Adjudication Reference: ADJ-00027978

Parties:

	Complainant	Respondent
Parties	John Waters	Alpha Mechanical Services Limited

Representatives

Sean Costello, Sean Costello Solicitors

Company Management.

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00035809-001	17/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 79 of the Employment Equality Act, 1998 to 2015	CA-00039739-002	10/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00039739-003	10/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00039739-005	10/09/2020

Date of Adjudication Hearing: 01/12/2021

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and / or Section 79 of the Employment Equality Act, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant commenced employment with the Respondent on 7th January 2019, he was employed as a Contracts Manager. Employment ended on 10th April 2020.

This complaint was received by the Workplace Relations Commission on 10th September 2020.

Summary of Complainant’s Case:

On 7 January 2019, the Complainant commenced his employment with the Respondent as a Contracts Manager on a permanent and full-time basis. Initially, the Complainant received a gross annual salary of €68,000 (this was later increased).

The Complainant's duties as a contracts manager included the following:

· Management of multiple projects simultaneously;

· Controlling finances of projects under his control;

· Ensuring that project deadlines and budgets were adhered to;

· Attending site/project meetings as requested by clients;

· Ensuring that installations were as per design requirements; and

· Ensuring that the Respondent was represented professionally at meetings and on site.

The Complainant performed exceptionally well in his employment with the Respondent, passed his probationary period, was regularly commended on his performance and was never the subject of any performance or disciplinary related complaint, investigation, finding or sanction.

On 15 January 2020, the Respondent conducted a one-year review of the Complainant's performance. As part of this review, the Complainant was awarded an increase in salary in the value of €5,000. This brought his gross annual salary to €73,000. This equates to a gross weekly salary of €1,403.85. The Complainant maintains that same reflects that fact that the Respondent was entirely satisfied with the Complainant's performance and that there were no issues regarding his performance or conduct.

The Respondent furnished the Complainant with a Contract of Employment in January 2020 which reflected this raise. Further, the contract contains a disciplinary and dismissal procedure that guarantees: a full investigation; information of all allegations; a right to make representations; a right to be accompanied by a colleague; and a right of appeal.

In addition to same, the Complainant was given a €12 daily lunch allowance and the use of a company vehicle, laptop and telephone for both professional and private use. Further, the Complainant enjoyed €27.74 per week pension contribution when he was earning €68,000 per year, later increasing to €28.49 when his salary increased. The Complainant maintains that same increased the value of his actual remuneration package from the Respondent accordingly.

The Complainant suffers from psoriatic arthritis. The Complainant is receiving ongoing treatment in relation to same from his medical advisors which includes him being prescribed and required to take Methotrexate, an immune-suppressant medication. Prior to the Covid-19 pandemic (‘the pandemic') and the events that culminated in the Complainant's dismissal, the Respondent was aware of the Complainant's taking of such medication as a result of him having been unable to drink alcohol on work nights out and responding to their queries in relation to same by explaining the nature of such medication and illness.

Following the commencement of events related to the pandemic, on Thursday 2 April 2020, the Complainant contacted his GP to seek advice as to whether he should continue taking this immuno-suppressant medication in light of the pandemic. The Complainant's GP instructed him that he should continue taking this medication, but that he should not be around groups of people such that he would typically be surrounded by on sites during his employment. The Complainant's GP advised him that he would issue the Complainant with a letter stating that he should work from home.

Later on Thursday 2 April 2020, the Complainant contacted Mr Alan Kelly, Director of the Respondent, advising him of his GP's instructions. In response to same, Mr Kelly stated that it was: "a lot to take in". Mr Kelly requested that the Complainant email the Respondent a copy of this letter and post the original letter to them. However, it was agreed that the Complainant could work from home in the interim.

Thereafter, the Complainant began and continued to perform his work duties from home on a full-time basis. The Complainant found that he was able to perform nearly all of his duties from home as same largely involved duties which could be completed over telephone, laptop, teleconference and email. The Complainant found that the only duty he could not perform from home was that of site inspections; however, he would typically have only performed such duties once a week per site.

On Friday 3 April 2020, the Complainant collected the letter from his GP and emailed it to Mr Kelly. In response, MrKelly stated that the Complainant would have to send the Respondent the original letter.

That week, the Complainant's pay slip showed that his gross weekly salary of €1,403.85 had been made up of a €350 Covid-19 pandemic social welfare payment with the remainder of his gross weekly salary being paid by the Respondent. The Respondent had not liaised or engaged with the Complainant with regards to his weekly salary being supplemented by a Covid-19 social welfare payment.

On Tuesday 7 April 2020, the Complainant delivered the original letter from his GP to the Respondent.

On Wednesday 8 April 2020, the Complainant reviewed his electronic pay slip for the week. The Complainant's wages consisted of a €350 Covid-19 payment and €250 from the Respondent. As such, the Complainant was underpaid to the gross value of €803.85. The Respondent had not liaised or engaged with the Complainant with regards to this unilateral reduction in his salary. Indeed, the Complainant only discovered same on reviewing his electronic pay slip for that week. As such, the Complainant maintains that the Respondent made an unlawful deduction to his wages in respect of this week's salary to the value of €803.85.

