ADJ-00033363

Complainant

Respondent

Parties

Danielle Davis

Phibsboro Cat Rescue

Representatives

Self-represented

Crushell & Co 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-00044202-001

18/05/2021

The complainant worked for the respondent from the 16th November 2020 to the 2nd March 2021. She was paid €1,602 per month. The complainant asserts that she was discriminated against and subject to a discriminatory dismissal on grounds of disability, as well as being subject to victimisation. The respondent denies the claims.

The complainant outlined that she commenced volunteering for the respondent in 2018 and was employed as coordinator on the 16th November 2020.  Her job title was ‘[animal] Carer and Vet Liaison’. She had also worked on a fundraising project and had obtained sponsorship from a pet shop.

The complainant outlined that she had worked through Christmas 2020 and started to feel ill. The complainant’s mother tested positive for Covid-19, and she did too on the 5th January 2021. The complainant informed her manager of this, and the manager was annoyed as there was work that was not finished.

The complainant outlined that she has depression and was prescribed medication. The complainant outlined that she has a weakened immune system because of a named disease, for which she received hospital care and for which there is no cure. The complainant said this was the second time she had Covid-19, the first being in March 2020. She said that having Covid-19 was hard on her.

The complainant said that she worked from home on the 5th January 2021. There were lots of issues and one staff member had left and another was sick. They were under stress and were trying to get a project finished. She referred to the messages of the 6th January 2021 on her work phone of what she should do, even though she was sick. She told her manager of the diagnosis and contacted all the groups on Facebook to notify them that she was off sick. The complainant said that she then needed to rest and recover. She was isolating at home, and she immediately submitted to the respondent the doctor’s letter of the 9th January 2021.

The complainant outlined that the respondent had stated that the complainant was ‘supposedly sick’ in a group message, and this hurt her.  The complainant was certified as fit to return to work on the 28th January 2021 and her doctor stated that she could not work in a cold place or do a high amount of exertion. She was placed on an antibiotic. The respondent initially had no problem with this but later said that she would be based in a storage centre, which was very cold. The respondent stated that she should work there for her full 40 hours.

The complainant described the storage unit as basically being a shed. It had no running water and a small toilet. The door did not close properly. There had been plug-in heaters, but they had been moved to the office. It was cold and not a suitable place to work in. The complainant said that she was advised by Citizens Information to work from home or the office. She told the respondent that the storage unit was not an appropriate place to work and that she was advised by Citizens Information that the Health and Safety Authority should inspect it.

The complainant outlined that the respondent arranged for a named volunteer to collect her work phone and laptop on the 7th January 2021. This meant that she could no longer work from home. The respondent did not state any reason why she could no longer work from home.

The complainant outlined that she was not given an option other than working from the storage unit.  The complainant said that she could not work from this location. She was told that she could take annual leave instead. The complainant said that she was not permitted to work from home, even though she had worked from home previously.

The complainant said that she broke down on the 1st February 2021 on seeing her doctor because of her depression. She said that she had been isolating for a whole month and this affected her mental health. The complainant was then signed off on work-related stress from the 29th January to the 23rd February 2021. She was prescribed with an anti-depressant that took two weeks to have effect.

The complainant contacted the respondent on the 2nd February 2021 and again on the 8th February 2021, saying that her doctors were worried about her mental health. She received the doctor’s letter on the 15th February 2021, which she sent to the respondent on that date.

The complainant said that during this time, the respondent messaged her, triggering her depression. The respondent stated, for example, that if the complainant was a ‘reasonable person’, she would go to work. The respondent blocked the complainant on Facebook groups and had messaged the complainant on Facebook to say that the complainant had refused to work.

The complainant said that the respondent did not reply to her messages, for example those of the 18th, 21st and 22nd February 2021. On the 22nd February 2021, she informed the respondent that she was signed off until the 11th March 2021. She told the respondent that the certificate would be with it as soon as possible. The following day, the respondent informed the complainant that her employment was terminated.

