Complainant

Respondent

Anonymised Parties

An Employee

An Employer.

Representatives

Adrian Twomey Jacob and Twomey Solicitors

 Dorothy Donovan BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00026094-001

07/02/2019

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

CA-00026094-002

07/02/2019

The complainant alleges that she was dismissed from her employment on grounds of disability.

The Complainant commenced employment with the Respondent on 9 November 2017.

The Complainant met with the Respondent in October 2017 to discuss a legal matter in relation to the closure of her business.  The Respondent mentioned that she was considering running for election again and asked the Complainant if she would be interested in working for her. The Complainant said that she would be interested in doing so.

The Complainant’s business wound up on 8 November 2017. The Respondent asked the Complainant to attend a meeting with her in an Hotel, Wexford, on 9 November 2017 as members of the Fianna Fail party were coming to meet the Respondent. This meeting was for the Respondent to convey her interest in being nominated to run for election and also for the party members to meet her campaign team. At the meeting, the Respondent introduced the Complainant to her party colleagues as her Personal Assistant. From that date forward, the Complainant worked for the Respondent 5 days per week from 9.30am until 2.30pm

The Respondent informed the Complainant that she would pay her for her work once fees came in from a particular case. She advised the Complainant that she was expecting those monies in very soon. The Complainant had a good relationship with the Respondent and trusted her and saw it as an opportunity to save some money.

However, no payment was ever forthcoming from the Respondent and by February 2018, the Complainant told her that she could not continue working without being paid. The Respondent asked the Complainant if she would do some legal work in her legal practice and continue the political duties for her also. She indicated that she would then pay her through the firm. The Complainant had completed exams and qualified as a Legal Executive in or around 2008.

The Respondent has suggested in her submission that the Complainant was in receipt of payments from the Department of Social Protection during the period from 9 November 2017 and 5 March 2018. This is categorically denied by the Complainant.  The Complainant is deeply disturbed and upset by the fact that the Respondent would suggest that she was defrauding the State whilst in her employment. Likewise, the Complainant is astonished that the Respondent appears to be suggesting that the latter was party to a conspiracy to engage in such fraud in circumstances where the Complainant was clearly not available to work elsewhere.

The Complainant is at a loss to understand why the Respondent is stating that she had no knowledge of the Complainant’s mental health issues. On numerous occasions she spoke to the Respondent directly about the issues she was having.

In March 2018 the Respondent brought an old photograph into work. The photograph was of the Respondent, the Complainant and the Complainant’s mother dating back to the 2007 election campaign.  When the Complainant showed the photograph to the Respondent she commented “look at you back then - your hair - how thin you were”. The Complainant explained that she suffers from depression and was on medication for same. Weight gain is a side-effect commonly associated with her medication.  She replied “yeah, I was thinking that because when you came into me back in October you looked like shite".

On 27 July 2018 there was a dinner in Spice Restaurant. The Complainant was sitting beside the Respondent.  The Respondent said to the Complainant “how did you put on so much weight when you eat feck all?” The Complainant replied, “I know, but sure I told you it’s the tablets”.

The Respondent also commented in September 2018: “look how much weight you have lost since starting here due to running up and down the stairs” (the Complainant’s office was on the third floor). The Respondent went on to remark that two other specified employees should do the same “to lose a bit of weight”.  The Respondent replied that her weight loss had occurred because she had been off the medication for about two weeks. The Respondent replied: “that’s good”.

The complainant had several “run ins” with the Respondent during her time working for her which are outlined in detail in her submissions. The Respondent spoke to the Complainant on occasion using bad language and belittling her. Each one of these altercations damaged the relationship between them. It deteriorated to such an extent that the Respondent would ignore the Complainant when she spoke to her.

The Complainant was feeling very upset about the way she was being treated by the Respondent. The latter seemed to be trying to put the blame on the Complainant for things that went wrong in the office and for no apparent reason. The Complainant went home on 21 December 2018 feeling that she was not wanted in the office and was being pushed out. She did not attend the staff Christmas lunch later that day for the same reason.

The Complainant was ill throughout the Christmas period at the end of 2018. The thought of returning to such a hostile working environment made her physically ill and she was very upset. The Complainant was unable to sleep and was suffering from migraines. On 28 December 2018, the Complainant attended her G.P. who signed her off from work for four weeks. The G.P. declared her unfit to work due to “stress related illness” and recommenced she take medication which is used in treating anxiety and depression.