The Complainant immediately emailed the Respondent in relation to this issue on Wednesday 8th April 2020.

In response, by email dated 8th April 2020, Ms Gillian O'Shaughnessy, Office Manager of the Respondent, wrote to the Complainant stating that the Respondent: "have topped up your Covid 19 payment by 250 euros, this will be reviewed on a weekly basis". In response, the Complainant forwarded this mail to Mr Geraghty and Mr Kelly, stating:

'I have just received my payslip from Gillian stating that the €350 Covid-19 payment is being topped up by Alpha to the amount of €250.

This is equal to me working 7 hours out of a 40-hour week.

I am working a full week from my house, attending conference calls throughout the week, answering and making calls and emails.

I am disgusted at this treatment and if this is all that you think that I am worth during this pandemic to the company, then I would be better off switching off my phone and laptop and only receive the €350 government Covid-19 payment.'

The Complainant maintains that is absolutely apparent from the content of this email in the circumstances in which it was sent that, while he was expressing his upset at the conduct of the Respondent, same can in no way be construed as amounting to a resignation of his employment.

In response, by email dated 8 April 2020, Mr Geraghty, Director of the Respondent, wrote to the Complainant stating that if he wanted to "stew on it" he should let him know.

By email dated 8 April 2020, Mr Kelly wrote to the Complainant, stating: "John, I'llgoone further! Drop your laptop, phone and jeep to the office by Friday morning. (emphasis added)" In response, Mr Geraghty instructed the Complainant to return: "Everything that the company own".

The Complainant maintains that, Mr Kelly's going 'one further' than Mr Geraghty's previous instruction to the Complainant to 'stew on' his issues, and explicit direction to return his company equipment that was fundamentally necessary for the Complainant to perform the duties of his employment amounted to language of dismissal. This was agreed to and endorsed by Mr Geraghty explicitly directing that everything the company owned should be returned.

In response, by email dated 8 April 2020, the Complainant stated: "I have no issues working full weeks but to find out that other people in the company are receiving more of a payment from Alpha than I am is frustrating". The Complainant maintains that it had come to his attention that other employees of the Respondent who had not been required to work from home for the period that the Complainant had (as necessitated by his disability) had not had their salaries cut to the extent that the Complainant's was or cut whatsoever. The Complainant maintains that same amounts to discrimination in the conditions of his employment on the ground of his disability.

By email dated 8 April 2020, Mr Geraghty responded to the Complainant stating:

Who is getting more? Everybody is getting a top up and some less than you.

You are not working full weeks either. You are intermittently working, and I have to prompt you to do most things in cork street over the last few days with HIU I Grills / paperwork. Somebody working flat out wouldn't need these nudges.'

The Complainant maintains that, since commencing his work from home, he had been working on a full-time basis and, as referenced above, was able to complete the majority of his duties from home over phone, email, laptop and teleconference. The Complainant accepts that he had been unable to perform duties related to site visits from that time; however, the Respondent had made absolutely no attempt whatsoever to facilitate the Complainant's performance of same through exploring or providing reasonable accommodations in respect of such duties.

By email dated 8 April 2020, the Complainant responded to Mr Geraghty, stating:

'/ don't want to be leaving the company, that was not the point of my email (emphasis added).

I am shocked at being down so much in wages when still performing my duties. €786 a week will be a struggle with my high mortgage.

Also, the nudges that you have given me are after I have already been in touch with suppliers over the past 2 weeks.'

The Complainant maintains that it cannot be said that he resigned his employment in circumstances where he explicitly stated that the issues that he had raised regarding the non-payment of his wages did not mean that he wanted to leave his employment and that same was not the point of his email.

In response, by email dated 8 April 2020, Mr Geraghty stated;

You cannot fulfil your duties from home 100%. You are not even responding to half of the emails. I emailed you yesterday about the HIU and the day before and I see 1 email.

Also, you left work earlier than everybody else on the pandemic break and where paid in full. So, you have got more than everybody else.

There are employees like mark I John I Gillian I Tara who are carrying out their role 100% and they have been paid but everybody else has been on a sliding scale from as low as no top up to €300 depending on what they can do.

As I said we are doing more than any other company I know. We are not stupid we know we are doing more than everybody else.

You say you asked the question two weeks ago ask every day until you get an answer. You still have not closed out the HIU issue.'

Again, the Complainant maintains that, since working from home, he was working on a full-time basis and had been able to complete the majority of his duties. Again, while the Complainant accepts that he had not been able to perform duties related to site visits, the Respondent had made absolutely no attempt whatsoever to facilitate the Complainant's performance of same through exploring or providing reasonable accommodations in respect of such duties. Further, it is apparent that the Respondent sought to justify its less favourable treatment of the Complainant regarding his pay as he "left work earlier than everybody else on the pandemic break". The Complainant maintains that this earlier departure from the workplace than everyone else was necessitated by his disability and that this comment amounts to an admission by the Respondent of discrimination. Further, the Complainant maintains that the Respondent further admitted to having treated Mark, John, Gillian and Tara more favourably in relation to pay as they were perceived as "carrying out their role 100%", and that this was despite the fact that the Respondent had not sought to provide reasonable accommodation to the Complainant whatsoever.

