Complainant

Respondent

Anonymised Parties

An employee

A Transport Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008162-001

11/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008162-002

11/11/2016

The Complainant contends that the Respondent discriminated against him by dismissing him for discriminatory reasons (discriminatory dismissal) and by dismissing him because he opposed discrimination (victimisation). He further contends that he did not receive his entitlement to statutory notice when his employment ended.

The Complainant was employed as a Gate Keeper from 4^th November 2004 to 11^th October 2016.     He was diagnosed as suffering with epilepsy in 1997. The prescribed medication he takes has controlled the symptoms of his condition to such a degree that he has not suffered an epileptic fit since 2001. When he commenced employment, he did not declare that he had a pre-existing disability. In January 2015 he was certified as unfit to work related to a health matter unrelated to his disability. During that absence he advised the Medical Officer of his condition and the medication he was taking. He was declared fit to resume work by his own medical practitioner.     However, he was not allowed to return by the company.   This resulted in a complaint issued by him to the Workplace Relations Commission under the Employment Equality Acts. A decision was issued on 22^nd July 2016 in which the Adjudication Officer stated that the Complainant should be returned to the payroll for a period of six months during which the Respondent should engage in meaningful discussion with the Complainant and his Trade Union Representatives in an effort to arrive at a reasonable resolution.   The Complainant was also awarded compensation.                                        The Respondent lodged an appeal of the Adjudication Officer’s decision with the Labour Court on 9^th August 2016. However in advance of the appeal being heard by the Labour Court the Company confirmed by way of letter dated 6^th October 2016 that he was to be retired from his position with effect from 11^th October 2016 on medical grounds. In other words the Complainant was being dismissed from the employment of the Respondent on the grounds of incapacity due to his disability. It is argued that the Complainant put the Respondent on notice of his disability in January 2015. He lodged a complaint of discriminatory treatment in January 2016 relating to reasonable accommodation for his disability. Having had his complaint upheld, the Complainant’s employment was then terminated by the Respondent.   Taking these facts into consideration it is contended that the burden of proof has been met by the Complainant and it is for the Respondent to discharge the shifted burden. It is further suggested that in order to establish that the Complainant’s dismissal did not contravene the protections afforded by the Employment Equality Acts that there existed an absolutely compelling reason to terminate the Complainant’s employment other than the obvious reason of blatantly undermining and frustrating the Adjudication Officer’s decision in advance of their own appeal being heard.

It is further contended that the circumstances of the Complainant’s dismissal arose as a direct consequence of him opposing discriminatory treatment.   The Labour Court in EDA 1017 Department of Defence and Tom Barratt set out the criteria that must be met in order to be successful in a complaint of victimisation under the Acts.

In applying the criteria, it is contended that the Respondent’s decision to dismiss fully meets the definition of victimisation. The employer pre-empted the outcome of their own appeal. It is argued that there was no impediment to the employer awaiting the outcome of their appeal before making any definite decision in relation to the Complainant’s employment. They took unilateral action that equates to victimisation.

In relation to the claim for minimum notice, at the time of his dismissal, the Complainant had 12 years’ service with the employer which entitled him to 6 weeks’ notice or payment in lieu thereof. He was given notice of his impending dismissal by way of letter dated 6^th October 2016 and the effective date of dismissal was 11^th October 2016. It is contended therefore that his entitlements under the provisions of the legislation were not afforded to him.

