EDA1617

• 1. This case relates to a complaint by Mr Thomas Keogh (the Complainant) that he was discriminated against on grounds of disability by Tom Moloney Ltd t/a The Squire Maguires (the Respondent) when he was constructively dismissed from his employment. The Adjudication Officer/Equality Officer decided as follows
  • 
    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 finding. I find

    That the Respondent dismissed the Complainant in circumstances which amounted to a constructive discriminatory dismissal on grounds of his disability in terms of section 6(2) of the Employment Equality Acts, 1998 – 2008 and contrary to section 8 of those Acts.

    That the Respondent did not discriminate against the Complainant on grounds of his disability in relation to his conditions of employment.

    The Respondent did not harass the Complainant on grounds of his disability contrary to Section 14(7) (a) of the Acts.

    The Respondent did not discriminate against the Complainant in respect of a failure to provide him with reasonable accommodation for his disability.

  
  2. The Adjudication Officer/Equality Officer went on to award the Complainant compensation in the sum of €12,000.

  3. The decision was issued on 23 November 2015. The Respondent appealed against that decision to this Court on 22 December 2015. The Case came on for hearing before the Court on 6 April 2015

Background

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  4. The Respondent operates a public house in Limerick City. The Complainant was employed in the public house as a barman from August 2008 until October 2012. The Complainant was absent from work from 15^thOctober 2012 until 22^ndOctober 2012. The Complainant told the Court that he had attempted to take his own life on two occasions and was undergoing treatment during this time. On the 22^ndand 31^stOctober the Complainant met with the proprietor of the business with a view to updating him on his condition and to arrange for his return to work. The Respondent told the Complainant that he was concerned for his welfare and required medical certification of his fitness to return to work. The Complainant states that the Respondent asked him to provide him with a letter stating that he was 100% sane. The Complainant attempted to secure such a letter but was instead advised that his attending doctor would provide him with a letter stating that he was fit to return to work. The Complainant submitted the medical certificate to the Respondent on 31 October 2012. The Complainant asked for permission to return to work. The Respondent refused to allow him to do so. The Complainant at that point understood that he had been dismissed. Some attempts were made on behalf of the Complainant to reach a compromise settlement with the Respondent but these came to nothing and the instant proceedings commenced.

  Preliminary Issue

  5. The Complainant referred a number of complaints to the Equality Tribunal under the Act. As is clear from the decision of the Adjudication Officer/Equality Officer set out above he was successful in respect of one complaint and was not successful in any of the other claims. The Respondent appealed against the decision that it had discriminatorily dismissed the Complainant. It did not appeal against any other decision. The Complainant submitted no appeal within the statutory time limit.

  6. When the matter came before the Labour Court the Complainant sought to enlarge the matters before the Court beyond those appealed by the Respondent. He submitted that as the Court was conducting a de novo hearing into the complaint he was entitled to raise all issues before it. The Respondent submitted that it was appealing one decision of the Equality Officer/Adjudication Officer and it fully accepted that the Court would hear that matter de novo. It submitted that it was not appealing any other decisions.

  The Law

  7. Section 79 of the Act in relevant part states

  • • (1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and
      (b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated,
      but a decision shall be made on each of the claims.
      • Section 83 of the Act provides for an appeal to the Labour Court against a decision of the equality officer. In relevant part it states
    • • ‘(1) (a) A party to a case referred to the Director General of the Workplace Relations Commission under section 77 of the Act of 1998 may appeal a decision of the Director General given in an investigation in relation to that case under section 79 of that Act to the Labour Court and, where the party does so, the Labour Court shall—
        • (i)give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,
          (ii)make a decision in relation to the appeal affirming, varying or setting aside the decision of the adjudication officer to which the appeal relates, and
          (iii)give the parties to the appeal a copy of that decision in writing.
        (b) The Labour Court shall have power to grant such redress in an appeal under this paragraph as the Director General has power to grant in an investigation under section 79 of the Act of 1998.’;

• 8. It is clear from the foregoing that the Equality Officer is required to make a decision on each of the claims of discrimination made by a Complainant. It is also clear that the Act provides for an appeal to the Labour Court against each decision or none. Where a decision is appealed the Court is required to conduct an investigation into the complaint and make a decision based on the submissions of the parties and the evidence adduced in the course of the hearing.

  9. In this case the Complainant made a number of complaints. The Adjudication/Equality Officer investigated those complaints as one case and made a decision on each of them as required by section 79 of the Act. The Respondent appealed against one of those decisions. The Complainant made no appeal within the statutory time limit.

  10. In accordance with section 83 of the Act the Court is required to make a decision in relation to the appeal affirming, varying or setting aside the decision of the Adjudication/Equality Officer. It is not open to the Court to consider decisions that were not appealed to it, within the statutory time limit, by either side.

