EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-098
PARTIES
An employee
(represented by Hoban Boino Solicitors)
AND
A Waste Recycling Centre
File reference: et -155642-ee-15
Date of issue: 7th July 2016
HEADNOTES: Employment Equality Acts Sections 6, Disability, Race and Discriminatory Dismissal
1: Background
This dispute concerns a claim by Mr RS, the Complainant, that he was Discriminated against on the grounds of Disability, Race and suffered Discriminatory Dismissal contrary to the Employment Equality Acts.
The Complainant referred a claim to the Director of the Equality Tribunal on the 19th March 2015, under the Employment Equality Acts. On the 20th May 2016, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission, delegated the case to me, Michael McEntee, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 30th May 2016.
2: Complainant’s Submission
2:1 The Complainant was a General Operative employee of the Respondent, having been initially employed in January 2014.
On the 14th October 2014 he submitted that an accident at work had taken place which necessitated him to leave the workplace and seek medical attention.
Prior to leaving the workplace he carried out some light duties and approached the owner of the business Mr BM to explain his situation. Mr. BM handed the Complainant a written warning regarding an earlier incident and was
unresponsive to the issue of the alleged accident. The Complainant then left the site at approximately 12:00 hours to attend his GP.
The following day the Complainant returned to the site and handed Mr. BM, the Respondent a note from his GP and a Social Welfare form. The note from the GP clearly indicated that the Complaint was suffering from back pain.
Later that month, on or about the 28 or the 29 October 2014 the Complainant returned again to the site and handed in a further sick leave extension letter from his GP. The Respondent refused to accept these documents and told the Complainant that he was no longer an employee.
2:2 The Complainant submitted that he had a Disability under Section 2 of the Equality Acts. The Respondent took no steps to investigate the alleged disability or ascertain a return to work date. The Respondent did not seek to have the Complainant examined by an independent medical practitioner to ascertain the medical facts.
He was clearly dismissed on Discriminatory grounds due to his Disability.
3: Summary of Respondent’s Submission.
3:1: The Respondent submitted that
Ø No Accident had taken place on the 14th October 2014. Evidence by way of work sheets was produced to support this contention.
Ø The meeting in relation to the verbal warning was in relation to an earlier incident on the 3rd of October 2014 and had no connection with any alleged incidents on the 14th October 2014.
Ø At the conclusion of the meeting in relation to the verbal warning regarding intoxication at work the Complainant simply walked off the site. He had not told the Respondent that he needed to seek medical attention.
Ø The meeting had been requested by the Respondent and the Respondent was completely unaware of any incidents on the 14th October prior to the meeting. He only became aware of an alleged accident some months later when the Complainant’s legal representatives contacted him.
Ø The Social Welfare medical forms presented by the Complainant the following day, the 15th October 2014, were signed in good faith by the Employer as would be the normal course. There was no suggestion of any accident and the forms clearly state this at Part 5.
Ø In relation to subsequent Medical certificates there is no record with the Respondent of any subsequent certs, after the 15th October 2014, having been received.
Ø It was acknowledged that on the 20th October 2014 the Complainant visited the site, accompanied by a friend, but as the Respondent Manager was not present the purpose of the visit was unclear. In oral evidence later from the Complainant the question of a Private Insurance Policy carried by the Complainant was referred to and the requirement to have this completed by the Respondent was referred to as the reason for the visit.
Ø Oral evidence was given by the Office Receptionist /Administrator in relation to the non production of medical certificates at later dates. It would have been the normal practice for employees to hand Medical Certs to her in the Office.
Ø The Complainant had effectively walked off the site and made no further contact. However, reference was made to abusive phone calls to the Respondent from the Complainant and that this matter has been handed over to the Gardaí.
Ø The Respondent submitted that there was absolutely no evidence of a “Disability” as required by the Employment Equality Acts and the claim should be dismissed.
4: FINDINGS & CONCLUSIONS
4:1 The first issue for decision in this case is whether the Complainant has a disability as defined by the Employment Equality Acts. Section 2 of the Employment Equality Acts states:
‘‘disability’’ means—
(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.”
4.2 From the date of first employment on the 27th January 2014 to the date of departure on the 14th October 2014 there was no evidence of a Disability. The Complainant had worked normally without any disability issues being mentioned or raised with the Respondent employer during this period.
4.3 The full extent of the Complainant’s medical issues only became clear over 12 months later in a medico/legal report dated the 28 October 2015. This report identified that the Complainant had suffered very serious injuries at work with a previous employer on the 17th August 2013. The Medical report alleges, on the oral presentation of the Complainant to the examining doctor, that the Complainant had an accident on the 14th October 2014, while with the Respondent. However, the Report clearly points to the accident on the 17th August 2013 as the occasion of the most major injuries. The report refers to the alleged incident of the 14th October 2014 as an “Aggravation of a pre-existing condition”.
4.4 Whether or not these injuries and subsequent after effects would qualify as a “Disability” under section 2 of the Employment Equality Acts is a question that only a Medical Expert can answer. No evidence was available on this point. The Medical Report of the 28th October 2015 states in its conclusions
Final Section entitled Opinion/Comment and Latest Prognosis for each injury”
“The patient has made improvement since initial presentation but prognosis should be made by an Orthopaedist”
The Report makes no comments in relation to the question asked in the medical questionnaire “If symptoms will be permanent include expected severity of symptoms and effect on lifestyle.”
Accordingly, it is impossible to answer the question as to whether or not the Complaint had a qualifying disability as required by Section 2 of the Employment Equality Acts.
4.5 Having assessed all the evidence submitted I conclude that, in the absence of required medical evidence presented by either party, I cannot find that the Complainant had a qualifying Disability. Section 6 of the Employment Equality Acts states:
“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where—
(a) 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) (in this Act referred to as the ‘‘discriminatory grounds’’)”.
As the complainant is unable to establish that he falls within the ground on which his claim was made I find that I have no jurisdiction to investigate the claim.
4:6 In relation the Race/Ethnic Origin was there Discrimination on this ground?
No evidence was presented of any significant racial overtones in this case. It was alleged that strong language with an ethnic flavour had been used on a number of occasions but nothing as to present the required prima facie evidence to support acase of Racial discrimination.
Accordingly, I did not find the Race/ Ethnic origin claim well founded.
5: DECISION
This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
Ø I have considered the above complaint and make the following decisions in accordance with Section 79 of the Acts that the complainant has failed to establish that he has a disability within the meaning of the Employment Equality Act and I have no jurisdiction to investigate the claim.
Ø In relation to the Racial Discrimination element of the Claim I did not find sufficient prima facie evidence to support this contention and I dismiss this element of the claim.
.
__________________
Michael McEntee
Equality / Adjudication Officer
7th July 2016