On Monday, 21 January 2019, the Complainant presented at her G.P. again with the same symptoms. He certified her as being unfit to work until 24 February 2019 The Complainant’s husband handed in the medical certificate to the Respondent’s office on 24 January 2019.

On Monday, 28 January 2019, the Complainant received a letter sent by registered post from the Respondent. The letter, which was dated 25 January 2019 (the day after the Complainant’s second medical certificate was submitted), stated that after carrying out “a full review of the structures in the office” she found that the position of Legal Executive was “not viable”. Quite how she reached that conclusion is not specified in the letter. However, the Respondent went on to state that the Complainant’s employment was to be terminated “by reason of … redundancy.” The Complainant was shocked and taken aback to have received such a letter.

Any report of the alleged review has not been furnished to the Complainant. Neither has she been furnished with details of any selection process used to identify why the Complainant was selected for redundancy over other employees.

Enclosed with the dismissal letter was the Complainant’s last payslip, Christmas vouchers and a statement of employment that incorrectly noted the Complainant’s commencement date as 5 March 2018. The Complainant was not informed that she could appeal the decision which had, in any event, come completely out of the blue. At no stage had it been mentioned by the Respondent that there was a possibility of a redundancy or redundancies occurring.

The Complainant was not the last person hired by the Respondent and was confused as to why she would be selected to be made redundant as the LIFO (last in, first out) principle had clearly not been followed. The Respondent did not inform her of any selection process used in order to determine who would be made redundancy.

The Respondent did not attempt to see how the Complainant was while she was on sick leave. She did not have the Complainant medically assessed. She failed to reasonably accommodate the Complainant and facilitate her return to the workplace. Her only action was to terminate the Complainant’s employment once a second sick cert was submitted to her.

The Respondent alleges that the position was not viable in the business. When the Complainant began her sick leave, there were seven people working in the Respondent’s office; including the Complainant and the Respondent. There was also a second solicitor, one accounts person and three legal secretaries/receptionists. The Respondent acknowledges in her submission that a new employee, Ms A, started in January 2019. However, since the Complainant commenced her sick leave the Respondent has also hired Mr. B, Ms C Mr. D and Mr. E.

It is clear, in that context, that a genuine redundancy situation did not exist. Rather, it is submitted, the purported redundancy was merely a sham designed to cover a summary and discriminatory dismissal that took place on the day after the Complainant submitted a second medical certificate arising from her disability. Depression and in certain circumstances stress have been established as a disability in this jurisdiction.

The Complainant’s General Practitioner gave evidence outlining when the complainant attended, the issues she was complaining of, the diagnosis and the medication he prescribed.

The Complainant originally started working for the Respondent in 2006, as a legal executive. In August 2008 she resigned her position, in order to take up employment in the United Kingdom. The Respondent hosted a farewell party for her and all members of the office attended.

In or around October 2017 after the Complainant had returned from the UK, she assisted the Respondent with some of her political work. She did so as a volunteer. Not long after the Complainant had finished her volunteer work with the Respondent, she started in a new position in the Respondent’s legal office. That was on the 5th of March 2018. The Complainant in her complaint form stated that she had commenced her employment on the 9th of November 2017. That is incorrect.

Shortly after the Complainant commenced her employment, she was furnished with a written contract. A copy of that contract was found in the Complainant's office after her employment ended. Miss F who works with the Respondent states that she put a copy of the contract into the Complainant's pigeon hole in March 2018 and the next time she saw it was on the floor of the Complainants office after her employment had ended. The Respondent conceded that she did not give the contract to the Complainant nor had she ever seen a signed version of it.

 At the time the Complainant commenced her employment in March 2018, the Respondent had seven employees excluding herself, one solicitor, one legal executive, one office manager, one receptionist, one accounts, one legal secretary and one office administrator. All of the employees commenced prior to the Complainant. The Complainant stated that at least four other employees were hired between her commencement and termination date. That statement is categorically untrue.

The Respondent first learned that the Complainant was bringing a claim for discrimination on grounds of disability on the 5th of March 2019. That claim is based on a medical certificate stating that she was suffering from work related stress. The alleged disability that the Complainant is suffering from is Depressions and the alleged discriminatory act is, that the redundancy of the complainant is a guise for that discriminatory dismissal. The Respondent categorically denies that the Complainant was dismissed on discriminatory grounds. She was not aware that the Complainant was suffering from depression and at no stage during the currency of her employment did the Complainant put the Respondent on notice of that. The Respondent has had employees in the past who have suffered from mental health issues and she has always been supportive of them.

