DEC-E2015-028

EQUALITY OFFICER'S DECISION NO: DEC-E/2015/028

PARTIES

Mariusz Kozak

(Represented by FB Keating & Co. Solicitors )

Vs

Eirtech Aviation Limited & Firefly Management Services Limited (Represented by IBEC)

FILE NO’s: EE/2012/446 & EE/2012/447

DATE OF ISSUE: 4th of June, 2015

1. Dispute

This dispute involves a claim by Mr. Mariusz Kozak that he was discriminated against by Eirtech Aviation Limited & Firefly Management Services Limited on the grounds of his disability and race in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2011 in relation to his conditions of employment and dismissal and in relation to the failure to provide him with reasonable accommodation for his disability.

2. Background

2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 22nd of August, 2012.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 2nd of February, 2015 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 18th of February, 2015. Final information in respect of this matter was requested by 29th of May, 2015.

3. Summary of complainant’s case

3.1 It is submitted that the complainant was employed by the respondent, from 5th of August, 2011 to 21st of May 2012 as an aircraft spray painter.

3.2 The complainant submits that on 18th of August 2011 he received a number of documents by email from the respondent. These included, an Eirtech start pack, a B10 change of directorship form, an Eirtech Aviation memo, a 12A form, an Agent link notification form and id essentials EU. The complainant was requested to complete these forms.

3.3 It is submitted that in January 2012, the complainant was informed that there was work to be carried out in the Czech Republic and that sooner or later everyone would have to go and work in the Czech Republic. The complainant volunteered to go there in order to get time off following the job in the Czech Republic.

3.4 It is submitted that the complainant and other employees were provided with a document entitled “New PAINT Facility in Ostrava Czech Republic opening January, 2012”. This document set out the pay and conditions for employees going to the Czech Republic. It is clear from this document that the complainant was considered to be an employee of the respondent.

3.5 The complainant submits that he went to the Czech Republic on 19th of January, 2012 and while there was subjected to severe bullying and harassment by employees and supervisors which resulted in the complainant having an acute anxiety attack.

Examples of the treatment received are as follows:

· Incident in which a colleague Mr. P splashed acid on the complainants face on purpose on 22nd of January, 2012

· Constant criticism of work with no instruction on improvements required

· Bullying treatment by supervisors Mr. J and Mr. K when the complainant raised issues about unsatisfactory accommodation

· Allegations that the complainant kicked doors in the hotel at night

· Failure of the respondent to assist when the complainant was admitted to hospital and disseminating false information to the complainant’s wife concerning his admission to hospital

3.6 It is submitted that on 25th of January, 2012, the complainant was lead to fear for his life due to the bullying he was subjected to. He locked himself in his room and called the emergency services. His co workers kicked at the door and telephoned the police.

3.7 The complainant submits that when the police arrived the complainant was breathalysed and anaesthetised. He was taken to a psychiatric unit at Opava hospital on 25th of January, 2012.

3.8 A colleague of the complainant, Mr. P informed the complainant’s wife on the night of 25th of January, 2012 that that the complainant was in hospital.

3.9 On 26th of January 2012 the complainant’s wife attended the respondent’s office and was told that the complainant had become upset after dropping a sander and had to be taken to hospital.

3.10 It is submitted that on 27th of January 2012 the complainant’s wife spoke to a doctor in Opava hospital who said ‘paranoid delusions’ were suspected in her husband’s case. He also informed her that the complainant had been bullied at work and that fellow employees had attempted to harm him and get him fired. The doctor informed her that the complainant could be discharged but that it was best he did not have contact with fellow employees during his journey home.

3.11 The complainant submits that on 29th of January 2012, Mr. J of the respondent company contacted the complainant’s wife and told her that the complainant had not damaged anything and contradicted the story told to her at the respondent’s Shannon office about the sander.

3.12 The complainant was discharged from hospital on 30th of January, 2012 and flew home in the company of his mother. An offer of payment for these flights was made by the respondent subject to the production of receipts. The complainant’s admission to Opava hospital was made through the E111 system.

3.13 The complainant submits that he attended his GP and a psychiatrist within 2 months of his return to Ireland. He was certified as unfit to work due to stress.

3.14 The complainant submits that on 26th of March, 2012 he initiated a complaint to the first named respondent. He received a response from Mr. R of the first named respondent on 29th of March, 2012. The complainant issued a more detailed complaint on 10th of April, 2012. Mr. R replied by letter dated 11th of April, 2012 advising that an investigation would be carried out.

3.15 The complainant submits that he received a further letter from Mr. R on 21st of May 2012 with a finding that his complaints were without foundation. This letter also informed the complainant that there was no longer any work for him due to seasonal factors and that he was not entitled to any compensation as he had worked under a contract for services.

3.16 Despite the assertion of seasonal factors the respondent advertised through FAS for an aircraft spray painter to commence in March 2012 and advertised the position again in June 2012.

