ADJ-00025681

Complainant

Respondent

Parties

Liuba Leahu

Euroconnect Cleaning Contractors

Complainant

Respondent

Anonymised Parties

Liuba Leahu

Euroconnect Cleaning Contractors.

Representatives

Sinéad Lucey Free Legal Advice Centres

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-00032683-001

03/12/2019

The complainant worked as a cleaner for the Respondent from 30 November 2018 to 4 June 2019 when she was summarily dismissed. The complainant worked part time as a cleaner in a residential disability service on behalf of the Respondent. The complainant is 64 years old and in good health and does not have a disability that would impact on her ability to work as a cleaner.

In the letter of dismissal it was stated:

"Dear xxxx This is to inform you that, unfortunately, due to your health conditions and your age, we can no longer provide the employment as a cleaner for you with immediate effect.

This concern came from our contractors last week as well, which we are obliged to take into consideration."

The letter goes on to allege that the complainant did not inform her employer at the outset of her employment that she has a health issue, collapsing sometimes and having severe headaches. The complainant has no serious health conditions and she is not subject to collapsing, nor does she suffer from severe headaches. The complainant was never questioned about her health at the commencement of her employment or asked to undergo any medical assessment in that regard, and did not take any appreciable amount of sick leave during her employment. In addition, the complainant was not referred for any medical assessment prior to the decision to summarily dismiss her on 4 June 2019, and therefore the reason proffered for her dismissal is unsubstantiated is not based on evidence in so far as it is suggested her health is a factor in the dismissal. The complainant considers that her employer imputed a disability to her in order to provide a pretext for dismissing her. The complainant confirms that there was an incident the previous week in the residential care facility where she works, where it was suggested to her that her reciprocation of a hug from a resident could be construed as sexual abuse. When this suggestion was made to the complainant, she was extremely shocked and became faint for a minute. The complainant confirms that this is the one and only time during her employment that she ever came near collapsing, and this was only in the context of an un-substantiated and were not investigated suggestion that she might have engaged in sexual abuse of a resident. This incident was never raised with her by Ms IA, the Managing Director of the Respondent, who rather referred to her health and age as the reason for her dismissal. The complainant contends that on this basis the Respondent has dismissed her on the age ground that this is direct discrimination contrary to section 8 of the Employment Equality Acts. The complainant further contends that she was also discriminated against contrary to section 8 of the Employment Equality Acts on the disability ground, as the Respondent imputed a disability to her and based the decision to dismiss her on this imputed disability.

The complainant was employed by the respondent on 17th December 2018 and she left on 4th of June 2019. She was working as cleaner and her main work was at the MM House in Dublin 17, working on Mondays, Wednesdays and Fridays.

The unlawful dismissal is in dispute because the respondent did not dismiss the complainant, she had asked to be let her go because she could no longer work at the MM Centre, where she was working for the last 5 months before she left.

The respondent company has been working with MM house for 19 years. There are 16 units all together. The residents there have mental and physical disabilities. Due to the nature of the House and the needs of the residents the respondent is obliged to follow and respect very strict rules and regulations. The respondent must follow any requests or directions given by the managers of MM House.

On 27th May 2019, one of the managers of the Centre, Ms EC where the complainant worked at that time, saw her hugging and kissing one of the residents, which is not allowed and of which the complainant was informed personally the owner and by the staff of MM house on a few occasions. The manager of MM house called the respondent to complain about the complainant and asked if she could be replaced.

The respondent informed the complainant by phone about the replacement. She was very upset about it. The Respondent explained that it was out of her hands. The respondent instructed her very clearly not to speak to the manager of MM house about it and that she should leave to her to manage the situation. The complainant, on Wednesday 29th May 2019, when she was there for work, went straight to the manager and began to question her about why she had requested that she be replaced. The manager of MM house advised her to address the issue with the respondent. Then the manager of MM house called the respondent to inform the respondent what had happened.  

The complainant was clearly frustrated about what had happened, but the respondent had asked her to leave it with her to sort out. On Friday 31st of May 2019 the respondent replaced the complainant with another employee and sent that employee to MM house to carry out the complainant’s duties.

The respondent spoke to the complainant again, telling her that she had been replaced and not to go to MM house again. She was offered another venue to clean. It was at a school. She did not want that job. She wanted to go back to MM house. She was very angry about it all.

Later 31st of May 2019, the respondent received a call from the manager of MM house stating that the complainant and her son had arrived at the house and insisted on questioning her about why she had requested that the complainant be replaced. She was furious. While the complainant was in her office, she began to feel faint. She refused to allow an ambulance to be called. She soon felt better and left MM house. The manager informed the respondent that if the complainant showed up at MM house again she would call the Gardai.

