FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : ST MARGARET'S RECYCLING & TRANSFER CENTRE LIMITED (REPRESENTED BY ADARE HUMAN RESOURCE MANAGEMENT) - AND - RYSZARD SMOKTUNOWICZ (REPRESENTED BY HOBAN BOINO, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Hall |
1. An appeal of an Adjudication Officer's Decision no. DEC-E2016-098/MMcE.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 11 July 2016. A Labour Court hearing took place on the 7 March 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Ryszard Smoktunowicz against the Decision of an Adjudication Officer/Equality Officer DEC-E2016-098/MMcE under the Employment Equality Acts 1998 – 2011(the Acts) in a claim alleging discriminatory dismissal on the disability ground by his former employer St Margaret’s Recycling & Transfer Centre Limited. He also submitted a claim alleging discrimination on the race grounds. The Adjudication Officer/Equality Officer held that (i) the Complainant had failed to establish that he had a disability within the meaning of the Acts and (ii) in relation to discrimination on the race ground he held that here was not sufficientprima facieevidence to support the claim. The latter claim was formally withdrawn. The Complainant appealed against the Adjudication Officer/Equality Officer decision.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Ryszard Smoktunowicz will be referred to as “the Complainant” and St Margaret’s Recycling & Transfer Centre Limited, will be referred to as “the Respondent”.
The Complainant referred a complaint under the Acts to the Director General of the Equality Tribunal on 19thMarch 2015. The Adjudication Officer/Equality Officer issued his Decision on 7thJuly 2016. On 11thJuly 2016, the Complainant appealed the Adjudication Officer’s Decision. The appeal came before the Court on 7thMarch 2018.
Background
The Complainant was employed by the Respondent from 28thJanuary 2014 as a General Operative. He claimed that he was injured at work on 14thOctober 2014 and as a result had to leave the workplace that day and attend a GP. He submitted a medical certificate with an expiry date of 28thOctober 2014, indicating that he was suffering from “back pain lower back”. The Respondent furnished the Complainant with a P45 on 25thNovember 2014.
Summary of the Complainant’s Case
Mr Krystian Boino Solicitor, Hoban Bonino Solicitors, on behalf of the Complainant submitted that the Complainant was suffering from a disability at the material time and his dismissal was on the ground of his disability. He contended that the Complainant’s disability came within the definition of Section 2 (c) of the Acts:-
- Section 2 (c)the malfunction, malformation or disfigurement of a part of a person’s body.
Mr Boino stated that the Complainant submitted a medical certificate and a Social Welfare Illness/Injury Benefit Form on 15thOctober 2014, following an accident at work the previous day. These were furnished to the Respondent. The medical certificate indicated that he was suffering from lower back pain and the Respondent signed the Social Welfare Form. The Complainant obtained two further medical certificates which extended his sick leave for a further four weeks, he said that these were delivered to the Respondent. Mr Boino said that the Respondent refused to accept these documents, claiming that he did not work for them any longer.
Mr Boino referred to a medical report dated 28thOctober 2015 from the Complainant’s GP which stated that the Complainant had incurred an accident at work in an alternative employment on 17thAugust 2013 during which he sustained a number of injuries. In this report the GP stated that the Complainant’s injuries indicated on an x-ray carried out on 17thOctober 2014 showed that he had L4/5 disc space reduction and possible C5/6 disc space reduction minor thoracic scoliosis concave to the right. The Report stated that he was absent from work from 14thOctober 2014 until 28thMarch 2015.
Mr Boino submitted that the Respondent could not rely on the premise that it was not aware of the Complainant’s medical condition. He said it was irrelevant that the Respondent had no evidence or communication of any disability or injuries on the basis that it made no enquiries of the Complainant’s medical condition. He submitted that when the injuries or disability occurred was of no relevance and the only relevant matter was that the Respondent dismissed the Complainant due to his disability. He said that it was clear that the disability did exist at the time of the dismissal, regardless of which occasion created the disability.