3.17 The complainant has no faith that any investigation was carried out for the following reasons:

He was not furnished with the procedures to be followed during the investigation

He was not called to any investigation meeting to describe his complaint

He was not furnished with any comments/ responses of the parties involved

He was not given a copy of the investigation report

He was not given a copy of the recommendations for his comments

He was dismissed.

3.18 The complainant submits that his treatment amounts to discrimination on grounds of race and disability in relation to his working conditions and in relation to his dismissal.

4. Summary of respondent’s case

4.1 The respondent denies that the complainant was an employee and submits that he was an independent contractor provided by Parc Aviation Limited providing services through his own company Firefly Management Services Limited herein after referred to as Firefly.

4.2 The respondent submits that it engaged the services of Parc Aviation Limited, herein after referred to as Parc, for the provision of maintenance contract services. The respondent and Parc have entered into a commercial agreement for the provision of such services.

Part C of the commercial agreement states

“Parc has agreed to procure for the Client the services of Personnel contracted to Parc to undertake assignments/perform services “Assignment” from time to time for, and as notified by the Client”

4.3 It is submitted that the respondent’s contractual agreement is therefore with Parc as opposed to the complainant. In return the respondent pays Parc a fee as set out in Schedule 3 of the agreement for the provision of such services.

4.4 It is submitted that on receipt of services Parc invoices the respondent and in turn the respondent pays Parc.

4.5 The respondent submits that Parc engaged the services of Firefly to provide maintenance contractor services and that the complainant is a director of Firefly.

4.6 The respondent further submits that the complainant was employed by Parc as a contractor.

4.7 It is submitted that the complainant volunteered to go to Ostrava to assist in the set up of the new plant.

4.8 It is submitted that the document which issued in relation to conditions applied to permanent employees only and that the complainant was not considered an employee.

4.9 It is submitted that the first named respondent became concerned about the complainant’s level of drinking while he was in Ostravaand that the respondent had ordered an alcohol breath tester which had not arrived prior to the complainant’s admission to hospital.

4.10 It is submitted that upon arrival in Ostrava, the complainant and his colleagues had caused a disturbance at the airport which led to the police being called.

4.11 It is submitted that the complainant refused to board a mini bus which was to transport employees to their accommodation and that he became abusive to the bus driver. The first named respondent submits that the complainant was later escorted to his room by Mr. B due to the fact that he was so intoxicated.

4.12 The first named respondent refutes the complainant’s version of events in relation to the night of the 25th of January, 2012. The first named respondent submits that Mr. K another Eirtech employee had called the police after the complainant, who had been drinking excessively, had locked himself in his room and refused to open the door.

4.13 It is submitted that no reports of bullying or intimidation had been made by the complainant to any of his supervisors in Ostrava.

4.14 It is submitted that following a complaint submitted by the complainant on 26th of March 2012, the first named respondent conducted a full investigation into the matter.

4.15 The complainant was advised on 21st of May 2012 that having examined the facts and spoken to relevant personnel the first named respondent had found that his allegations were without foundation.

4.16 The complainant was also advised in this letter of 21st of May 2012 that due to the seasonal nature of the work his services were no longer required.

5. Preliminary issue – Respondent Jurisdiction

5.1 The first matter I must determine is whether the claim is correctly taken against both respondents. The complainant in his complaint to the Tribunal named both Eirtech Limited and Firefly Management Services Limited as respondents to his claims. The complainant advised the hearing that he had worked for the first named respondent at their plant in Shannon and thereafter at their facility in Ostrava in the Czech Republic. The complainant has submitted that he had no contact with anyone from the second named respondent but stated that this name appeared on a B10 –Change of Directorship form which was provided to him by Eirtech Limited following his commencement of employment. The complainant also stated that the names of both respondents appeared on his payslips.

5.2 The first named respondent, Eirtech Limited, submits that it has been incorrectly named in the proceedings and submits that the complainant was not an employee of Eirtech but was an independent contractor engaged by Parc Aviation who supply personnel to Eirtech and who are not named in the proceedings.

5.3 When deciding on this issue I am cognisant of the definition of 'contract of employment' in the Employment Equality Acts 1998 (as amended by the Equality Act 2004):

''contract of employment'' means, subject to subsection (3) --

(a) a contract of service or apprenticeship, or

(b) any other contract whereby --

(i) an individual agrees with another person personally to

execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the

business of an employment agency within the meaning

of the Employment Agency Act 1971 to do or

perform personally any work or service for another

person (whether or not the other person is a party

to the contract),

whether the contract is express or implied and, if express,

whether oral or written;

5.4 The terms ‘employer’ and ‘employee’ are defined by Section 2 of the Employment Equality Acts, 1998-2008 as follows –

" 'employee'...means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment",

" 'employer'..... means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or where the employment has ceased, entered into or worked under) a contract of employment",

" 'contract of employment' means....

(a) a contract of service or apprenticeship......

whether the contract is or implied and, if express, whether oral or written".

