ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026107
Parties:
| Complainant | Respondent |
Parties | Declan Mcmullan | Apcoa Parking Ireland Limited |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00033205-001 | 17/12/2019 |
Date of Adjudication Hearing: 08/12/2021 and 09/03/2022 and 25/05/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral of this matter, by the said Director General, to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I affirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the sworn oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and opened up in the course of the hearing).
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular, the Complainant (as set out in his Workplace Relations Complaint Form dated 17th December 2019) seeks redress from the Respondent in circumstances where he claims his Employer discriminated against him by reason of his disability and in particular by unlawfully dismissing him for discriminatory reasons. In consequence of the foregoing, the Complainant claims he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his disability (as detailed in Section 6 of the 1998 Act (as amended)).
An Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates, or such other date as may be set out in Section 41(6) of the WRC Act of 2015. The Complaint herein has been brought within the six months from the date of the dismissal which was the 25th of September 2019.
Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. No issue has arisen regarding this obligation.
Section 85(A) of the Employment Equality Acts of 1998 to 2004 sets out the burden of proof which applies to claims of discrimination. In the first instance, the Complainant himself must establish facts which show that he suffered discriminatory treatment. It is only when these facts have been established that the onus shifts to the Respondent to rebut any inference of discrimination that has been raised. The inference must be such that the Complainant has established a Prima Facie case that he has been treated less favourably than another person is, has been, or would have been treated in a comparable situation on one of the recognised grounds of discrimination which in this instance is the “Disability Ground”.
Prima Facie evidence is evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.
The Complainant herein is making an allegation of a discriminatory dismissal and therefore the Complainant must therefore establish facts from which it can be inferred that her dismissal was influenced in any way whatsoever by the discriminatory ground cited.
The operative Section of the Employment Equality Act is Section 6 of the Employment Equality Act 1998 where :-
Sub Section (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”)…
Sub Section (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”) …
The employer’s obligation to provide reasonable accommodation for an employee with a disability is governed by section 16 of the Employment Equality Act 1998 (the “1998 Act”)
Section 16 (1), (2) and (3) provide as follows :
- (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
( 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.
(2) In relation to—
( a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,
( b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and
( c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,
subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.
(3) ( a ) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘ appropriate measures ’ ) being provided by the person’ s employer.
( b ) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —
- (i) to have access to employment,
- (ii) to participate or advance in employment, or
- (iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —
- (iv) the financial and other costs entailed,
- (v) the scale and financial resources of the employer’s business, and
- (vi) the possibility of obtaining public funding or other assistance.
(4) In subsection (3)—
‘appropriate measures ’ , in relation to a person with a disability —
( a ) means effective and practical measures, where needed in a particular case, to adapt the employer ’ s place of business to the disability concerned,
( b ) without prejudice to the generality of paragraph (a) , includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
( c ) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;
Background:
This matter was heard on the first two days by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. The last day of hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that these proceedings constitute the administration of Justice. It was therefore open to members of the public top attend this hearing. I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there was a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was represented by his Union representative. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission on the 19th of May 2021 which was opened to me in the course of the hearing. The Complainant also relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was dismissed for discriminatory reasons arising out of the proposal to take time out of the workplace to recover from scheduled surgery. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent case was supported by the evidence of two employees. The Respondent provided me with a submission on the relevant case law in this area together with a comprehensive booklet of documents. All evidence was heard following an Affirmation. The Respondent witnesses were cross examined by the Complainant representative. The Respondent company owns operates and manages private car parking facilities The Respondent rejects that there has been a Discriminatory Dismissal in the manner alleged. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced over the course of three listed hearing dates. The Complainant gave his own evidence on Affirmation. In December 2018 the Complainant had commenced working with a rival company to the Respondent – hereinafter known as Company N. His job as Mobile Enforcement Officer was to patrol different client car parks to ensure compliance with parking facilities and to operate clamping where cars were parked illegally. The Complainant said he had previously worked with the Respondent company from 2017 to 2018 but he had found the terms and conditions to be unfavourable with the Respondent and had resigned. It was after this that he had started work with N. The Complainant’s direct line Manager in Company N was a Ms. AB (who was available to give evidence on behalf of the Respondent and N). It seems to be common case that in or around early summer of 2019 the Respondent company was revealed as the company taking over the Complainant’s then Employer - Company N. The process was subject to TUPE which was due to be completed in and around September of 2019. The Complainant emailed AB (his line Manager in N) on the 17th of May 2019 indicating a wariness about the fact of this particular takeover. He had not had a good experience with the Respondent Company and wondered about his midterm to future prospects with the Respondent company? He was worrying as he had just purchased a new house. I note that AB transferred over from Company N to the Respondent Company and was therefore competent to give evidence across both companies. The Complainant had been out on Annual Leave in and around early September 2019 (just weeks before the transfer date) and was surprised to receive an email from the workplace concerning an incident which had occurred some three weeks previously. The Complainant was in the process of moving house and was not best pleased at being disturbed during his well-earned leave. The Complainant had felt for some time that there had been a change in attitude towards him the closer they got to the final take-over. Issues had been raised with him that, to his mind, were unsubstantiated. The Complainant said in evidence that he was in need of surgery to an injured right shoulder and had only recently notified his Employer of this fact. For the avoidance of doubt, I accept that the shoulder injury is a disability within the meaning of the Acts. There has long been an acknowledgment that even a temporary incapacity can come within the ambit of protection. I further confirm that I see this protected characteristic as extending to the period of time needed to recover from an operation which has been undertaken to improve the disability. Unfortunately for him, the Complainant had previously undergone a surgical procedure to his other (left) shoulder. It is noted that that the previous surgical procedure and associated recovery period (of about five weeks) had happened in and around May of 2018 which was also, coincidentally, during the time that the Complainant had previously been working with the Respondent. I note that the left shoulder had already fully repaired, and that the earlier operation had been notified to company N when the Complainant had been engaged by them in December of 2018. There can be no doubt that the Complainant hoped and expected that the upcoming operation to his right shoulder would be as successful. I accept that the job is quite physical with the placing and removal of car clamps and that a shoulder injury inhibits performance. I understand that the Respondent and company N were on Notice of the fact that there had been a problem with the right shoulder, and I have been provided with correspondence which had periodically been sent to the Employer concerning a difficulty with the shoulder and associated medical attendances. I accept that from time to time the Complainant was out of work with this difficulty. It seems that the Complainant was scheduled to have an operation on the 3rd of October. Things only came to a head before that date whilst the Complainant was out on annual leave in September 2019 at which time (and in the course of the previously mentioned house move) the Complainant managed to do damage to the shoulder to the extent that he undoubtedly needed to have the remedial operation. The Employer was notified of the injury on the 23rd of September. The surgery was fixed for the 3rd of October 2019 and the Respondent was advised of this fact and that the Employee’s post leave return to work (fixed for the 25th of September) was to be delayed as a result of the injury. The Complainant was called into the workplace by AB on the 24th of September 2019. No reason for having this meeting was given. The Complainant says he had no idea why he was being called in. The meeting took place on the 25th at the request of the Complainant who was meeting his GP in any event that day. On the 25th of September the meeting was held between AB, the Complainant (who was unaccompanied) and a more senior Manager PB. The Complainant appears to have been somewhat blindsided by the way in which this meeting unfolded. He was, he says, told he had been taking too much time off work. He says that the Employer referenced the fact that the upcoming shoulder surgery and recovery would take him out of the workplace for too long. This seemed to be a direct reference to his previous post operative recovery period (known to the Respondent by reason of the previous period of employment) coupled with the requirement to take more time off in October. The Complainant stated that nobody had ever addressed his level of absenteeism before this date and certainly he had been given no warning on the issue. The nett outcome of this meeting was that the Complainant was let go. The dismissal was affected by the Respondent. This dismissal happened within one week of his scheduled shoulder surgery. This had all the hallmarks of a summary dismissal argued the Complainant’s representative. The meeting appears to have commenced at about 2pm and I note that by 3pm AB had written to staff across both company N and the Respondent company confirming that the Complainant was no longer an employee. I note that the Respondent company seemingly sought to retrieve the Complainant’s company van in the middle of the night on the night of the 25th/26th of September. This was done by sending two employees out to the Complainant’s residence. Not surprisingly, the Complainant (at home with his family) found this action to be heavy handed and intimidatory. A somewhat fractious