Complainant

Respondent

Anonymised Parties

An Operative

A Monument Firm

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012815-001

27/07/2017

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

CA-00012815-002

27/07/2017

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

CA-00012815-003

27/07/2017

This case involves a claim of Discrimination on Grounds of Disability between an Operative and a Monuments Company.

1:1       CA- 00012815-001   Terms and conditions of Employment case

The Complainant alleged that he had not received a written Contract or Terms and Conditions of Employment.

1:2         CA- 00012815-002     Minimum Notice case.

The Complainant alleged that he had not received his statutory legal notice on his termination.  

2:3       CA- 00012815-003     Employment Equality case

The Complainant alleged that he had been discriminated against on the grounds of Disability and in oral evidence failure to offer reasonable accommodation. He had been removed from his employment with no notice and no procedures of any nature. Natural Justice had been completely denied to him.

2:1       CA- 00012815-001   Terms and conditions of Employment case

The Respondent acknowledged that no contract had ever been issued.

2:2         CA- 00012815-002     Minimum Notice case.

The Respondent maintained that the Complainant had resigned -had effectively walked away from the job and no notice is warranted.

2:3       CA- 00012815-003     Employment Equality case

The Respondent denied all knowledge of the Complainant having a disability. When the Complainant had not shown up for work on Tuesday the 14th February 2017 his Partner had called to his office and informed the Respondent that the Complainant required to seek medical assistance due to a recurrence of old car crash injuries and would be going to Hospital for serious examinations and a possible hip replacement. It was unlikely he would be coming back to work for the Respondent. The Respondent had wished him well and presumed that he would not be back to work. There was never any question of a “Disability” relating to his continued employment nor any question of “Reasonable Accommodations” in the legal sense being requested or required.

He had no ill will towards the Complainant who had been a good worker. His employment had been part time and supported by the Department of Social Protection employment schemes. The Respondent had taken the Complainant’s partner at her word that he was not coming back.

3:1     CA- 00012815-001   Terms and conditions of Employment case

It was agreed that no Contract or Terms and Conditions of Employment had ever been issued. However, the Complainant had not suffered any material losses and was engaged as an operative on a Social Protection supported scheme

As Redress, I award 8 hours pay € 9 X 8 = €72.

3:2     CA- 00012815-002     Minimum Notice case.

As the Complainant is found to have been discriminated against in his Dismissal an award of one week’s notice pay is due. From evidence presented this would amount to €180.

3:3     CA- 00012815-003     Employment Equality Act -Discrimination case.

3:3:1   The law and the Burden of Proof.

It is well understood law that in a Discrimination case the primary onus is on the Complainant to establish to a reasonable degree the inference of Discrimination. Mere assumptions and speculations are not sufficient -there must be a bona fide case made.

The key legal precedents would be Southern Health Board v Mitchell [2001] ELR 201 where the burden of proof arguments were considered by the Labour Court. The case of Valpeters v Melbury Developments Ltd [201] ELR 64 is often also cited in burden of proof cases.

The Burden of Proof argument is well set out in Employment Equality Law (Bolger, Bruton and Kimber) 2012 Round Hall Press. Sections 2-214 to 2- 222.

Suffice to say that a reasonable bona fide case has to be made by the Complainant.

3:3.2         Consideration of the Evidence.

The key issue in Dispute in this case was what had transpired at the meeting on the 14th February (although the exact date was in some dispute) between the Complainant’s partner and the Respondent. The partner was not at the hearing and did not give direct evidence. However, from the oral evidence of the Respondent and the oral evidence of the Complainant it was clear that a major question mark had been put over the Complainant’s return to work.

The question of whether or not the Complainant actually had a qualifying disability was also in question. A detailed list of medications and a medical report was presented in evidence. No specific medical evidence relating to a disability was presented but the Medical Report did not portray a man in the whole of his health. None of this material had ever been presented to the Respondent at the time of the dismissal/resignation. It was clear though from the oral evidence that the Complainant’s partner had painted a fairly bleak picture of the Complainant’s health.

In conclusion and bearing in mind that this case is under the Employment Equality Act, 1998 and not the Unfair Dismissals Act,1977 I came to the following conclusions.

None of the parties were in any doubt that the meeting between the Complainant’s partner and the Respondent was the critical event. There was no doubt that the employment status of the Complainant had been brought seriously into question following the meeting. However, it was clear that neither side had any understanding of what was involved in the concept of a Disability and this aspect was never raised or considered at the time.

There was an almost equality of misunderstandings. The Complainant did not raise the issue and the Respondent made no inquiries as to the exact state of the Complainant’s health prior to the decision to formally terminate. On balance, however, the onus is more on the employer to establish the state of health of the employee prior to a termination. The tests in the Humphries v Westwood Fitness case [2004] ELR 296 are relevant here. Suffice to say they were not troubled in this case.

The oral evidence of the parties was confused as regard to some details, but I felt was genuine.

On balance, I came to the view that the Complainant had been discriminated against on the Disability grounds albeit inadvertently. The Respondent had made no efforts to ascertain the medical situation of the Complainant. The medical picture painted by the Partner was sufficient to at least make an inquiry from the Employer a necessity prior to a formal termination.

The major question marks raised in the meetings between the Partner and the Respondent as to the Complainants employment intentions afforded the Respondent a major mitigating defence. In considering redress, I must take this into account.

Accordingly, under Section 82 of the Employment Equality Act, 1998 I award the sum of €1,000 in compensation.   This is approximately five weeks pay.                                                                                                                                                                                                                                                                                    

Act

Complaint/Dispute Reference No.

Summary Decision /Refer to Section 3 above for detailed reasoning/

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012815-001

No Contract of Employment was issued. An Award of €78 is made in compensation.

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

CA-00012815-002

One week’s notice is due - €180 .

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

CA-00012815-003

A case of discrimination has been successfully made. An award of €1,000 is made in compensation.