ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042886
Parties:
| Complainant | Respondent |
Parties | Colin Kerwick | Kevin O'Leary (Clonmel) Limited |
Representatives |
| Una Clifford HR Nua |
Complaint:
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-00053316-001 | 17/10/2022 |
Date of Adjudication Hearing: 10/05/2023
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 confirm 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).
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. In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. No issue has been raised regarding the expiration date as this Complaint herein has been brought within the six months from the date of an alleged occurrence of discrimination.
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.
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 the 17th of October 2022) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that 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)). The Unlawful behaviour complained of includes failing to give reasonable accommodation for a disability, discrimination and victimisation.
The Operative Section 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 nature and extent of the Employer’s obligations, including 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.
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 shows 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 she or 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 which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.
The Labour Court (and indeed the WRC) approach to this issue and the test for applying section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201):
“..the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.
In Nevins, Murphy & Flood v Portroe Stevedores (EDA 051) the Labour Court held in adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite:-
“That since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden…. mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.
The Adjudicator must therefore determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of by the Complainant.
In the event that the Complainant is successful, it is open to me to make an award of compensation for the effects of the acts of discrimination and/or of the victimisation etc. 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), which 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”.
Background:
This matter was heard by way of a fully 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. 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 the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an oath or make an affirmation as may be appropriate. I confirm that I have in the circumstances asked witnesses to make Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence. |
Summary of Complainant’s Case:
The Complainant was not formally represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. In advance of the hearing the Complainant had provided a limited written narrative in the standard workplace relations complaint form (dated the 17th of October 2022). It was necessary to hear a fuller oral account of the breakdown of the employment relationship to fully understand the complaint being made under the Employment Equality Acts. There was little to no secondary evidence in the form of documents or corroborating witnesses provided by the Complainant. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was discriminated against in the course of his employment. It is accepted that the Complainant believes he was discriminated against on the grounds of his disability rather than his Gender (which was the ground incorrectly flagged in the workplace relations complaint form). In the circumstances I proceeded to hear this case as a claim for Discrimination on the Grounds of Disability. 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. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative but which had not been specifically particularised by this (unrepresented) Complainant. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing in the form of a third-party HR provider. I was provided with a comprehensive submission in advance of the hearing. A number of witnesses appeared on behalf of the Respondent including the Owner/Director Kevin O’Leary and the General Manager William Butler. In the end I only needed to hear from Mr. O’Leary who responded to the Complainant’s account. Mr. O’Leary gave his evidence on Affirmation. The Respondent rejects that there has been any Discrimination in this workplace. 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 listened to the evidence adduced in the course of this hearing. The Complainant had worked in the Respondent busy Motor Garage since 2019. The Complainant appeared to really enjoy his job there, and generally got on well with the close-knit staff. The Complainant worked in the valeting and advertising side of the business – getting cars ready for sale.
The three-year Employment spanned the period of time when the country was coping with the Covid Pandemic. It is well documented that the pandemic had a negative impact on many people in different ways. The Complainant alluded to general feelings of anxiety throughout this time. He confirmed that he had been vulnerable to these feelings of anxiety even before the pandemic, but it seems that this period brought on symptoms which would otherwise be mild.
For reasons that I did not feel it necessary to go into, the Complainant opted not to get vaccinated when the vaccination programme was being universally rolled out. The Complainant says that he was upfront about this in the workplace. I understand that the Complainant was not the only person opting to remain unvaccinated. However, the Complainant says that certain of the mechanics on the floor (of which there were four), were very vocal and snide in their open criticism of his choices. In his evidence the Complainant says that he was constantly being called out and ridiculed on his decision in a passive aggressive way but also directly. The Complainant says that this atmosphere which he described as toxic was very upsetting for him and worked to increase his anxiety levels.
I completely understand that at that time in the workplace it was difficult for the Complainant to fully articulate how this made him feel. He never challenged his would-be critics, and he never formally raised an issue with his line manager JL. However, in his evidence the Complainant says that he did discuss this matter and how he felt with his line Manager. Circumstances changed on the 29th of September 2022 when the Complainant put his car in for a full service which included a few tyre changeouts. The Complainant paid for this service as a regular customer might. When the car was returned to him, the Complainant noted that the wheel nuts had not been tightened and that there was a vibration in the car. The Complainant clearly believed that this was a malicious act on the part of the mechanics who had worked on his car that day. I cannot know either way whether this is true or not. It is a very serious allegation which if true could have had dire consequences. What I do recognise is the fact that the Complainant believed that the four mechanics disliked him sufficiently that they allowed him to go out on the open roads in a car that was faulty and where an accident might have been caused. That was the Complainant’s firmly held belief. The Complainant was sufficiently upset to make this known to JL (the Line Manager) who confronted the mechanics who were in turn furious in their defence of the work performed and in their reaction to the Complainant.