With reference to the issue of notification of the Complainant’s disability, Mr Boino said the Complainant’s medical condition was confirmed by medical certificate from his GP and the Respondent chose not to investigate the matter further and even refused to accept further medical certificates. He contended that the signing of the Social Welfare Form highlighted the fact of the existence of an injury.
Mr Boino contended that the Respondent failed to carry out any investigation or make any enquiries to verify the existence of any injury or to determine whether or not the Complainant was unfit to perform his duties.
In support of his position, Mr Boino cited the case ofDonatellos Restaurant v A Worker[2005] 16 ELR 28 where the Court held as follows:-
- “An employer should ensure that an employee is given fair notice that the question of his or her dismissal for incompetence/incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision. No such provision was afforded in this case.”
He also citedNiamh Humphries v Westwood Fitness Club[2004] 15 E.L.R. 296where the Court held that the employer is“required to make adequate enquiries so as to establish fully the factual position in relation to employees’ capacity”
Mr Boino referred to the Labour Court case ofA Government Department v. A WorkerDeterminationEDA094,where the Court set out an analysis of the definition of "disability". It stated as follows:
- It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it:-
- “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”
It is now well settled that where a term used in a statute is defined by the statute itself a Court cannot look outside that definition in construing that term. As this Court stated inGemma Leydon Customer Perceptions Ltd,Determination EED0317 and again inA Worker v A Government Department17 ELR 225: -
It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a court may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. (See the decision of the Supreme Court in Mason v Levy [1952] I.R. 40.)”
He also referred to the Labour Court case ofGemma Leydon v Customer Perceptions Ltd,Determination EED0317, where this Court considered the question raised by the respondent that because the complainant’s condition was temporary in nature and relatively minor in terms of its debilitating effect, it could not be regarded as a disability. The Court referred to the view that the disability provisions in the Irish statute appear to be modelled on the Australian Disability Discrimination Act 1992. The Court concluded as follows:-
- “Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act. Moreover, in providing that the term comprehends a disability which existed but no longer exists, it is clear that a temporary malfunction comes within the statutory definition.”
Summary of the Respondent’s Position
Ms Sarah Fagan, Adare Human Resource Management, on behalf of the Respondent, denied the allegation that he was discriminatorily dismissed. She stated that the Complainant was not dismissed by the Respondent and submitted that he had voluntarily left his employment of his own accord.
Ms Fagan said that on 14thOctober 2014 the Managing Director, Mr M called the Complainant into his office to discuss his recent absenteeism and unreliability. At this meeting the Complainant was issued with a verbal warning for absenteeism due to intoxication, this was confirmed in writing. The Respondent says that having received this warning the Complainant promptly left the company’s site without notice, authorisation or any explanation as to why he was leaving. Ms Fagan said that this seriously impacted the Respondent’s operations for the rest of the day causing major disruption. The following day, 15thOctober 2014 Mr M was asked by the Complainant to complete a Social Welfare Illness/Injury Benefit medical certificate which stated that he was unfit for work due to back pain. The certificate made no reference to his condition being the result of a workplace injury. She said that this fact combined with the fact that no one told the Respondent that an accident had occurred led Mr M to signing the “Employment Details” of the Form in good faith.
Ms Fagan said that the Complainant did not turn up for work after 28thOctober 2014 and accordingly the Respondent issued him with a P45 on 25thNovember 2014. In July 2015, following a query in relation to his annual leave, a letter was sent by the Respondent to the Complainant stating that he had left the Company without notice and paid him his outstanding annual leave.
Ms Fagan stated that at no time during his employment was the Respondent informed that the Complainant had a disability, nor was there any collaborated evidence of any disability produced by him to suggest that it needed to investigate matters. The Complainant did not advise the Respondent on 14thOctober 2014 that he had had an accident at work that morning, despite the Complainant being called into a disciplinary meeting that day. He did not advise management that he intended to go to his GP that day. He did not report the occurrence of an alleged accident in line with the Respondent’s procedures, nor did his witness, Mr N, report any such incident. Furthermore, she submitted that there was no collaborated evidence of a disability as defined by the Acts.
