Complainant

Respondent

Anonymised Parties

An Employee

Agricultural Equipment Manufacturer

Representatives

Laura Reid Beauchamps Solicitors

Conor O'Dwyer O'Dwyer Solicitors

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-00016349-001

15/12/2017

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

CA-00016349-002

15/12/2017

The Complainant commenced employment with the Respondent, an Agricultural Equipment and Machinery manufacturer, on 2 August 2016, in the role of Design Engineer.

The Complainant’s employment with the Respondent was terminated on 14 July 2017, on the completion of two six-month contracts.

The Complainant submitted a complaint, under the Employment Equality Act, 1998, to the Workplace Relations Commission on 15 December 2017. (CA-00016349-001) The Complainant is contending that the Respondent discriminated against him by dismissing him for discriminatory reasons based on his disability.

The Complainant also submitted a second complaint on the same date under the Terms of Employment (Information) Act, 1994, contending that he had not received a statement in writing of the terms and conditions of employment. (CA-00016349-00)

Background to the Complainant and the complaint:

It was submitted on behalf of the Complainant, that he had over 30 years’ experience in manufacturing industry, when he applied for the position of Design Engineer which was advertised by the Respondent in 2016. It was further submitted that when the Complainant attended for interview he made the Respondent aware that he had a severe speech impediment (stammer).

According to the submission made on behalf of the Complainant, he was telephoned by the Respondent’s Managing Director (Mr A), a few days after the interview. It was submitted that, in this interview, Mr A informed the Complainant that he was unsure about whether he would give him the job or not. It was further submitted that, following this conversation, the Complainant met with Mr A, who informed him that he had decided to hire the Complainant and also a young graduate engineer.

According to the Complainant’s evidence, he recalls that Mr A told him that the job also required dealing with customers and suppliers on the Complainant’s behalf. It is further submitted that the Complainant assured Mr A that he would mostly use email in any event.

According to the Complainant’s submission, the Respondent designs and manufactures two categories of farm machinery/products – grass cutting machines and slurry/water tankers. It was submitted that the Complainant was only involved in the slurry/water tanker side of the business.

It was submitted on the Complainant’s behalf that he commenced work on 2 August 2016 and did not receive a contract of employment. It was further submitted that the Complainant recalls signing a contract of employment a few weeks later, in August 2016, during his induction. However, it was submitted that the Complainant never received a copy of the contract.

According to the Complainant’s submission, while the new graduate engineer commenced employment with the Respondent in September 2016, he worked on the grass cutting side of the business and not alongside the Complainant as had been originally advised by Mr A. According to the Complainant’s evidence, he understood that he replaced someone who had been in his (the Complainant’s) role for 22 years and who left the position due to the workload pressure.

According to the evidence submitted on behalf of the Complainant, his work mainly involved design as well as liaising with the floor supervisors and dealing with suppliers. It was further submitted that the Complainant’s role involved approximately 95% design work/written communication and approximately 5% verbal communication.

According to the Complainant’s submission, in February 2017, he attended a six-month performance appraisal with Mr A and the Financial Director (Ms B). The Complainant submitted that his recollection of the appraisal was that the Respondent was happy with his work and that he had a “baptism of fire”. The Complainant further stated that he was given a small pay increase but that he did not receive a copy of the said performance appraisal.

The Complainant further submitted that, at the appraisal meeting, Mr A informed him that he had heard about a “text to speech” app which would go on an iPad. According to the Complainant’s evidence he agreed to try out this app. However, the Complainant submitted that he found the app was not practical to use in a work environment as it took longer to turn on the tablet, swipe the screen, type the words and press go than it did to say it with his stammer. The Complainant also submitted that the volume on the device was too low for use on the factory floor.

According to the Complainant’s submission, he recalls, some days after the appraisal meeting, being approached by Ms B, who requested that he sign a document, which she informed him included his wage increase. The Complainant further submitted that while he signed the document in question he was not given a copy of same.