The Respondent has known the Complainant for many years. She worked for the Respondent as a volunteer in her political practise and following that in her legal practise.  The Respondent has also acted for the Complainant in relation to various non-related legal matters. The Complainant was a very good worker and the Respondent believed she was an asset to the firm. When the Complainant worked as a volunteer in the Respondents political practise, the Respondent had hoped that Fianna Fail would pay for the Complainant and the office if an election was called. Unfortunately, the election wasn’t called so all that died a death. During that time the Complainant was only in the office five or six times. There was very little political work to do at that time. The Respondent asked the Complainant if she would ever consider coming back to work in the legal office. The Complainant stated that she would return in a heartbeat. The Respondent then felt that she had backed herself into a corner and didn't really understand why she had asked the Complainant that. The Respondent stated that she would talk to the accounts person to see what she could do. She also told the Complainant that she would have to do some training as 10 years had elapsed since she last worked in the legal practise. The Complainant was due to start in or around Valentine's Day however she informed the Respondent that her husband needed her in the yard as the “Beast from the East” was approaching and they were extremely busy. In or around the same time the Respondent had a severe skiing accident and was out sick for a period of time. Because of all of that the Complainant’s contract was not signed until July. The Respondent accepts that she herself did not give a copy of the contract to the Complainant and she herself never saw a signed copy of it.

The Respondent was having some financial difficulties. She asked Mr. G to come in and carry out a review of her accounts and files. After carrying out a full review, he made some suggestions to her. He stated that she should get rid of the DX, change her IT package, and cut €15,000.00 out of her outgoings and reduce the number of staff, by two. The Respondent has a close friend who works for KPMG and she asked her to have a quick look through her books. They did that over Christmas 2018. Her friend told her, following a review of the books, that her salary bill was far too high. The Respondent then began the process of making some positions redundant. She felt the fairest approach to take would be LIFO (last in first out).

In the months leading up to the decision to make two positions redundant, the Respondent had been having some issues with the Complainant’s performance specifically in relation to a probate account. The Respondent felt that the Complainant had lied to her about the issue.  There was also an issue in relation to stamping. The Respondent noticed that the Complainant was not doing the stamping and that concerned her because there were penalties to be paid for late stamping. She spoke to the Complainant about it and informed her that a penalty of €1,500.00 had to be paid because the stamping had not been done on time. The Complainant told the Respondent that she did not want to do the stamping anymore. Because of that, the Respondent had to ask someone else to do that job. She felt that the Complainant was “not the same girl” who had worked for her in the past.  

The Respondent stated that when the Complainant left for the Christmas Holidays she made it very clear that she would not be returning. She cleaned out her desk and cleaned up her office.

Then the Respondent received the complainant’s sick certificate on 28 December 2019. She became very frightened as she felt that the Complainant was building a case against her. The Complainant had a history of suing people and she felt like she was next in line. The Respondent, whilst the Complainant was out on sick leave, saw her in her husband’s coal yard. The Respondent was struggling financially at this point and was somewhat annoyed that the Complainant was working for her husband when she was supposedly out sick leave from the Respondent’s business. She asked her to come into the office. The Complainant did come in. Whilst she was there the Respondent informed her that she was the least skilled within the office and that she was going to have to make her position redundant. The Respondent stated that if the Complainant continued to work for her she was going to have to invoke the disciplinary process in relation to the Complainant’s role in the probate matter. There had been numerous issues in relation to the Complainants’ performance over a period of approximately 4 months.  The Respondent went through the financial figures with the Complainant and explained to her that financially she just could not keep on all of the staff. She explained to the Complainant, that the procedure she was using to select redundancy candidates was LIFO. The Respondent accepts that she did not have a consultation process in relation to the redundancy's and that she did not write to the Complainant setting out the issues.   She did not do so because in her opinion the Complainant had a very bad attitude and she would have thrown the letter into the bin. Her bad attitude extended to the Revenue, Government bodies and her own office and that she gave her legal practise no respect.

