Complainant

Respondent

Anonymised Parties

A Groundsman

An Employer

Representatives

Daniel O'Connell Robert Emmet Bourke & Co.

Melanie Crowley Mason Hayes & Curran 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-00027790-001

16/04/2019

The Complainant was employed by the Respondent as Groundsman from 1st June 2001 to 29th June 2018.

The Complainant worked as a grounds and maintenance man for the Respondent from 2001. He lived with his wife in a property on the grounds. The Complainant is a non-national with limited English.

Due to a serious tragedy affecting a member of the Complainant’s family in May 2018, the Complainant left Ireland to return to his native country with his wife for a number of months following their bereavement.

The Complainant has a separate complaint in relation to his dismissal. The Complainant claims he has been discriminated against by the Respondent on the grounds of disability, race and failure to provide reasonable accommodation.

The Complainant was prescribed anxiolytic medication from his GP after the tragedy. A medical report was provided from his GP who saw him on 19th March 2019 and certified he suffered untold psychological distress from May 2018 to March 2019. The Complainant has a disability within the meaning of the Employment Equality Acts 1998-2005.

The Complainant was not in a position to make a complaint within the statutory period of six months

Subsequent to the statutory period of 6 months, the Complainant received legal advice. His English is limited and there were difficulties taking initial instructions. Counsel had to be instructed. His complaint was then expedited. 

The threshold to be reached is reasonable cause and the Complainant relies on the dicta of Ms. Justice Laffoy in Department of Finance v IMPACT [2005] in considering an extension of time in exceptional circumstances: 

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. His is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. Whilst not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time-limit. These factors would include… the degree of prejudice which may have been suffered by the Respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good case on its merits”. 

The Complainant also relies on the Labour Court decision of Cementation Skanska v Carroll DWT38/2003. The Complainant relies on a letter from his GP that he was not in a state of mind that would allow him to properly meet the injustice committed against him. There were very exceptional circumstances that applied. His complaint of discrimination was received by the Workplace Relations Commission on 16th April 2019.

The Complainant and his wife were due to return to work in January 2019. The Complainant was asked to attend a meeting with the Respondent on 6th August 2018 and he was not aware of the subject of the meeting. The Complainant was not medically assessed prior to the meeting although the Respondent was aware of the tragedy. No interpreter was provided at the meeting and the Complainant was treated as a second class citizen. The Complainant relies on the Labour Court decision in Campbell Catering v Rasaq [2004] ELR 310 which highlighted the need for employers to implement special measures to ensure that non-national employees understand the gravity of asituation. It was a master servant relationship.

At the meeting, the Complainant’s wife said she wants to go back to work but they do not want to live in the same house on the grounds due to their upset. The Complainant said he wants to return to work but did not want to work on a small area in the garden of the property following the tragedy. The Complainant says the Respondent suggested it would be better if they lived elsewhere with friends. The Respondent said they would work elsewhere three days a week and would give a reference to them for this. It was only after the meeting that the Complainant’s wife realised they had lost their jobs. The Respondent failed to provide reasonable accommodation to the Complainant who did not want to work on a small piece of the garden, and the Respondent took this as an opportunity to hold out that the Complainant was incapable of returning to work.

The Complainant relies on the dicta of the Supreme Court in Nano Nagle School v Daly [2019] IESC 63 that a “wise employer will provide meaningful participation in vindication of his or her duty under the Act”.

The Complainant first sought legal advice from his solicitor on 7th March 2019. The medical report from his GP is dated 8th April 2019, and complaint form was lodged on 16th April 2019. The culmination of the facts prevented the Complainant from lodging his complaint within 6 months and reasonable cause has been shown. 

The Respondent sought written submissions in relation to the complaints in advance of the hearing.

The Respondent objects to the complaint proceeding as it is outside the statutory time period. There was a delay of 18 days in submitting the complaint from the time the Complainant lodged his other complaint on 29th March 2019.

The Respondent requests clarification of the reason for the delay and evidence of the Complainant’s alleged disability. The Complainant’s medical report says he is a newly registered patient since 19th March 2019. Medical records of the Complainant’s first attendance with his GP do not evidence any disability.

The Respondent denies discrimination of the Complainant who had worked for the Respondent for 17 years without any complaint. The dismissal is denied, the Complainant resigned and in the alternative the Respondent submits the employment termination was consensual.

The Complainant was employed as a Groundsman. It was part of the terms and conditions that the Complainant and his wife resided in a house on the grounds of the Respondent’s residence. The Complainant and his wife suffered a tragic bereavement.

The Complainant returned to his home country and flights were booked by the Respondent with an open return. The Complainant and his wife were unable to indicate when they would be in a position to return to work and his position remained open. The Respondent learned the Complainant and his wife had returned to Ireland in August 2018 and requested a meeting with them on 7th August 2018. 

The Complainant met with the Respondent and said they would be unable to return to the residence due to the tragedy. The Respondent suggested renting a house nearby.

The Complainant and his wife indicated they could not see themselves returning to work or living at the residence. The Respondent accepted the decision of the Complainant and his wife and said they would give them suitable references.