By email dated 8 April 2020, the Complainant responded to Mr Geraghty, stating:

'I was talking to Stephen yesterday at 15.25 after the emails and he promised me he would be back to me by lunchtime today. The units are complete and Stephen was checking if he could get the factory to open up to offload the units in Ireland. I will chase him again until I get an answer. '

In response, Mr Geraghty stated:

'I think it's best if we part ways from Friday. We expect you to carry out any duties you have between now and then.

I will organise Gillian to pay any holidays etc that are due to you.

Drop everything over on Friday and I will organise Anthony to meet you there.

I will notify clients after Friday you are no longer with us

Can you make sure Dongles, iPad, laptop, jeep and any other equipment that belongs to the Company is dropped off.

Thanks for your time working with Alpha and I wish you every success in the future. (emphasis added)'

The Complainant maintains that the only reasonable interpretation that can be given to the above email in the circumstances in which was said is that the Respondent was dismissing the Complainant from his employment.

In response the Complainant stated that he would return company property by Friday and requested that Anthony have the GP's letter that he had furnished to the Respondent. In response, Mr Geraghty agreed to this. In response, the Complainant asked that he ensure that his contractual notice period is paid up in his final pay slip. In response, Mr Geraghty stated that the Complainant would have to continue in his role to be paid same and that he would have to forward the Respondent his personal phone number so that he could take continue to take telephone calls from the Respondent.

By email dated 9 April 2020, the Complainant wrote to Mr Geraghty enquiring into whether he had had the chance to speak with Mr Kelly yet. In response, Mr Geraghty stated that he would talk with him on a conference call at 2.30 and revert to the Complainant following same.

By email dated 9 April 2020, Mr Geraghty wrote to Mr Waters, copying Mr Kelly, regarding the subject 'Employment'. Therein, Mr Geraghty stated:

'After discussing your position in the company with Alan in light of recent events we feel the best thing for all parties is to stick to what was decided and go our separate ways.

As discussed previously you can let me know what time you will be in the office tomorrow and I will ask Anthony to meet you there to take back anything that belongs to the company and for you to collect anything that belongs to you.

Any money owed to you through holidays or your contract of employment will be issued to you in due course.'

1.1 In response, by email dated 9 April 2020, the Complainant wrote to Mr Geraghty requesting confirmation of his final date with the Respondent, what monies were due to him and when it would be paid.

In response, by email dated 9 April 2020, Mr Geraghty wrote to the Complainant, stating that he could finish on the following day and receive his statutory entitlements by the following Thursday or work out his notice as set out in his contract, during which time he would have to remain contactable by phone.

In response, by email dated 9 April 2020, the Complainant wrote to Mr Geraghty stating that he would work to the following day.

On Friday 10 April 2020, the Complainant's employment with the Respondent was terminated by the Respondent.

1.2 On 15 April 2020, the Complainant was issued with his final pay slip which should have included his final week's pay as well as any statutory entitlements accruing such as accrued annual leave or notice pay. However, the pay slip merely included details of a payment of €786.15 with no further breakdown. As such, the Complainant maintains that the Respondent made an unlawful deduction to his wages in respect of the differential for that week's salary which amounts to €617.70.

The Complainant maintains that the Respondent failed to give any reason for his dismissal or follow any the disciplinary and dismissal procedure set out in his contract or any fair procedure generally in relation to its decision to dismiss the Complainant. The Complainant maintains that the Respondent's attitude and tone towards the Complainant changed after receiving a letter about his medical condition and medication.

1.3 By email dated 24 June 2020, in response, to the Complainant lodging his complaint with the WRC, Mr Geraghty wrote to the WRC, stating that the Complainant: "left [the Respondent] at the start of the pandemic and was given an option to work his 2 weeks' notice period or leave on the Friday".

By email dated 13 August 2020, Mr Geraghty wrote to the WRC stating that the Complainant: "wanted to leave and I agreed", and that the Complainant: "wrote to me saying he was leaving". Further, despite having alleged that it was the Complainant who had resigned, went on to seek to justify the Complainant's dismissal, alleging that the Respondent had: "numerous issues with John" in the 6 months' leading up to his dismissal, including: lateness; missed deadlines; and a bad attitude to work.

By email dated 13 August 2020, Mr Geraghty wrote to Ms Katie Mulhall, of Sean Costello Solicitors, who were acting and instructed by the Complainant. Therein, Mr Geraghty attached the chain of emails dated 8 April 2020 and alleged that same showed that the Complainant had emailed him: "telling me he wanted to leave after his wages were reduced due to Covid", and that the Complainant: "left to his own accord". Despite alleging that the Complainant had not been dismissed, Mr Geraghty again went on to seek to justify his dismissal, alleging that the Complainant had a "very bad attitude", that the Respondent had "little or no money coming into the business", and that the Complainant was not working from home during the lockdown in reality as he was not responding to calls or mails "in a timely manner".