The Respondent categorically denies that she knew the Complainant was suffering from depression and she denies that she made any comments about the Complainant’s weight or that the complainant told her that her weight gain was a side effect of the antidepressant tablets she was on. She and several employees have a clear recollection of the alleged conversation at occurred at "Spice" restaurant. All stated that the complainant was not sitting anywhere near the Respondent and the conversation that the Complainant recalls, did not happen. The Respondent also stated that she has an employee who suffers from depression and OCD and that that would never be a reason to terminate an employee’s contract. The respondent in cross examination accepted that she did have an employee with mental health issues who was on a fixed term contract and following the expiration of that contract she decided not to renew it. She stated that she felt that the employee “was better suited to other work” so she let her go. The Respondent also accepted that at the time of the alleged conversation about the Complainant’s weight gain and that being, as a result of the antidepressant tablets she was on, the Respondent was suffering from memory problems due to the skiing accident.

Ms F stated in evidence that in or around December 2018 The Respondent had told her that there were going to be big changes. Miss F was also aware that Ms A would be joining the firm after Christmas but that she would only be part time working approximately 10 hours per week.

The Complainant is alleging that several other people were employed by the Respondent after she was made redundant. This is denied by the Respondent. The only person employed was Ms. A.

The Complainant is alleging that the Respondent could not have been under that much financial pressure if she could afford to buy herself a new Mercedes car at the time. The Respondent concedes that she bought a Mercedes but stated that it was the family car and it was second hand. She needed a car to get from A to B.

CA 26094 -01

Section 3(1) of the Terms of Employment (Information) Act 1994 (as amended) provides that:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment…. “

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

The Respondent has conceded that she herself did not give the Complainant a written statement of her terms of employment. She asked another employee to do it. All that Ms. F could say was that she put it in the Complainant’s pigeon hole and that she found it on the floor after the complainant’s employment had ended. It was not signed.

There is a legal requirement for the written terms to be sign.

Due to the ambiguity surrounding what should be a very straight forward matter and taking into account that the Respondent has conceded the point due to the fact that she cannot say with any degree of certainty that the Complainant was given it, and because the document relied on was not signed, I find that the complaint is well founded and accordingly I award the complainant four weeks renumerations amounting to €2,152.00

CA 26094 -02

Submissions were not made by either party in relation to why the decision should be anonymised however, based on the fact that the parties work and reside in a relatively small town in the South of the Country together with the the Respondent’s profession/s and the sensitive nature of the Complainant’s medical evidence I am anonymising the decision.

The Complainant alleges that her dismissal was discriminatory on the grounds of disability and failure to provide reasonable accommodation.

The Employment Equality Act 1998 (as amended) addresses the issue of the burden of proof in Section 85A. (1) as follows:           

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.”

Disability" is defined in section 2 of the Employment Equality Act 1998 as meaning:

“(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,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

I should be alert to the fact that 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.”

Disability.

In this jurisdiction disability has been interpreted in an extremely broad way.  In An Employee v. Bus Eireann [2003] ELR 351 it was held that heart conditions amount to a disability for the purposes of the Acts. Further, in the case of Mr O v. A Named Company DEC-E2003-052 it was held that work related stress may amount to a disability. An Employee v A Healthcare Company, ADJ-00017070 (Tab 15), the Adjudication Officer considered the definition of disability and clearly stated that “I am satisfied that the complainant’s disability which is reactive depression and anxiety comes within the definition.” Depression has also been acknowledged as a disability in An Employee v A Government Department, ADJ-00015888, whilst the Irish Human Rights and Equality Commission states that: “Depression, stress and anxiety are among the kinds of mental health difficulty that may be regarded as disabilities under the law.” The Commission cites the following as an example of the type of disability-related discrimination that is prohibited by the Employment Equality Acts “An employer dismisses an employee while they are on sick leave for depression whilst other people who are on sick leave for other conditions are not dismissed.” As was suggested in A Government Department v. A Worker EDA094, the de minimis rule applies and the condition must manifest in a minimal level of symptoms to be classified as a disability.

The Complainant’s GP stated that the Complainant was diagnosed with Depression and Anxiety in 2015. She was prescribed anti- depressants at that time. She did stop taking them for a few months on two occasions but due to the persistence of her condition, she had to recommence them. In December 2018 there was clear evidence of an exacerbation of her condition which was directly related to stress she was under. She was certified unfit for work on the 28.12.2018 and again on the 21.01.2019 suffering from a “stress related illness”.

I am satisfied based on precedent that depression comes within the definition of Disability. I am also satisfied that in the circumstances of this case, that stress comes within the definition of a disability due to the fact that the stress was severe enough to exacerbate her pre-existing depression. I am also satisfied that the Complainant was at the material time suffering from a “disability” within the meaning of the Act.

Respondent’s knowledge of the disability.

