ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000373

Complaint for Resolution:

Date of Adjudication Hearing: 22/02/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the compliant to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background to the Dispute

1. This dispute concerns a claim by the Complainant that he was discriminated against by the respondent on the grounds of disability contrary to section 6 (2) of the Employment Equality Acts in relation to conditions of employment in terms of sections 8 of the Acts, that he was discriminatory dismissed and that the respondent failed to provide him with reasonable accommodation.
2. The complainant referred his claim to the Director of the Equality Tribunal on 30 October, 2015 under the Employment Equality Acts. On 26^th January, 2016, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, an Equality/Adjudication 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 received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 22 February, 2016. Final information was received on 7 March 2016.
3. 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.

Complainants Submission:

2. ^th May 2015. His employment ended one day later on May 6^th 2015. The Complainant was living with the HIV virus, which was diagnosed a number of years previously.
3. ^th April, when his brother, who was married to the Night Mangers Daughter, informed him of same. He was familiar with the bar as a customer and had attended some of the Bingo sessions there.
4. ^th April, as there were no formal interviews. The Complainant completed the trial and exchanged telephone numbers with the head Chef Mr. T, who confirmed that the company was looking for a high performing Deputy Head Chef to cover his impending one month annual leave.
5. ^st, the complainant accepted the offer of the Chefs position to commence on 5^th May, 2015 on 11 euro an hour, which was an upward adjustment on the previously discussed 10 euro per hour. He confirmed his start time as 11 am on May 5^th.
6. ^th. They engaged in a general conversation on the complainant’s background and previous work locations. The respondent outlined his plans for development of the bar and confirmed that there would be promotional opportunities for the complainant if his time as a Chef worked out well. The complainant described this conversation at the hearing as “Grand, nice and casual”.
7. ^th, 7^th, 8^th and 10^th May. He understood from the Head Chef, Mr. T, that he would be working a 40 hr. week and more when Mr. T’s month long annual leave commenced on 18^th May, 2015. He proceeded with his work which was preparation for carvery and evening bar food. There were no criticisms of his work, nor was any food returned from the bar. He finished his shift at 22.00hrs and accepted a lift from Mr. T into town. They parted with Mr. T confirming that they would meet again on Friday after each other’s days off.
8. ^th, the complainant was engaged in administrative tax changes to organise transition to his new position as well as having pre-arranged access to his daughter. He obtained the respondents tax number and communicated this to the tax office in Cork. Later that evening at 21.09, the complainant received a call from Mr. T stating that he had bad news and that the “complainant would no longer be needed as he was talking to the respondent and that he wanted to bring in a different chef from Mallow”. The Complainant was assured by Mr. T that he had done nothing wrong, and that this was a message being passed on from the respondent. When asked for the respondent’s number, Mr. T stated that he did not have it.
10. ^th, the complainant entered the bar/restaurant to collect his wages and his Chef Shoes. The first person he met was PM, the Bar man, who on seeing the complainant, blushed and exited the bar in a speedy fashion. The complainant spoke with the duty manager, MS F, briefly, who asked him” whether he had heard the story?” The complainant was puzzled and asked, which one? The conversation did not progress beyond that point. He missed a call from the respondent at 14.08 hrs. but did not respond to him at that time or since that date as he wanted to secure Legal advice. He was paid €157 for his work.

He became depressed following his experience at the bar and required counselling support. The complainant told the hearing in cross examination that he was clear that the respondent did not know about his HIV status at the beginning of his employment. He attributed the disclosure to staff member, PM, who no longer worked at the premises.

The Complainant submitted details that he was unemployed for 12.5 weeks post his dismissal as he was unwell following his experience at the respondent employment.

Case Law relied on:

A Government Dept. V an Employee EDA 061/2006

Humphries v Westwood Fitness Club [2004] 15 ELR 296

IB v Greece C-552-10 (ECHR, 3, October 2013,)

Respondents Submission

On cross examination, He understood that the complainant was covering a shift on a casual basis when the offer of employment was introduced and that his employment on May 5^th was predicated on “seeing how he would get on? “He raised the wage per hour from €10 to €11 when Mr. T told him that Chefs would be difficult to source on the lower wage. The respondent confirmed that two chefs had presented for the job. Mr. A didn’t work out either, having had a trial of 2x 9 hr. days.