The Complainant submitted that he continued to work with the Respondent until July 2017. According to his evidence, he received an email on 14 July 2017 and a text message from Mr A who requested that he contact him before he went home. According to the Complainant’s evidence, when he met with Mr A, he was informed as follows: “We’re parting company. It’s not working out.”

According to the Complainant’s evidence, when he queried this decision, against his understanding that the Respondent was happy with his work, that all his projects were great and that the sales people were happy with him, Mr A made the following response:

“Your designs are good, it’s the whole communication thing. I need someone who can communicate with the dealers and customers. There are basically two halves to the job. Doing the design and also dealing with the customers. So we’re going to re-advertise the position. I’m letting you go just within the year.”

The Complainant submitted that Mr A informed him he was getting two weeks’ pay in lieu of notice. It was further submitted that when the Complainant offered to work out his notice, as he had work to finish off, Mr A declined this offer.

According to the Complainant’s evidence, as his work colleagues had already left for the day, he did not get an opportunity to say goodbye to them. It was further submitted by the Complainant, that it transpired his supervisor (Mr C), did not know that he had been dismissed, as, when the Complainant sent a text to him, on 16 July 2017, informing him that he had been dismissed, Mr C replied by text the following day stating, as follows:

“I’m so sorry. I can’t understand why. I always said you were getting on great when asked….. which you were…. I’m shocked, genuinely….. – was some workload to take over after Mike and I can say you know more about tag hydraulics than me.! I’m at a lose (sic) to understand their reasons.”

The Complainant submitted that he received a letter dated 20 July 2017 from the Respondent, confirming his dismissal and two weeks payment in lieu of notice.

According to submissions made on behalf of the Complainant, he was in complete shock that he was dismissed on the spot without prior warning as to what the meeting was about or that his job was at risk due to his disability. The Complainant further contends that the Respondent made no attempt to communicate with him about his disability and if there were issues, possible ways that they might be addressed by the parties. The Complainant further submitted that the Respondent did not carry out an assessment with him nor ask him to attend a medical doctor to assess how he could be reasonably accommodated in his role so as to allow him to continue working there.

In concluding the submission in relation to the background leading up to the Complainant’s dismissal, his legal representative submitted that the Complainant’s solicitor wrote to the Respondent, by letter dated 27 April 2018, making a data protection request.

According to the submission, on foot of that request, the Complainant’s solicitor received documents, including two statements of employment for the Complainant, as well as an appraisal form. It was further submitted that none of these documents were given to the Complainant during the course of his employment with the Respondent, in particular, the apparent reference to the contracts being for a fixed period of six months in the two separate statements of employment (included by way of a handwritten note at the top right-hand corner of the first page of each document).

It was submitted on behalf of the Complainant that, as per the job specification, his interview and the other contents of the statements of employment (which are consistent with the Complainant being in a contract of indefinite duration and not a fixed term contract), he was employed on a permanent contract.

Substantive Arguments – complaint reference (CA-00016349-002):

Against the background set out in the previous section, the Complainant’s legal representative made the following submissions on his behalf.

a)       Outline Submissions:

·         The Respondent took no steps whatsoever to investigate the nature of the Complainant’s condition and the steps which the Respondent could take to accommodate him in the workplace.

·         The Respondent made no attempt to accommodate or facilitate the Complainant in the workplace through the introduction of appropriate measures required by law.

·         The Respondent’s treatment of the Complainant constituted discrimination on the grounds of disability.

·         The Respondent discriminatorily dismissed the Complainant due to his disability.

b)      Legal Submission:

Under this heading, the Complainant’s legal representative made the following submissions:

         i.            Discrimination and Discriminatory Dismissal:

In submissions made on behalf of the Complainant, it was stated that he was dismissed by the Respondent by reason of his disability contrary to Section 8 of the Employment Equality Act, 1998, as amended and in terms of Section 6 of that Act. It was further submitted that the Complainant was treated, by the Respondent, in a manner which amounted to discrimination on grounds of disability contrary to Section 8 of the Act.

