Complainant

Respondent

Parties

AdamHerzyk

Assured Personnel Limited

Representatives

EamonnO'Hanrahan, EM O'Hanrahan Solicitors

Darragh Whelan, IBEC

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-00017822-001

08/03/2018

The respondent company provides driving and valeting services at Dublin Airport.  The complainant’s contract of employment shows that he commenced working with the respondent on March 31^st 2016 as a driver / valeter on a “casual hours contract.”  He resigned on December 7^th 2017 because he was not offered any work from October 2017, following a period of sick leave.  He claims that his resignation is a constructive, discriminatory dismissal.  He further claims that he was not offered reasonable accommodation for his back pain, which he contends is a disability and he claims that he was discriminated against by not being offered work when he was fit to return in October 2017.

As the burden of proof is on the complainant to show that it was not unreasonable for him to terminate his contract, and that he was discriminated against on the grounds of disability, I must consider his evidence first.

In his evidence at the hearing, the complainant said that when he started work with the respondent, he cleaned cars, then he moved to checking cars and reporting on damage to rented vehicles.  He helped drivers to set up cars for rent and he drove customers from the airport to the base office.

Evidence submitted at the hearing shows that the complainant went out sick on May 22^nd 2017.  The medical certs that he submitted show that he was suffering from “low back pain.”  He was requested to confirm in writing to his employer that he was not injured at work and on May 22^nd, he wrote a note as follows: 

“I am stating that my back pains (injury) happened as a result of my last work.  Thus, I do not claim anything regarding this matter from the company.”

The complainant consulted an orthopaedic consultant in Poland and he remained out of work until he was considered by his doctor to be fit to return on certain conditions.  He said that he attended physiotherapy sessions in phases of two weeks, then took a break for two weeks. He said that his back “is good now.”

On September 7^th 2017, the complainant’s consultant in Poland recommended that he “perform light work not on a full-time basis.”  He contacted the office manager around September 10^th to let her know that he could come back and he was informed that the “season is almost over and we have more staff than we need.  It will be a problem to find hours / days for you.”  On September 11^th, the office manager wrote again and said, “If we find hours / days for you, please bring med cert (sic) that your doctor suggest you work part-time in this moment.” On September 29^th 2017, the complainant sent an e mail to the office manager, saying he would call in, and she replied, “in this moment, we do not have anything for you.”  From then on, until early December, the complainant sent seven e mails to the office of the company, asking about work, but he got no hours.  On December 5^th, he received a reference from the office manager, stating that he has been employed as a valeter/driver from “31/03/2016 till present.”  It appears that he requested this letter for the Department of Social Protection.  He resigned on December 7^th 2017. 

The complainant’s case is that he was treated less favourably than others because he had to take sick leave due to his disability.  He complains that his employer made no effort to investigate the possibility of light work or different jobs to accommodate his disability.  He said that the felt “obliged to resign, having sought to return to work over a number of months and not being facilitated.”

It is the complainant’s view that his former employer was “paranoid in relation to a disability claim,” and decided not to assign any more hours to him because he suffered from back pain and he had taken sick leave.  He claims that, on this basis, he was treated differently to others.

The complainant said that these circumstances amount to “less favourable treatment on grounds of disability and a constructive dismissal on the grounds of my disability.”

A letter was submitted in evidence by the complainant which shows that, on March 8^th, the same day as he submitted this complaint to the WRC, his solicitor wrote to the respondent.  In this letter, Mr O’Hanrahan referred to the office manager’s request in May 2017 that the complainant confirm in writing that he was not injured while he was employed by them.  Mr O’Hanrahan referred to this note because he said, “it shows that your company were entirely paranoid in relation to the perceived risk of a litigation claim.”  Enclosed with the letter was an EE2 questionnaire, for the respondent to reply to an allegation of discrimination.  On March 19^th 2018, the respondent’s human resources manager replied and said that the company refuted all allegations in Mr O’Hanrahan’s letter and was therefore unable to assist with his enquiries.

Following the termination of his employment, the complainant said that he commenced a full-time training course to be a truck driver.  He must pass a driving test before he can take up this work.

For the respondent, Mr Whelan said that 277 staff are employed at Dublin Airport, 10 of whom are permanent.  The remaining 267 are employed on casual contracts and are offered work when it is available.  The business is seasonal with peak activity during the summer months and around Christmas-time.  Outside of the high summer and Christmas season, work is distributed to casual employees based on the longest serving employees being offered work first.