The complainant said that she had asked for mediation with the respondent as she felt like she was being pushed out by the respondent. Nothing she could say was good enough for the respondent and it was annoyed that she was letting them down.

The complainant said that she loved her experience with the respondent, but she had become sick. She had wanted to talk to the respondent, but it did not want to communicate with her.

The complainant said that the termination letter was dated the 2nd March 2021, and this was the date of termination. She was owed money from January 2021 as she had worked four hours of overtime. Some of this was covered by the three weeks’ pay paid in March 2021. After her employment ended, the complainant was asked to pay €50 as she had used petty cash to post letters; she repaid this by Paypal. The complainant said that there were no issues with her work.

The complainant outlined that she commenced a new role in July 2021. She was still on anti-depressants and was waiting on counselling.

In respect of the victimisation complaint, the complainant said that she had been the victim. There had been no issue with her work, and she was not given warnings, as required by her contract of employment. She said that the respondent manager knew of her depression and used this knowledge in her emails to the complainant where the manager would talk down to her and make the complainant look like a bad person. The complainant said that this victimised her and her depression was being fobbed off.

In reply to the respondent, the complainant outlined that her disability is depression. She had discussed this with the manager. The complainant said that the manager had called her and another staff member ‘bitches’. The complainant understood that she was on probation and the issues only arose when she was sick. The complainant said that she sought an apology and to ensure that no one else faced this same behaviour. The complainant said that she had no issue with her name being included in the published decision.

The respondent submitted that there had been a degree of interpersonal conflict and that the means of communication online and working from home had exacerbated this. The complainant was dismissed because she was not a suitable fit for the organisation. The complainant started on the 16th November 2020 and worked until the 31st December 2020 but did not return to work after that. The complainant was absent for three weeks in 2021. The respondent stated that the adjudication was the first time an underlying condition was mentioned by the complainant.

The respondent identified several issues regarding the complainant. The complainant had refused to return to work and later submitted a cert. She was due to return on the 28th January 2021 and was then meant to return on the 1st February 2021. The complaint to the Health and Safety Authority was made on the 2nd February 2021 and the HSA later said that there were no issues. While the complainant had asked for mediation, there were then only two employees, and this did not point to any future in the employment relationship.

The interpersonal difficulties continued. A later, backdated sick note was provided. The complainant did not attend work on the 22nd and 23rd February 2021 and did not provide a sick note. The respondent board met and determined that the only suitable option was to terminate the complainant’s employment. The respondent paid an additional week of notice pay and this gesture of good will covered any overtime.

The respondent submitted that a failure to attend work could amount to gross misconduct. This was not gross misconduct and the complainant had only worked 44 days when she went off. This was a suitability issue, and the respondent did not see the need to issue warnings. The respondent referred to O’Donovan v Over-C Technology [2021] IECA 37 where the Court of Appeal held that an employer was entitled to terminate an employee’s employment during probation without applying full procedures.

It was submitted that service is a requirement for an Unfair Dismissal claim as the employer is entitled to assess fit. There was so much mistrust in this case that the complainant asked for mediation, showing her lack of suitability.

It was submitted that it was for the complainant to show that she has a disability. The Covid aspect could relate to subsection b) and the mental health aspect to subsection e), but the complainant’s case did not meet the threshold. The complainant is obliged to prove the primary facts. Where Covid-19 is being cited, there must be a de minimis threshold.

In Leydon v Customer Perceptions EED0317 and A Worker v A Government Department EDA 094, the Labour Court held that it must apply the statutory definition of disability in considering a claim. It was submitted that suffering from Covid-19 did not amount to a disability and the respondent was not aware of the underlying condition. Short-term illness is not a disability, as set out by the Labour Court in Hickey v Houses of the Oireachtas EDA 1918, in particular paragraph 42. The respondent referred to Mr A v A Charitable Institution DEC-E2011-049, where the Equality Tribunal held that the submission of a medical certificate indicating ‘work-related stress’ did not, of itself, meet the threshold of ‘disability’ although may be part of another disorder, for example an adjustment disorder (as arose in the Mr A case). It was submitted that the complainant’s GP was not a consultant psychiatrist and was not in a position to declare the complainant’s depression as meeting the statutory definition.

