DEC-E2017-034

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2017-034

PARTIES

Sebastian Zdanowski

and

Des Watchorn

(represented by Ms. Dorothy Donovan B.L.

on the instructions of Culleton Solicitors)

File Reference: et-159857-ee-15

Date of Issue: 22nd May, 2017

1. Dispute

1.1 This case concerns a complaint by the complainant that he was discriminated against by the respondent on the grounds of disability and race contrary to Section 6(2)(g) and (h) of the Employment Equality Acts in relation to his conditions of employment and discriminatory dismissal.

2. Background

The complainant referred the present complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 21st September, 2015. In accordance with her powers under Section 75 of the Employment Equality Acts, the Director General delegated the case on 19th December, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. Written submissions were received from the Complainant on 20th October, 2015 and 5th January, 2016 and from the Respondent on 9th January, 2017. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 30th January, 2017 and 4th April, 2017.

2.2 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.

2.3 The hearing of this complaint was initially scheduled for 30th January, 2017. After commencing the hearing on this date, it became apparent to me after I had begun hearing the oral evidence of the complainant that he would require the services of an interpreter to facilitate his participation in the hearing. In the circumstances, I decided to adjourn the proceedings on this date and the hearing was subsequently reconvened on 4th April, 2017 when an independent interpreter was in attendance to facilitate the complainant’s participation in the proceedings.

3. Summary of the Complainant's case

• The complainant, who is a Polish national, commenced employment with the respondent as a Painter/Decorator. The complainant claims that he was subjected to discriminatory treatment by the respondent on the grounds of race in relation to the following matters:
• He was treated less favourably than the respondent’s Irish workers as he was always under greater pressure to complete his work faster and better. The complainant claims that he felt humiliated in that the respondent regularly “screamed and yelled” at him and that the Irish workers were never subjected to this treatment.
• He was exploited by having to take on the worst jobs with no protective equipment such as painting with harmful and toxic paints, scraping rust and old paint, removing old wallpaper and working unsecured at heights. He claims that the Irish workers were not subjected to such treatment.
• He was required to pay the tolls to use the toll road when travelling to and from work and the respondent did not reimburse him for these expenses.
• He was the only worker who was expected to wash all of the painting equipment after work in his own private time.
• He was forced to travel and collect other workers when travelling to and from work.

3.2 The complainant also claims that he was subjected to discriminatory treatment by the respondent on the grounds of disability during his period of employment. The complainant claims that he had medical conditions affecting his chest, sinuses and suffered from tonsillitis. He claims that he was required to carry toxic paints in an unsecured container in his car while travelling to and from work every day which adversely affected his health. The complainant claims that the protection of his health was not considered important by the respondent and resulted in him having to take sick leave from work.

3.3 The complainant submitted that he went absent from work on sick leave on 10th August, 2015 and was certified medically unfit for work until 24th August, 2015. He claims that the respondent contacted him during this period and requested him to immediately return the van which he used for work. The complainant submitted that he understood the van was been taken from him and that he was being dismissed from his employment. The complainant claims that he attempted to contact the respondent by text message to arrange his return to work following sick leave but got no response. The complainant submitted that he eventually requested his P45 on 31st August, 2015 as he understood that he had been dismissed from his employment. The complainant claims that this dismissal amounts to a discriminatory dismissal contrary to the Employment Equality Acts.

4. Summary of the Respondent’s case

The respondent is a sole trader and operates a painting and decorating business. The only workers carrying out painting and decorating for the business are the respondent himself, a casual worker and the Respondent’s two brothers who help out on a needs be basis on certain occasions.

4.2 The respondent denies that the complainant was subjected to discriminatory treatment on the grounds of his race in relation to his conditions of employment. The respondent submitted that his brothers, the other casual worker and he all did the same kind of work. The respondent’s brothers only worked on rare occasions during the tenure of the complainant’s employment and were not employed by the business but rather helped out from time to time. The respondent submitted that he never screamed or yelled at either the complainant or anybody else and if he did, which is denied, this cannot, in the absence of racist comments or content mutate into discrimination of the race ground. The respondent submits that the complainant was not expected to wash equipment on his own time and this assertion is absolutely untrue. The respondent submits that all people engaged by the respondent, including the respondent himself, cleaned brushes and such like as brushes have to be cleaned promptly after use.