The Complainant’s legal representative referred to Sections 6 (1) and 6 (2)of the 1998 Act and, in this regard, submitted that the Complainant’s comparator for the purposes of his complaint was the Design Engineer who commenced employment with the Respondent around the same time as the Complainant.

       ii.            Disability Definition:

Under this heading, the Complainant’s legal representative referred to the definition of disability which is contained in Section 2 (1) of the 1998 Act. With regard to the definition of disability reference was also made, to EC Employment Law by Catherine Bernard [Oxford University Press, 2006, page 393].

It was submitted, on behalf of the Complainant, that it is clear from the broad wording of the legislative definition of “disability” and from the position which has evolved in Irish and European case law, that the Complainant’s condition constitutes a disability for the purposes of the within claim.

     iii.            Reasonable Accommodation:

In their submission on his behalf, the Complainant’s legal representatives referred to Articles 5 of the Framework Council Directive [2000/78/EC], with regard to the matter of reasonable accommodation. In addition, reference was also made Sections 16 (3) and (4) of the Employment Equality Act 1998, as amended.

In relation to the above references, it was submitted on behalf of the Complainant that the Respondent failed to take any or any adequate steps to provide reasonable accommodation of the Complainant’s disability, of which the Respondent was aware.

     iv.            Burden of Proof:

It was submitted on behalf of the Complainant, that the legal position regarding the burden of proof in cases relating to discrimination as set out in the Framework Directive and in Section 5 A of the Employment Equality Acts.

Based on the provisions contained in the aforementioned references, it was submitted on behalf of the Complainant that it is clear where a prima facie case of discrimination has been demonstrated by the Complainant, the burden of proof will shift to the Respondent to rebut this claim on the balance of probabilities.

       v.            Caselaw:

The Complainant’s legal representative referred to particular cases in support of his complaint. Firstly, reference was made to the case A Government Department v An Employee [EDA061/2006].   Specific reference was made, in this regard, to the Labour Court finding when holding that the Complainant, in that case, had been discriminated against on disability grounds:

“the Respondent had a duty under Section 16 (3)(b) of the Act to assess the Complainant’s position and to at least, in consultation with her, what if any alleviating measures could be put in place. The Respondent’s failure to do so negates any direct or indirect reliance which it can now place on her lack of capacity to justify the decision.”

The second case referenced by the Complainant’s legal representative was that of Humphries v Westwood Fitness Club [2004 15 ELR 296].   Based on the Court finding in this case, the Complainant, in the within case, made specific reference to the requirement, including both the nature and extent, of the enquiries which an employer should take prior to the dismissal of an employee on the ground of disability.

c)       Conclusion:

In conclusion, it was submitted on behalf of the Complainant that, based on the above, he was discriminatorily dismissed by the Respondent. It was further submitted that the Respondent failed in its obligation to reasonably accommodate or take adequate measures to accommodate the Complainant’s disability.

According to submission made on his behalf, the Complainant made a prima facie case of unlawful discriminatory treatment and a failure to reasonably accommodate the Complainant’s disability by the Respondent. Accordingly, the Complainant requests a finding in his favour in respect of the complaints as submitted.

Terms of Employment (Information) Act, 1994 - Complainant reference (CA-00016349-002)

The Complainant also raised the issue that he had not received a copy of his contract of employment or a statement of his terms and conditions of employment from the Respondent contrary to the Terms of Employment (information) Act 1994.

Background:

The Respondent submitted that the Complainant was employed as a Design Engineer, on an initial six-month contract. It was further submitted that this contract was extended for a second period of six months.

According to the Respondent’s submission, at the expiration of the second six-month period, the Complainant was advised his contract would not be extended for tank design.

