Complainant

Respondent

Anonymised Parties

A HGV Driver

An Oil supplier

Representatives

Terry Gorry & Co. Solicitors

Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017810-001

07/03/2018

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

CA-00017810-002

07/03/2018

The complainant was employed by the respondent as a HGV driver from April 2013 until October 2017. The complaints relate to alleged constructive unfair dismissal and an allegation that the respondent discriminated against the complainant on the disability ground and did not provide reasonable accommodation to him as a person with a disability. The complaints were lodged to the Workplace Relations Commission on 7th March 2018.

CA-00017810-001 – Constructive Unfair Dismissal

The complainant stated that he was being bullied by a colleague in the workplace and informed the respondent of this on 3rd July 2017. The complainant stated that the bullying continued throughout July 2017 and the complainant submitted a formal complaint on 1st August 2017 and was mediclally certified as unfit for work from that date. The complainant confirmed that he was willing to have the matter resolved informally and agreed that the respondent would meet initially with the alleged perpetrator on 24th August 2017 to discuss the complaint and would then meet with the complainant to discuss next steps. The complainant stated that he did not hear an update from the respondent and sent an email on 29th August 2017 enquiring in relation to same. The complainant confirmed that the respondent had sought professional advice on the matter and was considering possible mediators to assist. The complainant stated that he was not permitted to return to work by the respondent until after the mediation process had concluded which he felt was unfair and punitive in nature. The complainant confirmed that he attended a meeting with the respondent on 3rd October 2017 but was dissatisfied with the lack of support that was offered to him and the fact that matters had not been dealt with in a timely manner. The complainant contends that he decided that he could not return to work and would resign from his position as a result. The complainant stated that he was offered a mediation date of 25th October 2017 but was dissatisfied with the length of time the entire process was taking, the lack of support from the respondent and that he was not permitted to return to work until the process had concluded. The complainant stated that, having considered the entire situation, he decided to submit his resignation by email on 5th October 2017. The complainant submits that he had no option but to resign from his position and is seeking compensation in relation to his complaint.

CA-00017810-002 – Employment Equality complaint

The complainant stated that he suffers from anxiety, which is exacerbated by conflict. The complainant contends that the respondent was aware of his disability and was also aware that he was in receipt of Partial Capacity Benefit from the Department of Employment Affairs and Social Protection in relation to mental health difficulties. The complainant contends that the respondent failed to reasonably accommodate him as a person with a disability.

CA-00017810-001 – Constructive Unfair Dismissal

The respondent stated that it received a complaint of bullying from the complainant on 1st August 2017. The respondent confirmed that it responded on 4th August 2017 and the complainant confirmed that he was happy for the matter to be dealt with informally. The respondent stated that due to annual leave arrangements, a meeting would be held with the alleged perpetrator on 24th August 2017 and the respondent would update the complainant thereafter. The respondent stated that after its meeting of 24th August 2017, it sought professional advice and was in the process of considering external mediators to resolve matters between the two colleagues. The respondent stated that the other party to the complaint was also on annual leave which delayed the process and there were also issues concerning the mediation which also needed to be addressed causing a slight delay. The respondent stated that from the moment it received the complaint, it acted quickly in attempting to facilitate an appropriate process for the resolution of issues between the complainant and his colleague. The respondent submits that the complainant was on certified sick leave throughout the process and by email dated 25th September 2017 sought back payment of his unpaid salary while on sick leave, payment of outstanding annual leave and his redundancy entitlements so that he could “move on” from the situation. The respondent confirmed that it did not pay sick pay to its employees and that the complainant’s role in the company was available to him when he received a medical certificate confirming he was fit to return to work. The respondent also confirmed that while it had expressed a preference for the complainant to await the conclusion of the process before returning to work, it had never been furnished with a medical certificate confirming that the complainant was medically fit to return.

The respondent stated that a mediation meeting had been offered for 25th October 2017 but that the complainant had resigned from his position by email dated 5th October 2017 on the basis of a perceived lack of support from the employer, the fact that he had not been allowed return to work and on the basis that the entire process had taken too long.

