ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010096
Parties:
| Complainant | Respondent |
Parties | Robert Pirsz | Ryanair Designated Activity Company |
Hearing 5th October 2017
Representatives | Blazej Nowak, Monika Szarejks | Frank Beatty SC, Mark Kelly Solicitor of McDowell Purcell, Lisa McCormack, Leanne Morrissey, Kiera O’Brien Stenographer |
Hearing 12th June 2018
| Complainant | Respondent |
Anonymised Parties | Ground Handling Agent | Airline |
Representatives | Blazej Nowak Monika Szarejks | Frank Beatty SC, Mark Kelly of McDowell Purcell, Lisa McCormack |
Complaints:
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-00013026-001 | 07/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00013026-002 | 07/08/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00013026-003 | 07/08/2017 |
Date of Adjudication Hearing: 12/06/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a Ground Handling Agent from 8th November 2008 to 6th March 2017. He was paid €2,490 per month. He has claimed that the Respondent has breached the Employment Equality Act, The Organisation of Working Time Act and the Payment of Wages Act. He has sought compensation. |
1)Employment Equality Act CA 13026-001
Summary of Complainant’s Case:
1)Dismissal on Disability grounds |
The Complainant’s Representative stated that the Complainant went out sick August/September 2015. All his medical certificates state depression. The company doctor affirmed depression. His employment was terminated on 6th March 2017. He is claiming that he was dismissed on grounds of his disability. He has sought compensation.
2) Dismissal on Race grounds
He stated that the Respondent has information which would establish whether employees were dismissed because of race. He had sought these records in order to prerpare a compliant. The Respondent failed to provide such records and therefore he has no evidence to support this claim. The onus is on the Respondent to disprove this claim.
Summary of Respondent’s Case:
They stated that the Complainant must prove on the balance of probability the primary facts in order to raise a presumption of unequal treatment. They cited case law in support of their position. EDA 21/2008. 1)Dismissal on Disability/Depression grounds The Claimant must submit facts. In this case he asserts that he was suffering from depression and discriminated against on race grounds. He was not entitled to discovery from a “bare pleading”. There must be an allegation. In this case the Respondent has to defend a case that has not been made. No prima facie case has been made, in fact no effort was made to particularise the claim. The Respondent in its letter of dismissal sets out in great detail all the occurrences relating to his absence. The Respondent sought to engage with the Complainant to establish why he believed he was stressed at work. He also complained of a shoulder injury and a knee injury. He is relying upon depression as the grounds for dismissal but he also cited two other reasons, race and penalisation as the reasons for dismissal. No prima facie case has been established. He claimed reasonable accommodation but he refused to engage. He asserted that he had not been given reasonable accommodation. He wasn’t attending work so accommodation didn’t arise, but this was withdrawn He was dismissed because after 17 months of absence he was unable to provide any definitive indication as to when he would be fit to return to work. This claim is rejected
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2) Dismissal on Race grounds
The Claimant must submit facts. In this case he asserts that he was suffering from depression and discriminated against on race grounds. Every single employee has an origin/race. This cannot stand. He has to give reasons why he believed he was discriminated against because he was Polish. He was not entitled to discovery from a “bare pleading”. There must be an allegation. In this case the Respondent has to defend a case that has not been made. No prima facie case has been made, in fact no effort was made to particularise the claim. Nationalities vary in the company. Only 10 % are Irish. There was no reference to any comment being made about his nationality. He also has requested the WRC to enquire into Company records to support his unsupported claim for race discrimination.
No prima facie case has been established. He was dismissed because after 17 months of absence he was unable to provide any definitive indication as to when he would be fit to return to work. This claim is rejected.
Findings and Conclusions:
I find that the Complainant has claimed that he was discriminated against on grounds of disability/depression and also on grounds of race.
I find that his absence has been attributed to three reasons, depression, shoulder injury and knee injury.
I find that the Respondent had tried to engage with the Complainant regarding his absence and he has consistently failed to engage with them.
I find that this absence has eventually resulted in his employment being terminated.
I find that it is a very serious matter for an employee to accuse their employer of breaking the law.
I find that to do so, an employee must be able to provide sufficient evidence to establish a stateable case. This in turn allows the employer to mount a defence.
I refer to the Labour Court case Nolan Transport DWT1117 which stated, ”The normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded. It is also the normal rule that the party who bears the legal burden of proof also bears the evidential burden. The effect of s.25(4) of the Act is to shift the burden to the Respondent in cases where records in the statutory form were not maintained. Thus a form of rebuttable presumption of non-compliance arises in such cases. But the burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut. The burden on a Respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint. This suggests that the evidential burden is on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. The Respondent should then be called upon to put the records required by Sec.25 (1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the Claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the Claimant fails to discharge that burden he or she cannot succeed. Where records in the prescribed form are not produced, and the Claimant has satisfied the evidential burden, which he or she bears, it will be for the Respondent to establish on credible evidence that the relevant provision was complied with in relation to the Claimant. The Respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the Claimant. If the Respondent fails to discharge that burden the Claimant will succeed”. |
1)Disability/ Depression
I have found that the Complainant consistently failed to engage with the Respondent company regarding his stress/ depression.
