EDA176

Background

The Respondent operated a number of retail shoe outlets. In August 2012 he employed the Complainant as a Sales Fitting Executive on a zero hours contract of employment.

On or about the 27^thJanuary 2015 the Complainant’s house burned down. The Complainant went on sick leave suffering from stress.

The Complainant submitted a medical certificate from her General Practitioner indicating that she was suffering from stress and would be absent from work to the 1^stFebruary 2015 and would thereafter be fit to resume work.

On the 2^ndof February 2015 the Complainant did not return to work.

The Complainant exchanged text messages with her manager regarding her availability for work. On some occasions between February and May 2015 she met with the manager to discuss her position. On other occasions over that period she attended for work to cover for other members of staff on various forms of leave.

On the 20^thof May 2015 the Complainant was requested by sms message to attend at the shop premises to discuss her availability for the summer period. She responded that she would call into the shop on the 21^stof May. On the 22^ndof May the Manager asked the Complainant to call in on that day as she was not at work the following day.

The Complainant met with her manager and indicated that she was not available to cover the summer period. On 30 May the Complainant sent an sms message to her manager in which she stated

“Hi oonagh sorry but I won’t be available for work for u as u know there is so much going on…sorry.”

The Manager responded in the following terms“OK Ruth thanks for letting me know.”

On the 31^stof May 2015 the Respondent prepared the prepared the complainant’s P45 and sent it to her by post.

On 1 June 2014 the manager sent an sms in the following terms to the Complainant

“Hi Ruth it is really unfortunate to see you go from happy feet. I was really hoping we could have worked something out! I will have your P45 sent out. Can you drop your keys back into the shop too please? Thank you so much for all your hard work over the years. It was fantastic working with you! Alsays a pleasure! Best of luck with the house and I hope you get sorted soon! Oonagh.”

The Complainant responded on 2 June as follows

“Hi oonagh hope all is well just a quick tex just I am a little confused reading that tex u sent me I didn’t hand in my notice to happy feet am I been dismissed.”

On 8 June the manager sent the Complainant an sms in the following terms “Hi Ruth can you call Newbridge when you get a chance please? Just tried calling. Thanks Oonagh.

The Complainant replied “Hi in bed with a sick bug talk tomorrow.

The Manager replied Ok hope you feel better soon.

The next text message was sent from the manager to the Complainant on the 24^thJune 2015. There was no response to that message. This was followed by a text message dated 27 August 2015 in which the manager asks the Complainant to drop back the keys of the shop.

There appears to have been no answer to that text message as it is followed with a final message dated 7 September repeating the request for the keys to be dropped in to the shop.

On the 23^rdNovember the Complainant sought a copy of her personal data held by the Respondent. That was supplied to her. However, when this case came for hearing before the Adjudication Officer, the Respondent produced a letter that it had purportedly sent to the Complainant on the 3^rdJune 2015. That letter was not included in the response to the Data information request. The Complainant made further enquiries regarding that letter but received no response the Respondent.

Evidence

Ms Duane gave evidence to the Court. She stated that she had supplied the Respondent with a medical certificate indicating that she was unfit for work until 1 February 2015. She said that she subsequently supplied medical certificates on an occasional basis to either her manager or left them with other employees for transmission to her manager. She said that she also engaged in conversations with her manager in which she advised her that she was not fit to return to work and was going through a very stressful period.

She said that she was asked to provide cover for other members of staff on an occasional basis between February and May 2015. She said that she did this on a number of days, approx. 4 in total, for a period ranging from two to four hours. She said that she was capable of undertaking such duties but was not fit to return to regular work.

She said that she received a text message on the 20^thMay asking her to call in to the shop to discuss her availability to work over the busy summer season. She said she did so a few days later and met with her manager Oonagh. She said that she told the manager that she was not available for work over the summer season. She said that her manager told her she would have to replace her and she said she understood that and that it was ok.

She said that she was surprised to subsequently receive a text message from her manager thanking her for her service and advising her that she would send on her P45. She said that she replied advising her manager that she had not resigned.

She said that she at all times kept her manager informed that she was unfit for work.