The respondent submitted that the purpose of probation is to assess fit, and this employment relationship was not a suitable fit. It had come to a crescendo, so it was best to end the employment relationship. It was submitted that mere speculation could not be elevated to a finding of discrimination. Merely having Covid and stress could not be enough to win this claim against a background of the fractious relationship. The respondent had asked for the return of the laptop and the phone as the complainant was on sick leave.

The respondent asked that the decision be anonymised as it was a charity and concerned about its reputation.

CA-00044202-001

Employment Equality Act

This is a complaint pursuant to the Employment Equality Act. The complainant asserts that she was discriminated against and subject to a discriminatory dismissal, both on grounds of disability. She also asserts that she was subject to victimisation. The respondent denies the claim and asserts that the complainant was dismissed on grounds of a lack of ‘fit’.

Disability

The Employment Equality Act prohibits discrimination etc on nine discriminatory grounds, including disability. Less favourable treatment ‘on grounds of’, say, disability, is prohibited where the disability exists or is imputed to exist (e.g. the alleged discriminator imputed that the person taking the claim had a disability). The definition of ‘disability’ in section 1 also states that the disability may exist or be imputed to a person.

I find that the complainant had a disability – depression – that falls within the definition of ‘disability’, in particular subsection e), i.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.’

The complainant referred to medical documentation confirming depression, for example the doctor’s letter of the 8th February 2021. The complainant also gave evidence of the impact depression has had on her life, both in tandem with having Covid-19, but also her ongoing reliance on medication.

It follows that a disability existed in line with the requirements of the Employment Equality Act. I find as fact that the respondent was aware of the complainant’s disability throughout her employment as she had openly discussed this with them, followed up by the medical certification. I accept the respondent’s evidence that it became aware of the separate chronic condition (not depression) at the adjudication.

Burden of proof

Section 85A of the Employment Equality Act and the underpinning Article 10 of the Framework Equality Directive (2000/78/EC) require that a complainant establish facts of such significance that raise an inference or presumption of discrimination.

In line with the established Labour Court authorities of Mitchellv Southern Health Board [2001] ELR 201 and Valpeters v Melbury Developments [2010] ELR 64, what constitutes something of such significance to raise an inference of discrimination varies according to the relevant factual matrix in each case. If the relevant facts are within the exclusive knowledge or near-exclusive knowledge of the respondent, an inference is quickly raised; it falls on the respondent to show that there was no breach of the principle of equal treatment. A complainant’s ‘mere assertions’ will not raise an inference of discrimination where there are relevant facts which the complainant could be expected to ascertain.

Relevant facts

This case related to a relatively short period of employment: the 16th November 2020 to the 2nd March 2021. While the parties differed as to the extent of the complainant’s volunteering for the respondent prior to the commencement of her employment, it is clear that both the complainant and the respondent were fully committed to the laudable animal welfare goals of this charity.

The complainant commenced employment in the animal carer and vet liaison role in November 2020. This involved a high degree of social media engagement and arranging for the rescue and care of pets. The contract of employment stated that the location of employment was at a named location, not the location the complainant later referred to the Health and Safety Authority. It is clear that the complainant’s role centred around using a laptop and a mobile phone (both provided by the respondent) to contact volunteers, vets and the public.

The complainant cited three issues in the complaint of discrimination. The first in time was being prevented from working from home and having to work at the named alternative location. The second is her being blocked on the social media accounts operated by the respondent. The third is the decision to dismiss the complainant on the 2nd March 2021.

