ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000786

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 09/03/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

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(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

In autumn 2014 the Complainant was instructed by a recruitment agency, with whom he was registered, to attend for interview with the Respondent. Some weeks later, the recruitment agency contacted the Complainant and advised that his application has been successful and directed him to commence employment with the Respondent on 29 October 2014.

Following an initial 1/2 weeks of training, the Complainant commenced work with the Respondent. The Complainant got on very well with supervisors and was never once the subject of reprimand. On the contrary, at all times he received very positive feedback. He worked overtime when assigned to it and he was ultimately designated as a key holder, with responsibility for opening the plant at 6:00 am, three mornings per week.

About one month prior to his becoming ill, the Complainant was approached by his supervisor and asked if he would be prepared to switch to the evening shift which he agreed to do. In addition, the Complainant had been assured by the Respondent's HR Manager that he was designated to be made permanent (i.e. he would be directly employed by the Respondent) and that this would be effective September/October 2015.

The Complainant stated that another colleague, who was also on contract from a (different) recruitment agency, received similar assurances from the HR Manager, in around the same time. It was stated on behalf of the Complainant that this other colleague was duly made a direct employee of the Respondent with effect from the end of August 2015.

On 17 July 2015 the Complainant became ill at his home. He was taken to the coronary care unit of the local hospital where it was confirmed that he had suffered a heart attack and he promptly underwent a life saving stenting procedure. The Complainant's medical team confirmed that he suffered a "myocardial infarction".

The Complainant was very anxious to ensure that the Respondent was notified of his condition at the earliest opportunity and he arranged for his wife to telephone his supervisor on 19 July 2015 (Sunday) to notify her that the Complainant would be unable to open up the plant the following morning. Following this, the Complainant's son dropped a sick certificate and the keys of the plant into the Respondent's office, for the attention of the HR Manager.

The Complainant was visited in hospital by the Respondent's Operations Manager who told him to prioritise his recovery and not to be in any rush back to work, in particular, noting that his position would be there for him. The Complainant had no further contact from management at the Respondent.

The Complainant was called to a meeting at the premises of the recruitment company on 11 September 2015. During this meeting the Complainant was informed that the Respondent was not prepared to await his recovery any further and, in consequence, his employment was being terminated with immediate effect.

The Complainant expressed his extreme disappointment, anger and frustration. He noted that he had been certified as unfit for work until 28 September 2015, at which point it was anticipated he'd have a clearer prognosis. The Complainant further stated that he had secured a consultation with his consultant for 16 September 2015 and suggested that any decision on his dismissal be deferred until he had attended that appointment. However, notwithstanding this request, the Complainant was informed that there was no scope to revisit the decision to dismiss.

In concluding the submission on behalf of the Complainant, at the Hearing, his legal representative made the following points:

• There was no compelling necessity to dismiss the Complainant with the unseemly haste that occurred in this case.

   

• It was submitted that a heart condition and, in particular, myocardial infarction, met the definition of a disability for the purposes of Section 2 of the 1998 Employment Equality Act.

   

• Section 16 of the 1998 Act places separate and specific obligations on employers to offer "reasonable accommodation" to employees suffering from a disability. It was contended, on the Complainant's behalf, that there is a long list of (Equality Tribunal) decisions which emphasise the need for employers to demonstrate that they at least considered the possibility of accommodating the employee by a return to work.

   

• It was submitted that the facts of the case more than meet the test for "prima facie evidence of discrimination".

   

• It was further submitted that the Respondent fits the definition of "provider of agency work" for the purposes of the 1998 Act.

   

• It was also submitted that the only point of distinction between the Complainant and his colleague (with whom the commitment to hire permanently and directly was honoured), was that she had not suffered a heart attack and/or did not have a disability. Consequently, it was submitted that this colleague is an appropriate comparator for the purposes of Section 8 of the 1998 Act.

In summary, it was contended on behalf of the Complainant that the Respondent's actions in this regard amounted to discrimination on the disability ground, within the meaning of Section 8 (2) of the 1998 Act, in as much as the Complainant was discriminated against in terms of access to employment and/or to promotion, directly by reason of his disability.