The Complainant was employed as a Crossing Keeper, which is one of the most safety critical roles in the Company.       He had a previous referral to an Adjudication Officer which was overturned by the Labour Court.   (EDA1716).   The background to this claim and the one determined by the Labour Court is as follows:   The Complainant was employed as a Temporary Crossing Keeper in 2004.   Prior to his employment he filled out a form for pre-employment medical and indicates on it that he does not suffer from epilepsy nor has he suffered an epileptic fit. In 2009 the Complainant’s employment is regularised and again he filled out the form stating that he does not suffer from epilepsy nor has he had an epileptic fit.   In 2015 due to the Complainant’s absence from work for medical reasons he was called to see the Chief Medical Officer (CMO). In the course of that examination the Complainant outlined the medication he was taking and admitted that he has had epileptic fits and was taking medication to prevent such episodes.   He was immediately taken down from his safety critical role. The CMO outlined the prohibition on people suffering from epilepsy (copy of memo dated 7 June 2016 submitted).   An extensive trawl was conducted to try and find a suitable alternative non safety critical role for the Complainant. This trawl continued over a long period of time and included an assessment for a Clerical role for which the Complainant did not reach the required standard.   During the course of this trawl the Complainant referred his first complaint for adjudication.   Ultimately in August 2016 when no position was found for him, the CMO took the decision to retire the Complainant on ill health.

It is submitted that no discrimination occurred, the Complainant was dealt with purely on his ability to carry out his role and on his ability to carry out alternative duties during the trawl to identify such duties. It is further argued that the Complainant was not dismissed but was retired on ill health in line with the relevant Agreements with the Unions.   It is submitted that the Company did not discriminate against the Complainant and that the Labour Court back this in their findings.   The Complainant lied on two occasions in relation to his disability. It is submitted that when it suited him he denied he had such a disability and now he wants to use his disability to force inappropriate financial compensation from the Company.  

In relation to the claim for minimum notice, it is argued that as the matter was a retirement the provisions of the Minimum Notice & Terms of Employment Act 1973 do not apply. Notwithstanding, it is submitted that the Complainant was given notice of his retirement on ill health when he engaged with the Medical Department on 19^th August 2016. This was in excess of seven weeks notice.

The Respondent has argued that as the termination of the Complainant’s employment constituted a retirement on the grounds of ill health and was in accordance with the relevant trade union agreements, the Complainant was not dismissed.   In addressing this I find that the definition of dismissal contained in the Unfair Dismissals Act 1977 is as follows:

“ “dismissal” in relation to an employee means –

(a)   the termination by his employer of the employee’s contract of employment with the employer whether prior notice of the termination was or was not given to the employee”.

The Complainant did not voluntarily leave his job and his wish to remain in the employment was not granted. I find that the Respondent terminated the Complainant’s employment and he is entitled to have his present claims under the Employment Equality Acts 1998 – 2015 and the Minimum Notice & Terms of Employment Act 1973 heard.

CA-00008162-001 Employment Equality Acts

There are two claims under this complaint reference:

1. The Complainant contends that he was dismissed as a direct result of his disability and as such this constitutes a discriminatory dismissal (Section 8 (6) (c) of the Acts). It is common case, and I am satisfied that the Complainant’s condition is a disability within the meaning of the Acts.   The Complainant was dismissed from his employment for reasons connected with his capacity to perform the job due to his disability. Therefore, he has established a prima facie case of discriminatory dismissal. The Respondent argues that no discrimination occurred, the Complainant was dealt with purely on his ability to carry out his role and on his ability to carry out alternative duties during the trawl to identify such duties. The Labour Court in EED037 Humphreys v Westwood Fitness Club set out the test which should be applied by an employer if they have formed a bona fide belief that the Complainant is no longer able to perform the duties for which they are employed. The three tier test involves:

-          the employer must be in possession of all the facts

-          the employer should consider what special treatment or facilities may be available to facilitate the employee becoming fully capable (‘reasonable accommodation’)

-          the employee must be allowed to fully participate and present relevant   medical evidence and submissions.

As contained in the evidence, the Complainant in this instant case submitted a   complaint that the Respondent failed to provide him with ‘reasonable accommodation’.  This complaint was heard by an Adjudication Officer and subsequently appealed by the Respondent to the Labour Court.   In EDA1716, the Labour Court found that no accommodation for the Complainant’s disability would render him capable of undertaking the work for which he was employed or any other safety critical role in the Respondent Company and accordingly “the Respondent can avail of the defence of section 16 (1) (b) of the Act”.

