Complainant

Respondent

Anonymised Parties

A Worker

An Employment Agency

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-00022941-001

31/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00022941-002

31/10/2018

The complainant commenced employment on 19th September 2016 and was paid an hourly rate of €9.55. She was subsequently involved in a road traffic accident on 6th June 2017, further to which she went on sick leave. She claimed that she was discriminatorily dismissed from her employment on 28th June 2018, when she was issued a copy of her P45 by the respondent.

The complainant suffered significant injuries in a road accident on 6th June 2017 further to which she was certified as unfit for work and was advised to take time off to aid her recovery. She informed the respondent’s client of this and engaged with management over the following months via text message as she continued to recover from her injuries. During this time she was given no indication from either the respondent or the client that her job was under threat and claimed that she hoped to return to work when she was fit to do so.

In November 2017, the complainant attended the respondent’s premises where she met with Ms A and requested that a loss of earnings certificate be completed as she required same as part of her application to the Personal Injuries Assessment Board following her road traffic accident. She also informed Ms A that she was still under the care of her GP and would not be in a position to return to work at that stage.

Without any prior notice or warning, the complainant was sent an email on 28th June 2018, which attached her P45. She stated that she was shocked to be treated in such a manner and noted that the P45 was backdated to 1st December 2017.

The respondent disputed that the complainant had a valid claim under the Act as it did not accept that she suffered from a disability. The respondent’s representative highlighted that this was clear from the medical reports provided. Specifically, when the complainant was examined after the accident it was noted that she had sustained soft tissues injuries and that a full recovery was anticipated. In addition, a medical report signed by the consultant neurosurgeon on 20th June 2018 noted that she had “sustained no permanent injuries”.

A further report subsequently completed by the same neurosurgeon on 9th January 2019 stated that when he saw the complainant initially on 20th June 2018, he was “unable to identify any definitive physical abnormality as a consequence of the accident of 6th June 2017”.

It was also stated that the complainant had given no indication of a return to work when she met Ms A in November 2017. In addition, it was highlighted that the P45 was completed following this meeting with a termination date of 1st December but was only subsequently sent to the complainant as part of the PAYE modernisation exercise.

CA-00022941-001 and CA-00022941-002

Preliminary Issues:

1.       Having made both parties aware of a working relationship I had with the Respondent’s MD between 2006 and 2010, the complainant’s representative objected to me hearing the matter. Given that I have had no contact whatsoever with the MD since the working relationship ended and that he did not intend to give evidence at the hearing, I did not consider it necessary to recuse myself.

2.       I note firstly that that while the complainant’s P45 was dated 1st December 2017, it was not issued to her until 28th June 2018. Given that it was not communicated to her until then, I consider 28th June 2018 to be the date of the alleged dismissal. I find therefore that when the complaint was made on 31st October 2018, it was within the required six-month period provided for in the Act.

3.       Given that the respondent’s representative disputed that the complainant had a disability, I must establish, in the first instance, if she had a disability as outlined in the Act.

The Act defines “disability” as follows in Section 2:

The respondent’s representative highlighted that the meaning of the “disability” was most recently considered by the Labour Court in the decision in Houses of the Oireachtas v Thomas Hickey(EDA 1918) wherein the judgements of the ECJ in Chacon Navas v Eurest (C-13/05) and Jette Ring v Dansk (C-335/11) were referred to.

Specifically, the Labour Court in its decision stated that it was

“bound by the judgment of the Court of Justice in Case C-335/11. It is clear from the extract quoted above from that judgment that a relatively short illness, such as that experienced by the Complainant in this case, does not amount to a disability that hinders “the full and effective participation of the person concerned in professional life on an equal basis with other workers”.

I also note that no medical evidence was presented to me to establish clearly and unequivocally the extent and the duration of the complainant’s illness or that that illness was a chronic illness within the definition of “disability” for the purposes of the Act. I therefore find that the complainant has not established a prima facie case and that, accordingly, she was not discriminated against.

CA-00022941-002: On the basis of the oral evidence presented to me at the hearing and having reviewed correspondence from the respondent’s solicitor dated 28th November 2018, I am satisfied that the complainant was effectively dismissed from her employment on 28th June 2018 and did not receive her statutory notice. I therefore find that the Act was contravened.

CA-00022941-001: As set out above, I find that the complainant has not established a prima facie case and that she was therefore not discriminated against.

CA-00022941-002: I find that the Act was contravened and require that the respondent pay the complainant €229.20, which represents one week’s notice payment.