ADJ-00036785

Complainant

Respondent

Parties

Martin  Cording

 Petrogas  Group Ltd

Representatives

David O'Riordan, Sherwin O'Riordan Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00048037-002

07/01/2022

The complainant referred a complaint to the WRC on 7 January 2022 under both the Unfair Dismissals Act for unfair dismissal and the Employment Equality Act for discriminatory dismissal. On 19 January 2022 a letter issued to the complainant in relation to various issues including the taking of parallel complaints and made reference to Section 101(4)(a) of the Employment Equality Acts. In the correspondence, the complainant was requested to inform the WRC if he was pursuing his claim of dismissal under the Employment Equality Acts or the Unfair Dismissals Act. The complainant returned a signed document dated 26 January 2022 stating that he was withdrawing his unfair dismissals complaint.

The complainant commenced employment with the respondent in November 2018.  Since March 2020, the complainant was on lay off due to the Covid-19 pandemic. He was in receipt of the pandemic unemployment payment. The respondent commenced getting employees to return to work in or around April 2021 and was in touch with the complainant in this regard. The complainant informed the company that although, he was deemed fit to return to work following a recent GP visit that he could not wear a face covering as it causes him severe stress. The complainant is alleging that he has been discriminated against on grounds of disability in relation to his discriminatory dismissal from the company on the basis that he would not wear a face covering. The complainant stated that his disability was a mental health disability. He stated that he did not have to disclose any details of his disability as this is a matter of patient/doctor confidentiality between him and his GP.

The complainant stated that he was dismissed on the basis of (i) Unauthorised absence (ii) Failure to comply with a reasonable instruction, and (iii) Failure to comply with the Health and Safety policy and/or Covid 19 policy.

The complainant has brough a claim of discrimination on grounds of disability in relation to his discriminatory dismissal by the respondent company.

The respondent submits that the complainant commenced employment with it on the 15 November 2018 as the Bakewell Supervisor. The respondent states that the complainant had not been in work since March 2020 having been placed on lay off due to the Covid-19 pandemic. He was in receipt of the pandemic unemployment payment. When the economy began to open up again, the respondent began bringing staff members back to work in line with the return to work protocols at the time. In April 2021 the complainant was speaking with his site director Mr. B and was asked to return to work, however the complainant stated he would not wear a mask. The complainant refused to return to work as he would not wear a mask and the respondent placed him on temporary leave. The respondent states that the complainant never provided the company with a medical certificate to demonstrate any reason why he would not wear a mask.

The respondent wrote to the complainant on 15 September 2021 to obtain an update on when he was likely to return to work. The complainant was reassured that all precautions were in place to keep both staff and customers safe and in line with those precautions it was essential that he wear a mask in order to protect himself and those around him. The complainant was informed that the respondent “cannot keep this role open indefinitely and [they] need to manage [their] headcount” and to update them immediately.

The respondent contends that the complainant emailed the company on 20 September 2021 informing them that he had just received the letter and had a number of queries in relation to the respondents’ policies. The complainant also informed the respondent “I have seen my GP on numerous occasions and there seems to be no issue with regards to myself being fit for work”. He concludes by stating “until I receive the information, I have requested I will assume I’m still on temp leave until further notice.” The respondent states that it replied to the complainant’s email on the same day explaining to him that he was informed during a meeting with his site director in April 2021 that he was no longer on lay off which “makes your current absence uncertified.” The respondent went on to state that “if you have a medical condition that prevents you from wearing a mask, we require a doctor’s note to state that you are unable to wear a mask specifically….If you are fit to work and do not provide a doctors note stating you can’t wear a mask, your absence going forward will continue to be uncertified and will be subject to scrutiny of the absence policy.”

The respondent states that a letter issued on 21 September 2021 to the complainant stating, “layoff has ceased and your return to work is mandatory and in line with the Governments phased return to work roadmap.” The letter informs the complainant that he is due back to work on 4 October 2021 and should inform the respondent by close of business on 27 September whether he will be returning or not. The complainant emailed the respondent on 29 September 2021 in response to the letter dated 21 September 2021. The complainant sought information in relation to the meeting in April and requested a risk assessment to be completed ahead of his return to work. The respondent asserts that the complainant did not provide any valid explanation as to why he is exempt from wearing a face covering.

In response to the email of the 29 April 2021, the respondent wrote on 1 November 2021 answering the points outlined by the complainant. The respondent states clearly the position “you are demonstrating no willingness to engage, or even engage to discuss any other role where a visor may be more suitable….This leads me to believe your reluctance is an indicator that you do not wish to return to work in Applegreen as your responses to date have been defensive comments to prevent your return.” The respondent concludes by giving the complainant until close of business on 4 November 2021 to arrange a meeting to demonstrate he does wish to return to work.