The Complainant said that the fallout resulted in a heightened state of anxiety for him. Whilst he had the ear of his line Manager and indeed, he confirmed that everyone who was not a mechanic was friendly with him he was being actively and obviously shunned in the workplace. A few days after this event the Complainant had a conversation with JL and the General Manager WB. Both men understood that the Complainant was being made to feel uncomfortable for having made the allegations he had. There was a full denial by the mechanics of the allegation made, and the Managers did not appear to know what they could do to sort out the situation. The advice to just get on with it hardly appears to have been a solution. To my mind Management ought properly have stepped in to Mediate or otherwise try and improve the Complainant’s situation where he was seemingly being picked on by a group of four.
For a few days the Complainant was allowed to feel like a social pariah within the workplace. By the few Mechanics involved, he was being treated as someone who had gone to management with a bare faced lie. There was a great deal of resentment towards him. He described having to ask another Manager to clock him in and out as he was fearful of being anywhere near the mechanics department. The Complainant stated in his evidence that he believed that the mechanics were generally higher up in terms of pecking order and that the Management team valued and needed their expertise and input over what the Complainant did. To this extent that Complainant felt undermined and undervalued. As against this, the Respondent evidence is that the Complainant was asked repeatedly if he was okay and if he wanted to bring a formal complaint against any of his would-be tormentors. The Respondent Management team had already concluded that it was the Complainant’s word against the word of each of the mechanics and that there was no way of reconciling the two. The Complainant was not told he should not raise a formal Grievance and that avenue was always open to him.
The Complainant states that his Line Manger knew that the complainant was liable to anxiety and depression type symptoms and had been on medication to keep symptoms in check for about ten years. However, the Complainant also concedes that he did not reference this issue in the course of this meeting held with his Line Manager and his Line Manager’s Manager. It seems that his periodic discussions with the Line Manager were held at a personal level as it is an issue that has touched the Line Manager personally too. The Complainant also confirms that he hadn’t necessarily made it known to his Management that he was having to go to great lengths to avoid the mechanics in their work area.
The Complainant continued to feel anxious nervous and unsupported. On the 5th of October (some six days after the faulty work had been carried out on his car) the Complainant did not come into the workplace and was certified for a two-week absence on work related stress.
The Complainant was contacted by the HR Consultant engaged by the Respondent and the Complainant found that conversation quite helpful. However, the Complainant believed he would never be able to face this workplace again and tendered his resignation. It is noted that his resignation was submitted after he had already issued a workplace relations complaint form on the 7th of October 2022 in which he alleges the discrimination on disability grounds. This is important insofar as it precludes me from looking at the suitability of considering the Complainant’s narrative as more correctly being brought under the Constructive Dismissal scenario as set out in the Unfair Dismissals legislation. It is not possible for me to look at an Unfair Dismissal claim where no Dismissal (Constructive or otherwise) had occurred at the time the complaint was lodged.
Mr. O’Leary gave evidence as the CEO of the Company. He indicated that he knew the complainant and deeply regretted the Complainant feeling the need to tender his resignation. Mr O’L confirmed that the company does not tolerate discrimination in any form and has robust policies. He denies that discrimination per the Acts has occurred and in particular states that there was no disability disclosed and no reasonable accommodation sought. He confirms that there are procedures for dealing with workplace tensions but none of these could be looked at as the Complainant had gone out sick and that made it difficult to initiate anything. The Resignation came in quickly after that.
On balance I accept that the complainant was made to feel deeply unhappy in this workplace. It is clear Management knew this and did little or nothing to ameliorate the situation when the whole issue blew up in the workplace over the level of service provided to the Complainant’s car. I can understand that the complainant may well have lost trust and faith with his Employer at this time.
However, I cannot find that the Complainant has made out a case of discrimination against his Employer. Whilst the Complainant may well have had mental health issues stemming back some time, this was not generally known to the Employer and nor did it have to be. After all, the Complainant had been a seemingly perfectly happy employee before the incident with the car. If the Complainant had raised the issue of the non-vaccination with JL prior to the end of September 2022, I believed it was more conversational than an actual raising of an issue. The Complainant liked JL and was at pains not to criticise him as he had been good friends with him. In any event, it seems to me that the issue with the car was a stand-alone issue which triggered a row in the workplace which escalated to a point that was unbearable to the Complainant. This was the primary reason for the resignation.
What this means is that whilst I can accept (though no actual corroborating evidence was produced on this point) that the Complainant had a disability as defined in the Acts he had sought no particular reasonable accommodation for this in the past or in the course of the last days before leaving the workplace. For the avoidance of doubt, the disability which might be described as heightened levels of anxiety for which medication was apparently being prescribed.
The Complainant has failed to make out a Prima facie case of discrimination.
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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-00053316-001 – The Complainant has not made out a Prima Facie case of discrimination and the case therefore fails.
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Dated: 29th June 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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