I find that no evidence was produced by the Complainant to make a stateable case.
In doing so he has prevented the Respondent from mounting a defence, which is a basic requirement in natural justice.
I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required his case cannot succeed.
Therefore, I have found that the Complainant has not established a prima facie case of discrimination on grounds of disability/ depression and so the Respondent has no case to answer.
2)Race
I find that the Complainant has not provided any evidence whatsoever to establish a prima facie case of discrimination.
In fact, the Complainant is expecting the Respondent to provide records on dismissals within the company in which he may then seek to pin his case on a possible outcome.
I find that he had no case to make when he submitted a claim of discrimination on grounds of race.
I find that he sought to carry out a “fishing exercise” in the hope of finding something to “hang his case on”.
I find that this an abuse of the system and this service.
He has not established a prima facie case of discrimination. In fact, he hasn’t even started to do so.
I find this was a frivolous and vexatious claim.
I am seriously concerned that he should make a complaint to the WRC without any evidence being put forward what so ever.
I find that the Respondent has no case to answer whatsoever.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have decided that this complaint fails for the above stated reasons.
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2)Organisation of Working Time Act CA 13026-002
Summary of Complainant’s Case:
The Complainant submitted complaints under the Organisation of Working Time Act. He ended up getting dismissed. He has claimed that he was penalised as a result of making these claims. It is up to the Respondent to prove that he was not dismissed for that reason. |
Summary of Respondent’s Case:
On 3rd March 2016 he submitted claims under the Organisation of Working Time Act. A process had begun of getting the Complainant to attend meetings with the Respondent before he made these claims. The Respondent’s policy is in writing in Fact Sheet 3, supplied at this hearing, it states, “The Company may terminate your employment with written notice if you are absent from work due to illness or injury for a consecutive period of 6 months or 120 working days in any continuous 24 month period”. This was also referred to in the letter of dismissal dated 6th February 2017. The Complainant was reminded that they could not consider his situation where he would not engage with them or attend meeting with them. He was dismissed because he refused to engage with the Respondent. company. They also pointed out that the Complainant is alleging dismissal on grounds of disability and race under the Employment Equality Act and penalisation for making claims under the Organisation of Working Time Act. The Complainant has shown a disconnect with reality. This complaint is rejected. |
Findings and Conclusions:
I find that the Complainant has alleged that he was dismissed because he submitted claims under the Organisation of Working Time Act. I also note that he has claimed discriminatory dismissal on grounds of Disability/depression and Race. I find that none of these are connected. I find that the Complainant has produced no evidence whatsoever to support this claim. I note that it is his position that it is up to the Respondent to disprove these empty allegations. I find that it is not up to the Respondent to disprove an empty allegation. I refer to the Labour Court Nolan Transport case cited above. It crystal clear that in the first instance the Complainant must make a stateable case with sufficient particularity as to allow the Respondent to mount a defence. The Complainant has failed completely to produce any evidence whatsoever and expects the Respondent to defend an unsupported claim. I find that this is unacceptable and a waste of this resource. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that as no evidence has been produced to support this complaint then it should fail.
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3)Payment of Wages Act CA 13026-003
Summary of Complainant’s Case:
The Complainant stated that on 28th March 2017, the sum of €11.40 was deducted from his wages. He doesn’t know what this is and he doesn’t know if he is owed that amount. |
Summary of Respondent’s Case:
The Respondent stated that his contract of employment provides for a deduction for parking facilities. They stated that if the Complainant doesn’t know whether he is owed this money or not then why was it claimed and who is driving this claim? |
Findings and Conclusions:
I note that the Complainant does not know if this €11.40 is owed or not, which I find very peculiar. I find that it is a serious matter to accuse a party of breaking the law. To do this a party must have clear evidence that this had allegedly happened. I note the Respondent’s position that this refers to car parking charges. I note that the contract of employment provides for this in No 11, it says “should you elect to use the airport staff car park you will be required to pay for this either by way of a deduction from your salary or directly to the airport authority.” I find that this deduction was in respect of a parking charge and the contract provides for such a deduction. I find that this is a legal deduction from his wages. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the above stated reasons, I have decided that the Respondent has not made an illegal deduction from the Complainant’s wages. I have decided that this complaint should fail. |
Dated: 4th September 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Discriminatory dismissal, penalisation, illegal deduction from wages |