Employment Equality Act, 1998 - Complainant reference (CA-00016349-001)

In response to the Complainant’s claim that he had been discriminatorily dismissed, on the grounds of his disability, the following submission was made on behalf of the Respondent by their legal representative.

Background:

It was submitted on behalf of the Respondent, that the Complainant’s predecessor in the role of Design Engineer (Mr D) had worked for the Respondent for a number of years. It was submitted that, in the role in question; the design of tanks and grass care products, Mr D worked alongside Mr C (referred to in the Complainant’s submission as his Supervisor/Manager).

According to the Respondent, Mr D decided he wished to change his career and to leave his employment for personal/career development reasons. It was further submitted that the position vacated by Mr D needed to be filled and was, therefore, advertised as one position.

The Respondent submitted that, throughout the process, it was established that none of the prospective candidates for the job held direct experience in the field. It was further submitted that, therefore, it was decided to recruit a design engineer to work on their own in the tank manufacturer side of the business and to recruit a graduate to work under Mr C in the grass care side of the business.

According to the Respondent’s submission, when the Complainant attended for interview it did not go well. According to the Respondent, it was apparent that the Complainant was nervous and had a speech impediment. It was further submitted that, subsequent to the interview, the Managing Director, Mr A, contacted the Complainant and arranged to meet him in a more informal setting.

The Respondent submitted that, at this meeting, Mr A reassured the Complainant that although his interview did not go well, he had design engineering qualifications and experience and that was what was required for the job. According to the Respondent, it was also explained to the Complainant that the level of interaction, on a verbal level, with co-workers etc was minimal. In this regard, the Respondent pointed out that the Complainant has acknowledged this in his own submission, where he states that 95% of his work was non-verbal.

The Respondent denied the Complainant’s contention that Mr A was unsure whether or not he was going to offer him the job. The Responded also denied the contention that Mr A informed the Complainant that the graduate engineer will work alongside him and effectively carry out any telephone dealings on the Complainant’s behalf.

According to the Respondent’s submission, at the beginning of his employment, the Complainant attended the factory during the summer shutdown and received training/induction into the job by both Mr C and Mr D. It was further submitted that Mr D also liaised with the Complainant for a time in the early stages of the latter’s employment and attended the factory to assist the Complainant settle into the job and to use the design software.

The Respondent submitted that the Complainant was employed on an initial six-month contract. It was further submitted that the graduate engineer was also employed on an initial six-month contract. According to the Respondent’s evidence, the situation was reviewed with the Complainant, after the initial six month period and an informal meeting, which was in effect a performance appraisal, took place at that time.

According to the Respondent’s submission, it was acknowledged to the Complainant, at the six-month appraisal meeting, that he had had steep learning curve.

The Respondent further submitted that during the appraisal meeting, the Complainant requested a pay rise. The Respondent stated that the Complainant was granted a minimal pay rise and his Contract of Employment was extended for a further six months. The Respondent also pointed out that the graduate engineer also underwent a performance appraisal around the same time and his contract was also extended for a further six months.

The Respondent further submitted that, during his six-month appraisal meeting, the Complainant made a number of issues, including one that some handwritten notes he was receiving from sales staff were difficult to read. The Respondent stated that, as a result of this, a direction was given to all sales staff that instructions being provided to the Complainant should be typed. However, the Respondent submitted that the Complainant did not make any requests for assistance with his speech impediment.

According to the Respondent’s submission, during the six-month appraisal meeting with the Complainant,   it was brought to his attention that shortcomings in his design drawings were causing difficulty for the manufacturing process. It was further submitted by the Respondent that this issue had been raised with the Complainant on a number of previous occasions. It was submitted that the Complainant was having difficulty in an ongoing basis designing tanks in accordance with the specification handed to him.

