Complainant

Respondent

Anonymised Parties

A Care Administrator

A Provider of Care Services

Representatives

SIPTU

Adare Human Resource Management

Act

Complaint Reference No.

Date of Receipt

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

CA-00012227-002

30/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012227-003

30/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012227-004

30/06/2017

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

CA-00012238-001

01/07/2017

The complainant commenced employment on 10 December 2010 as a Care Administrator, his primary duties were scheduling Carers working arrangements. He worked full time on 39 hours per week and was paid fortnightly, €1,116 gross and €960 net. He claims that he was constructively dismissed by the respondent.

The respondent is responsible for providing care to its clients in their own homes and it disputes the allegation lodged against it.

The following is a summary of the complainant’s case.

The complainant claims that leading up to Christmas 2016 he assumed, with Christmas Day falling on the Sunday and St. Stephen’s Day on the Monday, that he was off work on Tuesday 27 December for the Public Holiday in lieu. He claims that he only realised on 22 December that he was rostered to work on 27 December. He said that he went and spoke with the Operations Manager and explained that he had only realised that he was rostered to work, but as he had made family arrangements he would not be available to work that day. He said that he suggested alternatives and if need be he could work remotely from his telephone and the laptop, like he had done on Christmas day and New Year’s Day, and asked if that would be sufficient. He said that the Operations Manager said he would go and speak with Director of Care, Ms. A and let him know.

He said that he was summoned to a meeting with Ms. A where he again explained his situation. He said that she was not willing to look at any alternatives and told the complainant that he could work or, if not he could suffer the consequences. He said that as he left her office, Ms. A said to let her know on 26 December if he was coming into work on 27 December or not. The complainant said that he sent a text to Ms. A on 26 December to confirm that he would not be coming into work on 27 December and he received a text in reply “text noted”.

On 28 December the complainant attended work at his normal time and around 12 noon Ms. A and another member of management, Mr. B, asked him to attend a meeting in the boardroom. Here he said he was told that in light of his failure to attend work the previous day he was suspended with full pay. He was handed a letter and when he left he read that there would be a full investigation into his failure to carry out his role and to carry out a reasonable instruction from management. The letter also requested him to attend a disciplinary hearing on 30 December 2016 to discuss the allegation of potential gross misconduct of his missing his rostered duties on Saturday 17 December 2016 and Tuesday 27 December 2016. The meeting was moved to 5 January 2017 on his request as he was seeking trade union representation, which was unavailable at the time.

He said that he attended a meeting with his union official, Ms. A and Mr. B were in attendance on behalf of the respondent. The complainant said he set out his case, in particular, that he informed his manager on 22 December about his situation on 27 December and he had assumed that he was off as it was the practice that the respondent was not open on Public Holidays. He said that he set out two possible solutions for the respondent and they were not explored. He claims that the respondent breached its own disciplinary policy because it clearly sets out in the scope of his own policy that disciplinary procedure will only be invoked when all other avenues to resolve a problem have been explored. He said that the consequences of him not working on 27 December were not made clear to him and that the approach by Management was wholly inappropriate.

The complainant said that he had a right to know in advance the nature of the meeting that he was required to attend. This deprived him of his rights under natural justice. He said that the suspension was unwarranted, the respondent claims that it was to allow it carry out a full investigation but when questioned what investigation was carried out the respondent said there was no need for any further investigation. The complainant agreed that there was no dispute about what had happened and there was no need for suspension and it goes against the respondent’s procedures. The complainant said that the categorisation of the allegation of gross misconduct was incorrect and he points to the respondent’s own procedures where “absence from work ... without … authorisation” was deemed “minor misconduct”.

The complainant said that there was a breach of the principles of natural justice where Ms. A could not be seen as impartial to hear the disciplinary matter. The complainant said it was Ms. A who failed to inform him of the consequences of him failing to attend work on the 27 December, and who made the decision not to try to explore the resolving of the matter as per the company procedures. Ms. A was also responsible for wrongly categorising the offence and then insisting on the unnecessary suspension of the complainant. The complainant said that it is clear that Ms. A could not be impartial.

The complainant was displeased with the reference to the allegations raised against him in relation to 17 December and sought clarity on the claim that he had not manned the “on-call” phone on that evening and that it was left up to his colleague. He said he sought clarification on the issue here and Ms. A refused to give those clarifications.

The complainant said that he was affected badly by the set of events, he was deeply shocked at being suspended. He said he could not eat, or sleep, he was on high anxiety, he had high blood pressure and fell ill. He had to attend his GP and was certified as unfit for work.