Analysis of the facts and the evidence

The facts in this case took place in the midst of the Covid-19 pandemic and the complainant was out sick with Covid-19 in January 2021. She outlined that she was particularly vulnerable because of an underlying chronic condition. Like many people at this time, the complainant worked from home, using the laptop and the phone provided by the respondent. The complainant was able to do the job and it is obvious that this was a busy time for the respondent.

It is, therefore, striking that once the complainant was certified as fit to return to work, she was not allowed to resume her duties by working from home. Instead, the complainant was asked to attend work from a different location to that stated in her contract of employment (which was under refurbishment). The respondent stated that the alternative location was suitable because heaters could be used, and that the door would close fully if one had the ‘knack’. This issue arose in the winter, and I can appreciate why the complainant wished to ensure that she spent her working day at an appropriate place of work.

I note that the discussion over the complainant’s location of work on her return from sick leave arose at the time the respondent was challenging the basis of the complainant’s absence of work. It referred to the complainant refusing to work. I find that this influenced the respondent’s decision to require the complainant to work from the alternative location. The parties differed as to its suitability, but it is clear that this was not a purpose-built, finished office environment.

Against the background of this difference of opinion is the complainant being certified as being sick, including the reference to her disability. The respondent referred to the complainant as ‘refusing to work’ (1st February 2021) and that ‘any reasonable person with a genuine desire to work’ would have come to the alternative location to confirm the temperature (2nd February 2021). The complainant replied that her health comes first.

The references to genuineness and reasonableness suggest that the respondent did not believe the complainant’s reasons for not working at the alternative location. It is clear that the complainant raised concerns in light of her ongoing health conditions, as disclosed to the respondent (depression and recently having Covid-19).  The complainant was articulate in setting out her health concerns and backed this up with the medical documentation. There was no basis to question anything the complainant said.

No adequate reason was given for why the complainant could not have worked from home in February 2021, including to manage the social media interactions of the respondent. The complainant was required to work from the alternative location, and I find that this stemmed from the respondent’s perception of the complainant’s disability. It follows that the complainant has established a prima facie case of discrimination.

The respondent dismissed the complainant by letter of the 23rd February 2021; this letter did not state the reasons for dismissal. The dismissal was also not preceded by any process or procedure, as provided for at (xii) of the contract of employment. While no reason is given in the letter of the 23rd February 2021, the respondent states that this was a matter of ‘fit’.

It is clear that the complainant and the director exchanged many messages and that they disagreed on several points. This is not evidence of a lack of fit. It is clear that the complainant was and is fully committed to the aims and work of the respondent. The complainant was diligent in addressing the issues raised during her work. In particular, I note the professional attitude taken by the complainant in respect of her interactions with the volunteer who came to collect the complainant’s laptop and phone.

I find as fact that the complainant raised health issues, specifically issues relating to her mental health and her depression. Following this, she was dismissed. While there was a difference of opinion regarding whether the alternative location was appropriate, the complainant could have easily worked from home. I find that the reason the complainant was dismissed was because of the deteriorating relationship with the respondent manager and this deteriorating relationship stemmed from how the respondent interacted with the complainant’s disability. The complainant had clearly stated why she was not able to attend the alternative location but that she was otherwise able to work. She referred to her disability, but also that she could work. Nevertheless, the complainant’s employment was terminated.

This amounts to discrimination and discriminatory dismissal per the Employment Equality Act. In respect of redress, I note that the complainant found alternative employment in June 2021. Given the financial loss incurred by the complainant and the effect of this discrimination, I award redress of €8,000.

For completeness, I find that there was no victimisation. A claim of victimisation involves less favorable treatment as a result of a person raising an equality complaint. While the complainant asserts discrimination and discriminatory dismissal (claims I find succeed), there is no suggestion of any penalisation or less favourable treatment for having raised the issue or taken the case.

CA-00040422-001

I decide that the respondent discriminated and subjected the complainant to a discriminatory dismissal in breach of the Employment Equality Act and I award redress of €8,000.

Employment Equality Act / disability / depression / dismissal