CA-00017810-002 – Employment Equality complaint

The respondent stated that it was aware that the complainant was in receipt of Partial Capacity Benefit but was unaware of the complainant’s disability until it received emails from the complainant and medical certificates in August 2017. The respondent stated that as the Company was unaware of the complainant’s disability prior to his certified sick leave, the complaints of alleged discrimination and failure to provide reasonable accommodation should fail.

CA-00017810-001 – Constructive Dismissal

In assessing the complaint of Constructive Unfair Dismissal, I note that the complaint was submitted on 1st August 2017 and acknowledged by the respondent on 4th August 2017. The Director of the Respondent was on annual leave in August 2017 and the complainant had agreed to an informal approach to resolve the complaint. It was confirmed that an initial meeting would take place between the respondent and the complainant’s colleague on 24th August 2017 and a further meeting would be arranged with the complainant and the respondent to discuss next steps. Independent mediators were subsequently considered, and certain clarifications were required in relation to whether the complainant was in dispute with the employer or whether the mediation should take place between the complainant and his colleague. When it was confirmed that the mediation would be arranged between the complainant and his colleague, the mediator offered the parties a mediation meeting on 25th October 2017. The complainant resigned on 5th October 2017 on the basis of the lack of support from the respondent, the fact that he was not getting paid, was not allowed to return to work and the unacceptable length of time that the process was taking.

Having considered the timescale from the referral of the complaint, I am not of the view that there was an inordinate delay on the respondent’s part in attempting to deal with the complaint. There were a number of delays due to annual leave, selection and availability of mediators and further clarifications in relation to that process, but I accept that the respondent was making every effort to have the process concluded as quickly as possible.

In relation to the complainant not being allowed to return to work until after the mediation process had concluded, there is a conflict of evidence on this issue. I note that had the complainant was certified as unfit for work throughout the process and while the respondent had either told him he could not return to work until after the mediation had concluded or expressed a preference that he await the conclusion of that process, the complainant remained certified as unfit to return to work throughout. In those circumstances, the complainant would not have been medically fit to return to work.

Constructive Dismissal - The Applicable Law

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

“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.”

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised 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.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer 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.”

I accept that the complainant made a complaint in good faith. The respondent was in the process of trying to resolve matters by mediation and a date of 25th October 2017 had been offered to the complainant, yet he resigned on 5th October 2017 for the reasons stated.

In all of the circumstances of this complaint, I do not find that the respondent behaved in such a way that left the complainant with no other option than to resign from his employment.

CA-00017810-002 – Employment Equality Complaint

The Applicable Law

Disability

Disability is defined in Section 2(1) of the Employment Equality Acts, 1998-2015 as follows:

“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;

On the basis of the provisions of the legislation, I find that the complainant’s condition meets the definition of a disability as provided for in the Act.

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(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.

Reasonable Accommodation

The requirement to provide reasonable accommodation is set out under Section 16(3) of the Employment Equality Act, 1998 as follows:

16(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’ s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

 85A (1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

 In relation to discharging the burden of proof,The Labour Court determined in Southern Health Board v Mitchell [2001] ELR 201 as follows:

“The first requirement is that the claimant 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 claimant 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.”

The complainant asserts that the respondent was aware of his disability and treated him less favourably as a result and also failed to reasonably accommodate him in the workplace. The respondent refutes the complaint on the basis that it was unaware of the complainant’s disability until after he had commenced a period of certified sick leave in August 2017. Accordingly, the respondent submits that the complaint should fail.

In all of the circumstances of this complaint, I find that the complainant has not established sufficient facts from which an inference of discrimination can be drawn. Accordingly, I find that the complainant has failed to discharge the burden of proof in relation to his complaint.

CA-00017810-001 – Constructive Dismissal Complaint

Having considered the submissions of both parties and all of the evidence adduced at the adjudication hearing, I find that the complaint of alleged Constructive Unfair Dismissal is not well founded.

CA-00017810-002 – Employment Equality complaint

Having considered the submissions of both parties and all of the evidence adduced at the adjudication hearing, I find that the complainant has not established a prima facie case of discrimination. Accordingly, I declare that the complaint is not well founded.

Constructive Unfair Dismissal, Discrimination, Reasonable accommodation