The Complainant maintains that, in light of the above referenced emails, it is absurd of the Respondent to suggest that the Complainant was not dismissed but resigned his employment. The Complainant maintains that it is absolutely apparent from the content of these emails that, in response to the Complainant complaining of illegal and unilateral deductions having been made to his wages, the Respondent first instructed him to stew on the issue, before going 'one further' and instructing him to return all company property in his possession that he required to perform his duties, before explicitly stating they were to 'part ways' and providing highly technical details of the manner in which his dismissal would be processed in terms of paying statutory entitlements and informing customers. Further, the Complainant maintains that it is fundamentally preposterous of the Respondent to suggest that the Complainant had resigned in circumstances where his initial email on 8 April 2020 contained absolutely nothing to that effect and where his subsequent email of the same date explicitly stated that the previous complaint email was not intended to suggest that he wanted to leave his employment. Further, the Complainant maintains that the Respondent's suggestions that his dismissal was due to issues with his performance of conduct (which contradict their assertion that there was no dismissal) are completely without foundation; a truth which is betrayed by the fact that the Respondent had never raised a complaint with the Complainant regarding same and had in January 2020 given him a €5,000 salary increase.

The Complainant has made reasonable endeavours to mitigate his loss by seeking alternative employment. The Complainant only secured employment with Tritech Engineering on the 19th day of October 2020. The salary for this position is €71,500.00 per annum. There is a six month probationary period. The Complainant does not benefit from a lunch allowance or pension contributions with the said employment.

The Respondent's unfair dismissal of the Complainant has caused him severe financial loss, suffering and distress. In particular, he has been forced to freeze his mortgage since his dismissal and, on the expiry of the mortgage freeze in October 2020, has been in difficulty discharging his mortgage repayments.

THE UNFAIR DISMISSALS ACTS

PRELIMINARY ISSUE - FACT OF DISMISSAL

It is apparent from the Respondent's correspondence with the WRC and the Complainant's solicitor that they are attempting to assert that there was not, in fact, a dismissal. As such, same amounts to a preliminary issue that will need to be addressed.

Section l of the Unfair Dismissal Act 1977 defined "dismissal" as: "dismissal in relation to an employee, means (a] termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee".

It is submitted that in considering whether there has in fact been dismissal, the WRC has a wide discretion on the issue of what weight to give the circumstances in which the operative words were uttered.

Further, it is submitted that the operative words must be given their objective meaning when being considered in the circumstances. As was remarked by the EAT in the decision of BG Gale Ltd v Gilbert [1978] IRLR 453 at 454:

"the undisclosed intention of a person using language whether orally or in writing as to its intended meaning is not properly to be taken into account in concluding what its true meaning is. That has to be decided from the language used and the circumstances in which it was used".

It is submitted the words used by Mr Kelly and Mr Geraghty, namely that the Complainant go 'one further' than stewing on his payment of wages issue and return all company property that he was in possession of that he required to complete the duties of his employment, subsequent confirmation that they 'part ways', and explicit instruction as to how his termination was to be processed in terms of payment of statutory entitlements, informing clients and returning company property, given their ordinary and objective meaning, amount to words of dismissal. Further, it is submitted that the Respondent's assertion that it was the Complainant who resigned is unstateable in circumstances where there was nothing in the Complainant's original correspondence that could be reasonably said to amount to a resignation and the Complainant's subsequent email explicitly stated that he did not want to part ways with the Respondent and that his complaint email did not mean to suggest same.

As such, it is submitted that a dismissal has, in fact, occurred in the case at hand.

Obligation on the Employer to justify dismissal

Section 6(1) of the Unfair Dismissals Act, 1977 reads as follows:

"Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal."

Section 6(4) of the Unfair Dismissals Act 1977 provides that if an employer can establish that the dismissal resulted from, inter alia, the employee's conduct, it will be deemed a fair dismissal.

Section 6(6) of the Unfair Dismissals Act, 1977 reads as follows:

"In determining for the purposes of this Act whether or not the dismissal of an 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."

It is respectfully submitted that the burden of proof falls on the Respondents to prove that the Complainant was dismissed fairly.

Obligation on the Employer to afford fair procedures to the Employee

It is submitted that it is an axiomatic principle of Irish employment law that an employee enjoys a contractual and constitutional right to fair procedures. As Cox, Corbett & Ryanput it at Para. 21.100:

"insomuch as this right will be most keenly enforced by the courts and the tribunal in circumstances where that employee faces the ultimate sanction of dismissal, a dismissal of an employee may be deemed to be unfair in circumstances where, even though there in no substantive difficulty with the dismissal (that is, where it is or one of the listed reasons contained in the Act for which a dismissal will be deemed fair], the manner in which the decision to dismiss was reached was somehow procedurally flawed. From an employer's standpoint, therefore, it is vital that his or her business have in place a fair set of disciplinary rules and they be adhered to strictly".

