EDA236

1.Appeal Of Adjudication Officer Decision No(S)ADJ-00033114 CA-00043829-004

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 15 August 2022. A Labour Court hearing took place on 17 January 2023. The following is the Court's Determination:




DETERMINATION:

This is an appeal by Mary Power (Complainant) against Decision ADJ 00033114 CA-00043829-004 of an Adjudication Officer in a claim of discriminatory dismissal linked to her disability against her then employer Vialand Ltd Expert Removals (Respondent). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Act). The Adjudication Officer held that the Complainant had failed to establish a prima facia case of discriminatory dismissal linked to her disability.

At the commencement of the hearing the Court sought clarification as to whether the fact of the Complainant having a disability was in dispute and the Court was advised that it was not. However, the Respondent indicated that they were putting the Complainant on proof of the Respondent being aware that she had a disability as defined by the Act. The Court informed the parties that in accordance with section 85A of the Act, it is for the Complainant to establish a prima facia case before the burden of proof shifts to the Respondent. The Complainant lodged her complaint with the WRC on the 30^thApril 2021 therefore the cognisable period is 31^stOctober 2020 to 30^thApril 2021. This case was heard with linked cases ADE/22/64, TE/22/37 and TE/22/38

Summary of Complainant’s submission and evidence.

Ms O’Loughlin BL submitted on behalf of the Complainant that she had commenced work in July 2020 but that the Complainant had known the Respondent prior to commencing work. The Complainant believed that the Respondent was aware of her disabilities. The Complainant did not receive a contract of employment or details of her terms and conditions of employment when she commenced employment. Prior to commencing it was agreed she would work 15 hours and be paid €20 an hour.

The Complainant in her evidence to the Court stated that she had known the Respondent for about five years before she started working for him. The Complainant was shown two documents a letter of 22nd July 2020 offering her the position and a contract. It was the Complainant’s evidence that she had not receive either document. It was her belief that she was dismissed on the 5^thFebruary 2021 when she received an email referring to her resignation. It was the Complainant’s evidence that she never resigned.

The Complainant stated that in August 2020 she had a discussion with the Respondent about improvements to the only bathroom on the premises and suggested that they would qualify for a grant to put in a disabled toilet as she had a disability. It was her evidence that she had printed off documents in respect of the grant and given them to the Respondent, but she could just not recall the name of the grant. The Respondent’s response had been that as he did not own the building, he could not make changes to it. The Complainant stated that the Respondent never asked her about her disability.

The Complainant informed the Court, that the reasonable accommodation that she requested in respect of her disability, was to work from home. It was her evidence that she had requested same by phone call of the 3rd January 2021 and email of the 7^thJanuary 2021. The Complainant confirmed that she worked in the office up until the Christmas break in December 2020 and that they were due back in work on Monday 4^thJanuary 2021. She accepted that during that period that Dublin was at COVID level 5. The Complainant stated that she rang the Responded on the 3^thJanuary and asked if she could work from home as she was concerned because the COVID numbers were increasing. It was her evidence that he was non-committal in his response. The Complainant stated that she sent an email of 7^thJanuary 2021 titled “what we need to do next” in which she set out what she believed needed to happen to get the office space up to the HSE guidelines. It was her evidence that she received no response to that email.

The Complainant stated that she was willing to return to work in the office, when the safeguards that she had outlined were in place. In the last week of January, she went into the office to get her belongings/ contact’s book. It was her evidence that while she was there, she said to Mr Courtney “right I am off now” and he stated that he would be in touch. At that time, it was her hope to return to work once her recommendations had been implemented. The next contact she had from the Respondent was the email of the 5^thFebruary 2021 from Mr Courtney. The Complainant stated that she was surprised to receive it as she had not resigned, and she believed he was trying to terminate her employment because she had asked for her place of work to be made safe.

The Complainant accepted that she had not responded to the email of 5^thFebruary acknowledging her resignation for approximately seven weeks. She stated that she had Covid for three weeks and she needed time to sit down and think about the contents of the email of the 5^thFebruary 2021. The Complainant confirmed that she did not receive a contract of employment and was not aware that the Respondent had a grievance procedure as referenced in the letter she received from them on 5th April 2021. The Complainant confirmed that she started looking for work in December 2020, and started in a new employment on the 15^thFebruary 2021. In her new employment her hourly rate is €20, and she works 20 hours a week.

Ms Walsh for the Respondent put it to the Complainant under cross examination that the Mr Courtney will say that the conversation regarding the toilet never took place and that in the period prior to Christmas the office had in place Covid protocols, and she had attended the office and never raised any issues. The Complainant accepted that prior to Christmas there were some COVID protocols in place in the office.

It was put to the Complainant that when she discussed working from home with the Responded she stated that her basis for doing so and her evidence to the Court was that it was because of rising Covid numbers. The Complainant accepted that was the reason she had given. It was also put to her that the email of 7th January 2021 was just a shopping list and makes no mention of working from home. The Complainant accepted that she did not mention her disability or request that she be allowed work from home as a reasonable accommodation in the email of 7^thJanuary 2020.

It was put to the Complainant that there was no evidence that the Respondent knew of her disability, and she accepted that she had never formally told him or put it in writing. It was put to her that the office was compliant with HSE guidelines during the month of January. The Complainant stated that she was waiting to hear from the Respondent in respect of the list she had sent in.

The Complainant then mentioned a second phone call in the period 4^thto 7^thJanuary, but she could not remember exactly when that phone call was. It was her evidence that it was during that phone call that he told her that he could not facilitate her working from home. It was put to the Complainant that it will be the Respondent’s evidence that he had looked into all the office staff working from home, but it could not be facilitated and at the time the HSE guidelines provided for up to six people working in a hub and there was only three of them.