The respondent confirmed that he had met with the complainant during the morning of May 5^th. He stated that he had asked Mr. T, head chef later the next day “Do you think that ….is competent to work on his own “He told the hearing that Mr. T expressed his opinion that the complainant was not capable of substituting for him. The respondent then decided to transfer an established Chef down from his premises in Mallow, to protect his business, while Mr. T was on leave. He told the hearing that he trusted Mr. Ts’ judgement in the matter; however, it was his decision to terminate the complainant’s employment.

4 Witness Submissions:

She confirmed that the complainant’s brother and her daughter were annoyed when they learned that the complainant’s tenure had been discontinued and wanted to call the respondent. She did not recall PM discussing the complainant’s HIV status prior to the discontinuation of his employment, but it may have happened on the day after.

“I was the head chef in the X premises when the complainant started work with us. I received a phone call from the respondent on 6 May 2015 asking how he was performing. I said he would not be capable of working on his own in my absence and that he lacked confidence. The respondent told me that I should let him go, which I did. I did not know that the complainant was HIV positive and only heard rumors after he was gone, but it had nothing to do with the termination of his employment “

1. ^th and they worked together on May 5^th. He was not aware that the complainant and the respondent had had an earlier conversation and they worked together, in close proximity in a busy environment for the day. He recalled receiving a call from the respondent which was assessing his suitability for deputation for head chef while Mr. T was on leave. He asked the respondent if he had someone else. He recalled the respondent saying “If he’s not good……. Don’t lose time “Mr. T was determined to go on holidays as he had paid €1,700 in support of his booking. He had no recollection of the fact that the complainant was living with HIV was subject to any conversation amongst the staff.

In cross examination, Mr. T confirmed that he had terminated the complainant’s employment on the respondent’s instructions as he was not capable of replacing the Head Chef. HIV was never a consideration.

5 Findings and Conclusions of Equality /Adjudication Officer:

5. I have to decide if the complainant was discriminated against on the ground of disability, denied reasonable accommodation and subjected to a discriminatory dismissal under the Acts.

In reaching my decisions 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 presented at the hearing.

In Arturs Valpeters v Melbury Developments [2010] E.L.R. 64, the Labour Court identified the parameters of the burden of proof necessary to satisfy a prima facie case of discrimination .

“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination

. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”

Conditions of Employment

5. Sec 6 of the Acts refers:” 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’) which—

(I) exists,

(ii) Existed but no longer exists,

(iii) May exist in the future, or

(iv) Is imputed to the person concerned (2) as between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are

(g) That one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(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……

I have to consider whether the complainant had a disability within the definitions outlined above, and if he did, when the respondent was aware of it? It was common case that there were no formal structured interviews available to the complainant in this case. I accept that the market forces pointed to a shortage of chefs and” word of mouth” served as a recruitment tool in this case. I find that the complainant was not well served by this informality.

5. ^th and May 5^th for the purposes of my investigation. Both the complainant and the respondent confirmed that the complainants condition (HIV) did not form the basis of any conversation between the parties. There was no pre employment health screening, nor was there a requirement for the complainant to submit a health report of any kind prior to or during his employment.

I accept that the complainant was living with HIV and this constitutes a disability under the Acts. I find that the recruitment process which led to the complainant’s appointment was overly casual and it is simply implausible that an employment file of any kind failed to spring into being. However, I must decide if the complainant was discriminated against on disability grounds?

I am not satisfied from the evidence adduced by both parties, that the respondent was on notice of the complainant’s disability either via informal or formal channels prior to or during the course of the complainant’s employment and that reference to the parallel discussions amongst the staff must be viewed as speculation, which the Labour Court cautioned against in Arthurs Val Peters v Melbury Developments, as being “insufficient to satisfy the burden of proof”

5. In Darguzis v Lough Corrib Engineering, DEC E 2009-038 the Equality Officer found that in order for a complaint of discrimination to succeed in reaching the burden of proof, the complainant must demonstrate a “difference in treatment” not simply treatment of a manner which is less than ideal.

