by Smithwick Solicitors)
File reference: EE/2010/914
Date of issue: 14 June 2013
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Harassment - Disability - Prima Facie case - Appropriate measures
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment, discriminatory dismissal, harassment and a failure to provide reasonable accommodation by the respondent on the ground of disability in terms of Sections 6(2), 14A, and 16 of the Employment Equality Acts, and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 22 December 2010 under the Employment Equality Acts. On 29 January 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 26 April 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed by the respondent as a Haulage Driver and commenced his employment with the respondent in August 2007. The complainant's job involved driving a delivery truck in the collection and distribution of pig feed in respect of three piggeries. The complainant was paid €70 per load and the times and days of work were flexible between the parties, which also involved weekend work from time to time.
2.2 The complainant submitted that on 18 June 2010, he went to work as normal and en route to one of the piggeries, became somewhat concerned in respect of his emotional wellbeing and made contact with his doctor. Arising out of the doctor's concern for his safety and wellbeing, the doctor arranged for an appointment with the Psychiatric Unit of a local hospital. The complainant submitted that while he was in the waiting room, he telephoned Mr X, a director of the respondent company, to explain why he left work that day, and was informed to come back when he was ready to do so.
2.3 The complainant submitted that he was an inpatient in the hospital until 26 June and on that day he felt well enough to return to work. He was discharged with a direction from his doctor that he remain out of work until 2 July 2010.
2.4 The complainant submitted that on 2 July, he telephoned Mr X and advised him that he was fit to return to work. He obtained a doctor's certificate and handed this to Mr X. He returned to work on 5 July 2010.
2.5 The complainant submitted that on 6 July, he was involved in an accident in the workplace whereby he reversed into one of the feed bins. The applicant summoned Mr X and became visibly upset. Thereafter he went to his doctor who prescribed Xanax. The complainant further submitted that he handed in another sick certificate and presented himself for work on 26 July 2010. He was met by Mr X who advised him that he had not seen the sick certificate but told to applicant to go home and that he would call him.
2.6 The complainant submitted that the following day, Mr X called him to say that he had no work for him at present and that he would let him know in due course. The applicant went to the workplace and upon telephoning Mr X was informed that an alternative carrier had been arranged and that he would call him towards the end of the week.
2.7 The complainant submitted that on 29 July, he returned to the workplace but was unable to meet with Mr X at that time. He returned home and received a call from Mr X shortly afterwards. Mr X asked the complainant to meet with him and when he did he informed the complainant that prices had gone up and that the operators of one piggery were considering using an alternative haulier. Mr X suggested that the complainant may be in a position to draw livestock to make up the shortfall or alternatively to sign on for social welfare on the days he was not working. The complainant submitted that he informed Mr X that he wanted his job back.
2.8 The complainant submitted that he on 30 July he spoke to Mr X who advised him that in September his truck will be sold, that that he would be able to continue to haul pig-feed, but only at a reduced rate (i.e. €60 per load). Mr X informed that complainant that he is dependent on the operators of the other piggeries agreeing to this and will phone him when he knows more.
2.9 The complainant submitted that Mr X insisted that he work for a reduced rate of pay and that he did so on a number of occasions in August but towards the end of August his truck had to be repaired and that there was no truck available for him for two or three days.
2.10 The complainant submitted that on 25 August he returned to the workplace and was advised by Mr X that he was being made redundant.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent rejects the complainant's claims that he was not provided with reasonable accommodation for a disability or that he was harassed, treated in a discriminatory manner or dismissed on a discriminatory basis on the grounds of disability.
3.2 The respondent submitted that it is involved in the haulage business and primarily in the haulage of feed stuffs for pigs and haulage of live pigs and at that time employed the complainant and one other driver.
3.3 The respondent submitted that approximately 60-70% of the feedstuffs being transported were being delivered to a single entity and that in or about July/August they lost the haulage contract to that entity and thereby became primarily reliant on the haulage of livestock as opposed to feedstuff for pigs.
3.4 The respondent submitted that they consulted the complainant who intimated that he had been satisfied to draw feedstuffs only and was not interested in the drawing of livestock primarily due to the washing out of the vehicle and the unloading of livestock. It was ascertained that the remaining driver would perform this duty and accordingly a redundancy situation arose due to the loss of the haulage contract and thereby had to dispose of one of its haulage vehicles.
3.5 The respondent submitted that whilst it was aware of the complainant's medical difficulties and of the fact that he had caused damage through a vehicular accident to the respondent's property, it did not seek to penalise, discriminate or in any other way act in a prejudicial fashion towards the complainant and contends that a valid redundancy situation arose.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant was subjected to discriminatory treatment, harassment and discriminatory dismissal by the respondent on grounds of disability, in terms of sections 6 and 14 of the Employment Equality Acts, and contrary to section 77 of those Acts; and whether the respondent failed to provide appropriate measures under Section 16 of the Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited v Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.4 I note from the submissions of both parties that it is common case that the complainant informed the respondent of the existence of his disability in June 2010. It is also common case from the oral evidence that the complainant was informed on 25 August 2010 that he was being made redundant. On the basis of the foregoing, I am satisfied that the complainant has raised facts from which an inference of discriminatory dismissal may be inferred. Accordingly the onus to rebut such an inference falls to the respondent.
4.5 Having regard to the evidence presented at the oral hearing, it is common case that the respondents business was primarily concerned with hauling feedstuffs to three main clients (one being the respondent's own piggery) and that one of the other piggeries was much bigger than the others and constitutes about 60-70% of the haulage work. The feedstuff supplier was in a position to undercut the respondent by a sizable amount for the delivery of its products and during the period June to August 2010, the respondent attempted to consider other options to retain the business of this larger establishment. Ultimately, the attempt did not succeed and the respondent lost the contract. Documentary evidence supporting this version of events was submitted at the hearing, including audited accounts from the respondent and a letter from the larger piggery confirming the cessation of its contract with the respondent.
4.6 In addition, the respondent stated that only it's other employee was licensed to haul livestock. When this was put to the complainant, he did not know anything about the need for certification for hauling livestock but confirmed that whenever he did so, he was accompanied by another person (the director's father) who loaded and unloaded the livestock. The respondent suggested that it had no option but to retain the employee who was licensed both to haul feedstuff and livestock rather than the employee who was only in a position to haul feedstuff.
4.6 The respondent suggested that the complainant had indicated to it that he did not particularly like hauling livestock as it entailed cleaning out the trailer element of the truck whereas hauling feed did not require such work. This was disputed by the complainant.
4.7 Having regard to all of the foregoing, I am satisfied from the evidence of both parties when combined with the documentation submitted, that the decision to let the complainant go was not taken, nor tainted, by the presence of his disability. In that regard, I am further satisfied that the respondent has rebutted the inference of discrimination in relation to his dismissal and this element of the complaint must fail.
4.8 As regards the claims that the complainant was harassed, discriminatorily treated and was not given appropriate measures, no evidence to support these arguments has been put forward and, furthermore, the oral evidence adduced would tend to corroborate the contention that the respondent tried to assist the complainant in managing his disability in any way it could. Accordingly, no facts from which discrimination may be inferred have been established and these elements of the complaint must fail.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the respondent has not subjected the complainant to discriminatory dismissal and, therefore, this element of the complaint fails.
5.2 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case that the respondent failed to provide appropriate measures and, therefore, this element of the complaint fails.
5.3 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of harassment and, therefore, this element of the complaint fails.
5.4 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of discriminatory treatment and, therefore, this element of the complaint fails.
Conor Stokes
Equality Officer
14 June 2013