Complainant

Respondent

Parties

Janos Kalman

Rosderra Irish Meats Group

Representatives

John Madden, BL                              

Jason Burke

John Brennan IBEC                          

Tony Delaney                                          

John Kelly                                              

Donal Monahan

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-00008202-001

16/11/2016

The complaint is that the complainant suffered discrimination on the grounds of disability, that reasonable accommodation was not offered and that he was subject of discriminatory dismissal.

The complainant was employed by the respondent from 28th June 2000 to 25th July 2016.   On 21st July 2016 he sustained an injury at work when a shoulder of meat fell on him. He suffered serious injuries which are the subject of personal injuries litigation. He told his colleague at the time, and left the line to attend his doctor. Thereafter the complainant was subject to a disciplinary meeting, the outcome of which was his dismissal. He submits that the reason for his dismissal was his injuries sustained in the accident on 21st July and that he was unaware that leaving the line in such circumstances would be deemed gross misconduct.   In the circumstances, it is submitted that the respondent was on notice of the complainant’s physical condition and disability. It is submitted that the respondent took the opportunity to dismiss the complainant from his post and that he was treated differently from other employees.   It is submitted that downtime is part and parcel of the daily routine and linked with that is that serious accidents do happen and that removing himself was an involuntary act. At no time was the complainant medically assessed by the respondent, consulted as regards to reasonable accommodation or given an opportunity to have input into the decision to terminate his employment.   Legal arguments submitted included case law and arguments under the definition of disability within the meaning of the Acts (Section 2 (1) of the Employment Equality Acts 1998 – 2011) and the issue of reasonable accommodation (Section 16).

The respondent denies the claim that it discriminated against the complainant on grounds of disability as alleged or at all.   In or around 7.45am on 21st July 2016, without authorisation, the complainant walked off the line where he was working. When an employee walks off the line, the whole line has to stop and resources have to be sought to fill in the absent function on the line. This has cost implications and the sanction of dismissal has been agreed with the trade union in cases involving “insubordination, including failure or refusal to perform work assigned”.                                 After he walked off the line the complainant was met by the HR Manager, the Supervisor and the complainant’s shop steward.     At that meeting, the complainant confirmed that

he walked off the line    

he did not seek authorisation

he understood the sanction for walking off the line was dismissal

the reason he walked off the line was that he wished to sleep off the affects of alcohol from the night before.

At no point did the complainant advise he was suffering from any alleged physical difficulty.                    On 25th July 2016 he was invited to a disciplinary meeting the outcome of which was his dismissal for gross misconduct.     He submitted a medical certificate and PIAB documentation. However, the medical cert was for a wrist injury related to a Road Traffic Accident in 2015.   His appeal against his dismissal was not upheld.

The respondent firmly rejects any assertion that the dismissal was in any way connected with any matter other than the fact that the complainant was guilty of gross misconduct in leaving his role on the line, without authorisation. It is the company’s position that the employee left his role as he wanted to go home and sleep off the affects of alcohol, which in itself is unacceptable.                         It is submitted that the complainant has supplied no evidence that establishes a prima facie case and that he is trying to retro fit a claim of discrimination in circumstances where he was found guilty of gross misconduct and his dismissal was fair and not discriminatory in any way.

Section 85A of the Act requires that the complainant establish facts from which it may be presumed that he has been discriminated against by his employer.   I note that the complainant in this case was dismissed for reason of gross misconduct for walking off the production line.   I accept the evidence submitted by the respondent as to the reasons advanced by the complainant at the time. I also accept the cogent evidence from the respondent’s side from those with some significant knowledge of the layout of the production line.   I note the complainant attended his doctor the day following the alleged incident. He submitted a medical certificate which certified him unfit for work for two days.   It is a matter for the complainant to establish the required facts from which it may be presumed that he was discriminated against and in this case he has failed to do so. The complainant has failed to establish a prima facie case and his complaint fails.