It is respectfully submitted that, in the case at hand, the Respondent failed to provide the Complainant with adequate fair procedures. Contrary to the above, the Respondent failed to comply with its own disciplinary or dismissal procedure or the abovementioned 'heads' of fair procedure in that it afforded the Complainant no process whatsoever.

THE EMPLOYMENT EQUALITY ACTS

The Definition of Disability under the Employment Equality Acts, 1998 - 2011

The definition of disability contained in section 2 of the Employment Equality Acts is set out in a list of broad categories, including the following:

(c) the malfunction, malformation or disfigurement of a part of a person's body"

It is respectfully submitted that in the case at hand, the Complainant suffered from psoriatic arthritis. Same is an auto-immune disease and a form of inflammatory arthritis that causes pain, swelling and damage to the joints of the body. Same manifests in a number of highly unpleasant symptoms, most relating to joints in the body and treatment, as in the Complainant's case, can require immune-suppressant therapy. It is submitted that psoriatic arthritis comes within the definition of a 'disability' for the purposes of section 2(c) of the Employment Equality Acts.

Knowledge of the Disability

The issue of the level of knowledge required of an employer of an employee's disability in order for the employee to ground a claim for discrimination under the Acts has been largely settled. In Connacht Gold Co-Operative Society v., A Worker EDA0822 the Labour Court held that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee's disability in order to demonstrate that it was not aware of the employee's disability. Interestingly, the Labour Court held that signs, symptoms or indications of the Claimant's disability in his job performance could contribute to the employer being fixed with constructive knowledge of a disability. This position regarding constructive knowledge was affirmed in Flynn v. Emerald Facilities Services DEC E2009-065.

It is respectfully submitted that, at all times, the Respondent was aware of the existence and severity of the Complainant's disability. Indeed, this was apparent through both informal conversations that he had with the Respondent's servants and agents regarding his treatment and through the GP's letter that he furnished to the Respondent.

Discrimination

Direct discrimination arises where the less favourable treatment is based on a criterion which is necessarily linked to a characteristic indissociable from the discriminatory ground (Case C - 79/99 Schorbus).

In order to establish discrimination, it is necessary to prove that the Complainant was treated less favourably due to him coming within the discriminatory ground, namely having a disability. In order to demonstrate same, it is necessary to identify an actual or hypothetical comparator, in a comparable situation who does not come within such a discriminatory ground, in this case not having a disability, and was treated more favourably than the Complainant. In the case at hand, the Complainant would identify Mark, John, Gillian and Tara as appropriate comparators who were treated more favourably than him. The Complainant reserves the right to identify further comparators at the hearing of this matter.

The Complainant must discharge the burden of proof by showing that the difference in treatment is due to discrimination on one of the discriminatory grounds. Once the Claimant has made a prima facie case the burden of proof shifts to the Respondent. The rule is required pursuant to EU law and its rationale was explained in Ntoko v Citibank [2004) ELR 116:

"This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondent's capacity of proof."

In Dublin Corporation v. Gibney's EE5/1986, a prima facie case was defined as:

"evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred."

The burden of proof which must be satisfied by the Complainant was summarised in

Minaguchi v. Wineport Lakeshore Restaurantas follows:

"It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists ore:

I. that she is covered by the relevant discriminatory ground(s)

II. that she has been subjected to specific treatment and

III. that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated."

The connection between the discriminatory ground and the alleged discriminatory acts is not to be established by way of motive or intention, but rather from objective facts that infer discrimination. This requirement is well captured in the following dicta from the decision in A Technology Company v. A Worker EDA0714:

"A person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discrimination motive, in the absence of independent corroboration, must be approached with caution."

It is well accepted that there is a broad range of circumstances in which direct discrimination can arise in the conditions of one's employment. In An Employee v. A Broadcasting Company [2012] ELR 88 direct discrimination on the ground of disability was found to have occurred in relation to the Complainant's assignment of roles within the Respondent Company.

In the case at hand, the Respondent treated the Complainant less favourably as a result of his disability on consequential requirement to work from home at an earlier point in time than colleagues in relation to the extent to which it 'topped up' the pandemic wage subsidy scheme that it was utilising in paying its employees. As Mr Geraghty admitted in his email, its determination of the varying amounts to pay its staff was informed by the fact that the Complainant had commenced working from home at an earlier point in time than other staff and that it perceived the comparators as being able to perform 100% of their functions and the Complainant as not being able to do so (despite not having considered or provided reasonable accommodation - a matter which will be addressed below).

It is submitted that there is clear evidence as to amount to a prima facie case of discrimination on the ground of disability and that, in those circumstances, the burden of proof must now shift to the Respondent to prove the contrary.

Reasonable Accommodation

The concept of reasonable accommodation provided for in the Acts recognises that the inherent characteristics of disability and its accompanying impairment can result in individuals with disabilities having difficulties in performing their job in a conventional manner. This manifests itself in the form of barriers which, without an obligation being place on employers to provide reasonable accommodation, would leave individuals with disabilities excluded from the possibility of employment. Therefore, reasonable accommodation requires employers to take account of relevant characteristics of their employees and making changes to allow the employee to do the work. In effect, this requires employers to take a proactive approach in removing barriers and making adjustment to the work environment so that an employee with a disability can be accommodated in the work place.