scene played out in his front garden. I would state that the level of abuse (as demonstrated in texts and emails) directed by the Complainant at the Employer and in particular at AB was absolutely unacceptable. I have sympathy for someone (as with the Complainant) who has been unexpectedly fired and whose home has been visited in the manner described, but I could not condone or accept the subsequent language and threats to be justified. No letter of dismissal issued. No written reasons for the dismissal were ever given. Nor was any right of appeal ever afforded the Complainant. I note that a letter did issue on the 2nd of October stating that one week’s notice would be paid and that this would bring the Complainant’s employment up to the 6th of October 2019. I further notice that the said letter also appears to threaten that the Notice payment (which is a Statutory entitlement) would be withheld until such time as the company equipment was returned. AB gave evidence on behalf of the Respondent. She states that she had already moved to the Respondent company in August of 2019 and continued as line supervisor to the complainant for the relevant period. AB said that she was reviewing staff files as part of the preparatory work for moving the workforce to the Respondent company. She said in evidence that she noted there had been a high number of absentees and whilst some of these had to do with the shoulder not all of them were related to the ongoing issue with his shoulder. AB confirmed that she was aware of the shoulder injury in September of 2019. However, she noted that there had been 16 days missed days as against the average in the workforce of about 3. Ms AB stated that the Complainant was being called into the meeting on the 25th of September with the express intention of being dismissed because of the number of absences already had, together with a concern about the upcoming unavailability due to an operation to his shoulder. This was a blunt admission on the part of AB. A secondary consideration seems to have been the fact that the Complainant had recently moved house and would be driving their van up to 100km per day to get to and from work. There seemed to be some criticism of the Complainant for having moved house without notifying the Employer in light of the increased mileage on the company van. AB conceded that the Complainant had no forewarning of the decision to let him go and the underlying reasons for making that decision - the absenteeism. To my mind the witness for the Respondent AB gave very clear and cogent evidence that the primary reason for terminating this employment was because of the Complainant’s upcoming unavailability for work arising out of a scheduled remedial operation which would keep him out of the workplace for anywhere between 3 and 6 weeks. AB emphasised the upcoming disruption and the need to have people working and not absent. I am satisfied that the Respondent was aware and on full notice that the Complainant had an ongoing issue with a shoulder injury which impacted on his performance and attendance. I recognise this ongoing issue to be a disability (albeit potentially a temporary one) as envisaged under the employment equality Acts. The Complainant had notified his Employer that he was undergoing surgery to mend the shoulder. The Employer response appears to have been to terminate the Employment. There is no doubt in my mind that the Employer was not willing to afford the reasonable accommodation of a post-operative recovery period. The Employer readily acknowledged that absenteeism was a determining factor in the decision to terminate the employment. I must conclude therefore that the decision to dismiss is inextricably linked to the knowledge that the Complainant had an injury that was about to take him out of the workplace for an extended period of post operative recovery. I am satisfied that the Complainant has made out a strong Prima Facie case and that the Respondent has not been able to set aside the strong inference that the Complainant’s disability was a factor (indeed a significant one) in the decision to terminate the employment. This was therefore a discriminatory dismissal. I fully accept that the nominated Respondent is the correct Employer. AB had transferred to the Respondent and was taking direction from the Respondent at the time the decision to terminate was made. This was a Respondent led decision. In addition, it was confirmed to me in the course of evidence that all employees had transferred to the Respondent company by the start of October 2019 and this included the Complainant whose employment terminated at the completion of his notice period on the 6th of October 2019. Lastly it should be noted that where a Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination. I can also give direction on a course of action which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act). This can include re-instatement or re-engagement.
Guidance on quantum in relations to awards of discrimination has been given by the Labour Court in the case of Lee t/a Peking House -v- Fox EED036 :
“Effects which flowed from the discrimination which occurred. This includes not only financial loss suffered by the Complainant arising from the discrimination but also the distress and indignity which she suffered in consequence thereof”.
I note the Complainant was back at work by June of 2021 post pandemic. He is at a lesser rate of pay and I have been provided with a number of payslips covering the Complainant’s employment within the Respondent company. The Complainant gave evidence that the Respondent company continued to operate during the pandemic thought I would accept at a much-reduced rate.
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Decision:
Section 79 of the Employment Equality Acts, 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.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00033205-001 – The Complainant was discriminated against and I award him €18,000.00 for the effects of the discrimination. |
Dated: 13-10-22
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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