Complainant

Respondent

Parties

Helen  Dowling

Xtreme Csc Ltd

Complainant

Respondent

Anonymised Parties

Representatives

  Tom O’Grady, Solicitor

 JJ Fitzgerald, Solicitor

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-00022616-001

15/10/2018

The complaint is that the Respondent discriminated against the Complainant on grounds of disability.

The Complainant was in the employment of the Respondent from 13^th June to 13^th August 2018.  She was dismissed on 13^th August 2018.  A number of reasons were given to her at the time, relating to her performance, such as leaving lights on at night, failing to turn the fan off and equipment left around the gym.  The whole reason submitted by the Complainant was that the Respondent did not want someone with a disability working for them.  The Complainant felt harassed and distressed in the course of her employment with the Respondent.  She submitted examples of altercations with management and another member of staff.  The Complainant stated that she has suffered disability as a result of suffering a stroke at the age of 5 and that she has onset anxiety which exacerbated the situation in work.  She claims that no reasonable accommodation was provided to her in relation to her disability and that she was effectively discriminatorily dismissed from her employment.

The Respondent employed the Complainant under the wage subsidy scheme and has a number of employees working under this scheme on a successful basis.  The Respondent refutes any allegation of discrimination and has an ethos of respect for people in the workplace.  Written and oral statements in support of this position were submitted.  There was no medical evidence submitted at any time to support the contention of anxiety or mental stress.   The Respondent had numerous problems with the Complainant’s performance at work, and met with her to help her in the workplace and tried to accommodate her by having her work part-time.  There was a Care Worker assigned to the Complainant and she attended the meeting with the Complainant and management which resulted in the Complainant’s employment being terminated. It is submitted that the bona fides of the Complainant is not accepted and an exchange of messages between the Complainant and a former staff member was submitted in support of this point.  The messages from the Complainant stated inter alia “I’ll b playing the disability card too…if I went to court I’d be getting a large pay out..”  The Respondent vehemently denies there was any discrimination against the Complainant on grounds of disability or otherwise.

Section 85A of the Employment Equality Act provides that the burden of proof first lies with the Complainant to establish primary facts from which an inference of discrimination may be made (known as ‘prima facie’), and it is only then that the burden of proof shifts to the Respondent to prove that no discrimination took place.

Section 85A provides:

“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 Labour Court in  Melbury Developments v Valpeters (EDA0917) in interpreting Section 85A of the Acts held unequivocally that the onus of establishing a prima facie case is on the Complainant and stated:

“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit.  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 speculation 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exceptions”.

In this instant case, the Complainant was dismissed on foot of numerous performance problems.        I note the Respondent has a number of wage subsidy scheme workers in their employment.  I note the evidence directly given of the positive treatment by the employer of the workers.  I do not find that the Complainant in this case has established a prima facie case and has discharged the burden of proof from which it may be inferred that discrimination has occurred.   I therefore find the complaint to be not well founded.