Under cross examination she told the Court that she submitted a number of medical certificates in June 2015 that covered some of the period of her absence from February 2015. She said that she had also left in certificates during that period but could not recall how many or on what dates or for what weeks she had left them in.

The respondent put it to her that she had only provided him with one medical certificate that indicated that she would be fit for work on 1 February 2015. She rejected that proposition and said that she had supplied medical certificates to her manager and had kept her informed both verbally and by text message of her disability and incapacity for work.

The Respondent gave evidence to the Court. He said that he was aware that the Complainant had suffered a major disaster when her house burned down. He said he contacted her to offer his support. He said that he kept in touch with his manager who was dealing with the Complainant. He said that he received only one medical certificate between the 27^thJanuary and 31^stMay 2015. He said that he was not aware that the complainant was unfit for work due to a disability and was never notified of such a disability after 1 February 2015. He said that he understood that she was unavailable for work due to her personal and family circumstances following the fire. He said that he was trying to be supportive of her in that situation.

He said that when the Complainant indicated she was not available for work for the summer he took steps to replace her in the store. He said that that decision was not related to any disability of the Complainant as he had no knowledge of any such condition.

Counsel for the Complainant put it to him that a letter dated 3 June 2015 that had been included in the papers before the Adjudication Officer and had not been disclosed in response to a data access request demonstrated that he was fully aware of her disability and was taking steps to dismiss her on those grounds. He said that he was not aware of that letter and had no recollection of it. In response to its contents he said that he had not invited the complainant to any welfare meetings prior to her decision to resign her post.

Counsel for the Complainant put it to him that he had made up his mind that he wanted a full time employee and was aware that the complainant was, as a result of her disability, of which he was fully on notice, unfit to return to full time work. She further put it to him that he at that point decided to dismiss the complainant and had given no thought to investigating her disability or to accommodating her return to work in a manner consistent with that disability.

The Complainant rejected those propositions.

Submissions

Counsel for the Complainant submits that the Respondent was fully aware of the Complainants disability, took no steps to investigate the nature or extend of it, failed to provide her with reasonable accommodation and was influenced by it when he decided to dismiss her from her employment. She submits that these actions amount to discrimination on the grounds of disability and is contrary to the Act.

The Respondent submits that he was not aware of the Complainant’s disability. He further submits that he did not dismiss the Complainant. He submits that she resigned from her employment. He submits that he accordingly did not infringe the Complainant’s rights under the Act.

The Law

Discrimination for the purposes of this Act.

The Act defines disability in the following terms

“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,

Section 6 sets out the meaning of discrimination for the purposes of the Act. It states

6.— (1) 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,

( b ) a person who is associated with another person — (

i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination. ]

(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”),

Section 8 of the Act prohibits discrimination under the Act.

Discrimination by employers etc.

8.— (1) In relation to—

( a) access to employment,

( b) conditions of employment,

( c) training or experience for or in relation to employment,

( d) promotion or re-grading, or

( e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 35 sets out special provisions related to persons with disabilities. It states: -

35. (1) Nothing in this Part orPart IIshall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which could reasonably be expected to be done, during that period by an employee without the disability. ]

(2) Nothing in this Part orPart IIshall make it unlawful for an employer or any other person to provide, for a person with a disability, special treatment or facilities where the provision of that treatment or those facilities—

(a) enables or assists that person to undertake vocational training, to take part in a selection process or to work, or

(b) provides that person with a training or working environment suited to the disability, or

( c) otherwise assists that person in relation to vocational training or work.

(3) Where, by virtue of subsection (1) or (2), D, as a person with a disability, receives a particular rate of remuneration or, as the case may be, special treatment or facilities, C, as a person without a disability, or with a different disability, shall not be entitled under this Act to that rate of remuneration, that treatment or those facilities.

Section 85(a) deals with the burden of proof under the Act. It states: -

85A. (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘ discrimination ’ includes —

( a ) indirect discrimination,

( b ) victimisation,

( c ) harassment or sexual harassment,

( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked. ]

Findings of the Court

There is a dispute between the parties as to the facts of this case. The Complainant states that the Respondent was aware or ought to have been aware of her disability and accordingly was required to investigate the extent to which he could accommodate that disability to enable her to perform her duties and remain in the workforce. He failed to do so and dismissed her from her employment and thereby discriminated against her contrary to section 8 of the Act.

