Complainant

Respondent

Anonymised Parties

{A Sales Representative}

{A Motor Company}

Representatives

Sean Ormonde & Co. Caroline Doyle BL

Denis McSweeney Solicitors Cathy Smith BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024419-001

21/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00024419-002

21/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

21/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00024419-004

21/12/2018

The Complainant commenced working as sales representative with the Respondent on 7th June 2016.

CA-0024419-001

The Complainant withdrew his claim for unpaid annual leave.

CA-0024419-002 & CA-0024419-003

The Complainant complains he has been unfairly dismissed, discriminated against due to his disability in conditions of employment, failure to provide reasonable accommodation, and victimised. The Complainant withdraws his complaint of discriminatory dismissal.

The Complainant was unfit for work from 27th November to 4th December 2017 and was certified absent due to a back problem. He was also suffering work-related stress and anxiety. The Complainant is a musician and participates in live performances on a casual basis. While on sick-leave, he performed on a Friday evening outside of normal working hours in Galway.

On 8th January 2018 the Complainant attended an investigation meeting with a Director and Manager. He explained his absence on sick-leave was due to stress and anxiety. He was encouraged to continue drumming by his doctor while on sick-leave. The Complainant offered to attend the company doctor and obtain a revised certificate from his doctor to show the real reason he was absent was due to his mental health. He tried to explain his stress was work-related, but was told only the letter would be discussed at the meeting.

The Complainant attended a disciplinary hearing with an external party appointed by the Respondent. He submitted a further sick-certificate for the period 27 November to 4 December 2017 for a long-standing back problem and work-related stress. He was asked how he could play the drums if he was sick. The Complainant said he loves drumming and work-related stress does not prevent him playing. He only receives nominal payment for the show. The show took place at 10.30pm. The Complainant sought a breakdown of the hearings, a statement from the employee who sent the video of the Complainant in Galway to the company and levels of misconduct applicable. The witness statement was not provided.

On 22 February 2018 the company wrote to the Complainant regarding work emails and screenshots being forwarded from his work email to his personal email. The letter stated the Complainant breached in the most serious manner his contract of employment and the trust and confidence of the employer/employee relationship. It questioned why the Complainant took copies of the information and demanded an undertaking for the return of the material or deletion immediately, and confirmation it has not been distributed to any third parties.

By email of 23rd February 2018 the Complainant confirmed all information was being used for work purposes, all information had been destroyed and was not distributed to any third party. He apologised. The Company sought proof the material was destroyed. The Complainant refused as he was unwilling to allow access by a third party to his emails.

On 9th April 2018 the Complainant went on work-related stress sick-leave until August 2018. The Complainant was requested to attend a determination meeting on 24th May 2018 regarding his drumming while on sick-leave. The Complainant submitted a grievance to the company on 18th May 2018 alleging that he is being bullied via the conduit of a long drawn out internal investigation. He complained he is not aware if his job is at risk. He complains this stress led to him going on sick-leave and sought an external investigation of his grievance.

The Company appointed a Director to investigate the grievance internally. The Director appointed to investigate his grievance is a brother of the person who is the subject of the grievance. On 22nd May 2018 the Complainant was certified unfit to attend work. On 24th May 2018 the company proceeded with the determination meeting regarding the drumming incident in the Complainant’s absence and gave him a first verbal warning.

On 1st June 2018 the Complainant received the outcome of the grievance that there is insufficient evidence that any form of bullying via a conduit of a long drawn out internal investigation has taken place, and delay was due to the Complainant rejecting minutes on 3 occasions.

CA-0024419-004

The Complainant claims he has been penalised under S28 of the Safety Health and Welfare at Work Act 2005. The Complainant says his grievance amounts to a protected complaint under the Safety Health and Welfare at Work Act 2005. The investigation of the grievance was inadequate, the Complainant was not informed of the process, or witnesses interviewed and did not have an opportunity to comment on witness evidence.

The Complainant appealed his warning and the grievance outcome. An external party was appointed to hear the appeals which were unsuccessful in July 2018. The Complainant returned from sick-leave in August 2018.

On his return the Complainant was requested to attend an investigation into the emails and screenshots sent to his personal email in February 2018 on 30th August 2018. An external investigator was appointed to investigate the data sent from the Complainant’s work email to his personal email on 12th and 19th February 2018 which included information regarding sales figures, clients, a price file and sales quotation.