4.3 The respondent supplied the complainant with a van which he could use for both work and personal use. The respondent used another vehicle, his brothers used their own vehicles and it was agreed with the complainant that in return for use of the van he would pick up the other casual worker when he was working with him. The respondent submits that the complainant readily agreed to this arrangement in return for the use of the van and that he was not forced to collect the other casual worker. The respondent submitted that he taxed and insured the van and paid for the diesel but as the complainant was driving it all the time the respondent could not physically refuel the van. The complainant was reimbursed for fuel expenses and did not raise any issue about this issue during the period of his employment. The respondent submitted that the complainant rarely used a route with tolls and on the rare occasions that he did this was of his own volition. The respondent submits that the toll road was not the quickest route and by using it the complainant spent more time driving and less time painting and the respondent did not pay tolls for either of his brothers or the other casual worker.

4.4 The respondent also denies that the complainant was subjected to discriminatory treatment on the grounds of disability. The respondent disputes the complainant’s contention that he has a disability and submits that a chest infection, sinus and tonsillitis do not constitute a disability within the meaning of Section 2(1) of the Employment Equality Acts. In relation to the substantive complaint relating to disability, the respondent submits that the complainant did not inform him at the time of engagement that he suffered from any ailment or condition that would make painting difficult for him. The respondent submitted that he did not use paint that was harmful or toxic but only used the best paint which complied with the standards of the industry. The respondent denies that the complainant was required to carry toxic, steaming and unsecured paints in the vehicle that he was provided and submits that all paints were well secured in sealed containers suitable for same. It is submitted that if the aforementioned conditions are determined to be a disability within the meaning of section 2(1) of the Acts that the respondent provided reasonable accommodation to the complainant in accordance with the provisions of Section 16(3) of the Acts by providing protective masks and sealed containers to hold the tins of paint. The respondent submits that it was not open to him to provide alternative work other than painting to the complainant as there were no other jobs available.

4.5 The respondent denies that the complainant was dismissed from his employment and submits that he left of his own volition after failing to return to work following a period of sick absence. The complainant went absent on sick leave on 11th August, 2015 and was expected back to work on 17th August, 2015 but failed to show up for work on that date although he had been informed of the location that the work was being carried out at that juncture. The respondent accepts that he requested the complainant to return the van during the period of this sick absence as it contained his equipment and paint which was required to finish an ongoing job. The respondent submits that the complainant resigned from his position and requested his P45 on 31st August, 2015. The respondent denies that the complainant was subjected to a discriminatory dismissal contrary to the Employment Equality Acts.

5. Conclusions of the Equality Officer/Adjudication Officer

Jurisdictional Issue

5.1 The respondent raised a jurisdictional issue that certain elements of the present claim are inadmissible on the basis that they are outside of the scope of the initial complaint which was referred to the Director of the Equality Tribunal. The respondent contends that the complainant has raised a number of entirely new allegations of discriminatory treatment in the written submission which he submitted on 20th October, 2015 which were not included in the initial Complaint Referral Form which was submitted on 21st September, 2015. The specific elements of the complaint which the respondent contends are inadmissible relate to the following claims:

The claim that the complainant has been subjected to discriminatory treatment on the grounds of race in relation to his conditions of employment.

The claim that the complainant was subjected to discriminatory treatment on the grounds of disability in relation to his conditions of employment.

5.2 In considering this issue, I note that the circumstances in which a complainant can subsequently amend an original claim were considered by the High Court in the case of Clare County Council –v- The Director of Equality Investigations and Others[1]. In this judgement Hedigan J. stated: “The respondent has drafted the EE.1 forms for complaints. Complainant’s however are not obliged to use them. The Minister has not issued directions regarding the form to be used and applicants can submit complaints in any format they see fit. In the Louth VEC v. The Equality Tribunal [2009] IEHC 370 McGovern J. observed as follows at paragraphs 6.2 and 6.3:-

“I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint ….. remains the same."

It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken back by surprise or alternatively given adequate time to answer there can be no injustice therein”.

5.3 It is clear from this judgement that a complainant is not precluded from amending his or her original claim so long as the general nature of the complaint remains the same. In the circumstances, the question that I must decide is whether the additional claims of discriminatory treatment contained in the complainant’s written submission which were received by the Commission on 20th October, 2015 were properly made by way of an amendment to the initial complaint or whether these incidences of alleged discrimination were properly admissible as a new complaint.

5.4 In the present case, the initial complaint which was referred to the Commission on 21st September, 2015 related specifically to a claim in relation to discriminatory dismissal. The additional claims made in the written submission related to a number of incidents of discriminatory treatment on the grounds of race and disability which the complainant alleged to have occurred during the period of his employment. The complainant made a further written submission to the Commission on 5th January, 2016 which elaborated further on the additional claims of discriminatory treatment made in the previous submission. I am satisfied that these additional claims of discriminatory treatment which were outlined in the complainant’s written submissions constitute entirely different complaints than that, which had been made in the original complaint (on 21st September, 2015). In the circumstances, I find that these additional claims of discrimination go beyond the furnishing of further and better particulars in relation to the complainant’s initial claim.