The manager of MM house told the respondent that she had to inform the Head Office of MM House about this incident and that a copy of her report would be sent to the respondent.

On the same day, 31st May, the respondent spoke to the complainant and her son by phone and agreed to meet on 4th of June 2019 to discuss the incident, which was gross misconduct.

On 31st of May 2019 the respondent learned from a supervisor that the complainant was bringing her daughter to the premises of MM house without my knowledge, which is not allowed, and this is the serious breach of companies’ internal rules. The respondent also learned that the complainant had told the staff of MM house that her daughter was pregnant, had no money and no job so the staff did a collection for her and gave her the money.

The people working at the Centre are the most loving and caring people. They clearly just wanted to help her. However, the complainant began to be too familiar with the residents, which is not appropriate.

On 4th of June 2019, the complainant had a meeting with the respondent. Mr NM was present as a witness. The conversation was recorded by me and it took 1 hour 58 minutes.

The complainant was asked why she had gone to MM house when she had been instructed not to. The complainant insisted that she wanted to continue working there. She didn’t understand whey they got so angry about it. She was again informed that her role there was no longer available for her. She then said she wanted to leave and asked for her wages and annual leave payments.

She then asked the respondent to write her a reference but not to mention in the letter the incident or the gross misconduct because she might not find other job.

During the meeting the complainant revealed that she had high blood pressure and headaches because her ex-husband beat her severely and once hit her with a stone in her head and she almost died. When asked why she did not tell the respondent about it when she was employed by the respondent, she said that she was afraid that she would not be employed.

The respondent felt sorry for her and agreed with her to write a letter stating the reasoning for leaving was due to the health issues and her age. Maybe she might get some social welfare that way. The letter was translated to her into Romanian, she agreed with it and signed it in two examples, one was given to her and another remained in my files.

Next day the complainant wrote a very strange message, threatening and cursing the respondent, saying that she had been forced her to sign the letter and God will punish the respondent for that.

After a while, the respondent received a form from social welfare. It was filled out and sent it back. In it the respondent confirmed her employment with the respondent company and the cause of leaving.

Section 6(1) of the Employment Equality Acts, 1998 – 2008 (the “Acts”) provides that: “…discrimination will be taken to have occurred where a person is treated less favourably than another person is, has been or would be treated in a comparable situation of the discriminatory grounds.” The Acts make unlawful discrimination on the grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race or membership of the traveller community.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

The motive or reason for an impugned decision may be conscious or subconscious. The Labour Court in Nevins, Murphy, Flood v Portroe Stevedores Limited [2005] 16 E.L.R. 282 confirmed the English position that discrimination can be conscious or sub-conscious and can therefore be difficult to prove. Here, in a case involving age discrimination, the Court held:

“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

The probative burden of proof rests on the complainant. In Melbury Developments Limited v Arturs Valpeters IEDA09171 the Court stated that:

"...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 85,4 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."

The respondent in the dismissal letter told the complainant:

“This is to inform you that, unfortunately, due to your health conditions and your age, we can no longer provide the employment as a cleaner for you with immediate effect”.

The respondent stated that she only wrote the dismissal letter to assist the complainant getting another job and /or social welfare. The real reason for the dismissal was due to misconduct. In that regard I note that there as no investigation, disciplinary hearing or appeal offered to the complainant. I do not accept the respondent’s evidence. The respondent when giving evidence was far from clear in relation to the reasons the complainant’s contract was terminate. Firstly, she stated that the complainant had resigned. Then she said her employment was terminated because of alleged misconduct. Then she wrote the letter dated 4th June. Regardless of the multitude of reasons put forward by the respondent at the hearing, the termination letter clearly and unambiguously states the complainant was let go because of her health and her age. There is no getting away from that. In reality, the complainant had no real health issues during the course of her employment. There was the one minor incident when she was in the Office at MM house. She felt a bit faint for a few minutes. The respondent only learned of her other difficulties when the complainant told her about them at their meeting on the 4th June, 2019. The respondent seemed to have latch onto that and used it to justify the termination of her employment. There was also no suggestion that the complainant’s age had any impact on her ability to carry out her duties. I accept the complainant’s evidence that no other younger employees with disciplinary issues were let go.

I find that the complainant has establish a prima facia case of discrimination. The respondent has provided no evidence that could objectively justify the discrimination. On that basis I find in favour of the complainant.

I award the complainant €10,000.00

The complaint is well founded. I award the complainant € 10,000.00