The Complainant said he sent the emails as he had not reached his sales figures and wanted to work on this outside of work hours. He did not regard this as a breach of policy, the information was not shown to any party, it was treated confidentially.   He did not access the data on this laptop or Ipad due to slowness and data limitations. The practice of forwarding emails to personal addresses was carried out by other employees. He gave an undertaking that all information had been deleted. He had never seen a non-disclosure agreement. He did not agree to independent verification of deletion as he did not want personal emails accessed by other parties.

Other witness evidence in the investigation was that screenshots were not encouraged or useful. The Complainant met his sales targets for 2017 and quarter 1 of 2018, there were data allowance issues related to showing videos to customers, there was no non-disclosure agreement on file but it was a standard document provided to the Complainant, the company policy on electronic mail was relevant to the alleged breaches, the timing of the emails sent by the Complainant occurred when his disciplinary process was scheduled for 19th February 2018.

The Complainant complained about another employee’s conduct that he made a racist and derogatory remark on 11 September 2018. This was investigated by the Respondent, who said another statement had been made in a private conversation between the employee and a relative, and no further action was required. The Complainant was dissatisfied with the Respondent’s investigation as he was not interviewed or informed of what other witnesses said, nor allowed to respond.

The investigator found there was a discrepancy between the parties as to whether the Complainant met his sales targets in 2017, but the act of sending the emails was a breach of the policy regardless of the reason. The Complainant was aware another employee had breached the policy in sending emails to himself and could not rely on this.

The Complainant was invited to a disciplinary hearing with a Director as notetaker and an external party conducting the hearing. The Complainant outlined his lack of trust in the investigation and disciplinary process, the external investigator was not impartial, and this was a manhunt ongoing since 2017.

The Company arranged a determination meeting on 20th November 2018 to share the findings. The Complainant’s employment was terminated as the Director found no reasonable explanation had been provided for forwarding the information or failing to provide proof this was deleted, it breached policy and a prior sanction was taken into account. The appeal hearing with an external party took place on 10th December 2018. The Complainant said he should not have been dismissed, he was not given a fair process or legal representation, he could not cross-examine witnesses, other employees had done the same thing and were not dismissed, the Director was biased as he acted as a witness in the investigation and should not have been a decision maker.                                                   

The burden of proof lies on the Respondent to prove the Complainant has been dismissed fairly. There is an obligation on the Respondent to act reasonably where it seeks to rely on the “conduct” of an employee as justification for dismissal. (Cox Corbett & Ryan on Employment Law in Ireland (2009)… “In order to justify a dismissal on the grounds of the employee’s conduct it must be established by the employer that he acted reasonably in dealing with the employee at all times. This would include carrying out a reasonable and proper investigation into the alleged behaviour…”.

The Complainant says the Respondent failed to act reasonably in refusing the Complainant’s offer to obtain medical evidence to verify his advice to continue drumming to assist with stress, this was a factor in his dismissal, considered his work outside work hours, demanded an undertaking to delete the emailed material and verification, restarted the investigation months later after complaints of bullying were made, penalising the Complainant, conducting an unreasonable investigation, another employee who had done the same was not sanctioned, the Complainant was entitled to refuse third party verification of the deletion, unreasonably suspended the Complainant, and appointed a biased decision-maker. The Complainant relies on Bank of Ireland v Reilly [2015] IEHC 241 that suspension ought be seen as a measure to facilitate the proper conduct of an investigation and any disciplinary process. The Complainant was not given reasons for his suspension.

The Complainant relies on Sarkar v West London Mental Health Trust [2010] EWCA Civ 289 and Hadjioannou v Casions Ltd [1981] IRLR 352 which affirmed that for an employer’s decision to dismiss to be reasonable the level of sanction must be consistent with treatment of other employees. The Complainant submits the difference in treatment between himself and the other employee who also participated in equivalent misconduct renders the dismissal unreasonable and unfair. The Complainant was not provided with fair procedures, including witness statements. The Respondent appointed a biased decision maker despite the fact the Complainant made a bullying complaint against him, the decision maker acted as a witness against the Complainant and the relationship had clearly broken down. The Respondent failed to give weight to mitigation, and the sanction was unreasonable and inconsistent. The Complainant relies on Bolger v Dublin Sports Hotel Limited UD 45/85 where the dismissal was unfair as the employer did not give adequate consideration to the sanction of suspension and final warning as an alternative, the dismissal was disproportionate and relies on Fitzpatrick v Superquinn Ltd UD452/1984.