  11. The Complainant in this case did not submit an appeal but seeks to extend the de novo investigation to include decisions that were not appealed by the Respondent. The Court finds that there is no statutory basis for such an approach. The Complainant had the opportunity to appeal each of the decisions of the Equality Officer but did not do so. He cannot now circumvent the statutory time limits by seeking to compel the Court to hear appeals against those decisions on the basis that it is required to conduct a de novo hearing. That approach is misconceived and seeks to confer a jurisdiction on the Court that is not set out in statute. Only the legislation can confer jurisdiction on the Court. In this case the Court finds that it has not done so. The Court has jurisdiction to hear an appeal of the decision before it and no more. How it sets about hearing that appeal, i.e. de novo or otherwise, is a separate matter that cannot confer additional jurisdictions on the Court or otherwise avoid the time limits set out in the Act for the bringing of appeals.

  Decision on Preliminary Issue

  12. The Court decides that there is one issue before it and that is the appeal by the Respondent of the decision by the Adjudication/Equality Officer that the Complainant was discriminatorily dismissed contrary to the Act. No other issue was appealed and is not and cannot be considered by the Court.

  Substantive Matter

  13. The Complainant submits that he was suffering from a disability that he had brought to the attention of the Respondent. It required him to undergo treatment during which he could not work. When he recovered he contacted the Respondent and advised him he was medically fit and wished to return to work. He was told by the Respondent that he should take some leave which he did. He was also told that he could not return to work until he provided medical certification that he was 100% sane. He sought such a letter from the hospital but was told such would not be provided. He was provided with a certificate stating that he was fit to return to full time working. He submits that when he presented that certificate he was effectively dismissed from his employment.

  14. The Respondent states that he was aware that the Complainant was suffering from a disability. He said that he was concerned that he should not return to work until he was fit to do so and capable of dealing with the reaction of the customers in the public house which he thought could be difficult for him. He initially sought medical confirmation that he was capable of working. He disputed the detail of the claim that he required a certificate that the Complainant was 100% sane. He said that he received a certificate of fitness to return to work and was trying to engage with the Complainant to facilitate him in an appropriate manner to do so. He said that the Complainant did not engage and decided himself that he had been dismissed. He denied that he had so dismissed him and was anxious to ensure that he could cope with the environment in the public house that he said could be challenging. He said that he was subsequently approached by a trusted third party on the Complainant’s behalf seeking settlement terms. He said that he engaged with that process and made an offer that was rejected and the instant proceedings were then commenced. He said that he was prepared to facilitate a return to work but that the Complainant acted prematurely in terminating his own employment. He finally said that the Complainant had been difficult to contact as he had changed address and had not left forwarding details. He said that this resulted in a letter he had sent to his old address going undelivered to him for some time. He suggested that this may have been somewhat responsible for the breakdown in communications between the two of them.

  Findings of the Court

  15. It is common case that the Complainant was suffering from a disability of which the Respondent was aware. That disability caused the Complainant to take time off work to undergo treatment. When he was recovered he presented medical evidence to the Respondent that he was fit for work.

  16. The detail of the engagement between the Complainant and the Respondent around the return to work is clouded in claim and counterclaim. Having listened to the evidence of both sides the Court prefers that given by the Complainant. He struck the Court as credible and consistent. The documents he produced confirmed his version of events.

  17. By way of contrast the Respondent was vague and evasive regarding his handling of the Complainant’s disability and his desire to return to work. He said that he was anxious to look after the Complainant. However he took no steps to have him return to work after he was certified fit to do so. Instead he prevaricated and delayed an d sought to put him off doing so. He placed obstacles in his way and frustrated him in his efforts to resume normal work. He suggests that he was seeking to accommodate the disability but he appeared to be simply putting off the Complainant’s return date and seeking to frustrate him in that regard. Having listened to his evidence the Court formed the view that he did not want him to return to work in the public house and was taking steps to ensure that he would delay it and ultimately frustrate him completely in his efforts to do so.

  18. Accordingly the Court finds that the complaint is well founded and upholds the decision of the Adjudication/Equality Officer in this regard.

  19. The Court has given careful consideration to the level of compensation appropriate in this case. Having considered the circumstances in which the Complainant found himself and the effect of the discrimination on him the Court orders the Respondent to pay the Complainant compensation in the sum of €16,000.

  Determination

  20. The Court determines that the Complainant was discriminatorily dismissed on account of his disability contrary to section 8 of the Act. The Court orders the Respondent to pay the Complainant compensation in the sum of €16,000. The appeal is not allowed.

  21. The Court so determines.