5.5 It should also be noted that under Section 2 (1) of the Employment Equality Acts, 1998-2008 an agency worker is defined as follows:

“agency worker” means an employee whose contract of employment is as mentioned in paragraph (b) of the definition of such a contract in this subsection;

5.6 The Employment Equality Acts also apply to ‘ providers of agency work’. This term is defined by s.2(5) of the Act as follows: -

“A person who, under a contract with an employment agency, within the meaning of the Employment Agency Act 1971 , obtains the services of one or more agency workers but is not their employer for the purposes of this Act is in this Act referred to, in relation to the agency workers, as the “provider of agency work”.

5.7 The complainant advised the hearing that he applied for a position as a spray painter which was advertised by the first named respondent. He stated that he was then interviewed by Mr. R of the first named respondent and following the interview was offered the job by Mr. R of the first named respondent. The complainant advised the hearing that he commenced work at the first named respondent’s premises in Shannon on the same day following his interview and that he was issued with a swipe card to clock in and clock out.

5.8 Contract

5.8.1 The first named respondent submits that the contract the complainant signed was a contract for Services between the complainant and Parc Aviation Ltd. The contract refers to Parc Aviation as ‘The Contractor’ and refers to Eirtech Aviation as ‘the Hirer’. There is a reference to the ‘Employment Company (EC)’ but no name inserted on the contract to indicate who the Employment Company is. In addition there are several references throughout the document to the EC in relation to the Engagement and Status. The only place the EC is named is in the Schedule to the contract and it is named as “Firefly Management Services”.

5.9 Firefly Management Services

5.9.1 It is submitted that the complainant in the present case was interviewed by Mr. R of Eirtech Aviation on the 5th of August, 2011. The complainant advised the hearing that he was following his interviewoffered a job as a spray painter by Mr. R of Eirtech Aviation. The complainant advised the hearing that he was later issued with a number of documents which he was asked to sign and return to the respondent. These documents were issued to him 2 weeks after his commencement of employment. One of these documents was a B10 form naming the complainant as a director of a company called ‘Firefly Management Services’. The complainant stated that he did not understand these documents but did as he was instructed and signed them. The complainant was issued with a contract which was stated to be between the complainant and/or Firefly Management Services and Parc Aviation Ltd. The complainant advised the hearing that he had no contact with any representative of Parc Aviation or of Firefly Management Services Limited. It also emerged at the hearing that the complainant had no knowledge of a company named Firefly Management Services prior to his engagement by Eirtech Aviation.

5.9.2 The payslips submitted in evidence by the complainant indicate the employer name to be Firefly Management Services and Eirtech. There is no mention of Parc Aviation on the payslips. The p60 issued at end of 2011 indicates that the employer is Firefly Management Services- Eirtech.

5.9.3 It is apparent from the evidence adduced that Firefly Management Services is a company set up by the respondent in which the complainant has been made a director via a B10 form submitted to him for his signature by the respondent. It is clear that Firefly Management Services was set up by the respondent and that the complainant was asked to sign a form which made him a director of this company in order to effect payment of his wages.

5.9.4 It would seem that the respondent has a complicated series of relationships between a number of intertwined companies, which is difficult for any lay person to understand and would be almost impossible for a person with limited English, such as the complainant, to comprehend especially in the absence of any legal advice. The respondent at the hearing stated that the complainant had a ‘communicative’ level of English. I am satisfied that ‘a communicative level of English’ would not enable the complainant to understand the complicated relationships and procedures set out in the documentation provided to him following the commencement of his employment. The complainant at the hearing stated that he had commenced work on 5th of August, 2011 and that he had on the 18th of August 2011 been sent a number of documents which he had been asked to sign and return to the respondent. The complainant stated that he did not understand these documents but did as he was instructed and signed them.

5.9.5 The first named respondent denies that the Tribunal has jurisdiction in the above complaints. The respondent maintains that the complainant, was an independent contractor engaged by Parc Aviation, and therefore not an employee for the purposes of the Acts.

6 Employee Status

6.1 In order to ascertain whether or not the complainant was working as an independent contractor or as an employee of either or both of the named respondents’ it is necessary for me to examine the working relationship between the complainant and the named respondents. In doing so I am guided by the finding in Castleisland Cattle Breeding Society v Minister for Social and Family Affairs [1] where the Supreme Court held that, notwithstanding the requirement to examine the terms of the written contract, in determining whether a contract was one of service, or for services, an appeals officer was bound to examine and have regard to what was the real arrangement, on a day-to-day basis, between the parties. A statement in a contract to the effect that a person was an ''independent contractor'' was not a contractual obligation but merely a statement which might or might not be reflective of the actual legal relationship between the parties.