It was put to the Complainant that she had rang the Respondent on the 3^rdof February 2021 asked if everything was still quiet and then said, “will we leave it then” and that it was that conversation that triggered the email of the 5^thFebruary,2021. The Complainant stated initially that there was no phone call of the 3rd February 2021 but then stated that she might have rung him on that date. It was her belief that the Respondent sent that email because he did not want to implement the COVID guidelines. In respect of the delay of seven weeks in responding the Complainant accepted that she had commenced her new job on the 15^thFebruary and it was two days after that she had COVID.

The Court sought clarification in respect of when and how the Complainant was stating she was dismissed as her written submission was that she was dismissed by a phone call of the 3^rdFebruary 2021 and her oral evidence was that she was dismissed by email of the 5^thFebruary 2O21. The Complainant stated that she suffered from ‘brain fog’ which was linked to her disability and that sometimes her short-term memory was not great. She stated that she could not recall if she had rung the Respondent on the 3^rdof February but confirmed she was now stating that she was dismissed by email of the 5^thFebruary 2021.

Ms O Loughlin BL submitted that the Respondent was on notice of the Complainant’s disability at the operative time, he had not contacted her during the month of January and then had emailed her on the 5^thFebruary allegedly accepting her resignation, a resignation she had never tendered.

Summary of Respondent’s submission and evidence.

Ms Walsh on behalf of the Respondent submitted that Complainant was not discriminated against and at no time did she seek reasonable accommodation in respect of her disabilities. Mr Courtney in his evidence informed the Court that he owned and ran the company. It was his evidence that the Complainant initially worked 15 hours a week but after a few weeks she came to him to say that the work could not be done within that time, and she needed to work more hours to meet the demands of the job. The Complainant worked her own hours generally coming in about 9 and leaving from 12 onwards but generally no later than 3.00pm.

It was his evidence that while he was aware that she had some health issues she never discussed same with him, nor did she ever request reasonable accommodation. In December 2020 he had indicated to the Complainant that after Christmas the work would be quiet so she would have to go back to 15 hours a week. Mr Courtney disputed that this conversation about the toilet ever took place or that there was a need to have a discussion about the toilet. It was his evidence that there is only one toilet in the office, and it is designed to facilitate someone with a disability.

It was Mr Courtney’s evidence that he was well aware of the HSE guidelines around COVID and had ensured that the workplace including the trucks complied with same. He had looked at the office staff working from home but could not see how it would work. All the jobs needed to be physically recorded on the white board in the office and this could not be done remotely. He had investigated an electronic whiteboard but at the time it was not feasible. The Complainant’s last day in the office before the Christmas break was the 20^thDecember 2020. Everyone was due back in work on the 4^thJanuary 2020. The Complainant rang him on the 3^rdJanuary and asked if they were going back to work the next day, he confirmed that they were. It was his evidence that she seemed ok with that.

The Complainant did not come into work on the 4^thJanuary 2021 or make contact to say that she was not coming in, but sent an email on 7^thJanuary 2021 setting out what she felt the office needed in terms of office supplies to meet the HSE requirements. He did not respond to that email as that was not part of her duties and he was dealing with COVID issues. The Respondent had a lot of protocols in place, but it took until near the end of January to get the desk dividers in place. He had no contact from the Complainant, she dropped into the office briefly towards the end of January, but he did not talk to her as he was on the phone. It was his evidence that he received a phone call from her on the 3rd February where she asked about the workload. He stated that his response was that business was quiet, and she said she would call it a day he advised that it was up to her. It was his evidence that at that point in time, it was at least five weeks since she had been in the office. He then followed up with the email of the 5^thFebruary 2021. It was his evidence that he was completely surprised when he received an email from her at the end of March stating that she had not resigned.

Under cross examination it was put to Mr Courtney that he had said in evidence that her request to work from home could not be facilitated, therefore he was accepting that she had asked to work from home. Mr Courtney stated that she had mentioned working from home but had said it was because of the COVID numbers going up she had not stated that she was seeking a reasonable accommodation in respect of her disability. In response to a question as to why he had not responded to her email of the 7^thJanuary 2021, it was his evidence that she had not being asked to draw up the list, it was not part of her job and some of the things she identified were already in place and others were in the process of being put in place. Mr Courtney could offer no explanation for why he had not followed up with the Complainant when she had not shown up for work. He confirmed that she had not been paid for that period.

Ms Walsh submitted that the Complainant has not established that a dismissal had occurred. If as the Complainant alleges, she had not resigned, it would be reasonable to expect that she would contact the Respondent at the earliest opportunity to advise him of that. In this case the Complainant had waited seven weeks to contact the Respondent, and in the intervening period had taken up another job.

The applicable law

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

( b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

( b) that they are of different F15 [ civil status ] (in this Act referred to as “ the F15 [ civil status ] ground ”),

( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),

( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

( g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “ the disability ground”),

( h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “ the ground of race”),

( i) that one is a member of the Traveller community and the other is not (in this Act referred to as “ the Traveller community ground ”).

(2A) Without prejudice to the generality of subsections (1) and (2 , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Discussion and Determination

The Complainant alleges that she was discriminatorily dismissed because of her disability. In a claim of discrimination under the Act it is for the Complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the Respondent. There is a three-tiered test for establishing if the burden shifts to the Respondent which is often referred to as the “Mitchell” test.

It provides: -

• 
  1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.

  2) If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

  3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent,(Mitchell v Southern Health Board [2001] ELR 201)

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
02 February 2023	Deputy Chairman