The respondent states that the complainant did not respond to the letter of the 1 November 2021 and on 5 November 2021 he was invited to a fact-finding investigation meeting to be held on 10 November 2021. This meeting was arranged to establish the facts surrounding a breach of the employee handbook, point 3.25 which states “If you are so prevented for three (3) or more consecutive days, you must submit a certificate from a qualified Medical Practitioner clearly setting out your illness/incapacity, expected duration of absence, Doctor’s name and address and date of consultation.” The complainant responded to the notification via email on 5 November 2021 stating again that he cannot wear a mask, that he is fit to work and that he will not be providing any more personal information due to doctor/patient confidentiality. He stated he did not recognise the names that were listed for the meeting and would only be dealing with the site director or the HR department.

Ms. R, the Shop Manager who was conducting the investigation meeting responded to the complainant’s email on 8 November 2021 encouraging him to attend the meeting to discuss his concerns and to clarify it was an investigation meeting. The complainant responded by asking what Ms. R’s position is in the company and that he is unable to wear a face covering and he wishes to discuss with his store director or a member of the HR department and that “[he] will be communicating with HR in the future”.  Ms. R responded to the complainant on 9 November 2021 informing the complainant that the site director had tried on numerous occasions to deal with the matter informally and only now has it become an investigation. She requested that the complainant  confirm if he will be attending and if anyone will be accompanying him. The complainant responds to Ms. R stating “I am fit for work but (UNABLE) to wear a face covering..!!....there is no need for investigations in to investigations as my store director and employer knows my stance regarding me wearing face covering..!!” Ms. R responds stating “We have made it quite clear, that you cannot work in our food departments without wearing a mask.” .. “Again I want to make it clear, I will email you a team’s meeting for our meeting tomorrow and expect you to show up, if you are not willing to attend in person. If you do not show up, we will have this meeting in your absence.”

The complainant subsequently responds reinstating the same points again, that he is unable to wear a face covering, that he only wants to speak with his store director and/or HR and that there is no need for meetings unless it is for disciplinary purposes. The investigation meeting took place on 10 November 2021 via Teams with Ms. R present as the lead in the meeting and Ms. F as the note taker. The complainant did not attend the virtual meeting. The respondent emailed the complainant on 11 November 2021 stating “Yesterday’s meeting was an opportunity to discuss the matter and mutually find a resolution and your continuous failure to attend or engage in talks regarding your return do not demonstrate a serious willingness to return to Applegreen in any capacity.” The complainant was also offered another opportunity to meet and to let the respondent know by 12 noon on Friday 12 November 2021 if he wished to meet them again and they would arrange it.

The respondent explained they have “continuously told [the complainant] [their] goal is for [him] to return to work or offer alternatives, if any and again no engagement.” .. “This is our final attempt to offer you an opportunity to engage and failing this the facts from the meeting on 11 November will be relied upon.” On 12 November 2021 the respondent emailed the complainant enclosing the outcome of the investigating meeting held on 10 November 2021 and an invite to a disciplinary hearing on 17 November 2021. The complainant attended a disciplinary hearing on 17 November 2021 with Ms. B, Regional Manager, who was conducting the meeting and also present was another representative who acted as notetaker. The complainant was again refusing to return to work as he said he would not wear any face covering including a visor. The respondent explained the guidelines at the time and all the communications made with him to engage in returning to work. They concluded stating they would inform him of the outcome.

The respondent issued a letter on 19 November 2021 informing the complainant of the findings of the disciplinary meeting which stated as follows:- 1. Unauthorised absence from April 2021 to present following many mandatory requests to return to work – sanction warranted; 2. Failure to comply with a reasonable instruction to return to work following on from lay-off from March 2020 to present and working in accordance with the government guidelines – sanction warranted 3. Failure to comply with the health and safety Policy/ Covid-19 Policy – Sanction warranted. The letter indicated that it was decided to terminate the complainant’s contract of employment and offered him an opportunity to appeal should he wish to do so. The complainant replied to the letter of 19 November 2021 by stating “Is this for real?? Yous did not offer me any alternatives in April? Yous will not get away with this, the companies policies not based on LAW and every individual that put their name to this nonsense will be held accountable.”

The complainant emailed Mr. D in order to appeal the decision on 23 November 2021. He states that he did not refuse to follow instructions by the company around health and safety and describes his dismissal as “disgusting behaviour by an employer..!!”. Mr. D emailed the complainant on 2 December 2021 confirming receipt of his appeal and advising him that he will forward the Teams link for the appeal hearing. The appeal meeting took place on 7 December 2021 at 3pm via Teams. The respondent sent the outcome of the appeal on 15 December 2021 and found the following:- 1. Unauthorised absence from April 2021 to present following many mandatory requests to return to work – sanction warranted – disciplinary sanction upheld 2. Failure to comply with a reasonable instruction to return to work following on from lay-off from March 2020 to present and working in accordance with the government guidelines – sanction warranted - disciplinary sanction upheld 3. Failure to comply with the health and safety Policy/ Covid-19 Policy – Sanction warranted. - disciplinary sanction upheld. The respondent concluded by stating, “ After due consideration I am of the opinion that the decision to terminate your contract will be upheld and the decision is final.”