6.2 The question of whether a particular employment is to be regarded as a contract of service or a contract for services has been the subject of a number of decisions by the Courts in this jurisdiction. The main test, under Irish law, for assessing this in work situations such as the complainants found themselves, was set out by Keane J in Henry Denny & Sons (Ireland) Ltd v. The Minister for Social Welfare [2]. The Supreme Court held that it was appropriate not only to examine the entire contractual agreement between the parties, but also the particular conditions under which work was performed. In that judgment Murphy J stated that the question of whether the claimant "was retained under a contract of service depends essentially on the totality of the contractual relationship express or implied between her and the appellant...".

6.3 In the same judgement Keane J noted that whilst the extent and degree of control which was exercised by one party over another, in the performance of the work, had been regarded as decisive in the past, later authorities demonstrated that the control test did not always provide satisfactory guidance. He then went on to hold that:

"It is accordingly clear that while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services on a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that a person is engaged in business on his or her own account is more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her."

6.4 I am also mindful of the High Court decision in the case of The Minister for Agriculture and Food V Barry and Others [3] which contains a detailed analysis of the tests which should be considered in deciding whether a person is working under a Contract for Service or a Contract of Service. In his finding Mr. Justice Edwards stipulated that a Court or a Tribunal should not confine its examination to the "so called enterprise test" and added that

" Like the question of enterprise, questions of control and integration may also provide a court or tribunal with valuable assistance in drawing the appropriate inferences" .

This finding also addressed the question of 'mutuality of obligation' on an employer to provide work for the employee and on the employee to perform that work personally for the employer.

6.5 Thus, having regard to the above it is clear that the Courts in these situations, in addition to the 'enterprise test' have also been guided by the level of control exercised over how the work is to be performed and the level of integration into the business as a whole as well as the question of 'mutuality of obligation' between the parties.

6.6 In examining whether or not an employer employee relationship existed between the complainant and the named respondents I must apply all of the above to the instant case.

6.7 The complainant advised the hearing that he had initially worked at Eirtech Aviation’s premises in Shannon where he was issued with a security card by Eirtech to clock in and out of work. The complainant advised the hearing that he was required to work a set number of hours each day and worked under the control and supervision of Eirtech. The complainant had to personally carry out the tasks assigned to him and could not nominate or send a replacement instead of himself.

6.7 The complainant stated that he attended work at the respondent’s premises and utilised the respondent’s materials and equipment in carrying out his work. It emerged at the hearing that the respondent, in January 2012 advertised for employees to go to work in its plant in Ostrava in the Czech Republic and the complainant applied to go to Ostrava for a period of 6 months. His application was accepted and the complainant along with a number of other employees were flown to Ostrava and put up in accommodation provided by the respondent during their stay. The complainant while in Ostrava again worked for the respondent as a spray painter. He worked at the respondent’s premises and utilised the respondent’s materials and equipment. The complainant worked as and when directed by the respondent and could not choose his hours of work. In addition the complainant could not nominate a replacement to carry out his work.

6.8 The respondent at the hearing did not dispute that the complainant was required to work certain hours and to clock in via a secure clock card but stated that this was necessary due to the nature of the work involved. The respondent stated that the complainants work as a spray painter had to adhere to certain timescales and drying times and thus had to be carried out during certain times and within a given timeframe. The respondent submits that this is necessary due to the nature of the job. The respondent advised the hearing that the painting of aircraft is a highly regulated area and submitted copies of Safety Regulations issued by the Irish Aviation Authority in this regard. These regulations indicate that levels of control and supervision must be exercised throughout the process.

6.9 The complainant confirmed, in the course of the hearing, that the first named respondent did instruct him as to the amount of time he should spend on his work and that he was supervised by an Eirtech employee who instructed him regarding the quality of his work and in relation to finishing times and/or break times.

6.10 It emerged at the hearing that the complainant received payment for his work from Firefly Management Services- Eirtech and that this amount did not vary depending on how fast or slow the complainant carried out his work. Thus the complainant could not derive any profit from the arrangement and did not have any opportunity to maximize his own profit, or minimize any loss.

6.11 At the core of the definition of a contract of employment is the requirement for the employee to ''personally'' execute the work. The extent to which a party can delegate or sub-contract work has been a factor examined many times in the case law. In Henry Denny & Sons v Minister for Social Welfare [4] the Supreme Court noted that the inference that a person is engaged in business on his or her own account can be more readily drawn where he or she employs others to assist in the business. It emerged at the hearing that the complainant, could not arrange for someone else to attend in his place if he was not available to work on a particular day. It is also clear from the evidence adduced that the complainant was not free to work for anyone else, if he so wished. The complainant was therefore obliged to perform the work personally and could not engage the assistance of another person. It is clear that the complainant had no discretion in either of these areas, features that one would not normally find in a contract for service.

6.12 It emerged at the hearing that Eirtech had issued a document setting out the pay and conditions for Ostrava. This document was presented to the hearing and indicated that the positions offered in Ostrava were full time with a 3 month probation period. The first named respondent at the hearing submitted that this document referred to a different category of employee and that it applied to full time employees of Eirtech. The first named respondent stated that no full time employees applied for the post but stated that a number of contractors including the complainant did apply for the posts. This was the document provided to the complainant this was the document setting out the terms and conditions of the positions in Ostrava and so it is clear that the complainant applied for and was accepted for this post in accordance with the conditions set out in the document. I accept that the conditions set out in this document are the conditions under which the complainant was employed in Ostrava.