Section 16 of the Employment Equality Act 1998 deals with the obligations of employers. It outlines that nothing in the Act will be construed as requiring any person to retain an individual in a position, or to provide training or experience to an individual in relation to a position if the person:

"(a] will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer] fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed."

Section 16(3) provides that an employer is obliged to provide reasonable accommodation, through appropriate measures, to a person with a disability. The section states that an employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities, which would make them fully competent to undertake their duties. If an employer fails to provide reasonable accommodation this will be classed as discrimination under the Act. The determinations of the Labour Court and the Equality Officers consistently outline that in order to provide reasonable accommodation an employer will have to consider: adjusting the employee's attendance hours; relieving the employee of certain tasks and distributing same to other employees; allowing the employee to work partially from home; altering the working environment; or providing tools or equipment which might enable the employee to carry out tasks which he would otherwise be unable to perform.

It has been established that an employer must make adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability before making a decision which may be to the employee's detriment. This principle was first established in Humphries v. Westwood Fitness Club [2004] E.L.R. 296. The Labour Court (as approved on appeal to the Circuit Court) outlined:

"The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, section 16(3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered.

Finally, such an enquiry could only be regarded as adequate if the employeeconcerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."

The practical effects of this requirement is that it requires an employer to take into account all relevant evidence to determine the duration and extent of a disability. Once completed, the onus is then on the employer to consider the appropriate measures or special treatment or facilities in order to allow the employee to be capable of performing his employment. This necessarily involves an examination of the costs and obligations as an employer would not be expected to be over- burdened.

The interpretation of section 16 was considered recently by the Supreme Court in the case of Nano Nagle School v. Daly [2019] IESC 63. Therein, the Court provided clarification regarding the nature of the obligation on employers to consult with employees when considering the provision of reasonable accommodation within the meaning of the Act. Therein, the Court stated:

'Finally, it should be noted that the Court of Appeal found that there was no justification for the rule outlined in the Circuit Court decision of Humphries v. Westwood [2004] 15 ELR296.In Humphries, Dunne J., then a judge of the Circuit Court, held that, in order to form a bona fide belief that a claimant was not fully capable of performing the duties for which she was employed, a respondent employer would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant's capacity. The nature of the enquiries would depend on the circumstances, but would, at minimum, involve looking at medical evidence to determine the level of impairment arising from the disability, and its duration. If it was apparent the employee was not fully capable, the respondent was required, under s. 16(3), to consider what, if any, special treatment or facilities might be available, by which the employee could become fully capable, and account was to be taken of the cost of such facilities or treatment. But Dunne J. went on to hold that such an enquiry could only be regarded as adequate if theemployee concerned was allowed a full opportunity to participate at each level, and, on the facts of the case, to present relevant medical evidence, and submissions ... Ryan P. considered Humphries in the light of subsequent English case Jaw ... in his view, a statutory duty was "objectively" concerned with whether the employer complied with an obligation to make reasonable accommodation. In this State, however, our courts have always attached importance to fair procedures where employment is at stake ... / respectfully disagree with the Court of Appeal's conclusion on this issue, but I do not go so far as to say there isa mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act.'

Summarising the above jurisprudence, it is apparent that there is an obligation upon the Respondent to: conduct itself in a proactive manner in making adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability; considering all appropriate measures that might be necessary in order to allow the employee to be capable of performing work including: altering working hours, shifts, lengths and patterns; eliminating working time; altering the working location; altering the individual duties and tasks that make up the employee's role and, if necessary, considering eliminating and redistributing roles and tasks that the employee cannot perform to other employees, once same does not amount to essential tasks of the role; and altering the working environment to accommodate the employee, including the provision or alteration of tools or equipment to the employee to allow him to perform functions that he otherwise would not be able to perform; and afford the employee 'meaningful participation' in the process.

In the case at hand, the Respondent failed to satisfy any of the above requirements in terms of satisfying its obligation to provide reasonable accommodation to the Complainant. Inversely, the Respondent: failed to conduct itself in a proactive manner in acquiring all relevant medical information, instead only having sight of the Complainant's GP's report; failed to consider all appropriate measures that might be necessary to allow the Complainant to perform his work, particularly that of site visits which he could not perform from home; all while continuing to criticise him and pay him less as a result of same; and failed to afford the Complainant any 'meaningful participation' in any such process as it simply did not occur.

The Payment of Wages Act.

The Respondent made an unlawful deduction to the Complainant's penultimate pay slip in the value of €803.85 in respect of his weekly salary.

The Respondent made an unlawful deduction to the Complainant's final pay slip in the value of €617.70 in respect of his weekly salary.

These deductions were made unlawfully, and the Complainant seeks compensation in respect of same in the value of €1,421.55.

RELIEF SOUGHT / QUANTUM:

The Unfair Dismissals Acts

It is submitted that, pursuant to the provisions of Section 7(1) of the Unfair Dismissals Act, 1977, the WRC is at large regarding the redress for the unfair dismissal of the Claimant as the Adjudicator "considers appropriate having regard to all the circumstances". In this regard, the Complainant herein seeks reinstatement or compensation for financial loss attributable to that dismissal pursuant to the provisions of Section 7(1) (c) of the Unfair Dismissals Act, 1977.