The complainant explained that on foot of the disciplinary hearing, where he said that he presented his case and was told that his position would be taken into consideration, he received a letter informing him that he was being issued with a “First Written Warning” on the basis of failing to carry out a reasonable instruction from management on 23 December 2016 and failure to perform the rostered duties on 27 December 2016. There were no findings on the issue raised regarding 17 December 2016.

The complainant said that he appealed the decision on 13 January 2017. The hearing was heard on 2 February 2017 with Mr. C, from Head Office in Dublin. The complainant said that he raised the additional issue of being taken off paid suspension from 17 January 2017 and the issue of payment or time in lieu for the hours spent travelling and attending the appeal hearing and his expenses for the day. The outcome of the appeal was presented to the complainant via a meeting which lasted “just 3 minutes” at a hotel nearby to where the complainant lived. Mr. C delivered his finding in a “high pitched reprimanding tone” and appeared “very hostile”. When asked for a copy of the decision in writing he was told that it would be in the post in the coming days, but no letter was ever received. The complainant said that he felt poorly and continued to suffer with anxiety and continued to remain on certified leave.

The complainant was asked to attend the company medical advisers by Ms. A, which he did on 27 March 2017 and where he was deemed fit to return to work. He received an email inviting him to a meeting. However, he visited his own GP who certified him unfit to work up to 18 April 2017 and he also decided that he was not in a position to attend the meeting. He followed that up with an additional medical certificate on 19 April 2017, which certified him unfit to work up until 3 May 2017. He said that he submitted his resignation on 28 April 2017.

The complainant referenced the definition of Constructive Dismissal under section 1 of the Unfair Dismissals Acts 1977-2007 and that the statutory definition has a two test either or both of which may be argued.

In relation to the “Contract” test, the complainant said that,

·         The disciplinary procedures form part of his contract and he was denied his rights under those procedures and of the principle of natural justice.

·         Disciplinary procedures were invoked without any other alternatives considered.

·         Notification requirements of the December meeting were not fully complied with.

·         The suspension was a gross injustice as found in Bank of Ireland v James Reilly (2015) IEHC 241, “… was an extremely serious matter which can cause irreparable damage to the reputation …”, the no smoke without fire effect.

·         The complainant felt that the respondent deliberately wrongly categorised the allegations against him. This was a matter of “minor misconduct” as per the company’s own disciplinary procedures, which should have been dealt with “informally and discreetly”. However, it was categorised as “gross misconduct”.

·         The complainant being taken off paid suspension leave because he was certified unfit to work was discrimination, and a breach of the complainant’s terms and conditions.

·         Ms. A was involved in all the early processes and should not have been the person to conduct the disciplinary hearing and decide on the sanction.

·         The manner in which the respondent failed to address the points raised in the hearings when issuing the written warning. (Geardon v Dunnes Stores UD 367/1998)

·         The appeal process from start to finish was inadequate and purely perfunctory, depriving him of his rights. All of which the complainant believes are breaches of his contract by the respondent and goes to the root of the contract and shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

In relation to the reasonableness test, he deems that it was reasonable for him to resign, he said,

·         It was completely unreasonable for the respondent not to explore resolutions with him, a “model employee” when he raised difficulties about the roster at the outset.

·         The respondent’s conduct throughout was complete contempt.

·         To expect him to travel at his own expense for the Appeal was not fair.

·         It was unreasonable for the respondent not to take into account his exemplary work record.

·         It was unreasonable to accept his resignation without exploring the reasons behind this.

The complainant claims that this case is similar to the case in UD21/2014 O’Donoghue v Watchford LTD t/a Supermacs where the EAT found that the “claimant was entitled to consider herself constructively dismissed by the lack of fair procedure… failure to follow its stated procedures, defective investigation and disciplinary process and the harsh sanction applied…”.

In relation to the case of discrimination, the complainant cites Section 6(1)(a) of the Employment Equality Acts 1998 and 2004 where it proves that a person is treated less favourably than another person is, has been or would be treated in a comparable situation on Section 2(2)(g) that one person with a disability and the other either is not or is a person with a different disability and Section 8(1)(b) provides that the condition of employment … an employer shall not discriminate against an employee or prospective employee. The complainant claims that he was diagnosed as suffering from Hypertension, acute anxiety and rosacea, and contends that in the case DEC-E2007-025 - A Prison Officer v The Minister for Justice, Equality and Law Reform the Equality Officer found that “anxiety, depression and stress” fell within the definition of disability under that Act.