Parc Aviation

6.13 In the current case the issue of the employer employee relationship is further complicated by the involvement of a number of other parties interspersed between the complainant and the named respondents. In this case it is submitted that the complainant’s contact was with a Parc Aviation Limited which the respondent submits provides maintenance personnel to the respondent. It is also submitted that the contract with Parc Aviation was a ‘contract for services’ which existed between two companies Firefly Management Services of which the complainant was a director and Parc Aviation which it is submitted supplies personnel to Eirtech Limited. In deciphering the extent to which these parties maintain a role in the employer employee relationship and in the type of contractual relationship which existed I am guided by the findings in the case of Brook Street Vs Dacas [5] which stated

…...The real problem for the tribunals is the application of the basic legal requirements to the case where an employment agency is interposed between the applicant and the end-user and where the functions normally found in a single employing entity are re-distributed between two entities, each of which denies that it is the employer. Thus, while the end-user is the real and immediate recipient of the work done by the applicant, the employment agency is made responsible for paying remuneration to the applicant and for arranging other benefits usually associated with employment, such as sick leave and holiday pay. If there were no interposed employment agency there would be no doubt that, even in the absence of an express contract, Mrs Dacas worked under a contract of service with the Council: it was managing and controlling work done by her in the mutual expectation that she would be paid for what she was told to do and had in fact done. So what difference does the presence of the employment agency really make to the status of Mrs Dacas? Does it mean that, although working under the daily control of the Council, she was an employee of Brook Street, who supplied her services to the Council? Or does it mean that she was not an employee of anyone?

…….. in ascertaining the overall legal effect of the triangular arrangements on the status of Mrs Dacas, the Employment Tribunal should not focus so intently on the express terms of the written contracts entered into by Brook Street with Mrs Dacas and the Council that it is deflected from considering finding facts relevant to a possible implied contract of service between Mrs Dacas and the Council in respect of the work actually done by her exclusively for the Council at its premises and under its control, until it took the initiative in terminating that arrangement. The formal written contracts between Mrs Dacas and Brook Street and between Brook Street and the Council relating to the work to be done by her for the Council may not tell the whole of the story about the legal relationships affecting the work situation. They do not, as a matter of law, necessarily preclude the implication of a contract of service between Mrs Dacas and the Council. There may be evidence of a pattern of regular mutual contact of a transactional character between Mrs Dacas and the Council, from which a contract of service may be implied by the tribunal.

6.14 I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant was an employee of Eirtech Aviation and that, notwithstanding the existence of a written contract between the complainant and or Firefly Management Services and Parc Aviation Limited, he was employed under an implied contract of service by Eirtech Aviation. Eirtech Aviation is the company which interviewed and employed the complainant and who also provided him with work. If it claims it is the provider of agency work then it is still liable under the Employment Equality Acts for any wrongdoing. I am satisfied from all of the evidence adduced that Eirtech Aviation is the correct respondent in this case. It is also notable that Eirtech made the decision to hire the complainant and that it was also Eirtech who made the decision to terminate the complainant’s employment. The complainant was at all times during his employment under the supervision and control of Eirtech and it employees and carried out his duties at Eirtech's premises initially in Shannon and thereafter at its plant in Ostrava.

6.15 In addition I am satisfied from the totality of the evidence adduced that Firefly Management Services was a company set up by the respondent in which the complainant has been made a director via a B10 –Change of directorship, form submitted to him for his signature by the respondent. It is clear that Firefly Management Services was set up by the respondent and that the complainant was asked to sign a form which made him a director of this company in order to effect payment of his wages. It is clear that the complainant had no employment relationship with Firefly Management Services other than a directorship which he had no understanding of or knowledge of apart from signing a form issued to him by Eirtech. I am thus satisfied that Firefly Management Services is not a correct respondent to the complainant’s claims.

7 Preliminary Issue-Disability Ground

7.1.1 It is submitted that the respondent does not accept that the complainant has a disability for the purposes of the Acts. The complainant advised the hearing that he had been subjected to bullying and harassment by his work colleagues while working at the respondent’s plant in Ostrava in the Czech Republic. The complainant advised the hearing that his supervisor Mr. P had bullied him and advised the hearing of an incident where Mr. P had splashed acid on to the complainant’s face and had laughed as the complainant panicked trying to wash it off his face. The complainant advised the hearing that matters came to a head on the night of 25th of January, 2012 when the complainant had overheard Mr. P and other colleagues making plans to cause trouble for the complainant, the complainant advised the hearing that he had heard them discussing a plan to damage a plane and to blame it on the complainant. The complainant stated that Mr. P had also threatened him with violence on the night in question. The complainant stated that a number of colleagues including Mr. P, Mr. J and Mr. G had started shouting and kicking the door of the complainant’s room. The complainant stated that he had overheard them saying that they would carry him out by his arms and legs. The complainant advised the hearing that he had then locked himself in his room and had dialled 112 and called the emergency services as he feared for his life.