In calculating the financial loss which is attributable to the Complainant's dismissal, Section 7(2) of the Unfair Dismissals Act, 1977 prescribes certain matters which the Employment Appeals Tribunal shall have "regard" to:

a) (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

c) (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

d) (c) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

e) (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

f) (e) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal."

In the present case, it is respectfully submitted that financial losses suffered as a result the unfair dismissal of the Complainant herein was entirely attributable to the conduct of the Respondent, and that no element of conduct on the part of the Complainant can be reasonably be said to have contributed to same. Under the circumstances, it is submitted on behalf of the Claimant that the appropriate level of financial compensation should be a full award of two years' loss of earnings, necessarily going into the future. It is submitted that, in calculating the Complainant's annual salary, the Adjudicator should be cognisant of not only his salary but also his previously enjoyed pension contributions, daily expenses and professional and private use of company phone, laptop and vehicle (which are no longer available to him).

The Employment Equality Act

In Citibank v. Ntoko EED045, it was held that an award of compensation for the effects of discrimination must be proportionate, effective and dissuasive. It is submitted that, in accordance with this principle, the Adjudicator should take into account the size and capabilities of the Respondent as well as the serious level of discrimination which occurred in the Complainant's employment with the Respondent.

The Complainant seeks compensation for the effects of the discrimination and discriminatory dismissal perpetrated by the Respondent, on the higher end of the Adjudicator's scale which is two year's salary which equates to €146,000

Pursuant to section 82(5)(b) of the Employment Equality Acts, the Complainant seeks for any award of compensation made pursuant to the Acts, in respect of discrimination, harassment or victimisation, be the subject of the payment of interest by the Respondent beginning on the date of reference of the complaint and ending on the date of payment.

The Payment of Wages Act

The Complainant seeks compensation in the sum of €1,421.55 in respect of unlawful deductions made by the Respondent to the Complainant’s s salary.

Summary of Respondent’s Case:

With reference to CA-00035809-001- the Respondent refers to previous submissions by the complainant's solicitor and note that our understanding is that when an employee resigns (email 8th April 2020 at 15:58 refers), they have stated their position.accordingly.

The Respondent appreciates that email communications around this stage could be seen an 'emotional' a fact that is agreed with by the complainant's solicitor (section 2.17 of their submission refers) but this was in response to the initial email from the Complainant when he referred to in Section 2.16 of same submission "...then I would better off switching off my phone and laptop..."

Furthermore, if the complainant wished to make a complaint, why would he not go through the proper channels and raise a formal grievance to which the company would have the opportunity to respond? It is our contention that by failing to go through the proper means, it was always the intention to lodge a claim for unfair dismissal.

Therefore, it is our contention there can be no basis for an unfair dismissal case and we ask that the WRC find in favour of the respondent and dismiss the claim

It is the position of the Respondent that they vehemently deny any allegations of discrimination on the grounds of disability. We had always been aware of the Complainant’s medical status. Prior to the doctor's letter March 2020, The Respondent had a conversation with the Complainant around his psoriasis and the fact he had to take strong medication to help with this condition. The Company have always treated their employees fairly and are very upset that this complaint on the grounds of equal status/disability could be made.

Regarding the claims under Payment of Wages, we must remind ourselves of the position that the Country was in back in March/April 2020, during a global pandemic, the Irish Government announced supports to businesses and Pandemic unemployment payments to people to try and alleviate pressures. Decisions were made, which were assessed on a weekly basis.

Government top ups applied in some cases and then later Company top up's to COVID-19 payments applied. There is no disputing that this affected the Complainant’s normal salary amount. It was as a means of survival for the business. Many businesses had laid off staff and Alpha Mechanical tried to keep as many on their payroll as they could. The Complainant was not singled out for this treatment. He was aware of this in email communications. Also, submitted to his solicitor.

Findings and Conclusions:

CA – 00035809 – 001.

The fact of dismissal in this case is disputed. The Complainant contends that he was dismissed; the Respondent contends that the Complainant resigned from his employment. What is not in dispute is the fact that employment came to an end on 10th April 2020.

The Complainant suffers from psoriatic arthritis and is receiving ongoing treatment in relation to same which includes him being prescribed and required to take an immune-suppressant medication.

The Complainant immediately emailed the Respondent in relation to this issue on Wednesday 8th April 2020.

'I have just received my payslip from Gillian stating that the €350 Covid-19 payment is being topped up by Alpha to the amount of €250.

This is equal to me working 7 hours out of a 40-hour week.

I am working a full week from my house, attending conference calls throughout the week, answering and making calls and emails.

In response, by email dated 8 April 2020, Mr Geraghty, Director of the Respondent, wrote to the Complainant stating that if he wanted to "stew on it" he should let him know.

From the aforesaid, the question to be answered is was the Complainant dismissed or did he resign?