Ms Fagan submitted that the medical report dated 28thOctober 2015 was produced as part of a Personal Injury Insurance claim and reliance on this report could not be taken as confirmation that the Respondent had knowledge of the alleged incident on 14thOctober 2014 or that a disability even existed. She submitted that the Complainant had not established facts from which an allegation of discrimination had occurred and in any event, there was no dismissal.
Evidence
The Complainant’s Evidence
The Complainant told the Court that on 14thOctober 2014, he sustained an accident at work. He said that when he was called to meet with the Managing Director, Mr M he told him that he had hurt his back and showed him his bruises. He said that Mr M was not interested and spoke to him about his absences which had occurred weeks earlier and asked him to sign a paper. The witness said that he went to his doctor the following day and received a certificate stating that he had back pain. The doctor referred him for an x-ray and certified him unfit for work for two weeks. He said that on 15thOctober 2014 he handed the doctor’s medical cert to Ms M in the office, and she gave it to Mr M. He said that Mr M asked him what was wrong with him and he told him that he had a problem with his back.
The witness said that he next visited the company on 28thOctober 2014 and handed in another medical cert. He said that Mr M just laughed and said to him, you don’t work here anymore. He said that the purpose of his next visit was to have his private insurance claims form stamped. He said that they were signed but not stamped. On each occasion he visited the premises he was driven by his colleague Mr K.
The Complainant said that in late November 2014 he received his P45.
The Complainant told the Court that he was absent for six months from 14thOctober 2014.
Mr K’s Evidence
Mr K gave evidence on behalf of the Complainant. He said that he drove the Complainant to the company’s premises on 15thand 28thOctober 2014. He said that there may have been another date in October but he could not be sure. He said that he had also driven him to his GP. He said that on each occasion he sat in the car and waited for him.
Mr M. Managing Director
Mr M gave evidence on behalf of the Respondent. He said that on 14thOctober 2014, he spoke to Ms M about the Complainant’s absenteeism record which he was concerned about and was anxious to fill out the appropriate paperwork. He called the Complainant into a meeting and issued him with a verbal warning which was recorded for which the Complainant signed.
The witness was asked if the Complainant mentioned his back problem at this meeting, the witness said no that he had not, he had made no mention of having had an accident that day and no mention of going to his GP. He said that on 15thOctober 2014, the Complainant reported on site and asked him to complete a Social Welfare Form, which he duly did. When asked why he filled out the form, Mr M said that he did not want to deprive an employee of a social welfare benefit and had simply signed the Form in good faith.
The witness said that other than the Social Welfare Form, he was never supplied with medical certs from the Complainant. He said that on 14thOctober 2014, the Complainant left the premises without permission and without mentioning it to anyone that he was leaving.
Mr M said that he did not dismiss the Complainant, he said that he took it that the Complainant had left his employment of his own accord as he surmised from his demeanour that he was upset at receiving a disciplinary warning.
In cross-examination the witness said that he had had no communication from the Complainant after 15thOctober 2014 nor had he made any enquiries of his health. He said that he was not aware of any injuries sustained by the Complainant nor that he incurred an accident on 14thOctober 2014 until he received details of a Personal Injury claim from the Complainant’s solicitors at a later point.
Ms M’s Evidence
Ms M gave evidence on behalf of the Respondent. She said that Mr M requested her to call the Complainant in to the office as he wanted to have a meeting with him. She said that following the meeting the Complainant left the site. She said that on 15thOctober 2015 the Complainant arrived at the office with a Social Welfare Form and sought to have it signed. She said that a couple of days later a medical certificate was handed in by a colleague of the Complainant’s. No further certs were submitted. She said that on 24thOctober 2014 the Complainant came to the site and walked around. He requested payslips but did not furnish any further medical certs.
Burden of proof
In every case under the Acts the Court must first consider the allocation of the burden of proof as between the parties. Where aprima faciecase is made out the onus shifts to the Respondent to prove the absence of discrimination. On the established test, it is for the Complainant in the first instance to establish the primary facts upon which the complaint is based. If the primary facts are proved, it is then a matter for the Court to determine if they are of sufficient significance to raise an inference of discrimination on the grounds relied upon. If having thus established aprima faciecase of discrimination, the burden of proof rests with the Respondent to demonstrate that the dismissal was not on the grounds of disability.
Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. InA Worker v A Hotel[2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -
- The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board [2001] E.L.R. 201.That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
In that case the Court went on to hold: -
- The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court inKieran McCarthy v Cork City CouncilLabour Court Determination EDA082 (December 16, 2008)).
There is, however, authority for the proposition that the mere coincidence of a protected characteristic on the part of the Complainant (in this case a disability) and the detriment relied upon (in this case dismissal) is insufficient, in and of itself, to shift the probative burden. The High Court so held (per O’Sullivan J) inMulcahy v Minister for Justice Equality and Law Reform and v Waterford Leader Partnership Limited[2002] ELR 12. A similar approach was adopted by the Court of Appeal for England and Wales inMadarassy v Nomura International plc[2007] IRLR 256.
Moreover, as was pointed out by Rimer LJ inGallop v Newport City Council[2013] EWCA Civ 1583, before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person. The knowledge need not be of a diagnosed condition or disorder constituting a disability within the statutory meaning but to material facts which could reasonably indicate the existence of such a condition or disorder.
While a respondent’s knowledge of a disability goes to the question of causation, the existence of a disability can operate as a threshold orlocus standiissue. That arises because, except in cases of associative or imputed disability, a cause of action for discrimination on grounds of disability can only accrue to a person whose circumstances come within the meaning ascribed to that term by section 2(1) of the Acts.
InHK Danmark v Dansk Almennyttigt C-335/J3&C337/1;the CJEU was called upon to provide guidance on how the concept of disability is to be distinguished from that of sickness. It was therefore necessary to clarify the practical application of its earlier decision inCase C-13/05 Chacon NavasvEurest Colectividades SA [2006] ECR I-6467wherethe Court ruled that Directive2000178/ECdoes not apply to sickness, with the consequence that a worker who is dismissed because of illness does not come within the protection which that Directive provides, nor is a worker who suffers from illness (as opposed to disability) entitled to reasonable accommodation so as to ameliorate the effects of their condition.
However, 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".
In this case there is substantial disagreement between the parties on the question of whether or not the Complainant suffered from a disability.
Issues Arising
There are two questions which arise for determination in this case. There is firstly the question of whether the Complainant was dismissed by the Respondent. This is denied by the Respondent.
If the answer to that question is in the affirmative the second question to be addressed is whether the Complainant was dismissed due to his disability.
Dismissal
In his evidence to the Court the Complainant said that when he attempted to furnish the Complainant with further medical certs after the initial cert that the Respondent told him that he did not work for it anymore. The Court notes that the P45 issued on 25thNovember 2014 states that his employment ceased on 14thOctober 2014. Mr M told the Court that it made no attempt to contact the Complainant up to the time it sent him his P45 in November 2014 and was not aware of/took no notice of medical certs. The Court is satisfied that the Complainant was dismissed by the furnishing of the P45 on 25thNovember 2014, without any procedures. This dismissal may well amount to an unfair dismissal but that is not the issue in this case.
The Court fully accepts that the fact in issue in this case is whether the Complainant was discriminated against on grounds of his disability and not whether he was unfairly dismissed per se.
Disability.
The Respondent contended that in the period October/November 2014 the Complainant proffered no evidence to suggest that he was suffering from a disability within the statutory meaning.
The Complainant contends that his dismissal arose due to his disability. He contended that the low back pain he was suffering from was a disability within the meaning of Section 6 of the Act. He said that this arose from an accident he alleged occurred at work on 14thOctober 2014.
Mr Boino relied upon the GP’s medical certificates, the Social Welfare Illness/Injury Benefit Form and the GP’s report dated 25thOctober 2015 to ground his assertion that the Complainant was suffering from a disability within the meaning of the Acts. These stated that the Complainant was suffering from low back pain. He relied upon the assertion that the Respondent was informed by the Complainant had suffered such an injury and consequently there was an onus on the Respondent to conduct further investigation into his medical condition. This was denied by the Respondent.