The Complainant claims he was treated in a less favourable manner due to his disability in his conditions of employment that he was subjected to a disciplinary investigation, findings and sanctions on the basis of partaking in a hobby outside working hours while on sick-leave, the Complainant has named 3 other colleagues who were never disciplined in this way while on sick-leave or for partaking in hobbies. There is prima facie evidence of discrimination.

The Complainant made complaints of bullying and racist conduct relating to safety health and welfare at work under the 2005 Act. In response the Respondent penalised him by refusing to afford him the benefit of the grievance process, withdrawing the benefit of the company car, suspending and dismissing the Complainant which amounts to penalisation within 2005 Act.

The Complainant has financial loss of €60,000 euro per annum.

CA-0024419-001

The Respondent says the Complainant was paid all annual leave owed in his last payslip.

CA-0024419-002

The Respondent disputes the dismissal of the Complainant is unfair.

The Complainant admitted sending confidential and sensitive data to his private email address on 2 dates in February 2018. This was a breach of his terms and conditions. He confirmed that he deleted the information but refused to provide independent verification.

The Complainant received a first verbal warning on 11th June 2018 following a finding that while absent from work on sick-leave, he had been playing with his band at an event in Galway in December 2017.

The Respondent determined the Complainant’s actions relating to the company data constituted and extremely serious breach of his terms and conditions of employment, and as he had been given a verbal warning a decision was made to terminate his employment. The reason for the dismissal was wholly and mainly due to the conduct of the Complainant and the Respondent relies of S6 (4)(b) of the Unfair Dismissals Act 1977-2015 after a thorough investigation and disciplinary process.

The Complainant sent a sick-certificate into the company stating that he was unwell and would be off from 27 November to 4 December 2017. The Complainant was playing drums with his band at a Christmas party on 1st December 2017. The Complainant advised by email that he was back on the road but would need time before resuming sales calls. On 6th December 2017 and 7th December 2017 he said he was too unwell to go back to work and said his chest infection was not improving. No sick-cert was provided following the expiry of the certificate on 4th December 2017 until 8th January 2018.

The Complainant was requested to attend an investigation meeting on 8th January 2018, and disciplinary hearing on 15th February 2018. The Complainant provided a new doctors letter dated 15th February 2018 in which his illness was described as long-standing back problem and symptoms of work-related stress. The Complainant went on sick-leave from 9th April 2018. He was invited to three determination meetings on 20th April, 1st May, and 22nd May 2018.

The determination meeting took place on 22nd May 2018. The Complainant did not attend and did not notify the company in advance that he was unable to do so. The complaint was upheld and a verbal warning issued. The Complainant furnished a sick-note by email from 22nd May to 22nd June 2018 that he would be unable to attend any meeting for the period.

The Complainant appealed the warning and outcome of his grievance to an external investigator. The investigator noted the Complainant was being paid for the event while on sick-leave, and the Complainant only raised the issue of stress after he was requested to explain. The appeal was not upheld.

On 12th February 2018 the Complainant commenced sending company emails to his personal email address. On 19th February 2018 the day the disciplinary hearing took place the Complainant forwarded 35 emails sent by his manager to him to his private email. By letter of 22nd February 2019 the Respondent informed the Complainant it was aware the data had been sent to his private email. The Complainant confirmed the data was for work, was not distributed and was deleted. On 12th March 2018 the Respondent sought independent verification of the deletion which the Complainant refused.

On 30th August 2018 on the Complainant’s return to work from sick-leave the Respondent advised that a formal investigation would proceed. An external investigator was appointed to carry out the investigation on 3rd September 2018 and report provided on 1st October 2018.

On 30th October 2018, the Complainant was suspended with pay pending a disciplinary meeting. On 6th November 2018, a disciplinary meeting took place with an external HR adviser and Director of the company as notetaker. On 20th November 2018 a determination meeting was held with two Directors and the Complainant was informed his employment is terminated. He was given a right of appeal.

The Complainant appealed his dismissal and an external party was engaged to conduct the appeal which took place on 10th December 2018. The appeal was unsuccessful.

The Respondent relies on the provisions of the Complainant’s contract of employment at paragraph 8 which requires a sick-certificate which specifies the nature of the employee’s illness or incapacity, and likely duration, and provisions in relation to confidentiality in the Employee Handbook. Employees were not permitted to export information from the software package, and the Complainant was advised at his training in 2017. If information is required from the system it is to be requested through his manager. A former employee had been found not to have adhered to company policy when he left. The Complainant was expressly aware this was not the norm and was not permitted. The Complainant acknowledged this in an email. In addition, the Complainant signed a non-disclosure agreement in relation to company information, which provided if he had any queries to consult with his manager in advance of engaging in activity.