It was submitted on behalf of the Respondent that, when the tank designs were prepared by the Complainant, it was often the case that items were missing. According to the Respondent, this slowed the production process and caused additional expense for the Respondent whereby fixtures and fittings were having to be retrofitted to the tanks after costings had been agreed with the customer. It was also submitted that, on several occasions, the Respondent had under-priced tanks by thousands of euro due to the mistakes in the design of the tanks.

According to the Respondent’s submission, the Complainant was often asked by staff if anything could be done to assist in carrying out his duties in order that his performance would improve. The Respondent submitted that the Complainant had no suggestions to make in this regard other than the aforementioned issue in relation to handwritten instructions received from sales staff.

The Respondent submitted that it was suggested to the Complainant that the level of verbal communication that was required to be carried out by him had increased due to the shortcomings in his designs. It was further stated that the staff manufacturing the tanks do not have English as their first language.

The Respondent stated that it was at this stage, the Mr A suggested getting the complainant an iPad with text-to-speech capabilities so as to help the interaction with the manufacturing staff. The Respondent submitted that the Complainant would not use the iPad, stating that the Wi-Fi signal was too weak in the premises. According to the Respondent, they invested in a booster for Wi-Fi for the Complainant. However, it was further submitted that, by email dated 9 May 2017, the Complainant stated that he would not use the iPad.

The Respondent submitted that, on 14 July 2017, Mr A invited the Complainant to a meeting in his office. According to the Respondent’s submission, the Complainant was advised that his contract was not going to be extended due to the ongoing shortcomings in the design drawings he was preparing. The Respondent further stated that the Complainant was advised that he had the option of working out his 2 weeks’ notice period or receiving payment in lieu. The Respondent submitted that the Complainant stated he wished to receive the payment in lieu of working out his notice.

Conclusion:

In concluding their submission, the Respondent denied in the strongest possible terms that they took no steps to investigate or took no steps to accommodate the Complainant. According to the Respondent, they made every effort to accommodate the Complainant.   It was also submitted that, in any event, the Complainant’s speech impediment did not affect his ability to do his job, which was designing tanks. In this regard, the Respondent referred again to the Complainant’s own submission that 95% of his job was non-verbal.

According to the Respondent’s submission, the Complainant was not able to design tanks correctly and this was causing the Respondent financial loss and delays in the manufacturing process. Consequently, the Respondent submitted that it was for these reasons the Complainant’s contract was not extended beyond 12 months.

Terms of Employment (Information) Act, 1994 - Complainant reference (CA-00016349-002)

In response to the Complainant’s claim that he had not been given a copy of his Contract of Employment and/or didn’t of turns of conditions of employment, the Respondent submitted that the Complainant was issued with a Contract of Employment shortly after 2 August 2018. According to the Respondent submission, the Complainant has acknowledged this fact.

On that basis, the Respondent submitted that the Contract issued to the Complainant complies with Section 3 of the 1994 Act. In this regard, the Respondent submitted, in evidence, a Written Statement of Terms of Employment dated 16 August 2016, which was signed by the Complainant.

The Respondent further submitted that, on the basis that the Complainant has acknowledged that he did receive a Contract of Employment, he was fully aware that he was employed on an initial six-month Contract, which was extended for a further six months.

In conclusion on this element of the Complainant’s claim, the Respondent submitted that the Complainant had included his claim under the 1994 Act in order to attempt to substantiate his claim under the Employment Equality Acts.

Consequently, based on all of the above, the Respondent submitted that no finding in favour of the Complainant should be made in relation to his claim under the 1994 Act.

Employment Equality Act, 1998 - Complainant reference (CA-00016349-001)

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant 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.”

This means that the Complainant is required to establish, in the first instance, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85 A (1) of the Employment Equality Acts 1998 to 2008.

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 inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of Section 85 A (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

In support of his complaint, the Complainant, in the within case, is claiming that he was discriminated against by reason of his disability and that his contract was terminated for the said discriminatory reason. In this regard the Complainant contends that his disability related to a severe speech impediment which manifested itself as a stammer.