16 (1) (b) provides:

“Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual –

(b)   is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be performed”.

In EDA1716, the Court further found that it is a misconception to imply that “a bona fide attempt to source alternative employment must produce a successful outcome”.

In this instant case, I note the findings of the Labour Court regarding ‘reasonable accommodation’ and the findings of the Court in relation to the documentary evidence that the Respondent made a bona fide effort to source alternative employment in a non safety critical role for the Complainant.  

In summary, the Court found that (a) the Respondent could rely on section 16 (1) (b) of the Act, and (b) that a bona fide attempt by the Respondent to provide alternative employment was made and the Respondent did not discriminate against the Complainant.

In this instant case I find that no further evidence was presented to me to find that the Respondent discriminated against the Complainant in the termination of his employment.   I find that the Respondent did not discriminate against the Complainant on the disability grounds pursuant to section 6 (2) (g) of the Acts and contrary to section 8 (6) of the Acts.

2. The Complainant further contends that by his dismissal he was victimised by the Respondent for making a complaint of discrimination (Section 74 (2) of the Acts).

Section 74 (2) provides:

“(2)For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a)   A complaint of discrimination made by the employee to the employer,

(b)   Any proceedings by a complainant

(c)    An employee having represented or otherwise supported a complainant,

(d)   The work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e)    An employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f)     An employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or

(g)   An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In EDA1017 Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under section 74 (2) of the Acts to be made out.   The Court stated that

1. The Complainant must have taken action of a type referred to at paragraphs (a) to (g) of section 74 (2) – a “protected act”,
2. The Complainant must be subjected to adverse treatment by his/her employer and
3. The adverse treatment must be in reaction to the protected act having been taken by the Complainant.

In considering the evidence in this instant case, I note the chronology of events as follows:

(a)    The Adjudication Officer’s decision (Adj-00001672) which found in the Complainant’s favour issued on 22^nd July 2016.

(b)   The Respondent lodged an appeal to the Labour Court on 9^th August 2016.

(c)    The Respondent referred the Complainant to the Company Medical Section for an appointment which took place on 19^th August 2016.

(d)   The Complainant’s employment terminated on 11^th October 2016.

(e)   The Labour Court Determination (No. EDA1716) issued on 6^th June 2017.

I note there was a protracted period where the Respondent made attempts to secure alternative duties for the Complainant. It would appear that the Respondent lodged the appeal to the Labour Court and then immediately referred the Complainant to Medical section which ultimately ended in the termination of the Complainant’s employment.   I conclude that the Respondent moved to finalise the Complainant’s employment situation in circumstances where the outcome of the appeal was not known, and I find that the Respondent pre-empted the situation.   I therefore find there was a causal connection between the Complainant taking a protected act and the Complainant being subject to adverse treatment.   I find that the Respondent victimised the Complainant in terms of section 74 (2) of the Acts in terms of his dismissal.   In accordance with section 82 of the Acts, I order the respondent to pay to the Complainant the sum of €16,640 compensation which equates to 26 weeks pay in respect of the victimisation.                                                                                                                                                            

CA-00008162-002   Minimum Notice & Terms of Employment Act 1973

The Respondent argues that as the matter was a retirement the provisions of the Minimum Notice & Terms of Employment Act 1973 do not apply. I find that the terms and provisions of the Act do not provide for exclusion of retirements.

It was further submitted that the Complainant was given notice of his retirement on ill health when he engaged with the Medical Department on 19^th August 2016.   This was in excess of seven weeks notice.   I note the written notice of the termination was dated 6^th October 2016. This period of notice does not comply with the responsibilities of the Respondent.     I uphold the complaint and require the Respondent to pay to the Complainant the sum of €3,840 being the statutory entitlement of six weeks pay in lieu of notice.