The Respondent raised a grievance of bullying via the conduit of a long drawn out internal investigation. The complaint was investigated and not upheld in a report of 1st June 2018. The outcome was appealed to an external independent party, and on 3rd July 2018 the appeal was not upheld. The Complainant was on certified sick-leave from 9th April 2018 to 31 August 2018. No details of the illness were given to the Respondent. On 27th June 2018 the Complainant was requested to return his company car in accordance with the policy.

On 29th August 2018 the Complainant was requested to meet with a Director at 9am. He refused to attend until 10am. On 12th September 2018 the Complainant made a complaint of racism, this was investigated and findings provided on 6th November 2018.

The Respondent relies on the decision of the High Court in JVC Europe Ltd v Panisi [2011] IEHC 279 that the “issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal was such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal”.

Accessing employer files is a breach of loyalty and fidelity and may involve a breach of trust. The Respondent relies on the decisions in Mullins v Digital Equipment International UD329/1989 and McDermott v NEC Semiconductors Ireland Ltd UD146/2001 where the employee was dismissed for allegedly attempting to gain access to privileged data and the company computer systems. The employee told the Employment Appeals Tribunal that he had no interest in any confidential information in the company and it never occurred to him he could be dismissed. The Tribunal found the employee was aware that what he was doing was attempting to access confidential files.

The function of the Workplace Relations Commission is to decide whether the decision to dismiss falls within the band of reasonableness as set out in British Leyland UK Ltd v Swift [1981] IR LR 91 and the actions admitted by the Complainant were such that a reasonable employer would have concluded there was misconduct and the misconduct constituted substantial grounds to justify dismissal. The dismissal was not unfair.

CA-0024419-003

The Complainant alleges discrimination on the grounds of his disability. The Respondent says the Complainant has failed to show a prima facie case in accordance with the decision in Minaguichi v Wineport Lakeshore Restaurant. No evidence has been offered regarding the nature of his disability.

Without prejudice to the above, the Respondent accepts the Complainant had an injury to his back, and says it provided reasonable accommodation with an automatic car and suitable chair when this was raised.

The Respondent rejects the claim that being subjected to a disciplinary process for playing with his band during sick-leave as unsustainable, an employee without a disability who behaved in the same manner would be equally disciplined. The comparators did not engage in paid activity while on sick-leave. The issue is the Complainant told the Respondent he could not work because he was unwell.

CA-0024419-004

The Respondent denies it penalised the Complainant. The Respondent submits the Complainant is not permitted to seek redress for dismissal under the Unfair Dismissals Acts 1977-2015 and the Safety Health & Welfare at Work Act 2005 as he describes his dismissal as an act of penalisation.

The Complainant invoked the grievance process, which were investigated and appealed. The Complainant’s car was withdrawn in accordance with the terms of his contract and where the company had a need to provide the car to another sales representative as the Complainant was on extended sick-leave and is unrelated to the grievance. The racism complaint was made after the car was withdrawn. The Respondent relies on the “but for” test set out in O’ Neill v Toni & Guy Blackrock Ltd [2010] ELR 21 that the detriment giving rise to the complaint must have been incurred because of or in retaliation for the Complainant committing a protected act.

The Complainant’s grievance and complaint were investigated by the company. The company removed the car due to a business need. The Complainant was suspended due to the data breach in accordance with his terms and conditions of his contract. The complaint is misconceived and should be dismissed.

CA-0024419-001

This complaint is withdrawn.

CA-0024419-002

The Complainant is a sales representative and was dismissed due to misconduct which was a breach of the email usage and confidentiality provisions set out in his contract of employment and the employee handbook on 20th November 2018.

The contract of employment signed by the Complainant on 22nd June 2016 provides at clause 10:

“Employees are expected to adhere to [company name] standards of conduct, capability and performance as notified by [employer name] to its employees. Employees will be subject to disciplinary action up to and including dismissal if they fail to meet [employer name] agreed standards…”

Clause 15 Confidential Information

“All information which is not in the public domain and has been acquired in the course of your duties and employment with [employer name] must be treated as confidential both during and after termination of your employment.”

The Employee handbook provides;

“Clause 11.1 Confidentiality is paramount

“Sensitive information regarding clients should only be discussed with the relevant authorised persons within the Organisation…

Other information including;

Relates particularly to our customers, suppliers or that of other persons or bodies with whom we have dealings of any sort..

