FULL RECOMMENDATION
PARTIES : DUBLIN SIMON COMMUNITY DIVISION :
1.Appeal of Adjudication Officer Decision No’s: ADJ-00024891, CA-00031551-003. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms Tracey, is referred to as the Complainant and Dublin Simon Community are referred to as the Respondent. The Complainant lodged her complaint with the WRC on the 14/10/2019. The cognisable period for the purpose of the Act is 15/4/2019 to 14/10/2019. Background The Complainant was employed by the Respondent as a Project Worker from the 19th November 2018 until her employment ended on the 15th May 2019. It is the Complainant’s submission that she notified her employer on the 7th January 2019 that she was suffering from post-natal anxiety and that she was discriminated against on the grounds of disability when her contract was terminated. She also submitted that the Respondent failed to provide reasonable accommodation. The Respondent disputes that the Complainant was discriminated against and submits that the Complainants employment came to an end as she did not successfully complete her probationary period. Summary of Complainant’s submission Mr Gibney on behalf of the Complainant submitted that the act of discrimination within the cognisable period was the decision on the 15th May 2019 to dismiss the Complainant. Mr Gibney submitted that at her second supervision meeting on the 7th January 2019 a number of issues were raised with the Complainant about her role and the fact that she was not settling in to the role. The Complainant advised her line manager that she was struggling with the role and some days felt like she was working through a fog. On what she thought was a confidential basis, she informed the line manager that she had post-natal anxiety. At the meeting, the line manager indicated the availability of the employee assistance programme and advised if the Complainant was having a difficult day, she should take some time out and to let her line manager know if she could do anything further to help. Mr Gibney submitted that the Complainant was surprised when the issue of her post-natal anxiety was brought up at a later meeting with a senior manager and HR manager. It was submitted on behalf of the Complainant that she was only advised Tuesday 15th January 2019 that she was to attend a meeting the following day with these managers and that she was not told what the meeting was about. At that time her son was ill, and she could not attend, and the meeting was pushed back to the 23rd January 2019. At the meeting the Complainant was informed that her line manager had concerns about her performance. Mr Gibney on behalf of the Complainant submitted that she was concerned at how one sided the managers view of the issues were and that she believed that they completely sided with the line manager. She was taken by surprise when the senior manager asked her if she thought she would be able to work if she was having issues with her mental health. The Complainant submitted that she responded and advised that she was managing her mental health issues, and yes was able to work. The Complainant submitted that she thought when she told her line manager about her post-natal anxiety it would be confidential and did not realise that other managers or HR would be told. The Complainant submitted that asking her that question was an act of discrimination. Mr Gibney on behalf of the Complainant further submitted that the Respondent had failed to provide reasonable accommodation but did acknowledge that the Complainant had not requested same and had in fact indicated to management that she was managing her health issues and was fit for work. Mr Gibney submitted it was not for the Complainant to tell the Respondent what she required the onus was on the Respondent to carry out an assessment and established what her needs were. Mr Gibney opened a number of cases to the Court, and submitted that the Respondent was obliged to consider all the medical evidence available and to have an interactive dialogue with the Complainant around her needs. Mr Gibney accepted that during her employment the Complainant had not submitted any medical documentation to her employer in respect of her post-natal anxiety. Mr Gibney submitted that the Respondent was aware of the Complainants disability since January and had not taken any steps to assist her but instead had dismissed her. Summary of Respondent’s submission The representative for the Respondent submitted that the Complainant, as set out in her contract of employment, was required to complete a six-month probationary period. The Complainant’s employment was terminated due to unsatisfactory performance during the probationary period and was not in any way connected with any alleged disability. In the course of her employment the Complainant attended a number of training courses provided by the Respondent but there were still issues with her performance. The Complainant met with her line manager to discuss her performance on three occasions. The records of the meetings were signed by the Complainant and the line manager. These meetings took place on 7th December 2018, 7th January and 2nd April 2019 and addressed shortcomings with the Complainants performance. On the 17th January 2019 an email was sent to the Complainant advising her of a meeting with a senior manager and the HR Manager. The email set out the agenda as; work standards, organisational culture, probationary period, factors impacting decision to a) confirm a person in post or b) to terminate the employment contract within the probationary period. The meeting took place on the 23rd January 2019 and the Complainant was informed that she was not performing at the required level and unless there was significant improvement in her performance, she would not pass her probation. The next meeting with the Complainant took place on the 2nd April 2019 again issues were raised with the Complainant about her performance and the failure to meet the required standard. The final meeting took place on the 15th May at that meeting the Complainant was advised that her employment was being terminated as she had not met the required standard during her probationary period. The Respondent denies there was any link between the Complainants employment terminating and her alleged disability. The Complainant herself has submitted that when she mentioned her post-natal anxiety to her line manager the manager had informed her of the EAP services, told her if she was having a difficult day to take some time off and to let the line manager know if he needed anything else. At the meeting on the 23rd January 2019 with the senior manager and the HR manager when they enquired about her health issues, the Complainant informed them that she had no difficulty in working and that she was managing her mental health issues. The representative for the Respondent submitted that the Complainant was dismissed because she did not reach the standard required during her probationary period and that she has failed to demonstrate any link between her alleged disability and the decision to terminate her employment. The applicable Law 2.— (1) In this Act, unless the context otherwise requires… “disability” 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, 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; Discussion However, the Court was provided with a copy of an email that was sent to the Complainant setting out the issues. The Complainant did not dispute receiving that email. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts. The Court is satisfied that in the case to hand the Complainant has not discharged the initial probative burden, in that she has not proved primary facts from which an inference of discrimination could arise. On that basis the Complainant’s appeal must fail. Determination The Court accordingly determines that the Complainant was not discriminated against on the grounds of disability. Accordingly, the Court confirms the decision of the Adjudication Officer and rejects the appeal. The Court so Determines
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