Section 2 (1) of the Employment Equality Acts, 1998 – 2015 defines “disability” 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;”

As can be seen from the above, the Acts set out the broad nature of conditions or impairments which could give rise to disability for the purposes of the Acts.

While the definition includes temporary disabilities, the Labour Court in the case of A Government Department v A Worker [EDA 094], noted that the definition of disability as set out in the Acts does not refer to the extent to which the manifestation or symptom must be present. However, the Court acknowledged that symptoms which are present to an “insignificant degree” could be disregarded in determining whether the condition amounts to a disability.

Having carefully considered all of the evidence adduced and based on the facts are set out above, I am satisfied that the Complainant was suffering from a disability in line with Section 2 (1) of the Acts.

Consequently, taking all of the above into consideration, I find the Complainant to have sufficiently established a prima facie case that an act of discrimination took place in relation to the termination of his contract of employment such that the burden of proof switches to the Respondent to rebut the claims being made by the Complainant.

There are two principal aspects to the Respondent’s rebuttal of the Complainant’s claim of discriminatory dismissal, based on his disability. Firstly, the Respondent contends that the Complainant was originally employed on a six month fixed term contract, which was subsequently extended for a further six months. According to the Respondent the termination of the Complainant’s employment resulted from the expiry of the second fixed term contract. Secondly, the Respondent contends that the decision not to extend the Complainant’s contract beyond the second fixed term contract was due to performance issues and in particular the Complainant’s lack of aptitude for tank design.

With regard to the matter of the Complainant’s contracts, I find that the evidence does not support the Respondent’s contentions that the employment contracts consisted of two six-month fixed term contracts and that the Complainant was aware of this.

Having carefully reviewed all the evidence adduced, I find no credible evidence that the contracts were of a fixed term nature.   Firstly, I am satisfied that there is no reference to the tenure/nature of the contract in the job specification/advertisement. There is also no evidence to suggest that when Mr A met with the Complainant subsequent to the interview, there was any reference to the job being of a six month, fixed term nature.

Additionally, the Written Statement of Terms of Employment, dated 16 August 2016 and signed by the Complainant, contains no formal reference to the nature of the contract or its duration.   This is despite the fact that the document contains most of the normal terms and conditions one might expect to find in a standard contract of employment.

The document, under the heading Probation, refers to a probation period of one month, which may, at the company’s discretion, be extended for a period not exceeding six months.   This would indicate that, following a maximum period of six months’ probation, a new employee could reasonably expect that their contract would be of a permanent nature thereafter.

In this regard, I note that, at the Complainant’s Performance Appraisal in February 2017, there was no reference to the contract being extended for a further six months. On that basis, I am of the view that it was not unreasonable for the Complainant to conclude, based on the generally satisfactory nature of the assessment of his performance, that his employment with the Respondent was nothing other than permanent.

In their submission, the Respondent pointed to a hand written note on the signed Statement of Terms of Employment, which reads as follows: “6 months, Aug 2016 – 8/2/17”, as their evidence/proof that the contract was of the fixed term nature for six months. The Complainant strongly disputes that this handwritten note was on the statement when he signed it. There is also conflicting evidence that the Financial Director, Ms B, whose initials appear beside the handwritten note on the statement, was actually present when the Complainant signed the document.

While it is not possible to determine with any degree of certainty, which version of the conflicting evidence is the more accurate, I find it rather unusual that a term of employment, as significant as the nature/ tenure of a contract of employment, would be recorded on a written Statement of Terms of Employment in the form of a handwritten note. I find this to be particularly so in a context where the Respondent contends that the issuing of six-month fixed term contracts is the standard approach used in the recruitment of all new employees.