It was separately contended that the Complainant was directly discriminated against by the Respondent, within the meaning of Section 6 of the 1998 Act, by dismissing him as a direct consequence of his disability.

Respondent’s Submission and Presentation:

The Respondent did not attend the Hearing. However, on receipt of the original complaint application form which was submitted by the Complainant to the WRC, the Respondent provided a short written response, in which it stated that it was a stranger to this complaint given that the Complainant was not directly employed by them.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

The issue for decision was whether the Complainant’s dismissal constituted a discriminatory dismissal under the Employment Equality Act, 1998

Legislation involved and requirements of legislation:

The relevant legislation in this case was the Employment Equality Act, 1998

Decision:

Having carefully considered the evidence adduced in relation to this complaint, I am satisfied that the following facts have been clearly established on behalf of the Complainant:

• The Complainant suffered a heart attack (myocardial infarction) in July 2015.

   

• The Complainant's employment with the Respondent was terminated with effect from 18 September 2015.

   

• The termination of the Complainant's employment with the Respondent was as a direct result of his heart attack.

Taking all the above into consideration, I am satisfied that the Complainant has adequately met the requirement with regard to the burden of proof as set out in the Employment Equality Act 1998 and has established "prima facie" evidence of discrimination.

I am also satisfied that the Complainant's medical condition arising and following on from the incident on 17 July 2015, clearly meets the definition of "disability", as set out in Section 2 of the 1998 Act.

The evidence presented by and on behalf of the Complainant clearly suggests that he and a colleague, both of whom were in similar employment arrangements with the Respondent (i.e. they were both on contract from an employment or recruitment agency) had been advised by the Respondent's HR Manager that they were both about to be made permanent employees of the Respondent. The evidence presented at the Hearing suggests that while this became a reality for his colleague, the Complainant's employment with the Respondent was in fact terminated.

Having carefully considered all the evidence adduced in this regard, I am satisfied that the reason the Complainant did not have the promise of permanent employment fulfilled in his case was solely down to the fact that he had a heart attack in the intervening period. In the Complainant's own words at the Hearing - his colleague got permanency and he got his P45.

The evidence presented at the Hearing, demonstrates that, as early as 7 September 2015, the Respondent had already identified and were training in a replacement for the Complainant. Given the seriousness of the Complainant's medical condition it is clear that it would be unreasonable to expect him to be in a position to return to work a mere seven weeks after his heart attack. This evidence clearly demonstrates that the Respondent was not willing to provide the Complainant with a reasonable amount of time to recover from his heart attack and return to work. Neither is there any evidence of a willingness on behalf of the Respondent to consider appropriate, reasonable accommodation which might have facilitated the Complainant's return to work.

I note the only response from the Respondent to the submission of this complaint, indicates that because the Complainant was employed through an employment agency, they (the Respondent) are "strangers" to the complaint. I do not accept this to be the case, for the following reason:

In Section 2 (1) of the Employment Equality Act (1998) an agency worker is defined as:

"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;

 The Employment Equality Acts also apply to "providers of agency work", which is defined in Section 2 (5) of the Act (1998) 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".

The Act further states, at Section 8 (1), that "a provider of agency work shall not discriminate against an agency worker".

It is accepted that the Respondent procured the services of the Complainant on foot of an agreement with the recruitment agency and that, accordingly, the Respondent is a provider of agency work or the purposes of the Act.

Based on this, I am satisfied that the Respondent is covered by the 1998 Act with regard to the Complainant's employment.

Consequently, taking into consideration all the evidence set out earlier, I find that the Respondent's action in relation to the termination of the Complainant's employment amounts to a discriminatory dismissal on the grounds of disability. Therefore, I issue an order for compensation in the amount of €42,640.

This figure is based on the evidence which suggests that had the Complainant not had the misfortune of encountering the health challenges and the disability which befell him in July 2015, he would more than likely now be enjoying full permanent employment with the Respondent and all the attendant benefits that such status would bestow on him. However, as a result of the Respondents act of discrimination the Complainant faces an uncertain future in relation to employment. It also takes account of the fact that the Respondent made no attempt even to consider any appropriate accommodation which might have facilitated the Complainant's return to work.

Dated:      31 May 2016