In April 2019 a letter was sent by the Respondent’s solicitors inviting the Complainant to return to work in another role on terms to be negotiated, with accommodation in the same house, which offer was not accepted. The Complainant has failed to raise any prima facie case of discrimination on the grounds of race, and disability.

I have considered carefully the oral and written submissions of the parties at the hearing and further written submissions by the parties subsequent to the hearing in December 2019 and January 2020.

Given the sensitive medical information disclosed in the course of the hearing, I have decided the complaint under S77 of the Employment Equality Acts 1998-2015 should be anonymised.

The applicable time-limits for complaints under the Employment Equality Acts 1998-2015 are set out in S77 (5) of the Act which provides:

“S77 (5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly….”

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The Complainant is non-national with limited English. He is medically certified as suffering from grief and psychological distress in the period from May 2018 to March 2019. His employment terminated on 6th August 2018. He did not receive legal advice until 7th March 2019. His complaint of discrimination was received by the Workplace Relations Commission on 16th April 2019. A separate complaint was received by the Workplace Relations Commission two weeks earlier on 29th March 2019. The Respondent objects to this delay. The Complainant’s representatives said the reason for the delay is there were difficulties taking instructions and a medical report was sought. This was furnished on 8th April 2019, and the complaint was lodged quickly thereafter.

Normally, ignorance of the person’s legal rights, as opposed to the facts giving rise to the complaint cannot provide a justifiable excuse for the failure to bring the complaint within time. However, there are special circumstances and as a non-national the Complainant could not reasonably be expected to understand the nature or detail of his statutory entitlements or the process of vindication of these. The decisive criterion is reasonableness as set out in Rezmerita Limited v Wioletta Morkis Labour Court (DWT1017). After the Complainant appointed his legal representatives, the complaint was expedited, and any delay was short and was not unreasonable. In the circumstances, I find there is reasonable cause to extend time.

The Complainant complains that he has been discriminated against in terms of S6 (2) of the Employment Equality Acts 1998-2015 on the grounds of race and disability and the Respondent failed to afford him reasonable accommodation for his disability pursuant to S16 of the Acts.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

The Complainant’s complaint of unfair dismissal was heard together with this complaint. I have already found the Complainant was unfairly dismissed and he has been compensated for his financial loss.

S101 (4) of the Employment Equality Act 1998-2015 provides:

“(4) An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if—

……….

(b) an adjudication officer has made a decision to which subsection (1) of section 8 of the Unfair Dismissals Acts 1977 applies in respect of the dismissal, or

(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.”

The Complainant alleges discrimination on the grounds of race due to his treatment by the Respondent at a meeting on 6th August 2018, and no interpreter was provided. The Complainant relies on the Labour Court decision in Campbell Catering v Rasaq [2004] ELR 310 which says employers have a positive duty to ensure that all workers fully understand what is alleged against them and to ensure that non-national employees understand the gravity of situations. However, the circumstances giving rise to the dismissal have already been fully considered by me as part of the Complainant’s unfair dismissal in decision Adj-00021041, and accordingly no decision can be made by me on the complaint of alleged race discrimination.

The Complainant also alleges disability discrimination by the Respondent in failing to arrange to carry out a medical assessment prior to the dismissal meeting, and in failing to reasonably accommodate his return to work.

At the time of the alleged discrimination on 6th August 2018, the Complainant was medically certified by his GP as suffering from untold psychological distress, and grief. I find the Complainant had a disability within the meaning of s 6 of the Employment Equality Acts 1998-2015.

At the meeting on 6th August 2018, the Respondent was aware of the grief of the Complainant due to his knowledge of the tragedy. The Complainant gave evidence that he told the Respondent he wanted to return to work but did not want to work on one part of the garden. The couple did not want to live in the same house on the estate due to the tragedy. The Respondent suggested they live with friends.

In Humphries v Westwood Fitness Club [2004] 15 ELR 296 the Court noted the failure of the employer to consider a range of options available for an employee suffering with a disability including seeking a medical prognosis of the condition, considering a professional assessment of the risks of return to work, or deferring a decision on the Complainant’s future in order to determine the level of impairment arising from the disability and its duration.

There was no evidence adduced by the Respondent that a medical assessment was carried out to consider the Complainant’s disability. There was no consideration or discussion of alternatives available for the Complainant where his disability was preventing return to work pursuant to S16 of the Employment Equality Act 1998-2015 or the cost of any accommodation to the Respondent. The Complainant’s wife gave evidence at the hearing that she would live in another available house on the grounds but says this was never discussed.

I find the Complainant has been discriminated against on the grounds of his disability and the Respondent has failed to furnish reasonable accommodation for his disability.

I award €10,000 euro compensation for the effects of discrimination to the Complainant which excludes any financial loss.

The circumstances giving rise to the dismissal have already been fully considered by me as part of the Complainant’s unfair dismissal in decision Adj-00021041, and pursuant to S101 (4) of the Employment Equality Act 1998-2015 no decision can be made by me on the complaint of alleged race discrimination.

I find the Complainant has been discriminated against on the grounds of his disability and the Respondent has failed to furnish him reasonable accommodation. I award €10,000 euro compensation for the effects of discrimination to the Complainant which excludes any financial loss, and direct payment of this sum by the Respondent.

Extension of time, statutory bar on race discrimination claim, failure to provide reasonable accommodation.