7.1.2 The respondent advised the hearing that another employee, Mr. K, who was not present at the hearing, had advised them that he had called the police as he was concerned for the complainant who had locked himself in his room.

7.1.3 The complainant advised the hearing that following his phone call, an ambulance had arrived along with the police. The complainant stated that following the arrival of the emergency services the complainant had asked them to come to the window to prove that they were who they were claiming to be before he would let them into his room as he was so scared. The complainant advised the hearing that he then permitted them to enter his room and stated that he was then asked to blow into a bag which he states contained some king of gas which anaesthetised him and he was then taken to a psychiatric hospital against his will. The complainant stated that he was later committed to the psychiatric hospital where he stayed until his mother came on 30th of January, 2012, at which time he was released into her care and flew back to Ireland with her.

7.1.4 The complainant advised the hearing that he had been diagnosed as having suffered an acute anxiety attack and that the report from the hospital had indicated that he was diagnosed with ‘Acute and transient psychotic disorders’ and stated that that ‘paranoid delusions’ had been suspected (hospital report submitted in evidence). The hospital report also indicates that the complainant was recommended to seek ‘acute psychiatric care’ and medication was prescribed. The complainant advised the hearing that while in the hospital they had administered to him a number of psychotropic drugs while he was being detained by them. The complainant advised the hearing that he became stressed and depressed following the incident and had suffered from nightmares. He stated that he had attended his GP and had been diagnosed as suffering from stress. The complainant stated that he had not returned to work and that he had submitted medical certs to the respondent citing stress as the reason for his non-attendance.

7.1.5 The complainant advised the hearing that the respondent had contacted him on 6th of March 2012 regarding his return to work and stated that he had advised them that he was unable to return to work as he was sick. The complainant advised the hearing that he wrote to the respondent on 26th of March, 2012 stating that he was requesting an investigation into the incidents of the night of 25th of January, 2012 following which the complainant had been hospitalised. The complainant stated that he had received a request from the respondent on 29th of March, 2012 asking him for further details in relation to his complaint which he provided on 10th of April, 2012. The details provided by the complainant outlined the treatment which the complainant had been subjected to by his colleagues while working in Ostrava and detailed the events leading up to the incident on the night of 25th of January, 2012 as well as the aftermath of that night. In addition the medical certs submitted thereafter stated that he was suffering from work stress.

7.1.6 The complainant advised the hearing that he still suffers from sleepless nights following the events of the night of 25th of January, 2012 and that he was unable to attend work following the incident. The complainant at the hearing appeared to be visibly upset and shaken when recounting the events of the night in question and by all accounts it appears that it was a very frightening experience for the complainant.

7.1.7 In the present case, it is submitted by the complainant that he is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.

Disability” is defined in Section 2 of the Acts as meaning –

“(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”.

7.1.8 It is submitted that the complainant suffered from an acute anxiety attack which resulted in his being committed to a psychiatric hospital while away from home working for the respondent. The complainant following his detention in the hospital was released into the care of his mother and brought back home. The complainant advised the hearing that he continued to suffer the effects of this incident and submits that he was unable to attend work following his return from Ostrava and had been certified by his GP as suffering from workplace stress. The complainant advised the hearing that he still suffers from sleepless nights following the events of the night in question and that he was unable to attend work following the incident. The complainant at the hearing appeared to be visibly upset and shaken when recounting the events of the night in question and by all accounts it appears that it was a very frightening experience for the complainant. I am satisfied from the totality of the evidence adduced that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008.

7.1.9 I must now consider whether the respondent was aware of the complainant’s disability.

7.1.10 The complainant advised the hearing that he was committed to a psychiatric hospital following the events of the night of 25th of January, 2012. The complainant advised the hearing that a colleague of his had contacted his wife following his hospitalisation and that she had the following morning gone to talk to the respondent at their Shannon Office in order to find out what had happened the night before. The complainant and his wife advised the hearing that the respondent had told her at that meeting, that the complainant had been hospitalised in Ostrava following an incident where he had dropped a sander and had become very upset. The respondent advised the complainant’s wife at this time that the complainant could take as much time off as he needed. The complainant advised the hearing that following his return to Ireland he then submitted medical certs citing workplace stress as the reason for his non-attendance at work.