All such information shall be confidential and (save in the course of our business or as required by law) shall not at any time, whether before or after the termination of your employment, be disclosed to any person without our written consent.

Clause 13 Electronic Mail, Internet and telephone use policy

13.1 Breach of these rules will be treated as a disciplinary matter and depending on the severity of the breach, may result in disciplinary action up to and including dismissal.

13.11 Do not sent confidential business sensitive material other than during the course of your duties and /or as authorised and permitted by professional codes of conduct..”

The Complainant also signed a non-disclosure agreement regarding company information on 9th August 2017.

The Respondent produced an email from the Complainant to the Company in 2016 referring to an incident when the sales representative he replaced sought to export information from the system to excel for his work saying “…..the company had been burnt”. When this incident came to light the sales representative had already left. The Respondent then put in place a system whereby the Complainant had to request specific information from his manager, and could view but not copy documents on the software system.

The Complainant sent 35 emails from his manager with company data to his personal email address on 12th and 19th February 2018. The data taken was extensive. At the time this occurred, the Complainant was due to attend a disciplinary hearing on 19th February 2018 regarding the accusation of working in a band while on sick-leave in December 2017.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

The Company policies and training clearly set out the requirement for the Complainant to maintain confidentiality and prohibited taking confidential information in order to protect its business. The Complainant was well aware what occurred with the previous incumbent in his role who moved to a competitor, and the company’s dissatisfaction. The breach of confidentiality was serious, customer sales information taken was extensive, which included information regarding rebates, and this was taken in circumstances where a disciplinary outcome was pending. The Complainant alleges other employees were treated differently to him and were not subjected to an investigation and disciplinary hearing. However, following evidence at hearing the only other employee who had exported information to himself had already left the company when this came to light and could not be investigated or disciplined as a result. I am unconvinced by the Complainant’s explanation that he took this information as he was trying to make his target. He was aware this action was prohibited. No reasonable explanation was provided by the Complainant.

The Company decision to terminate the Complainant on 20th November 2018 and also took into account a verbal warning given to the Complainant on 22nd May 2018 when the Complainant was playing in a band while on sick-leave.

The Respondent is a small family run company and the Managing Director and Director are brothers.

The Complainant alleges breaches of fair procedures in the grievance process. The Complainant alleges he was being bullied via the conduit of a long drawn out internal investigation into the complaint he was playing in a band while on sick-leave. The complaint was admitted by the Complainant. The Managing Director was appointed to investigate the grievance involving the actions of his brother a Director from 8th January 2018 to 22nd May 2018.

There was some delay in the investigation process due to disagreement on minutes between the parties which took some time to be resolved. The disciplinary hearing was rescheduled at the Complainant’s request. The Complainant was on sick-leave from 9 to 15 April 2018. The Complainant was invited to the determination meeting on 20th April, 1st May and 22nd May and he was unable to attend.

The Supreme Court in Ruffley v The Board of Management of St. Anne’s School [2015] IECA 287 reaffirmed the legal test for bullying ..”was the defendant guilty of repeated inappropriate behaviour against the Plaintiff which could reasonably be regarded as undermining the individual’s right to dignity at work”. This is an objective test and the threshold is high.

It is preferable that a family member not be involved in considering a grievance against another member of family, as might occur in a family run company. However, there is no objective evidence of conduct undermining the Complainant’s right to dignity at work in the grievance process notwithstanding the closely connected Director considering the grievance. There was delay over five months in concluding the process due to different factors, but this was not unreasonable in the circumstances. A right of appeal was also provided to an external party.

The investigation into the allegation of the Complainant taking company data in breach of procedure was conducted by an external investigator and a report was furnished to the company. The Complainant admitted he took this data but said it was for personal use. A Director and Manager gave input into the investigation on behalf of the company. The disciplinary meeting was conducted by an external party, and the Director involved in the investigation on behalf of the Company sat in the hearing in a notetaking capacity. Finally, the Director who was a witness on the part of the Company and Managing Director made a decision to dismiss the Complainant. This breaches audi alteram partem the rule preventing a party in litigation being a Judge in their own proceedings. The involvement of a witness representing the company in the investigation in the decision-making process has tainted the procedure. Whilst I appreciate this is a small company, I find the lack of impartiality in the decision-making process has failed to accord a fair procedure to the Complainant.

I find the dismissal is unfair on procedural grounds. I take into account the Complainant admitted working in a band while on sick-leave, and emailing an extensive amount of confidential company data to himself in breach of procedures. There is a significant level of contribution by the Complainant to his dismissal.