In addition to the Statement of Terms of Employment, which was signed by the Complainant at the commencement of his employment, the Respondent also submitted, in evidence, a document entitled “Addendum to Written Statement of Terms of Employment”, which is signed and dated by the Complainant on 10 February 2017. This addendum which specifically relates to “Remuneration and Hours of Work”, appears to have issued in order to implement the salary increase awarded to the Complainant arising out of his performance appraisal on 7 February 2017.

Similar to the original Statement of Terms of Employment, this document also contains a handwritten note, which on this occasion states: “6 months to 28/7/17”. Once again, the Complainant strongly refutes that this notation was on the document when he signed it or that he was advised that his contract was being extended for a further six months and would be due for a review on 28 July 2017.

The Respondent also submitted, in evidence, an email from Ms B to the Complainant, dated 14 February 2017, on the subject matter of “Review/Update from our meeting last week”. In this correspondence Ms B states, inter alia: “Wages have been increased to €36k for 6 mths with effect from this week”. While I accept that it is somewhat unusual to refer to a salary increase being for a defined period, i.e. six months in this case, I find it equally unusual that, in a context where the Respondent is contending that the period between February and July 2017 was, in effect, a new fixed term contract representing an extension to the first contract, that this would not have been referenced more clearly in this correspondence.

Having carefully reviewed all the evidence adduced, I can only conclude that the Respondent’s contention that the Complainant’s employment consisted of two six-month, fixed term contracts is not supported by evidence and is not, therefore, credible. I am further of the view in this regard that the Complainant was not appropriately informed or put on notice that his employment with the Respondent was anything other than permanent in nature and duration.

Consequently, taking all of the above into consideration, I find the Respondent’s claim that the termination of the Complainant’s contract of employment resulted from the expiration of the second six months, fixed term contract of employment is not well founded and could not be considered to be a reasonable or justifiable rebuttal of the Complainant’s claim that the said termination was discriminatory in nature.

With regard to the Respondent’s contention that the reason the Complainant’s contract was not extended further in July 2017 was due to poor work performance and a lack of aptitude for tank design, I find once again that the evidence presented does not support this contention.

The evidence clearly shows that the Complainant’s role was extremely busy and that he was on a steep learning curve for the first 6/12 months. There is also a clear indication that a significant workload awaited the Complainant on taking over from his predecessor.

However, notwithstanding the above   scenario, the Complainant’s performance appraisal, which took place in February 2017, suggests that he had performed reasonably well in his first six months in the role. The overall performance assessment applied to the Complainant was a combination of “Meets Expectations” and “Improvement Needed”.   While there are clear expectations that a general lift in performance is expected over the next review, as the Complainant becomes more familiar with his role, nothing was highlighted at his review in February 2017 which might suggest his employment would be terminated within five months.

At the Hearing, the Respondent presented evidence, by way of a series of emails between the Complainant and various members of the management team, which they contend highlight issues that arose in relation to the Complainant’s performance. Having carefully reviewed this material, I am of the view that, while it highlights a number of issues pertaining to aspects of the Complainant’s work, these appear to be more in the nature of day-to-day matters rather than constituting performance issues that might warrant specific attention and perhaps the initiation of the disciplinary procedures.

Notwithstanding the above view,   I am satisfied that, in a context where the Respondent considered the Complainant’s performance to be so seriously deficient that it warranted termination of employment, there is an onus on the Respondent to deal with the matter through the application of fair process and procedure. However, the evidence presented suggests that the termination of the Complainant’s employment was devoid of any process or procedure.

The Complainant was summoned to a meeting with the Managing Director at very short notice, without any indication of the purpose of the meeting and without being advised of his right to be accompanied by another staff member or appropriate representative. At the meeting in question the Managing Director informed the Complainant that his employment was being terminated.

Having carefully considered all of the evidence adduced, I find the Respondent’s termination of the Complainant’s employment to be in direct breach of several provisions contained in the Respondent’s own Disciplinary Procedure, as set out in the Written Statement of Terms of Employment which were provided to the Complainant on taking up his employment. In particular, I find the Respondent’s actions run contrary to the following provision in the Disciplinary Procedure: “in all dismissal cases, full investigation will be carried out, and you will have the right to put your case and be accompanied by another staff member or appropriate representative, and the right to appeal against a decision to a more senior management.”