Mr Whelan said that the complainant’s hours were variable and, in accordance with his contract, they were “determined by mutual agreement.”  His contract provides that he had the right to accept or reject an offer of work and that the refusal of hours had “no negative consequences on hours being offered” to him in the future.  The contract also states that “the company gives no guarantee that hours will be offered to you on a weekly basis.”  While the complainant was employed as a valeter / driver, he was engaged mostly in driving, and his hourly rate of pay when he resigned was €10.00.

From the evidence submitted at the hearing, it appears that the office manager became aware of the complainant’s back problem around May 9^th 2017 because, on that day, she wrote to the complainant asking him to get his doctor to state “what type of work you can do and how long.”  On May 11^th, the complainant replied saying he had an appointment with a Polish orthopaedic surgeon on May 20^th.  The office manager replied and asked the complainant to “waive any complaints about the company regarding your back problems” and to stop working if he is doing too much, until he gets a certificate from his doctor.

The complainant was then absent due to back pain from May 22^nd 2017 and when he was fit to return, on October 1^st 2017, the respondent’s business was in its low season.  The office manager informed the complainant that, although he was fit to work, no hours were available.  Hours were offered to a small number of long-service casual employees.  The complainant was not offered any work and he resigned nine weeks later, on December 7^th 2017.

With respect to the complainant’s claim of constructive, discriminatory dismissal, Mr Whelan said that it is insufficient for a complainant to claim to be constructively dismissed if he has not tried to resolve his grievance by using the company’s grievance procedures.  Evidence was presented of a signed copy of a revised contract of employment that was issued to the complainant on October 6^th 2017, and this contains a copy of the respondent’s grievance procedure.  It is the respondent’s case that the complainant did not act reasonably by resigning and that he did not raise any grievance that would have allowed the respondent to deal with his concerns.  The respondent’s position is that the claimant has not met the burden of proof to substantiate a claim of constructive dismissal.

With respect to discrimination, it is the respondent’s case that the complainant complains about discriminatory treatment, merely because he falls into this category.  He has failed to set out the basic facts which would lead me, as the adjudicator, to assume that discrimination has occurred.  The respondent’s submission argues that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

It was also argued that the complainant has failed to put forward any comparators against whom he can establish that he has been treated less favourably.

In summary, Mr Whelan said that the complainant has alleged that he was discriminated against based on the fact that he was a casual employee and not offered work in the middle of the company’s low season, like all other casual employees.  He said that his is not sufficient to discharge the burden of proof required to establish that discrimination has occurred.  The mere fact that the complainant falls within one of the discriminatory grounds laid down in the Employment Equality Acts 1998 – 2015 is not sufficient to establish a claim of discrimination.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

85A – (1) 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 effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he was treated less favourably than someone in his workplace who did not have a disability, or, who had a different disability than his.

Referring to the onerousness of the burden of proof in the Employment Equality Act, Mr Whelan referred to the Labour Court case of Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, where the Court found:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Primary Facts

The complainant was a casual employee, working in an industry that was seasonal in nature, doing most of its business in the summer months.  His P45 dated December 17^th 2017 shows that, in that year, he earned €3,337 working with the respondent.  Based on an hourly rate of €10.00, this indicates that in the 19 weeks from January 1^st until he went out sick on May 21^st, he worked for 334 hours, or an average of around 17.5 hours each week. 

From the text messages submitted in evidence, it appears that, on May 9^th 2017, the respondent became aware that the complainant had “trouble” with his back.  On May 22^nd, he wrote to say that his injury happened “as a result of my last work.”

It is apparent therefore that, in 2016 and 2017, the complainant worked for the respondent following an injury that he claims he suffered in a previous job.

The complainant did not submit any medical evidence at the hearing.  The respondent’s book of documents contained copies of six medical certificates from four different doctors.  Three of these state that the complainant had “low back pain.”  One document, translated from Polish by the respondent’s office manager states that the complainant “is recommended to perform light work not on a full-time basis.”  It also recommends that he doesn’t lift heavy things or work in a bending or leaning position.  The cert dated December 1^st 2017 states that he is “fit and well to undertake full-time work.”  The sixth document is not legible.

On December 7^th, the complainant sent an e mail to the office manager in which he said, “Due to the lack of prospects and the company’s desire to continue my employment in the future, I am forced to file a termination notice.  Please send P45.”

From October 1^st 2017 until his resignation on December 7^th, the respondent advertised for staff at various locations, including Dublin Airport, where the complainant worked.  At the hearing, the office manager said that this ad was permanent, and that they did not recruit any new employees during this period.

