Complainant

Respondent

Parties

Shane McLoughlin

Connolly Meats Limited

Complainant

Respondent

Anonymised Parties

Representatives

Stephen O’Sullivan B.L. and Kevin McElhinney of VP McMullin Solicitors

Niamh McGowan B.L. instructed by Brian Morgan, Morgan McManus 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-00021472-001

29/08/2018

Complaint: Discriminatory treatment based on disability and discriminatory dismissal based on disability.

The Complainant has an amputated leg and is reliant on the use of a prosthetic limb. This injury occurred as a result of a farming accident in 2011. After this injury he did not work for 7 years. His employment with the Respondent was the first job he obtained after that absence from work.

He started work with the Respondent as incoming/outgoing goods operator on 6 January 2018. He left work in mid-March 2018 and resigned his post by letter on 11 June 2018. He worked a total of 3 months with the Respondent.

He alleges that he was forced to resign (which he alleges is a discriminatory dismissal) because his work hours were cut in February 2018 and the owner of the business told him that this was because of his disability. When the Complainant started the job, his working hours were 5 and half days but from February onwards his hours were reduced to one and a half days (discriminatory treatment). The Respondent had no other reason to cut his hours, other than the reason that was expressly told to him by the owner of the business in February 2018 and subsequently they did not provide any alternative (non-discriminatory) reasons as to why his hours were reduced, when asked by the Complainant’s solicitor.

Accident at Work

The Complainant suffered a work place accident at 8.30pm on the evening of 22 January 2018 when he slipped on wet tiles. His prosthetic limb came off during the accident as a result. The owner of the business came out from the office and helped him off the ground and the general manager of the business was inside the office and was aware of it too. The Complainant did not attend work the following day due to his injuries. This was two weeks after the Complainant started work.

Discriminatory Treatment

The owner of the business attended the Complainant’s home on Saturday 11 February 2018 and reprimanded him for making phone calls to the food safety authority, which the Complainant denied doing so. The owner then told him that his work hours would be reduced “to look after the Complainant’s welfare.” This comment was taken by the Complainant as referring to his disability. The Complainant is certain that this conversation happened on 11 February, because he and his partner were attending a Rod Stewart tribute act that night in a nearby town.

When the Complainant went to work the following week his line manager (the owner’s son) told him that his hours would be reduced because of mistakes that the Complainant was making.

Discriminatory Dismissal

The Complainant’s hours became sporadic after that. Instead of a 39-hour working week that he had commenced on, he worked 4 hours; 12 hours, 25 hours, 9.5 hours. The Complainant accepted that he had requested a maximum of a 35 hour working week (in order that his disability allowance would remain unaffected) but he did not ask for reduced hours to the extent given to him.

The inconsistency of his work pattern made it impossible for him to rely on and in early March he had to stop work. He felt that as the owner had told him that his hours would be reduced “to look after his welfare” which meant because of his disability, this would not change and there became no point in him continuing to work.

He left work in March and did not return.

The Complainant’s solicitor wrote on behalf of the Complainant on 5 April putting the Respondent on notice of a work place accident and seeking the restoration of his contracted hours. When there was no reply, the Complainant tendered his resignation.

The Respondent concedes that the Complainant’s amputated leg constitutes a disability within the meaning of the Acts. However, they deny that they discriminated against him on the basis of this disability or that they dismissed him as alleged or at all.

The Respondents contend that the Complainant had asked to reduce his work hours for his own reasons. Firstly, he informed the Company that he could not work over 35 hours per week (because this would reduce his entitlement to a disability allowance). Secondly, he asked for and got time off for health reasons (he suffered from a minor medical condition). Thirdly he had domestic commitments (he had to attend court in a custody dispute with his ex-wife) and lastly, he had sporting obligations (he participated in shot put competitions).