5.5 The question then turns to the issue as to whether the claims of discriminatory treatment on the grounds of race and disability outlined in the complainant’s written submissions can be accepted as a valid claim in its own right which is admissible under the Acts. In considering this issue, and as I have already adverted to above, the EE.1 Form is not a statutory form and therefore, a complainant is not legally obliged to use this form when referring a complaint to the Director General. I am satisfied that the nature of the claims of discriminatory treatment are clearly set out by the complainant in this document and in the circumstances, I accept that these claims constitute a new complaint within the meaning of the Employment Equality Acts. However, in order for these new claims to be deemed admissible they must comply with the time limits provisions contained within section 77(5) of the Acts which provides:

“(5) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates”.

The effect of this provision is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Director General unless the discrimination is issue is part of a continuum of events.

5.6 The additional claims of discriminatory were initially received by the Director General of the WRC on 20th October, 2015 and the complainant gave evidence that the alleged incidences of discriminatory treatment in relation to his conditions of employment all occurred during the six month period prior to the referral of these claims on 20th October, 2015. In the circumstances, I am satisfied that the additional claims of discriminatory treatment which were outlined in the complainant’s written submission comply with the provisions of section 77(5) of the Employment Equality Acts. Accordingly, I find that I do have jurisdiction to investigate these claims of discriminatory treatment.

5.7 It should also be noted that the WRC copied the complainant’s written submission in which the additional claims of discriminatory treatment which were outlined above to the respondent on 21st October, 2015. The respondent was afforded the opportunity to forward a written submission in reply to the additional claims of discriminatory treatment and both parties were allowed to adduce evidence in relation to the matter at the oral hearing. In the circumstances, I am satisfied that the respondent was not prejudiced in terms of the manner in which the inquiry in relation to this matter was conducted.

Substantive Issues

5.8 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters[2] where it held that Section 85A:

"…. 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.”

5.9 Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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)…..”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability" and Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – “as between any 2 persons …. that they are of different race, colour, nationality or ethnic or national origins”.

5.10 The issues for consideration by me are (i) whether or not the respondent discriminated against the complainant on the grounds of race and/or disability contrary to Section 8 of the Acts in relation to his conditions of employment and (ii) whether or not the respondent discriminated against the complainant on grounds of race and/or disability contrary to Section 8 of the Acts in relation to a discriminatory dismissal. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.

Discriminatory Treatment on grounds of Race

5.11 The first element of the complaint which I must consider relates to the claim that the complainant was subjected to discriminatory treatment by the Respondent on the grounds of race in relation to his conditions of employment. The complainant gave evidence in relation to a number of different incidents during his period of employment which he contends were discriminatory against him on the grounds of his race including the following:

· He was always under greater pressure to complete his work faster and better than his Irish counterparts.

· The respondent regularly screamed and yelled at him and that the Irish workers were never subjected to this treatment.

· He was exploited by having to take on the worst jobs with no protective equipment such as painting with harmful and toxic paints, scraping rust and old paint, removing old wallpaper and working unsecured at heights.

· He was required to pay the tolls to use the toll road when travelling to and from work and that the respondent did not reimburse him for these expenses.

· He was the only worker who was expected to wash all of the painting equipment after work in his own private time.

· He was forced to travel and collect other workers when travelling to and from work.

5.12 Having considered the evidence, I am satisfied that the complainant has failed to establish facts from which it could be inferred that persons of a different nationality were or would have been treated more favourably than him in relation to these matters. The complainant has failed to adduce any significant evidence to support his claims that the alleged treatment was discriminatory on the grounds of his nationality but rather has essentially relied upon supposition and assertion, unsupported by evidence, in support of these claims. The complainant has not adduced any evidence from which I could reasonably conclude that the respondent subjected him to less favourable treatment on the grounds of his Polish nationality in relation to the matters claimed. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of race in relation to his conditions of employment.

