EDA1730

Position of the Appellant

The Appellant submitted that he was diagnosed with Prostate cancer in March of 2015. The Appellant submitted that Prostate cancer is a disability within the meaning of the Act. The Appellant submitted in evidence that he had posted medical certificates to the Respondent at its headquarter address and also its local address each month from March 2015 to end of August 2015. The Appellant submitted that each certificate was worded identically and stated that he had ‘Prostatic problems proceeding to surgery’. The Appellant submitted that the Respondent should have understood from the phraseology of the medical certificates that he had in fact been diagnosed with prostate cancer.

The Appellant stated in evidence that he had undergone surgery on 15th April 2015 and continued to submit medical certificates thereafter for a period of months which stated that he had ‘Prostatic problems proceeding to surgery’. The Appellant acknowledged in evidence that at no time before his dismissal did he communicate, other than via the medical certificates which he submitted he had posted, to the Respondent that he had been diagnosed with prostate cancer and neither did he advise the Respondent before his dismissal that he had undergone surgery in April 2015.

The Appellant submitted in evidence that following surgery on 15^thApril 2015 he was severely affected for some months thereafter including being required to utilise a drip for over six weeks and other medical devices for some months. All of this impacted severely his capacity to carry on normal functions and in particular to attend meetings he said in evidence. The Appellant stated in evidence that he had no recollection of attending a meeting at the premises of the Respondent on 6^thMay 2015 in connection with a separate disciplinary matter.

The Appellant submitted that he was aware of the terms of the Respondent’s sick pay scheme and had been supplied with a written copy of the scheme. He submitted that he was not covered by that scheme in the period leading up to his dismissal in view of the fact that he had less than one year’s service with the Respondent. As a result, the Appellant submitted that he was not under a contractual obligation to attend absence review meetings or medical consultations provided for in the scheme.

The Appellant nevertheless submitted that he did not attend such consultation or meetings when requested by the Respondent because he was unable to do so following his surgery in April 2015 and for some months afterwards. The Appellant accepted that the Respondent had, on 24^thJune 2015, offered to convene an absence review meeting at or near where he was located while absent. He stated in evidence however that he did not agree to such a meeting because he would have been embarrassed to do so given his condition. The Appellant agreed in evidence that he did not respond in those terms to the Respondent or at all on at least one occasion.

The Appellant submitted that he had advised the Respondent that he was unable to attend certain meetings because he was medically unable to do so and that consequently his dismissal was based on discrimination related to his disability.

The Appellant submitted that the Respondent’s subsequent decision to dismiss him for the stated reason “due to your failure to comply with the conditions of your contract of employment regarding absence management and your required attendance at absence review meetings” was a discriminatory dismissal.

Position of the Respondent.

The Respondent denied any discriminatory treatment of the Appellant.

The Respondent submitted that the Appellant had failed to comply with the provisions of the company sick pay scheme. The Respondent submitted that the Appellant was required by his contract of employment to comply with the terms of that scheme and consequently he had been dismissed due to his “failure to comply with the conditions of his contract of employment regarding absence management and his required attendance at absence review meetings”.

The Respondent submitted, including in evidence from Mr M R, the Regional manager to whom the Appellant reported and Ms JK the HR Director of the Respondent, that it had no awareness until the commencement of the within proceedings that the Appellant had been diagnosed with prostate cancer. The Respondent further submitted, including in evidence from the two witnesses, that it was not aware until the commencement of the within proceedings that the Appellant had surgery on 15^thApril 2015 or at all. Ms JK stated in evidence that the Appellant had attended a disciplinary meeting in an unrelated process on 6^thMay 2015 which lasted a number of hours. Ms JK stated that no reference was made by the Appellant to recent surgery or a diagnosis of cancer and neither did he give an appearance of any form of incapacity or restriction due to medical issues throughout that meeting.

The Respondent submitted that it received only one medical certificate from the Appellant during his absence. That certificate related to the period from 27^thMay 2015 to 27^thJune 2015 and the Appellant’s condition was described as ‘Prostatic problems proceeding to surgery’. Mr M R stated in evidence that the Respondent’s internal systems were such that if this or any other certificate were received at any other location in the business he would have been made aware of same. He stated in evidence that the only certificate which had been submitted to the Limerick office for which he was responsible was the one covering the period from 27^thMay to 27^thJune 2015. Mr M R also stated in evidence that no other certificate was advised to him as having been received from any other location throughout the period.

The Respondent stated that the terms of the sick pay scheme were provided to all employees in writing. The Respondent submitted that the terms of the scheme clearly set out their application to all employees albeit payment for sick absences only arose after 12 month’s service.

The Respondent submitted that the Appellant was suspended with pay from 31^stMarch 2015 arising from an unrelated disciplinary procedure. That suspension was due to come to an end on 11^thMay 2015. The Respondent submitted that the Appellant contacted the National Communication Centre of the Respondent on 10^thMay to advise that he was unwell and would not attend for work on 11^thMay.