In Ryanair ltd v Agnieszka Spyra, EDA 1428 the Labour Court held that “fairness” was not predetermined criteria for deciding claims of discrimination:

“It is not for the Court to decide if this was a fair procedure. The only duty the Court has is to decide if it was discriminatory in design or outcome giving rise to discrimination on the grounds of national origin”

In Graham Anthony and Co Ltd v Mary Margretts, EDA 038, in an age discrimination case, the Labour Court remarked:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

I find that the complainant was certainly misled during the course of his employment with the respondent. He understood that his performance as a Sous Chef was adequate and he did not apply for the position of Head Chef, therefore I find it unsatisfactory that he was denied a frank feedback on his performance directly from the respondent, which led to the subsequent uncertainty and reported rumours. I find that there were a number of missed opportunities where discussions to “clear the air “could have been actioned but were not. However, I find that the complainant has not established the facts to support a prime facie case of discrimination on grounds of disability.

6 Reasonable Accommodation

6. in Co Louth VEC v Equality Tribunal [2009]IEHC 370 in permitting an expansion to the details on the complaint form:

“ …. Of course it is necessary that in so far as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the process adopted by the Equality Officer must be fair and reasonable and in compliance with the path of natural and constitutional justice “

I am satisfied that I acted in accordance with this direction by permitting the respondent sufficient time to respond.

(a)   For the purposes of the Act, a person who has a disability is fully competent to undertake and fully capable of undertaking, any duties of the person would be so fully competent and capable on reasonable accommodation being provided by the person’s employer

(b)   The employer shall take appropriate measures where needed in a particular case, to enable a person who has a disability –

To have access to employment, to participate in the advance of employment or to undergo training.

6. Humphries and Westwood, distinguished as the employer had prior notice of the condition and had developed a pattern of management in that regard.

In addition, in IB v Greece, the ECHR had found that a Greek jewelry worker, a long servicing private sector employee (, diagnosed during the course of his employment) and living with HIV was discriminated against when fellow employees orchestrated a campaign in written and verbal form for his dismissal. This is distinguished from the present case as I did not adduce that the circumstances were mirrored.

I did, however appreciate that the complainant earnestly believed that the case was analogous to his. In particular, I accept that the acute vulnerability that followed the Greek worker’s expulsion from his employment was shared by the complainant.

I am satisfied, from my investigation, that the complainant did not make the respondent aware of the fact that he was living with HIV, therefore, I am satisfied that the respondent was not under an obligation to consider whether the complainant needed any reasonable accommodation. An Employee V an Employer DEC-E 2013-142 refers.

7 Discriminatory Dismissal

I have already found that the complainant was not discriminated against during the course of his employment.

The Complainant acknowledged that he had not disclosed that he was living with HIV to the respondent. He contended that parallel internal discussions amongst the staff of the bar had permeated to the respondent and that he acted on these by terminating the complainant’s employment. I have considered this view and decided that it was not well founded.

I find that that the standard set at the respondent premises to fulfill the role of Sous Chef for the complainant was not any different to the standard set for others without a disability, as evidenced by the report given on Mr. As earlier trial that had not succeeded.

I find that the complainant did not meet the anticipated requirements for the post, which I appreciate were exacting and complicated by a pressurised approach to securing a veritable replacement for the Head Chef, within a short time frame. I did not find evidence of a dismissal tainted by discrimination. Dunnes Stores v Jun liu EDA 1522 applied .

8   Decision of an Equality/Adjudication Officer.

8 .1 I have investigated the above complaints and make the following decision in accordance with section 79 of the Employment Equality Acts, and section 41(5)(a)(iii) of the Workplace Relations Act 2015 that:

a) The Complainant was not discriminated against in relation to his conditions of employment and

b) The Complainant was not denied reasonable accommodation as provided by Section 16 of the Acts.

c) The Complainant was not dismissed in a discriminatory manner in breach of Section 77(1) (b) of the Act and in breach of Sections 6 /8 of the Acts.

Dated: 3 June, 2016