The Respondent submits that he was not aware of the Complainant’s disability and as a consequence it was not and could not have been a factor in any decision he took about her employment. He further submits that the Complainant resigned her position with and respondent and was not dismissed.

This case therefore turns largely on the facts. Accordingly Court took evidence from both the Complainant and the Respondent.

The Court found that the Complainant’s version of events did not sit easily with the detail of the text messages exchanged with her manager. Those text messages make no reference to a disability. For example she says in a message dated 2 February 2015

“Hi oonagh nothing has changed since I spoke to you last no work yet from insurance and still going from house to house people have been great if its OK will u get cover for me please as I won’t be available for a few weeks until things settle down sorry about this”

There is no reference there to a disability. Rather the text message is written in the context of the very difficult circumstances in which the Complainant finds herself. However that does not amount to a disability within the meaning of the Act.

Similarly on the 30^thMay 2015 the Complainant states “Hi oonagh sorry but I won’t be available for work for u as u know there is so much going on … sorry”.

Again there is no reference to an illness or disability.

The contents of the other text messages opened to the Court are similar in tone and contend and make no reference to an illness or disability with one exception that refers to a bug the Complainant had picked up and which prevented her from calling to see the Manager on a particular day. However she recovered and met the Manager shortly afterwards.

Accordingly the Court finds that the Complainant’s version of events and the text messages contradict each other.

The Court then considered the Complainant’s evidence regarding the medical certificates. The Court finds that those certificates do not assist the complainant either.

The only certificate that the Complainant was certain she delivered to the Respondent was signed by her G.P. on 27 January 2015 which states that she would be fit to return to work on 1 February 2015. Thereafter she says that she delivered medical certificates to her manager and when she was not available to receive them she left them with other employees in the shop for onward delivery to her manager. However she was not in a position to be precise as to when she did so. Indeed her evidence in this regard was vague and imprecise.

She also acknowledged that she submitted a significant number of backdated medical certificates to her employer after her employment ended.

On the other hand the Respondent told the Court that he received one medical certificate from the Complainant dated January 27^th2015 which indicated she would be fit to return to work on 1 February. He said he received no other certificate before 30 May 2015 on which date he says the Complainant resigned.

The Court finds that the evidence of the Complainant is not consistent with the terms of the text messages that she exchanged with her manager. The Court finds, on the balance of probabilities, that the Complainant did not submit medical certificates between1 February 2015 30 May 2015 and that this is consistent with her occasional availability for work and the circumstances in which she found herself.

The Court has great sympathy with the Complainant. However Section 85A requires that she establish facts from which it may be presumed that there has been discriminated against by her employer.

In this case the Court finds that the Complainant has not established such facts. She has not established that she submitted medical certificates to the Respondent or that she otherwise notified the Respondent or his agent of her disability. On the contrary the Court finds that she conveyed to her manager the difficult situation in which she found herself following the house fire. However such difficulties do not amount to a disability within the meaning of the Act.

The Court finds that the letter of 3 June that purports to invite the Complainant to a welfare meeting was not sent to her and is in the nature of a template letter prepared by the Respondent’s industrial relations advisors. The Court accepts the Respondent’s evidence that he has no recollection of that letter and that he was not influenced by it when he decided to issue the Complainant with her P45 after he formed the view that she resigned her position.

The Court further finds that the Respondent’s evidence that he was trying to accommodate the Complainant in her difficult circumstances after the fire was a credible and understandable response and is consistent with the text messages exchanged with the relevant shop manager who was dealing with the Complainant on his behalf.

Accordingly the Court prefers the evidence of the Respondent over that of the Complainant.

The Court therefore finds that the Complainant as a matter of fact did not notify the Respondent of her disability after she was declared fit to return to work on 1 February 2015 and before she was given her P45 in May of that year. Accordingly the Court finds that the Complainant has not established facts from which it may be presumed that she was discriminated against by the Respondent.

Determination

It is a matter for the Complainant to establish the required facts from which it may be presumed that she was discriminated against and in this case she has failed to do so. Accordingly the Court rejects the appeal and affirms the decision of the Adjudication Officer.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
14th March 2017______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.