The Respondent submitted that on 13^thMay 2015 Mr M R had contacted the Appellant to advise of the need to send all medical certificates to the Limerick office where he worked. The Respondent submitted that on 29^thMay 2015 it received the certificate covering the period from 27^thMay 2015 to 27^thJune 2015.

The Respondent submitted that:

• On 11^thJune 2015 it requested the appellant to attend the company doctor on 16^thJune. It received an e-mail response from the Appellant on 15^thJune stating that he was not able to attend the appointment but giving no reason for that inability. When asked by the Respondent later that day to indicate when he would be available to attend the Appellant responded by e-mail and undertook to ‘get back’ with a suitable date. The Respondent, later that same day, asked the Appellant by e-mail whether he had an update from his GP or specialist and asking whether there was a reason why he is unable to attend the company doctor. No reply was received to that mail.

  The Respondent, on 19^thJune, invited the Appellant to attend an absence review meeting on 23^rdJune. That invite was issued again on 22^ndJune and the Appellant was advised that if he did not make himself available either for the absence review meeting or a meeting with the Company doctor he would be in breach of his contract. The Appellant responded to say that he could not attend because he was ‘out sick’. A further e-mail issued from the Respondent to the appellant on 23^rdJune asking him to confirm his attendance at an absence review meeting later that day and again stating that if the Appellant failed to attend he would be in breach of his contract. The Appellant replied that day to say that he could not meet with the company representative that day. The Respondent further e-mailed the Appellant asking when he would be available to attend an absence review meeting. The Appellant responded to say that he would attend meetings when medically certified fit to return to work.

  On 24^thJune the Respondent’s HR director e-mailed the Appellant seeking his attendance at an absence review meeting and offering to travel to the Appellant‘s location to meet him. That e-mail advised the Appellant that failure to meet with the Respondent would be considered a breach of contract and could result in termination of the contract of employment. No reply was received from the Appellant.

  On 25^thJune further communication by e-mail from the Respondent to the Appellant sought confirmation as to when the Appellant could attend an absence review meeting and again offering to travel to the Appellant for such a meeting. That communication again advised of the Respondent’s view that the Appellant would be in breach of his contract if he did not comply with the request to meet the Respondent. No reply was received to that communication.

  The Respondent terminated the employment of the Appellant on 28^thJuly 2015 based on lack of compliance and lack of communication. That termination was communicated by e-mail on 28^thJuly and by letter on 6^thAugust 2015.

  On 13^thAugust the Appellant wrote to the Respondent confirming his intention to appeal. An appeal was set for 27^thAugust but on 26^thAugust the Appellant’s legal representative sought an adjournment of the hearing and that was granted. On 17^thDecember 2015 the legal representative of the Appellant sought a new date for an appeal and such a date was set for 20^thJanuary 2016. The Appellant’s legal representative declined that date and confirmed to the Respondent that he would revert with an alternative date. The Appellant’s legal representative did not revert with an alternative date. The Respondent consequently communicated with the Appellant offering to arrange an appeal hearing. By letter dated 21^stMarch 2016 the Appellant’s Trade Union declined that appeal for stated reasons.

Discussion and Conclusions

Section 85A(1) of the Acts provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “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.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

• “…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.”

It is common case that at no time prior to his dismissal did the Appellant advise the Respondent that he suffered from prostate cancer or that he underwent surgery in respect of that illness on 15^thApril 2015. The Appellant contends that the phraseology utilised on his medical certification – “Prostatic problems proceeding to surgery” – should have been understood by the Respondent as meaning that the Appellant suffered from prostate cancer and consequently suffered from a disability within the meaning of the act.

The Act at section 2(1) defines disability as

“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;

The Respondent submitted in evidence that the Appellant attended a disciplinary meeting at the Respondent premises some weeks after the date upon which the Appellant submitted that he had undergone surgery. The Appellant submitted in evidence that he could not recall such a meeting. The Court prefers the evidence of the Respondent on this point and finds that the Appellant did attend at a meeting on the premises of the Respondent on 6^thMay 2015.

The Court accepts that at no time, at the meeting on 6^thMay 2015 or in communications thereafter, did the Appellant provide the Respondent with information from which the Respondent could conclude that the Appellant suffered from a disability within the meaning of the Act.

The Court therefore cannot conclude but that the dismissal of the Appellant by the Respondent on 28^thJuly 2015 was for the reasons stated. It is not for the Court in the within proceedings to evaluate the decision to dismiss the Appellant save to consider whether that decision was tainted by discrimination contrary to the Act.

The Court finds that the Appellant has not established the primary facts from which an inference of discrimination could be drawn. The Appellant has failed to establish a prima-facie case of discrimination contrary to the Act.

Determination

For the reasons outlined above the Court determines that the Respondent did not discriminate against the Appellant on grounds of disability in terms of the Act at Section 6(2).

The Court affirms the decision of the Adjudication/Equality Officer.

Signed on behalf of the Labour Court



Kevin Foley
JD______________________
7 November 2017Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.