7.1.11 The respondent advised the hearing that the complainant had only submitted one medical certificate from his GP. The complainant stated that he had sent in all of his certs but seemed to be confusing GP certs with Social Welfare Certs. In any event both parties agree that the respondent contacted the complainant in March 2012 regarding a return to work following which the complainant advised that he was unable to return to work as he was sick. Following this the complainant submitted a complaint detailing the events which took place in Ostrava including an account of the events of the night of 25th of January, 2012. I am satisfied that the respondent was aware that the complainant had suffered an incident on the night in question and was committed to a psychiatric hospital in Ostrava. I am also satisfied that the respondent was aware that the complainant had not returned to work and had been on sick leave from work following the incident. The complainant was advised by letter dated 21 May, 2012 that there was no more work for him due to seasonal factors. I am satisfied that the respondent was on that date fully aware that the complainant had suffered an incident following which he had been committed to a psychiatric hospital in Ostrava and that he had been off work due to stress following this incident.

7.1.12 I am thus satisfied, from the totality of the evidence adduced on this matter, that the respondent was aware of the complainant’s condition.

8. Findings and Conclusions of the Equality Officer

8.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of disability and race, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2011, in relation to his conditions of employment and in relation to the termination of his employment. In addition, I must consider whether the respondent failed to provide the complainant with reasonable accommodation. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

8.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

8.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.

8.4 Discriminatory Dismissal

8.4.1 The complainant advised the hearing that he received a letter from the respondent on 21st of May, 2012 advising him of the outcome of the investigation into his complaint and advising him that there was no more work available for him due to seasonal factors.

8.4.2 The complainant has submitted that he was dismissed by the respondent due to his disability. I am satisfied that the respondent was at the time of the complainant’s dismissal aware of the complainant’s disability. The respondent had prior to the hearing submitted that the complainant had been dismissed due to seasonal factors within the industry. The respondent advised the hearing that the complainant had been dismissed due to seasonal factors within the industry and stated that this means that contractors are provided with work for a number of months and are then laid off during quiet periods. The respondent advised the hearing that contractors often go away for a number of months and may or may not come back to work for the respondent. The complainant at the hearing disputed this and stated that the respondent had in March 2012 and in June 2012 advertised for aircraft spray painters and he provided a copy of the advertisement displayed on the FAS website. The respondent stated that this advert was allowed to run on the FAS website in order that it could continue to receive applications from suitable contractors.

8.4.3 Mr. R, witness for the for the respondent, in response to direct questioning, advised the hearing that the complainant was let go as he was considered unsuitable because of what had happened in Ostrava. He went on to state that the job involves expensive machinery and planes and that he could not be sure that the complainant was suitable for this type of work given what had happened in Ostrava. The respondent in this evidence contradicted its earlier evidence that the complainant was let go solely due to seasonal factors. The respondent at the hearing gave evidence that the Ostrava incident had influenced the decision to let the complainant go. Given that the Ostrava incident involved the complainant being admitted to a psychiatric hospital and given that the respondent stated that following this he had formed the opinion that the complainant was not suitable for the job as it involved working with expensive materials, I can infer from the respondents evidence that the complainant’s disability influenced the decision to dismiss him.

8.4.4 It is evident from the submissions made and from the evidence adduced that the respondent was aware of the complainant’s disability after which a decision was made to dismiss the complainant. It is the respondent’s position that the complainant’s employment was terminated due to seasonal factors and due to the fact that he was considered unsuitable following the Ostrava incident, which resulted in the complainant being committed to a psychiatric hospital. However, it has been established that the complainant in this case suffers from a disability and I am satisfied that the respondent in this case was aware of the complainant’s disability.

8.4.5 I am thus satisfied that the decision to dismiss the complainant was influenced by his disability in that it was influenced by the Ostrava incident in which the complainant had suffered a psychotic incident which resulted in his committal to a psychiatric hospital. Accordingly based on the totality of the evidence adduced on this issue I am satisfied that the complainant has established a prima facie case of less favourable treatment on grounds of disability in relation to his dismissal.

8.5 Reasonable accommodation

8.5.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability(my emphasis) – this approach was endorsed in Humphries v Westwood Fitness Club[6].

8.5.2 The complainant in the present case was dismissed, at least in part, due to the Ostrava incident in which the complainant had suffered an incident which resulted in his committal to a psychiatric hospital. I am satisfied from the evidence adduced above that the complainant was a person with a disability for the purposes of the Act and that the respondent was aware of that disability. It is a fact that the complainant was notified of the decision to terminate his employment on 21st of May 2012 after the respondent had become aware of his disability.

8.5.3 It is the respondent’s evidence that the decision to dismiss the complainant was made due to seasonal factors and due to the Ostrava incident which resulted in the complainant being committed to a psychiatric hospital. I am satisfied from the evidence adduced that the respondent was aware, that the complainant had been committed to a psychiatric hospital and had following that incident been unable to attend work due to stress. The respondent once armed with the knowledge that the complainant was suffering from a disability was at this point obliged as per Section 16(3) of the Acts to make a proper and adequate assessment of the situation before taking the decision to dismiss the complainant.

8.5.4 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed.

8.5.5 In the case of A Health and Fitness Club -v- A Worker[7] the Labour Court set out the approach that should be taken in order that an employer can rely upon this defence, namely:

"if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

8.5.6 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation. This decision was also upheld on appeal to the Circuit Court where Dunne J.[8] found that an employer that has failed to go through the aforementioned process orientated approach will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is serious enough to render the employee not fully capable of undertaking their duties under section 16(1) of the Acts.