Legal Position

The respondent states that under Section 6 of the Employment Equality Act, 1998 discrimination is defined as: 6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated. It is unclear under what ground the complainant is saying he was discriminated under. In a WRC case between an Accommodation Seeker and an Estate Agent (ADJ00006661) the adjudication officer considered the issue of the burden of proof. The officer considered the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) wherein the Labour Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246 and stated that “…the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent.”

The respondent submits that in the caselaw relating to Alexander Sokolov Grant v. The Department of Arts Heritage and the Gaeltacht [156802-es-15] the Equality Officer considered the burden of proof and confirmed that it is for the complainant to first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. In the case between Paul McGregor and SR Clo Ltd t/a Synchro (ADJ-00032564) the adjudication officer considered the issue of the burden of proof. The officer considered the case and stated: “The onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.”

The respondent submits that the Health Act, 1947 was amended to include a mandatory requirement to wear a face covering in shops pursuant to S.1 296/2020 -Health Act 1947 (Section 31A – Temporary Restrictions (COVID-19 -19) (Face Coverings in Certain Premises and Businesses) Regulations 2020. (“the Regulations”) The Health (Amendment) Bill 2020, which amended the Health Act 1947, was signed into law by the President on October 25th, 2020. Under this legislation if a person was “Not wearing a face covering in certain retail outlets” they were fined €80 and if the person was prosecuted in court for an offence, the maximum fines or prison sentence decided by the judge, under the new system of tiered penalties, depended on whether it is for a first, second or third or subsequent offence.

The respondent asserts that in the recent decision of Bernard Carberry and T. O` Huiginn & A Comlucht Teoranta T. O` Higgins & Co. Ltd (ADJ-00032055) the adjudication officer found as follows: “the respondent is certainly not required to justify public health guidelines per se, specifically the requirement to wear masks, he has as much say or control over such guidelines as the complainant, which I suggest is very little given these instruments of public health policy were decided by Government Advisers and Ministers, as is well known.”

The respondent submits that the complainant has not presented anything approaching a prima facie case of discrimination in this matter. The respondent was never informed of any medical basis for the complainant refusing to wear a face covering. In evidence the complainant asserted that he had a mental health issue and yet in an email to the respondent on the 20 September 2021 he states “I had seen my GP on numerous occasions and there seems to be no issue with regards to myself being fit for work”. In those circumstances, it is submitted that whatever mental health issue (which has not been disclosed at any point) the complainant suffers from, it is certainly not severe enough for him not to attend work. It is submitted that the respondent gave the complainant every opportunity to properly explain why he would not wear a face covering and furthermore, conducted a thorough and transparent disciplinary process including an investigation, disciplinary and appeals process in which the complainant has never made any complaint that he had been discriminated against in any manner.

The respondent reiterates that there is no basis to the complainant’s claim of discriminatory dismissal.

The matter for decision by me is whether or not the complainant was discriminatorily dismissed by the respondent on grounds of disability.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. Therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.

Section 6 of the Employment Equality Act 1998 states: “(1) For the purpose of this Act…discrimination shall be taken to occur where (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (referred to as the “discriminatory grounds”)

(2) As between any 2 persons, the discriminatory grounds .. are… (g) That one is a person with a disability and the other is not or is a person with a different disability (the “disability ground”) …

Disability is defined in Section 2 of the Acts:

‘‘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;

The complainant is alleging that he has been discriminated against on grounds of disability in relation to his discriminatory dismissal from the company on the basis that he would not wear a face covering. The complainant stated that his disability is a mental health disability. He stated that he did not have to disclose any details of his disability as this is a matter of patient/doctor confidentiality between him and his GP.  I note from the written submissions that the complainant’s GP deemed the complainant fit to return to work.

Based on the evidence heard, I find that the complainant has not established that he has a disability within the meaning of the definition as outlined above. In this regard, there was no medical evidence proffered to substantiate this assertion.  I am satisfied that the respondent was not on notice of any disabiIity and no medical documentation was furnished to the respondent in this regard.

In all of the circumstances in the within claim, I am satisfied that the complainant has not demonstrated that he has a disability within the meaning of the definition as outlined in the Acts and therefore he has not demonstrated a prima facie case of discriminatory dismissal on grounds of disability. Accordingly, this complaint fails.

I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of disability.

Disability, face covering, discriminatory dismissal, no prima facie case