The complainant claims that he had been placed on “paid suspension” on 27 December until he submitted his medical certificates on 5 January 2017. He was taken off paid suspension effective from 3 January 2017, although he was assured he would remain on paid suspension until he received the outcome to the disciplinary meeting. The complainant claims that the sole reason for him being taken off paid suspension was attributing to his disability and him informing the respondent accordingly. The net result was that the respondent imposed a disciplinary sanction of unpaid suspension on him. This, the complainant maintains, constitutes less favourable treatment on the grounds of disability. The complainant claims that the respondent failed to consider that his illnesses fell within the definition of disability within the Acts.

The following is a summary of the respondent’s case.

The respondent is involved in providing care for senior citizens in their home and has been in operation since 2009. The respondent claims that the complainant was employed since December 2010 as a care administrator where he worked fulltime on a 39 hour per week, on a six-week, seven- day rotating roster. The respondent said that the root of this case lies with the complainant refusing to follow a legitimate instruction to attend for work in line with his pre-rostered duty on 27 December 2016. The impact of that action resulted in confusion and uncertainty for the operations of the respondent’s business on the day in question and completely undermined management and its responsibility to manage its business and operations at a critical time of the year. The respondent said that this was a predetermined and unilateral act and lead to the respondent addressing this action via its disciplinary proceedings. The respondent said that the complainant voluntarily resigned his employment on 28 April 2017.

The respondent said that it initiated the disciplinary proceedings by way of letter to the complainant on 28 December, under the heading “request to attend a disciplinary hearing regarding potential gross misconduct”. The letter set out the respondent’s position and it claims that its process was consistent with the Workplace Relations Commission Code of Practice SI 143 in fair procedures throughout these proceedings.

In relation to the claim for constructive dismissal the respondent stated that the complainant was not, at the outset, “accused of gross misconduct” he was invited to a meeting regarding a “potential gross misconduct”. The respondent said that the complainant’s “refusal to carry out a management instruction” falls within the category of examples cited within the Company Handbook that would be deemed to be gross misconduct. The respondent also points to the fact that paid suspension is also provided for within the company handbook with regard to its procedures.

The respondent said that the allegations against the complainant were very clear and serious and that is why it immediately wrote to him and initiated the disciplinary procedures as soon as was possible.

The first disciplinary hearing was held, and he was allowed to bring his Trade Union official albeit after some mix-up and complications. The outcome of the disciplinary hearing was presented to him when he was accompanied by his Trade Union Official. The respondent said that at all times it attempted to expedite matters in keeping with its procedures as quickly and fairly as possible in all parties’ interest. The respondent said that the paid suspension was in place, and would have remained in place, however on 3 January 2017 it received a medical certificated stating that the complainant was “unfit for work /acute anxiety induced by work relationship”. The respondent said that in line with its procedures where someone reports in sick to work they are not entitled to paid leave. Unfortunately, the complainant, on providing that medical assessment, was categorised as unfit to work and therefore not entitled to paid sick leave as per the company policy and for no other reason. It also points to the fact that on the issuing of the First Written Warning issued, on 10 January 2017, the process was completed there and then he would have returned to work, however, the complainant was on sick leave at the time and he chose to resign his employment without notice on 28 April 2017.

The respondent said that the complainant claims in 30 June 2017 on the Complaint Referral Form to the Workplace Relations Commission that “[he] was humiliated and damaged beyond repair by it”. However, the Occupational Health Assessment of him on 27 March 2017 said that the complainant is medically fit to return to work and was medically fit to be involved in addressing the work-related issues that he had with the respondent. It claims that it attempted to follow through the Occupational professional’s recommendations with the complainant but to no avail. It claims that it made numerous attempts to contact the complainant without success. The respondent said that the complainant never raised any grievance with it until it received notice of the complaints that were lodged with the Workplace Relations Commission.

The respondent in reply to the various allegations raised by the complainant said that his suspension was entirely in keeping with its own procedures. The total suspension period was for 13 days. The respondent denied the claim that “he had to fight to avail of my right to representation”. It claims that on the original letter that is set out his entitlement to have a colleague or Trade Union official in attendance with the disciplinary hearings. It relation to the claims that the complainant never received an outcome of the appeal although he had repeatedly asked for it, the respondent said that the appeal procedure was carried out and he was advised every step of the way, he was accompanied by his Trade Union official along that whole process. The outcome of the appeal was posted to the complainant on 22 March 2017 and if he did not receive a copy and they were informed, they would have happily resent him a copy. The respondent said that they have no record of any requests whether by phone or in writing by the complainant requesting it to resend a copy of the appeal decision.