Finally, I am further confirmed in my view as to the questionable nature of the Respondents termination of the Complainant’s employment by the evidence contained in a text message which he (the Complainant) received from the person he considered to be his Supervisor, Mr C, in response to him having informed Mr C that his employment had been terminated. Notwithstanding the Respondent’s contention that Mr C was not the Complainant’s supervisor, I am satisfied that he (Mr C) was a member of the Respondent’s management team, had significant interaction with the Complainant and, in that regard, is listed on the Complainant’s Performance Appraisal as being one of his Supervisors.

In particular, I found the following comments, contained in Mr C’s text to the Complainant, to be informative when deliberating on the circumstances pertaining to the termination of the Complainant’s employment: “I can’t understand why…. I’m shocked, genuinely……. I’m at a loss to understand their reasons….. I always said you were getting on great when asked…’.   In addition to the serious procedural flaws highlighted above, I find that the aforementioned comments cast further doubt on the bona fides of the Respondent’s contention that the Complainant’s employment was genuinely related to poor performance.

In a situation where an employee establishes a bona fide case that an employer may have engaged in an act of discrimination contrary to the provisions of the Equality legislation, there is an onus on that employer to rebut the claim on the balance of probability. Having carefully reviewed all of the evidence adduced, I am satisfied that the Respondent, in the within case, has failed to do so. In fact, I find that, on the balance of probability, it is more likely that the decision to terminate the Complainant’s employment had more to do with his disability than with his work performance.

In addition, I find that the Respondent failed to properly exercise the responsibility placed on them by Section 16 (3) of the Employment Equality Act 1998, to provide reasonable accommodation to enable the Complainant to continue in employment. While I accept that the Respondent did propose the use of a speech-to-text app and provided additional Wi-Fi facilities to assist in this, I find that, particularly, in the lead up to and/or at the time of the termination of employment, the Respondent failed to properly investigate and/or address any work related issues which might have been associated with the Complainant’s disability.

In conclusion, taking all of the above into account and having carefully considered the Complainant’s complaint of discrimination on the grounds of disability and the Respondent’s submissions in response, I find that discrimination, as set out in Sections 6 (1) and 6 (2) (g) of the Employment Equality Acts, 1998 – 2015, has taken place.

Consequently, I find that the Complainant’s complaint that he was discriminated against by the Respondent on the grounds of disability is well-founded and I find in his favour in this regard.

Terms of Employment (Information) Act, 1994 - Complainant reference (CA-00016349-002)

Based on the evidence adduced, I am satisfied that the Complainant was provided a Written Statement of the Terms of Employment, which he duly signed on 16 August 2016. I am further satisfied that in doing so the Respondent was in compliance with Section 3 of the Terms of Employment (Information) Act, 1994.

Consequently, I find that the Complainant’s complaint in this regard is not well founded and is, therefore rejected.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my findings in relation to both elements of the Complainant’s complaints as follows:

Employment Equality Act, 1998 - Complainant reference (CA-00016349-001)

I find the Complainant’s complaint is well-founded and I make an award of €15,000 in his favour for the Respondent’s breach of Section 8 (1) of the Employment Equality Act, 1998 - 2015.

The above award represents compensation for infringement of the Complainant’s rights under equality legislation in relation to discrimination on the ground of disability. It does not include any element relating to remuneration and is, therefore, not taxable.

Terms of Employment (Information) Act, 1994 - Complainant reference (CA-00016349-002)

I find that the Complainant’s complaint in this regard is not well founded and is, therefore, rejected.

Employment Equality Acts

Disability

Reasonable Accommodation

Terms of Employment (Information) Act, 1994