The Respondent accept that the Complainant’s work hours were reduced in February 2018 but this applied to all staff in February as business is typically slow during this time. They provided documentary evidence that the work hours of the entire work force was reduced in February. This happened every year. The Complainant was never told by the owner that his hours were cut as a result of his disability. The reason the owner had attended the Complainant’s house, which occurred in March, not February, was to see if the Complainant would admit to making false allegations about the Respondent’s work practices, to a third party, which he did not. The owner however had ascertained from the third party that the mobile number that was used to contact the third party to make false allegations was the mobile number that they had on file for the Complainant. From then on the owner of the business did not trust the Complainant. He felt that they had given the Complainant a chance, given that he had not worked for 7 years, to get back into the labour force. However within five weeks he was making anonymous reports of false work practices to third parties and when confronted about this, he lied about it. Now he is making a false claim that he suffered a work place accident within two weeks of starting the job, even though he did not report that to anyone at the time.

Subsequent to the March meeting with the owner he continued working for another week and then left. He did not give any reason for his voluntary resignation and he simply didn’t return to work.

All complaints are denied.

Accident at Work

The accident that is alleged to have occurred on 22 January 2018 never occurred. No one witnessed the event as the Complainant alleges.

Discriminatory Treatment

The conversation between the owner of the business and the Complainant occurred in the Complainant’s house on 10 March. The owner called to see the Complainant because a third party (who supplied the Respondent’s meat products to retail outlets) received a phone call from an anonymous source making a complaint that the meat was being wrongly labelled. He gave the phone number to the owner who cross referenced the number as being that of the Complainant.

At the meeting he told the Complainant that he had to stop making calls to third parties. He did not discuss work hours at this meeting. He did not mention the Complainant’s disability.

The Complainant’s partner in her evidence to the Adjudication Hearing did not say that disability was discussed at the meeting.

Discriminatory Dismissal

The Complainant was not rostered in February the hours that he had done in January, because the work slowed up at this time. All workers were similarly affected each year.

It was the Complainant who originally wanted to ensure that he did not exceed 35 hours per week.

His hours were reduced in February but that was because in February he told the manager he would have to quit if his hours weren’t reduced, not increased. He needed to make sure that his hours did not exceed 35 hours. As proof of this a P45 was prepared but when the Complainant was permitted to continue working reduced hours he continued work. On 2 March he worked 25 hours (as shown by the payslip). This demonstrates that the Company were not merely giving him a day and a half of work as he contends and it further showed the trend that business was picking up, as was usual in the run up to Easter.

The following week (9 March) he worked 9.5 hours and that was his last week. He left then and gave no explanation for same. His complaint was only ever about excessive hours not reduced hours.

Legal Submission

There is no evidence of discriminatory treatment or discriminatory dismissal.

The words “I am reducing your hours to look after your welfare” which are denied were said but even if accepted, are not evidence that he was having his hours reduced because of his disability and the Complainant’s partner did not corroborate his version of the conversation in this respect.

No comparator has been identified to prove that discriminatory treatment occurred.

In relation to the alleged discriminatory dismissal the Complainant made not mention of this prior to his departure. No grievance was raised either before or after his departure. The first time the allegation arose was in the WRC complaint form

No prima facie case of discrimination had been proven on the balance of probabilities.

There is a conflict on the evidence.

On the balance of probabilities, I find that no prima facie case of discriminatory treatment occurred. Taken at the height of the Complainant’s case I do not accept that the words, allegedly used by the owner of the business, amounted to proof that the Complainant’s hours were being reduced because of his amputated leg/disability.

The Respondent was aware of the Complainant’s disability when they hired him some weeks earlier.

In relation to his reduction of hours, I do not accept the contention that the Company had no reason to reduce his hours other than as a result of his disability. The Complainant accepts that took time off work due to a health condition and because he had to attend Court over a child custody issue and he also accepts that he had asked that his hours be kept down in order to protect his disability allowance. I accept his evidence that his shot-putting activities were mainly on Sundays, which would not have impacted upon his working hours.

In cases of discrimination the onus is upon the Complainant that facts occurred which on their face show evidence of discriminatory treatment. Based on the evidence tendered at the Adjudication hearing both by and on behalf of the Complainant, I find that this test has not been met and that no prima facie case of discrimination has been made out. I find this complaint is not well founded.