In order to establish aprima faciecase of discrimination, the Complainant must firstly have satisfied the Court that he had a disability at a time material to his claim and secondly, he must prove that the Respondent was on notice that he had a disability.
The Law
Section 2 of the 1998 Act states that "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;.
This is a broad definition which can encompass any injury or illness whether it is temporary or permanent, curable or incurable. However, it is to be assumed that the Oireachtas did not intend that every injury no matter how minor, nor every short-term illness that may inevitably occur in the course of normal living, can be classified as a disability. It is a question of degree, and in particular the extent to which the condition may hinder the full and effective participation of the person concerned in professional or working life on an equal basis with other workers.
Was the Complainant a person with a disability at the material time?
The Respondent denied any actual or constructive knowledge of the disability relied upon. In these circumstances, it is for the Complainant to adduce evidence showing that he was a person with a disability at the time material to his claim. He must also proffer some evidence to establish, in aprima facieway at least, that the Respondent knew or ought to have known that he was such a person.
Having examined the submissions made by both parties and the witness testimony, the Court notes that the medical certificate and the Social Welfare Illness/Injury Benefit Form relied upon referred to lower back pain without giving any further clarification or details. The only reference to the extent of and reasons for that back pain were given in a report from the Complainant’s GP dated 28thOctober 2015. This report was furnished one year later for the purposes of a personal injury claim and was not known to the Respondent in October/November 2014. At the material time, other than symptoms of lower back pain, there was no evidence furnished to the Court to support the contention that he was suffering from a disability within the meaning of Section 6 (2) of the Acts.
Constructive notice arises where a person is under a duty to make enquires which, if made, would have revealed the knowledge that he claims not to have had. InSomers v W[1979] IR 94 Henchy J aptly described the concept as follows: -
- When the facts at his command beckoned him to look and inquire further, and he refrained from doing so, equity fixed him with constructive notice of what he would have ascertained if he had pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances.
The Respondent stated that he was not made aware at the material time that the Complainant had had an injury at work in October 2014. The only evidence that such an accident occurred was the Complainant’s own testimony. The Court was faced with a direct conflict of evidence on this point. Both the medical certificate and the Social Welfare Form put in evidence merely recorded that the Complainant had back pain symptoms, without disclosing any further details. Had the Respondent been aware that the Complainant had suffered an injury on 14thOctober 2014, which gave rise to a diagnosis of lower back pain, then it could be deemed that the Respondent had a responsibility to make further enquiries. There was a total conflict of evidence on this question which the Court has not been able to reconcile. The Respondent stated that the meeting on 14thOctober 2014 was for the purpose of issuing the Complainant with a verbal warning for his previous absences, whereas the Complainant stated that at that meeting he informed the Respondent that he had had an accident earlier that morning. However, it is clear that the Complainant did not complete an accident report form as per company procedures, the one medial certificate dated 15thOctober 2014 furnished to the Court and the Social Welfare Form makes no mention of an accident at work. The section of that Form which asks if there was an accident at work is answered “No” and the Complainant made no issue of that. In such circumstances the Court is not satisfied that the doctrine of constructive notice should apply.
While the report produced for the purposes of a personal injury claim in October 2015, one year later, gave precise details of the injury to his back this evidence was not proffered by the Complainant at the material time. In all the circumstances the Court finds that the Complainant has failed to establish facts from which discrimination can be inferred.
Conclusion
Having regard to the fact that the onus is on the Complainant, the Court is not satisfied that he has established facts to indicate that he was suffering from a disability at any material time to this claim. Furthermore, on the evidence, the Court does not accept that the Respondent could have had constructive knowledge to indicate that he was suffering from an injury that amounted to such a disability.
In these circumstances, by application of the established test, the Court finds that the onus of proving the absence of discrimination does not shift to the Respondent.
Determination
For the reasons set out herein the Court finds that the Complainant has failed to establish facts from which discrimination on the disability ground could be inferred. Accordingly, his claim cannot succeed.
The Complainant’s appeal is disallowed and the decision of the Adjudication Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
23rd March, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.