The respondent said that the complainant has claimed that he was constructively dismissed and it is for him to successfully establish that his employer is guilty of conduct which is a significant breach going to the root of the contract of employment – the “contract test” as described in Western Excavating (EEC) Ltd v Sharp [1978] IRLI 332 or as an alternative, or in combination, the complainant has to show that the employer conducted his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer so it justifies him heaving – the “reasonable test”. The respondent cited the decision in Higgins v Donnelly Mirrors Ltd UD 104/1979 similarities to this case where it was the EAT’s view that the contract of service implied obligations of mutual respect on the parties, and there is a heavy onus on the complainant in relation to the proof burden and in that case the complainant was unduly sensitive and over-reacted. The respondent also pointed to the fact that the complainant did not engage with the respondent.

In relation to the claim that the respondent discriminated against the complainant on the grounds of disability, the respondent claims that there is no basis to the claim. The complainant issued a medical certificate to it at the very end of the disciplinary hearing on 5 January 2017. At that point in time the disciplinary hearing was completed. The complainant went out on sick leave and at every point the respondent sought to carefully mange the delivery of the written warning and the appeal procedure to ensure the complainant was fully in a position to attend the various meetings.

The respondent said the complainant was dealt with in line with company procedures and his medical assessment with an occupational health professional deemed the complainant fit to return to work and to participate in any such procedures necessary to address any such work-related issues. It was the respondent who chose not to follow the occupational health professional’s recommendation. The respondent said that the complainant remained on sick leave and resigned his position.

CA-00012227-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Relevant Law

Section 1(1) of the Act defines what is commonly described as constructive dismissal as follows – (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.

As the complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the complainant to establish facts to prove that the actions of the respondent were such to justify terminating his employment.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[1978] 1 All E.R. 713. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Therefore, there are essentially two tests that an employee can argue in a complaint of constructive dismissal –

-There must be a significant breach of the contract of employment by the employer, which shows that the employer no longer intends to abide by one or more elements of the contract of employment and that in such circumstances the employee was justified in tendering his resignation

The question which I must decide in the present case is whether, because of the conduct of the respondent, the complainant was entitled to terminate his contract of employment.

In summary, the complainant claims that the disciplinary procedures were fraught with errors, he was denied his rights during the process, that his discretion was minor in nature but was deliberately inflated to gross misconduct, he should not have been put on paid suspension and then should not have been taken off that and placed on unpaid sick leave. The complainant claims that the respondent was completely unreasonable throughout and his position ultimately became untenable and he had no alternative but to resign from his employment.

The respondent disputes the claim of constructive dismissal and denies the complainant’s allegation and said that he was treated fairly throughout the process, and in line with all its procedures, it had no choice but to place him on unpaid sick leave once he reported in sick. The respondent contends that the complainant resigned of his own volition and has over-reacted to having to address disciplinary action for his predetermined and unilateral decision not to carry out a management instruction.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he had no option in the circumstances of his employment other than to terminate his employment. The notion places a high burden of proof on an employee to demonstrate that he acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with his employers.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of John Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In considering this issue, I am satisfied that the respondent had an established Grievance and Disciplinary Procedure in place which generally conforms to the principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

To address the issue as to whether the complainant acted reasonably by resigning prior to invoking a formal grievance through the respondent’s established internal grievance procedures, I noted above it has been established that the complainant’s failure to invoke the formal grievance prior to their resignation, can be deemed fatal to a claim of constructive dismissal. However, it is equally well established that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (see Liz Allen -v- Independent Newspaper [2002] 13 ELR 84, and Moy -v- Moog Ltd [2002] 13 ELR 261).

I am satisfied that there must be a number of factors, which are exceptional and could excuse the complainant’s failure to raise a formal grievance under the internal grievance procedures before resigning. To that end, I have considered whether there was a cumulative effect of ongoing difficulties over a sustained period of time which resulted in an undermining of the relationship of trust and confidence between the parties. I cannot say that there was any evidence of any such issues until the examination of the Christmas rotas in December 2016.

The next examination is in relation to the disciplinary and appeals processes itself; I am satisfied that the complainant, was on full notice of the disciplinary and appeal processes, he had an opportunity to have representation at every step of that journey and was afforded the opportunity to address his side of the argument. The complainant said that the handling of the disciplinary process was flawed, however, having considered the evidence I am satisfied that it was conducted in a fair and appropriate manner and it cannot be described as being at a level that it could be suggested to be so universally flawed that the complainant had no choice but to lose confidence in his employer and resign.