8.5.7 In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced above, it is clear that there was an obligation upon the respondent, in the first instance, to ascertain the level and extent of the complainant’s disability. The respondent in this case when faced with a situation where an employee was absent from work due to his disability, did not make any enquiries to ascertain the extent of the employee’s condition and failed to look at any measures which might facilitate the complainant in returning to work. The complainant in this case advised the hearing that he had on the 11th of April, 2012 advised the respondent that he was now fit to come back to work. The respondent advised him on 16th of April 2012 that an investigation was ongoing into his complaint and that they would be in contact with him following completion. The complainant was then advised by letter dated 21st of May 2012 that there was no more work for him. The respondent advised the hearing that it had formed the view following the Ostrava incident that the complainant was no longer suitable for the job given that the work involved expensive materials and equipment. Thus the respondent formed the view that the complainant was no longer suitable without any consultation or involvement and without any investigation of the extent of the complainant’s disability.

8.5.8 It was of course open to the respondent, to request documentary evidence from the complainant’s doctor or to refer the complainant for a medical examination in order to assess the extent of his disability and to ascertain what if any accommodation he would require in order to return to work and carry out his job as an aircraft spray painter. The respondent was obliged to look at suitable measures and accommodation and, if it concluded that there were no suitable measures or accommodation, which would enable the complainant to return to work, should have advised the complainant that he was now being considered for termination. Consequently, the complainant, in this case, was not afforded any opportunity to participate in or influence the decision making process that resulted in his dismissal. In doing so, the respondent, when faced with an employee with a disability failed to carry out the process orientated approach, as set out by the Labour Court in the aforementioned A Health and Fitness Club -v- A Worker case, but instead made a decision to dismiss the complainant without any enquiries or consultation.

8.5.9 Having regard to the foregoing, I am satisfied that the respondent, did not make appropriate enquiries to ascertain the extent of the employees condition and also failed to consult with or advise the complainant before coming to the conclusion that the complainant was incapable, on the grounds of his disability, of performing the duties for which he had been employed and therefore it cannot rely upon the defence available in section 16(1)(b) of the Acts. In the circumstances, I find that the complainant’s disability was a factor which contributed to the respondent’s decision to dismiss him and that the respondent failed to provide him with reasonable accommodation within the meaning of section 16 of those Acts.

8.6 Claims on the race ground

8.6.1 The complainant had submitted that he was discriminated against in relation to his dismissal on the grounds of race. The complainant at the hearing did not adduce any evidence to substantiate the claim that his dismissal was due to his race. I am thus satisfied that the complainant was not discriminated against on grounds of race in relation to his dismissal.

8.7 Claims in relation to conditions of employment

8.7.1 The complainant had submitted that he was discriminated against in relation to his conditions of employment on the grounds of race and disability. The complainant at the hearing did cite incidents where he felt he had been bullied by his colleagues but did not adduce any evidence to substantiate the claim that such treatment was related to his race and/or disability. Thus the complainant at the hearing failed to substantiate the claims that he was treated less favourably on grounds of race or disability in relation to his conditions of employment. I am thus satisfied that the complainant was not discriminated against on grounds of race and/or disability in relation to his conditions of employment.

9. DECISION OF THE EQUALITY OFFICER

9.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -

(i) that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts and that it failed to provide him with reasonable accommodation within the meaning of section 16 of those Acts.

(ii) that the respondent did not discriminate against the complainant on grounds of his race in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in relation to his dismissal

(iii) that the respondent did not discriminate against the complainant on grounds of his race and/or disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in relation to his conditions of employment.

9.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld. In considering the redress in this case, I am mindful of the fact that the complainant has been subjected to discrimination on grounds of his disability in respect of his dismissal and that the respondent has failed to provide him with reasonable accommodation. In addition, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the fact that the respondent, in this case, when faced with a situation where an employee had suffered an incident which resulted in him being committed to a psychiatric hospital and following which he was unable to attend work due to stress, failed to make appropriate enquiries to ascertain the extent of the employee’s condition and made the unilateral decision to dismiss without involving the complainant (who was the subject of such a decision).

9.3 Having taken the foregoing matters into consideration and having regard to the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €28,000 to be just and equitable.

9.4 Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that

(i) the respondent pay the complainant €28,000 in compensation for his discriminatory dismissal and the failure to provide him with reasonable accommodation. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and is therefore not subject to tax.

_____________________

Orla Jones

Equality Officer

4th of June, 2015

Footnotes

[1] [2004] IR 150

[2] [1998] 1 IR 34

[3] [2008] IEHC 216

[4] [1998] 1 IR 34

[5] [2004] I.C.R. 1437

[6] [2004] 15 ELR 296

[7] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)

[8] Humphreys -v- Westwood Fitness Club (2004) ELR 296