The complainant made no effort to have his grievance dealt with under the heading of the company’s grievance procedure.  He did not contact any member of management, and, until the involvement of his solicitor on March 8^th 2018, he didn’t contact anyone in the human resources department to complain about not being offered work.  I must now consider if, based on these facts, I can conclude that discrimination has occurred.

Did the Complainant Suffer from a Disability?

In May 2017, the complainant informed his employer that he had “low back pain.”  At the request of the office manager, he sent a note to say that this was as a result of an injury in a previous employment and that he was not claiming “anything regarding this matter from the company.”

From the medical evidence submitted by the respondent, it appears that the complainant suffered from low back pain from May to September 2017.  In October 2017, he was fit to return to “light work” and in December, a doctor certified that he could return with no conditions.  At the time of his resignation on December 7^th therefore, it appears that he was fully fit, but from May to September, he had low back pain.

A definition of “disability” is set out at section 2 of the Employment Equality 1998 (“the Act”):

“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.

It appears from this definition that the term is intended to be broad and to include a disability that no longer exists.  It is clear therefore that the complainant’s “low back pain” that he suffered from in the past falls within the meaning of a “malfunction of a part of a person’s body… which previously existed but no longer exists.”  The definition is expansive and includes current, past and potentially future ailments; however, it cannot be construed to mean a common complaint suffered intermittently by a significant part of the population.  I am satisfied that low back pain as a result of a workplace injury may come within the scope of the definition of a disability; however, to meet the low threshold in the Act, evidence of at least some substance is required.  I am not satisfied that the complainant has provided this evidence.  Neither has he submitted any evidence that he met with an accident that resulted in an injury.  The respondent, and not the complainant, presented six documents from four different doctors (one of which was illegible) and the sum of the information contained in these was “low back pain.”  This is not adequate to establish the existence of a disability.

Constructive Discriminatory Dismissal

The complainant was employed on a casual contract and he said that he resigned because he wasn’t given any hours.  He was fit to return to work on October 1^st and he resigned on December 7^th. 

As his contract was casual, with no obligation on the employer to offer work and no obligation on him to accept work, it is my view that there was no reason for the complainant to resign when he did.  He could have waited for three weeks, when the company would have been in the busy Christmas season, or, he could have waited for the following Spring and Summer to determine if he was being excluded from work because of his back injury.  As a casual contract, he was free to take up employment somewhere else, while at the same time, being available to work for the respondent.  Before he resigned, he made no effort to have his concerns considered by a manager more senior than the office manager and he did not invoke the grievance procedure.  It is my view that the complainant’s decision to resign was premature and he did not act reasonably by giving his employer an opportunity to roster him for work when work was available or to address his concerns that he was being excluded from the workplace.    

Reasonable Accommodation

In September 2017, the complainant sent the respondent a medical cert from a doctor who advised that he was able for “light work” that did not involve bending or leaning.  For employees in the car rental business, bending and leaning occurs getting in and out of vehicles.  It is my view that at this time, the complainant was not fit for his job as a driver, as driving involves constant bending and leaning.

On December 1^st 2017, the complainant sent a medical cert from a different doctor, whose opinion was that he was fit for work.  On this basis, no accommodation was required.  Six days later, he resigned.  Before he decided to resign, he did not give his employer adequate opportunity to take account of this clean bill of health.

Conclusion

It is established law that, in a case of dismissal, the employer must show that he or she acted reasonably in respect of the decision to dismiss.  The same degree of reasonableness is required when an employee terminates his or her contract.  The employer must be notified of the intention of the employee to terminate his contract and must be given an opportunity to address the reason for the proposed termination.  In the case of this complainant, he resigned when, after nine weeks, he was not offered work on his casual contract.

In respect of his complaint of discrimination, it is my view that the facts he has set out are not adequate for me to presume that discrimination has taken place.  As set out by the Labour Court in the Valpeters case referred to by the respondent, these facts “must be established as facts on credible evidence.”  No medical evidence of any significance was submitted by the complainant to show that he suffered from a back complaint.  For this reason, it is my view that the complainant has failed to establish facts to show that he was suffering from a disability.  It follows therefore, that the onus of proving that discrimination has occurred does not shift to the respondent.

I have concluded that the complainant has failed to discharge the burden of proof which requires him to establish the primary facts that can be relied upon to establish a complaint of discrimination.  Based on this conclusion, I have decided that his complaint fails.

Discrimination, back pain