This question is covered in Redmond on Dismissal Law (Third edition; section [22.22]) that reads as follows:

‘Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned. The contract is terminated in accordance with its term and as there is no repudiation, acceptance is not required by the employer. However, context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges or where the employee was unwell at the time….’

In Mansour v Romansa Ltd (UD 360 / 2004) the claimant told the EAT (through a translator) that his manager had said ‘Leave now’ to him. The EAT was confronted by conflicting evidence but concluded it was reasonable for the employee to believe he had been dismissed. It found support for its conclusion in the fact that no effort had been made by the manager to contact the employee to resolve their dispute.

In relation to the instant case the Respondent could have and should have met with the Complainant in an attempt to resolve any differences that may have existed at that time.

It was respectfully submitted by the Complainant’s representative that ‘the Respondent failed to provide theComplainantwith adequate fair procedures.Contrarytotheabove, the Respondent failed to comply with its own disciplinary or dismissal procedure or the abovementioned 'heads' of fair procedure in that it afforded the Complainant no process whatsoever’.

It is impossible to disagree with this statement.

The Complainant did not appeal the decision to dismiss him. This was a mistake on his part.

I find that the complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is well founded. The Complainant was unfairly dismissed.

CA-00039739-002

The Respondent was aware of the existence and severity of the Complainant's disability. Indeed, this was apparent through both informal conversations that he had with the Respondent regarding his treatment and through the GP's letter that he furnished to the Respondent.

Section 16(3) of the Employment Equality Act, 1998 provides that an employer is obliged to provide reasonable accommodation, through appropriate measures, to a person with a disability. The section states that an employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities, which would make them fully competent to undertake their duties. If an employer fails to provide reasonable accommodation this will be classed as discrimination under the Act. The determinations of the Labour Court and the Equality Officers consistently outline that in order to provide reasonable accommodation an employer will have to consider: adjusting the employee's attendance hours; relieving the employee of certain tasks and distributing same to other employees; allowing the employee to work partially from home; altering the working environment; or providing tools or equipment which might enable the employee to carry out tasks which he would otherwise be unable to perform.

In the instant case the Complainant contacted the Respondent on 2nd April 2020 in relation to the information from his GP and the request that he, due to his disability, be permitted to work from home. In response to same, Mr Kelly stated that it was: "a lot to take in". Mr Kelly requested that the Complainant email the Respondent a copy of this letter and post the original letter to them. However, it was agreed that the Complainant could work from home in the interim.

Thereafter, the Complainant contends that he began and continued to perform his work duties from home on a full-time basis. The Complainant found that he was able to perform nearly all of his duties from home as same largely involved duties which could be completed over telephone, laptop, teleconference and email. The Complainant found that the only duty he could not perform from home was that of site inspections; however, he would typically have only performed such duties once a week per site.

The Complainant was verbally issued with notice of the termination of employment on 8th April 2020 and dismissed on 10th April 2020. Between the dates of 2nd April 2020 and 10th April 2020 he worked from home. Reasonable accommodation for his disability was not denied by the Respondent during this period.

The Complaint as presented under the Employment Equality Act, 1998 is not well founded and therefore fails.

CA – 00039739 – 003 & CA – 00039739 – 005.

The Representative for the Complainant contends:

The Respondent made an unlawful deduction to the Complainant's penultimate pay slip in the value of €803.85 in respect of his weekly salary.

The Respondent made an unlawful deduction to the Complainant's final pay slip in the value of €617.70 in respect of his weekly salary.

These deductions were made unlawfully, and the Complainant seeks compensation in respect of same in the value of €1,421.55.

The Complainant contends that he worked from home throughout these two weeks. The Respondent has argued that he was not working full time during this period.

The Complainant was not informed that he was being placed on lay-off or reduced hours due to the Covid pandemic.

I find that the complaint as presented under the Payment of Wages Act, 1991 is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 79 of the Employment Equality Act 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of the Act.

CA – 00035809 – 001.

The complaint as presented under the Unfair Dismissals Act, 1977 is well founded. The Complainant was unemployed for a period of 27 weeks and 3 days. I am satisfied that throughout this period he was actively looking for another position.

The Complainant commenced employment on 19th October 2020 on a salary €1,500 less per annum than which he received from the Respondent.

I now order the Respondent to pay compensation to the Complainant of €41,793.23.

This figure comprises of the following:

1. 27 weeks loss of earnings = €1403.84 x 27 = €37,904.

2. Difference between old and new salary for one year €1,500.

3. Lunch allowance €12 per day for 27 weeks = €1,620.

4. Pension Contribution €28.49 per week x 27 = €769.23

CA-00039739-002

The complaint as presented under the Employment Equality Act, 1998 is not well founded.

CA – 00039739 – 003 & CA – 00039739 – 005

The complaints as presented under the Payment of Wages Act, 1991 are well founded.

I now order the Respondent to pay the Complainant the sum of €1,421.55.

All monies awarded to the Complainant should be made within 42 days from the date of this decision.

Dated: 27-06-22

Workplace Relations Commission Adjudication Officer: Jim Dolan

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