Complainant

Respondent

Anonymised Parties

A Senior Technician

An Employer

Act

Complaint Reference No.

Date of Receipt

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

CA-00018270-001

03/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018270-002

03/04/2018

The complainant commenced work with the respondent on April 23rd 2013 and his employment terminated on August 11th 2017.

He was paid a gross wage of €672.80.

The complaint under the Unfair Dismissals Act was withdrawn at the hearing.

On June 26th 2017 the complainant felt unwell and told his employer that he was experiencing chest pain and may have been having a heart attack.

The respondent was indifferent and told him to continue working.

He did so and essentially managed the business for that day.

The following day he continued to feel unwell and attempted to contact his employer to let him know he was not fit to attend for work.

Later that day, following the intervention of a friend who called to his home, observed his distressed state and called an ambulance, he was admitted to hospital and it was confirmed that he had, in fact suffered a heart attack.

He was visited in hospital by his employer who told him not to worry and that his job was secure.

On July 28th he was served with notice of redundancy which expired on August 11th.

There were five other employees in the business but he was the only one made redundant. His position was replaced in due course.

This was clearly an unfair dismissal ‘under the cloak of redundancy’ and the case falls to be dealt with under the equality legislation as it was done as a result of his disability. There had been no prior mention of the possibility of redundancy.

A preliminary issue arises about whether the complaint was made within the statutory time limits.

The complaint was lodged on April 3rd 2018, some eight months after the event.

The complainant was seriously ill. He had stints inserted and was required to undergo an intensive rehabilitation after having been hospitalised and this continued until January 2018. Medical certification was furnished to the effect that the complainant was ‘medically unfit to contemplate any form of litigation’ and that he had not been ‘in a fit state of mind due to emotional upset and anxiety to contemplate proceedings in the 6-7 months following his heart attack.

Submissions were made on the definition of disability contained in Section 2 of the Act, the relevant sections of which state;

(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,

And later at (c)

The malfunction, malformation or disfigurement of a part of a person’s body,

And later again at (e)

A condition, illness or disease which affects a person’s thought processes, perception of reality or emptions or judgement or which results in disturbed behaviour.

Section 8 (1) (b) of the Act renders discrimination in relation to ‘conditions of employment’.

The respondent also failed to take ‘appropriate measures’ to facilitate the complainant’s return to and attendance at work.

The respondent did not attend the hearing.

I am satisfied that the respondent had been properly notified of the hearing and engaged in correspondence with the WRC in relation to the complaint on a number of occasions, September 28th , nominating a representative October 3rd , taking the representative off record and seeking a postponement, (which was refused), October 5th re changes in the company ownership and advising that it had ceased trading.

There was final correspondence from a representative on October 17th following the hearing advising that the company had ceased trading on August 11th 2017.

Where a respondent decides for any reason not to attend an adjudication hearing, and where no reasonable explanation is provided for their failure to do so, this will not prevent a hearing proceeding and a decision issuing. To do otherwise, in the case where a respondent decides not to attend would be to hand them a veto over a complainant’s right to a hearing of their complaint.

This would be intolerable.

In this case, any submission the respondent wished to make would have been heard had he attended. It appears that he took unto himself the right to decide that his attendance was not necessary and in so doing deprived himself of the right of a hearing.

Turning to the application for the extension of time the complainant relied on Cementation Skanska v Tom Carroll WTC/03/02

In that case the following appears;

It is noted that the standard required by this subsection is that of “reasonable cause”. This may be contrasted with the much higher standard of “exceptional circumstances preventing the making of the claim” which is provided for in other employment related statutes. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case. It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.

In summary the explanation proffered must both ‘explain and excuse’. Despite the change from ‘exceptional circumstances’ to what is seen as a lower standard the requirements of the definition above remain rigorous and are often difficult to meet in practice.

In reviewing the facts in this case, I find that the complainant comfortably meets both criteria. The medical opinion was that the complainant was;

‘medically unfit to contemplate any form of litigation’ and that he had not been ‘in a fit state of mind due to emotional upset and anxiety to contemplate proceedings in the 6-7 months following his heart attack.’

His own direct evidence at the hearing was also impressive. The complainant was undergoing recovery and rehabilitation for the period at least until the end of the year.

Accordingly, I find that the complaint was made within the time limits and is within jurisdiction.

As noted above the complaint under the Unfair Dismissal Act was withdrawn and the only matter to be decided is the termination of the complainant’s employment on the disability ground.

I find that the complainant was suffering from a disability at the time of the dismissal as referred to in the complainant’s submission and defined in the Employment Equality Act.

Consider the sequence of events; it is not difficult to summarise them.

The complainant is admitted to hospital on June 28th. At some stage after that (the complainant could not recall when exactly) he is visited by his employer to be reassured that his job is ‘secure’.

Shortly after that again he is told on July 28th that he is to be made redundant.

At no stage in the intervening period (nor indeed prior to the complainant becoming ill) was there any reference to the possibility of redundancy, nor was there any discussions of the options normally associated with redundancy; selection processes, alternatives etc.

No redundancy payment was made to him and it appears that here were no other redundancies.

There is no credible alternative explanation for this other than that the respondent decided in view of the complainant’s illness, and likely extended rehabilitation process to terminate his employment. It was a particularly insensitive act in the circumstances.

It is of course permitted to fairly terminate employment on the basis of ‘capacity’; but not after the passage of a mere few weeks, or without a proper and fair procedure, and not under the ‘cloak of redundancy’.

There have been various references above to dismissal ‘under the cloak of redundancy, the origin of which is in the case of JVC Europe v Jerome Panisi (2011 IEHC 279), where the following appears per Charlton J.;

“redundancy cannot be used as a cloak for weeding out those who are regarded as less competent than others ... if that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”

Of course, the reference to competence can and must be construed to refer to any pretext other than those clearly provided for in the Redundancy Payments Act.

I find for the complainant. The termination of his employment was a discriminatory dismissal.

I uphold complaint CA-00018270-001 and award the complainant €35.000.00.

Complaint CA-00018270-002 was withdrawn at the hearing and is dismissed.

Discrimination, dismissal, disability.