Discriminatory Treatment on the Grounds of Disability

5.13 The next element of the complaint that I must consider relates to the claim that the complainant was subjected to discriminatory treatment by the respondent on the grounds of disability in relation to his conditions of employment. The first matter I have to consider is whether the complainant has a disability within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:

‘‘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;

5.14 The complainant contends that he suffers from chest infections, tonsillitis and sinus infections on a regular basis and that these conditions amount to a disability within the meaning of Section 2(1) of the Acts. The complainant claims that his health was adversely affected by an exacerbation of these conditions as a result of having to inhale the toxic fumes from the paint that he was required to use when carrying out his duties for the respondent. The respondent contends that the complainant failed to disclose at the outset of his employment that he had any medical conditions or disability which would affect his capability to carry out his duties. The respondent disputes the complainant’s contention that any of these medical conditions constitute a disability within the meaning of Section 2(1) of the Acts.

5.15 The complainant did not dispute the respondent’s evidence that he didn’t make any disclosure about having a medical condition or disability upon commencement of employment or that he would require special facilities to accommodate any such medical conditions. It would appear from the evidence adduced that the first occasion when any issue arose in relation to the complainant’s medical condition was when he went absent on sick leave on 11th August, 2015. It is clear that the only medical related evidence submitted by the complainant in support of the contention that he had a disability within the meaning of the Acts were two medical certificates from his GP relating to the period of his sick absence in August, 2015 which indicated that he was unable to attend work due to tonsillitis. The complainant also submitted a letter from his GP which was addressed to the Department of Social Protection dated 15th September, 2015 (i.e. after the termination of his employment) referring to his period of sickness in August, 2015 due to a sinus and chest infection.

5.16 The issue concerning whether or not an illness or sickness can constitute a disability within the meaning of Section 2(1) of the Acts has been the subject of much consideration by both the Equality Tribunal and the Labour Court in recent years. The Labour Court held in the case of Cregg Labour Solutions Limited t/a Cregg Group –v- Gerard Cahill[3] that “the definition of “disability” in Irish law, which preceded the Directive is sufficiently broad to cover certain types of illness although clearly it would be absurd to suggest that all forms of sickness could properly be classified as a “disability".Whilst I accept that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt Boligselskab[4] where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”.In applying this test to the context of the present case, I am not satisfied that the complainant has demonstrated that the illnesses or sickness affecting him at the material time were of such a nature to constitute a disability within the meaning of paragraphs (a) to (e) above. Accordingly, I find therefore that the complainant is not covered by the disability ground this element of his complaint cannot succeed.

Discriminatory Dismissal

5.17 The next element of the complaint relates to the claim that the complainant was discriminatorily dismissed from his employment by the respondent. The fact of dismissal is in dispute between the parties. The complainant submits that he was absent from work on certified sick leave from the 10th to 24th August, 2015 and that the respondent contacted him while on sick leave and instructed him to return the van which he had been using for work. The complainant claims that he understood the respondent was dismissing him and tried texting the respondent to ascertain the position in relation to his employment but got no response. The complainant submitted that he eventually requested his P45 on 31st August, 2015 as he understood that he had been dismissed from his employment. The respondent denies that the complainant was dismissed and contends that he resigned of his own volition after he failed to return to work following a period of sick absence in August, 2015.

Having regard to the totality of the evidence adduced, I find the respondent's evidence to be more credible regarding the circumstances surrounding the termination of the complainant's employment. I accept the respondent’s evidence that the reason the complainant was requested to return the van during the period of sick leave was wholly attributable to the fact that the van and the equipment therein was required to complete an ongoing job. Furthermore, I am satisfied that the request to return the van could not be construed in any manner as a dismissal. In coming to this conclusion, I have viewed screenshots of the text messages exchanged between the parties at that juncture relating to the respondent’s request to return the van and I am satisfied that there was nothing within the content of these messages which would have indicated to the complainant that his employment was being terminated. Having regard to the totality of the evidence adduced, I prefer the respondent's evidence that the complainant resigned from his employment of his own volition and failed to present for work following a period of sick leave. I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that he was dismissed from his employment by the respondent in a discriminatory manner. Accordingly, I find that the complainant had failed to establish a prima facie case of discrimination on the grounds of his race in terms of the manner in which his employment with the respondent was terminated.

Decision

Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that:

(i) The complainant has failed to establish a prima facie case of discrimination on the grounds of disability and/or race contrary to Section 8 of the Acts in relation to his conditions of employment;

(ii) The complainant has failed to establish a prima facie case of discrimination on grounds of disability and/or race contrary to Section 8 of the Acts in relation to discriminatory dismissal.

Accordingly, I find in favour of the respondent in this case.

______________

Enda Murphy

Equality Officer/Adjudication Officer

22nd May, 2017

Footnotes

[1] [2011] IEHC 303

[2] EDA0917

[3] EDA1634

[4] C-335/11 and C337/11