The Complainant seeks compensation for dismissal and has loss of earnings for 13.5 months to date. His earnings were €46,300 gross in 2017. He has not applied for a comparative sales role and is setting up his own business which has a small income at present.

It is just and equitable that the Complainant be awarded loss of earnings of €52,087.50 gross which is reduced by 50% to €26,043.75 gross bearing in mind his substantial contribution to his dismissal.

CA-0024419-003

The Complainant complains that he has been (i) discriminated against in terms of S6 (2) of the Employment Equality Acts 1998-2015 and contrary to S8 in respect of his conditions of employment, (ii) victimised by the Respondent in relation to S74 (2)of the Acts, and (iii) that 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.

Disability in the Acts means –

(a)   The total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)   The presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c)     The malfunction, malformation or disfigurement of a part of a person’s body,

(d)   A condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)   A condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour…

S16 of the Acts provides that a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as appropriate measures) being provided by the person’s employer. The employer shall take appropriate measures, where needed in a particular case to enable a person who has a disability-

(i)                   To have access to employment.

(ii)                 To participate or advance in employment, or

(iii)              To undergo training,

Unless the measures would impose a disproportionate burden on the employer.

At the investigation meeting on 8th January 2018, the Complainant offered to produce a medical certificate to support his claim that he was on sick-leave due to work-related stress and he was advised to continue drumming and this was refused. The Complainant subsequently provided another medical certificate to the company confirming his sick-leave in December 2017 was due to a long-standing back problem and work-related stress.

I find the Complainant was suffering from a disability in December 2017 when he was absent on sick-leave based on the medical certification provided.

The Complainant claims he was treated in a less favourable manner due to his disability in his conditions of employment as he was subjected to a disciplinary investigation findings and sanctions on the basis of partaking in a hobby outside working hours while on sick-leave, the Complainant has named three other colleagues who were never disciplined in this way while on sick-leave or for partaking in hobbies.

The Respondent denies any discrimination, victimisation or failure to reasonably accommodate the Complainant and says none of the other employees were working in another capacity while on sick-leave. In relation to the Complainant’s back complaint they provided a chair and an automatic car to him.

I find that there is no prima facie case of discrimination against the Complainant on the grounds of disability or failure to reasonably accommodate has been adduced, and the complaint fails.

S72 provides that victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

(a)   A complaint of discrimination made by the employee to the employer,

(b)   …

(c)     …

(d)   …

(e)    

(f)     An employee having opposed by lawful means an act that is unlawful under this Act…

(g)   An employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs

The Complainant has made a complaint of victimisation that he was penalised as a result of his “protected act” which was raising his grievance with the company. However, the Complainant was dismissed for taking data which was a serious breach of policy which he admitted. There does not appear to be any causal link between the “protected act” and subsequent dismissal. The complaint of victimisation also fails.

CA-0024419-004

The Complainant claims penalisation under S28 of the Safety Health and Welfare at Work Act 2005.

S27 (1) of the Safety Health and Welfare at Work Act 2005 provides:

“Penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects to his or her detriment, and employee with respect to any term or condition of his or her employment”.

Penalisation includes suspension, dismissal and imposition of any discipline.

S 27 (5) “If penalisation of an employee in contravention of subsection (3) constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977-2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts”.

The Complainant alleges he was penalised in response to complaints of bullying and racist conduct relating to Safety Health and Welfare at work, by refusing to afford him the benefit of the grievance process, the Complainant was not informed of the process, witnesses interviewed and did not have an opportunity to comment. The company then suspended and dismissed the Complainant which amounts to penalisation within 2005 Act.

The allegations of penalisation in this complaint form part of the conduct leading to dismissal in which relief has already been granted in CA-0024419-002. This complaint is not well founded.

CA-0024419-001

This complaint was withdrawn.

CA-0024419-002

I find the dismissal is unfair on procedural grounds. There is a significant level of contribution by the Complainant to his dismissal.

It is just and equitable that the Complainant be awarded loss of earnings of €52,087.50 gross which is reduced by 50% to €26,043.75 gross bearing in mind his substantial contribution to his dismissal.

CA-0024419-003

I find that there is no prima facie case of discrimination against the Complainant on the grounds of disability or failure to reasonably accommodate has been adduced and the complaints fail. The complaint of victimisation also fails.

CA-0024419-004

The allegations of penalisation in this complaint form part of the conduct leading to dismissal in which relief has already been granted in CA-0024419-002. This complaint is not well founded.