I must now establish, whether or not, the Respondent was aware that the Complainant was suffering from a disability at the material time. The Respondent vehemently defended her position that she was not aware that the Complainant was suffering from a disability at the time she made the decision to make her position redundant. I have carefully considered her evidence in this regard, together with the evidence of the witnesses called on her behalf. Leaving the issue of, whether or not the complainant told the Respondent about her mental health issues during the course of her employment aside for one moment,  I am satisfied that the Respondent was on notice that the Complainant was suffering from a “stress related illness” upon receipt of the medical certificates dated 28.12.2018 and 21.01.2019. The Respondent stated that she made the decision to make two roles redundant following a conversation over the Christmas vacation with her friend, who works for KPMG. The Respondent also stated that when she received the Complainant’s medical certificate, she became fearful that the Complainant was going to sue her. The letter notifying the Complainant that her role was going to be made redundant was dated the 29.01.2019. At that juncture the Respondent was in receipt of two medical certificates both stating the Complainant was suffering from a “stress related illness”.  Furthermore I am satisfied based on the Complainant’s credible evidence and the respondent’s partial recollection of conversations about weight gain /loss that she, the complainant,  did have at least two conversations with the Respondent wherein she disclosed that her weight gain was as a result of the anti- depressant medication she was on, thus disclosing to the Respondent that she was suffering from depression.  I am satisfied that the Complainant has established a prima facia case of discriminatory dismissal on grounds of disability. The burden now shifts to the Respondent to prove the contrary.

Discriminatory Dismissal

 The Respondent states that the Complainant’s health did not enter her mind when making the decision. She needed to cut the staff head count and decided at LIFO was the criteria she would use. However, I note that her accountant carried out a review of the business in late 2018 when preparing her 2017 revenue return. He recommended she reduce the number of support staff.  Mr. G also did a review of the business in 2018 and suggested various cash flow cuts that needed to be made. The Respondent took no action whatsoever at that time to reduce her staff headcount. It wasn’t until she was in receipt of the medical certificates that she did take action, and did so in the absence of any process, good, bad or indifferent. The Respondent has significant experience and qualifications in the area of employment law. She, more than most, ought to have been aware of the process one is required to adopt when either dismissing an employee or selecting positions to make redundant and the importance of keeping a written record of process as it unfolds. She stated that once she had made the decision she opted for LIFO, as the selection criteria. LIFO doesn’t require an in-depth analysis of an employee’s performance record or an analysis of employee’s skill sets.  The large amount of detailed oral evidence proffered by the Respondent and her witnesses in relation to the Complainant’s performance shortcomings was unnecessary, if LIFO was in fact the criteria used. What it does demonstrate is that the Respondent clearly was very unhappy with the Complainant’s performance for some time and the straw that broke the camel’s back was the receipt of the sick certificates knowing that the complainant suffered from Depression.  I say that, based on the uncontroverted facts that the Respondent did nothing when advised by Mr. G to reduce her headcount. The Respondent did nothing when her accountant suggested she reduce her head count. The Respondent did nothing in relation to the Complainant’s alleged role in her client account probate issue or indeed in relation to any of the other issues outlined in her evidence.  She did however spring into action upon receipt of the Complainant’s sick certificates. In that regard the Complainant was treated less favourably that those employees who were not on certified sick leave.

I am satisfied that the Complainant’s dismissal was discriminatory.

Reasonable Accommodation.

The Respondent states that the Complainant never sought reasonable accommodation, in order to facilitate her return to work. The reality was that she was given no time to do so, as the Respondent terminated the Complainant’s employment during her period of certified sick leave.

*********

 I also note the Complainant was denied her right to appeal the decision. That is another matter the Respondent should have been acutely aware of.  Whether the Respondent’s decision was conscious or sub-conscious, there is clearly a nexus between the decision, receipt of the medical certificates, her pre-existing knowledge of her depression and the dismissal.   

Having carefully considered the evidence together with the submissions and the exhibits furnished, I am satisfied that the complaint is well founded.

 In assessing the appropriate compensation to reward the Complainant, I have taken into account, the duration of her employment, the circumstances surrounding her termination, the conduct of the Respondent and the effect the dismissal had on the Complainant. In all the circumstances I find that compensation in the amount of € 20,000.00 is appropriate. 

CA 26094 – 01 The complaint is well founded. I award the Complainant € 2,152.00

Ca 26094 -02 The complaint is well founded. I award the Complainant €20,000.00

Discrimination, Dismissal, Reasonable Accommodate, Disability.