I am satisfied that the categorisation of the complaint against the complainant is for the respondent to determine and the decision to place him on paid suspension and then to remove him from paid suspension is provided for in the respondent’s procedures. It is a rather contradictory argument to suggest that it is unjust to be placed on paid suspension, and then to suggest that is was unjust to be taken off paid suspension all within such a short period. I am not satisfied that the complainant has successfully demonstrated as to what he believes to be the substantial breaches of his contract by the respondent and that goes to the root of the contract and show that the employer no longer intends to be bound by that contract. Likewise, the sense of unreasonableness that the complainant points to in the respondent’s actions have not been obvious in the evidence presented. I am satisfied that it had a responsibility to deal with a difficult situation generally of the complainant’s making, and it obviously dealt with it contrary to the complainant’s expectations. To expect otherwise would elevate the complainant’s own capacity over and above that of his employers.

In essence to me it appears that the complainant has taken considerable offence that his employer has decided to discipline him following his decision not to work as rostered on the 27 December 2016. The issues he has with his employers seem to flow from the respondent’s decision and processes from thereon. I note that many, if not most of the contentious issues complained about, were raised at the appeal stage of the disciplinary process and have already been addressed by the decision maker on appeal. However, the additional grievances in relation to the appeal process itself or otherwise have not been put to the respondent to address heretofore prior to the complaint resigning and lodging the complaint with the Workplace Relations Commission. Therefore, it’s clear that no formal grievance procedures were pursued prior to his resignation and therefore the respondent cannot be held to task that it has failed to adequately deal with the situation or resolve the matter.

Based on the evidence adduced, I do not accept that the complainant sought to invoke the internal grievance procedures in relation to these alleged breaches to the disciplinary and Appeal processes. I am satisfied that the respondent followed those processes within the stated parameters of its own procedures and made a finding in a fair and transparent way. The complainant was served with a written warning and has not reacted well.  

In the circumstances, I find that the complainant has failed to satisfy me that the respondent has committed a repudiatory breach of his contract of employment and that it was reasonable of him to resign from his employment.

I find that the complainant did not give the respondent an opportunity to address his concerns before taking the decision to resign from his employment. Accordingly, I find the complaint of unfair dismissal is not well founded.

CA-00012238-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

The Relevant Law

6. Discrimination for the purposes of this Act,

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

[…]

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

The issue for decision in this case is whether the complainant was discriminated against on the ground of his disability by the respondent by removing the complainant from paid suspension and placing him on unpaid sick leave.  In reaching my decision, I have taken into account the submissions, written and oral, made by parties.

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent. 

The Labour Court, in Southern Health Board v Mitchell [2001] ELR 201 determined that:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

 The Labour Court has also determined in Melbury Developments v Valpeters [2010] ELR 64 that: “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

In order to make a valid prima facie case of discriminatory treatment on the ground of disability, pursuant to Section 85A of the Employment Equality Acts, the complainant needs to identify a comparator who received more favourable treatment than he did. This is specified in Section 6(1) of the Employment Equality Acts, where discrimination is defined as “a person treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”.

The essence of the disability case seems to lie in the decision of the respondent to bring the complainant’s paid suspension leave to an end on receipt of the medical certification that the complainant was unfit to work. The complainant seems to suggest that he was discriminated by the respondent because of this decision. However, the respondent said that due to its own policies there is no contractual company sick pay entitlement in addition to illness benefit /social welfare entitlement. It provided documentary evidence supporting this position.

The complainant, although relying on the complaint, has not presented me with any evidence of a comparator who has continually remained in payment of their wages from the respondent while out on sick leave. I note the respondent’s position on this is that anyone who goes on sick leave will not be paid as per the company policy. The respondent pointed to that provision in their policy and it was not challenged.

I refer again to the decision above in the Melbury case where, “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” The complainant has made a statement that he was discriminated against. However, I am satisfied that there is no evidence of the complainant being treated less favourably by the respondent on the grounds of his disability.

Accordingly, I find that the complainant has failed to establish a prima facie case of direct discriminatory treatment on the grounds of disability.

CA-00012227-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

I find that the complainant resigned from his position of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that his complaint cannot succeed.

CA-00012238-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that the complainant has failed to establish a prima facie case of direct discrimination on grounds of disability in terms of Section 6(2) and contrary to Section 8 of those Acts.

Section 8 of the Unfair Dismissals Acts - Section 79 of the Employment Equality Acts – Constructive Dismissal – Resignation – Complaint Fails